Sexual assault and digital evidence in India (Part 1): Is electronic data determining whether a woman has been raped or not?

In May 2021 a Trial Court in Goa acquitted journalist Tarun Tejpal of raping his younger colleague during a work event seven years prior. The judgment of 500 pages devotes hundreds of pages to defence arguments that the woman is a liar. Shockingly, the defence was allowed to access and rely on the contents of the woman's phone that are unconnected to the incident of rape. The judge uses this material to then conclude that this woman either could not have been raped or that she is fabricating the entire incident.

What stands out in this judgment is not the ease with which the courts can be convinced that women lie about rape, but the manner in which conversations and photographs from a woman's phone, spanning a period of two years before the rape and entirely irrelevant to it, are manoeuvred and deployed to undermine her experience of rape.

In the context of a growing public discourse on privacy, particularly digital privacy, the verdict highlights the ways in which a person's own electronic data and communication are increasingly deployed against them, by the state and with the state's participation.

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