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Judging the Survivor

Rebecca Gonsalvez (rebecca.gonsalvez@gmail.com) is a lawyer practising at the Bombay High Court.

Is a woman’s testimony about experiencing sexual violence treated credibly in a court of law? Do social, casteist, and patriarchal notions overshadow the appraisal of her version of events and the evidence?

Many years ago, I attended a summer school on human rights at the University of Humanistics and Kosmopolis in Utrecht, the Netherlands. Two of my course-mates were lawyers from Iran, both women. I was appalled when they told me that for a woman to prove rape in Iran, she needed four male witnesses. The criminal justice system in India was far better, I thought then, since the Supreme Court had repeatedly held that to ask a rape victim for corroboration would amount to adding insult to injury. However, over time, I have realised that it is extremely difficult, if not impossible, for an adult woman to prove rape in India.

If an adult woman has alleged rape, at the outset, investigating agencies, lawyers, and courts immediately tend to look for material which would indicate that she was having a relationship with the accused, to check whether the medical examination reveals that she was raped and/or shows injuries on her body, and whether there is material to show that she resisted her assailant, physically and/or verbally. This, in spite of the fact that it is well settled that conviction can rest on the sole testimony of the survivor if it inspires confidence,1 that to ask a rape victim for corroboration is to add insult to injury,2 and that the absence of medical evidence cannot be the grounds for acquittal.3

Judged All the Way

The criminal justice system judges the survivor from the time she goes to the police station to register the first information report (FIR), until the conclusion of the case, and this process can completely drain and scar a person, emotionally, and psychologically. She would have to be extremely brave and resilient to withstand this process.

I was recently appointed by the Bombay High Court to represent a rape survivor, in a proceeding where the accused had applied for bail. She was a single mother, separated from her husband, living alone with her son in rural Maharashtra. She was from a Scheduled Caste while the accused who was from a higher caste had been stalking her for a long time. In 2014, he had entered her house and molested her, following which, out of fear, she and her son went to reside with her parents, who lived in another district. The accused, who had been arrested in the molestation case, was released on bail inter alia on the conditions that he not contact the survivor, and that he not commit any criminal offences. The survivor and her son returned to their home only in 2017. On one fateful night in January 2018, the accused entered her house and raped her. She and her son left for her parents’ house the following morning. They returned along with her parents two days later, and the FIR was registered by the survivor about four days after the incident. Consequently, the survivor was medically examined only then.

It is important to note here that it was neither her case, nor the case of the accused that they had been in a relationship. Her 13-year-old son who stayed with her had not stated so and neither had her parents. However, one of the survivor’s neighbours, and two friends of the accused had mentioned that the survivor and the accused had been in a relationship since 2014, and that the accused used to go to the house of the survivor. These statements had been recorded after much delay, and did not mention any basis for stating the same. The survivor had in her statement mentioned that the accused would threaten her to withdraw the case which she had filed against him in 2014, by calling her, meeting her, and going to her house.

Disbelieved

It was essentially the survivor’s word against the word of these three persons, ideally speaking an issue to be decided at trial, not warranting any observations at the stage of bail. There was no reason to disbelieve the survivor at this stage. In fact, considering that the accused had misused the liberty granted to him in 2014, the state ought to have applied for cancellation of bail. On reading the statements of these three witnesses, the judges were convinced about the existence of a relationship between the survivor and the victim, even though the survivor had herself not stated so, and in spite of material to the contrary, which showed that the survivor had been repeatedly harassed by the accused, and had left her house to reside with her parents in another district between 2014 and 2017 precisely because of this harassment. The existence of a relationship had not been raised as the grounds for bail by the accused. However, considering the material on the point of the “relationship” between the survivor and the accused, and the fact that the medical examination had not revealed rape, the accused was granted bail.

The question in my mind was why the court was so quick to discard the survivor’s statement, and in effect judge her to be a liar at this preliminary stage. She had clearly and unequivocally alleged sexual intercourse against her will and without her consent. The absence of consent is what defines rape. Even if the survivor was in a relationship with the accused, she could have been raped by him. Marital rape between a husband and wife residing together may not be an offence in India, but merely because a man and a woman have a relationship, one cannot presume that sexual intercourse between them always takes place with the consent of the woman. In a vast number of cases, rape and sexual abuse occur within families, relationships and social circles, where the offender is known to the victim. One cannot in any case of rape presume consent, merely because of the previous history, if any, between the survivor and the offender.

Section 114-A was inserted in the Indian Evidence Act in 1983 to incorporate a presumption in certain cases of rape, to the effect that where sexual intercourse by the accused is proved, and the question is whether it was without the consent of the woman, and the woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Section 53–A was inserted in the Indian Evidence Act in 2013, and amended in 2018. As per this section, in a prosecution for rape or attempt to commit rape, where the question of consent is in issue, the evidence of the character of the victim, or of her previous sexual experience with any person will not be relevant on the issue of consent, or the quality of consent.

In 1992, Bhanwari Devi, a sathin (village-level worker) in the Women’s Development Programme run by the Government of Rajasthan, and a Kumhar, which is a lower caste, was gang-raped by five men belonging to the upper-caste Gujjar community for working to stop child marriages. Despite her efforts, she was medically examined more than 48 hours after the rape, as the doctors refused to examine her for sexual assault for various reasons. After three years, a sessions court in Jaipur acquitted the men on grounds that appear to be socioculturally steeped in caste and patriarchal notions. The judgment said inter alia that a member of an upper caste could not have raped a woman of a lower caste owing to reasons associated with purity, that it was improbable that Bhanwari Devi’s husband had stood by and passively watched his wife being raped, and that a middle-aged man could not have raped a woman in the presence of his nephew (the co-accused).

The Mathura rape case too shows how a woman’s word is treated. The young girl was raped by a police constable in Desai Gunj police station in 1972. The details of the case have been widely reported and documented. The sessions court while acquitting the accused policemen, called her a “shocking liar” and observed that her testimony was “riddled with falsehood and improbabilities.” The Bombay High Court set aside the order of acquittal of the accused, and convicted them of the offences of rape and outraging the modesty of a woman, sentencing them to jail and holding that Mathura had been raped. The accused filed an appeal in the Supreme Court, which acquitted them, concluding that the sexual intercourse in question did not amount to rape, that since no injuries were found on the person of Mathura the intercourse was “a peaceful affair,” the “story” of the survivor having resisted was false, that she allowed him to “have his way with her to the extent of satisfying his lust in full.” Her averments that she shouted for help were termed as a “tissue of lies” and “concoction” on her part.4

Who Is the Accused?

Mathura was judged by three courts, and called a liar by two of them. Though it was the accused who were on trial, the courts were judging the survivor.

In other countries too, the situation does not seem very different. Italy’s highest court, the Supreme Court of Cassation, recently overturned a verdict of acquittal of an appeals court in Ancona which had consisted of a panel of three female judges, in a rape case. The trial court had convicted the two accused. However, the appeals court accepted the argument of the defence that the woman was too “masculine” to be raped after looking at a photograph of her, and even noted that one of the accused did not even like the woman and had stored her number under the name “Viking,” thereby alluding to her “masculinity.” The conclusion of the appeals court, in short, was that the woman was too unattractive to be raped. The Supreme Court of Cassation has ordered a retrial in the case.5

Ultimately, what we see is the total disparagement of the woman’s statements not based on evidence, as much as on patriarchal, casteist, and gender prejudices. Rather than looking at survivors in rape cases with suspicion and doubt, courts must recognise and uphold the right of a woman to refuse sexual intercourse, which is part of her valuable right to life and personal liberty, and her freedom of choice, and give due weight to her word.

Notes

1 Judgment dated 28 November 2018 passed by the Supreme Court in State of Himachal Pradesh v Manga Singh, Criminal Appeal No 1481/2018.

2 State of Punjab v Gurmit Singh (1996), 2 SCC 384; Rajinder v State of HP (2009) 16 SCC 69; Aslam v State of UP (2014) 13 SCC 350.

3 Mukesh v State of Chhattisgarh (2014) 10 SCC 327; Moti Lal v State of MP (2008) 11 SCC 20.

4 Tukaram & Anr v State of Maharashtra (1979) 2 SCC 143.

5 https://www.theguardian.com/world/2019/mar/11/men-acquitted-of-charges-because-victim-judged-too-masculine.

https://www.washingtonpost.com/world/2019/03/12/female-panel-judges-italy-decided-woman-was-too-masculine-be-raped/?utm_term=.e7f9e9b27137.

Updated On : 7th Apr, 2019

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