To Repair a Damaged Rape-Shield

By: Shruti Avinash


INTRODUCTION:

The verdict of the Additional Sessions Court in Tarun Tejpal v. State of Goa, wherein the Court acquitted the accused while casting aspersions on the un-victim-like behavior of the prosecutrix, has revived several debates on the inefficacy of India’s rape-shield laws. In the present case, the Sessions Judge admitted evidence which pertained to the past sexual experiences, the ‘flirtatious’ demeanor and the past sexual relationship of the prosecutrix with a defence witness.

Moreover, the defence, while evidencing ‘contradictions in the testimony of the prosecutrix,’ was permitted to place certain narratives on record which were wholly irrelevant to the case; the descriptions of which were nearly voyeuristic. The nature of statements admitted into evidence by the Judge, although ‘not for proving consent,’ were very likely to prejudice the interests of the prosecutrix, and were a latent variable in the acquittal of the accused. This incident has wide implications for the confidence that survivors place in the justice system. Although the prevention of sexual crime is a more necessary effort, this article accounts for the revictimisation of rape survivors.

UNDERSTANDING THE ‘RAPE-SHIELD’

Rape-shield laws across the world vary in their effects and pronouncements, with a common standard being that of protecting the integrity of the trial and not subjecting the victim to moral vilification. Admission of any evidence related to the sexual history of the victim/survivor is heavily discouraged and even barred in liberal jurisdictions. The primary justification for restrictions is that any such evidence draws from stereotypes and patriarchal notions in creating a bias against the victim, often leading to a mistrial and even re-traumatisation.

The system engaged in the prosecution of the rapist tends to close in on the victim/survivor and appraises itself of her sexuality instead. The victim is shrewdly questioned about her sexual antecedents, her partner(s), her views on premarital sex, her affinity to sexual activity and occupation. This affair is aggravated in those jurisdictions that have a stark public/private sphere divide for their treatment of women.

Indian women and girls, for one, are subjected to routine discrimination, internalised subordination and frequent molestation. It is only when certain transgressions take place, which are extraordinarily difficult to reconcile, that the legal process is set-off. Any vitiation in the rectitude of the prosecution is devastating to the rights of women and girls, usually resulting in the acquittal of the perpetrator and the humiliation of the victim/survivor.

INDIA’S EVIDENCE LAWS ON RAPE

While India inherited Section 155(4) of the Indian Evidence Act (1872) from the British colonial government, it eventually repealed the provision. Section 155(4) stated that,

‘If a man is prosecuted for rape or attempt to ravish, it may be shown that the prosecutrix was of generally immoral character’.

The Law Commission in its 84th Report (1980) recommended that Section 155(4) be repealed, which was done only in 2003. To provide a subtext, the Criminal Law (Amendment) Act 1983 was one prominent opportunity for the adoption of this recommendation.

In the aftermath of the Delhi Gangrape, due to the outrage expressed by civil society and feminist groups across the world and (prominently) in India, the legislature hurriedly passed the Criminal Law (Amendment) Act, 2013. This act amended the Indian Evidence Act 1872 (among other laws) and inserted Sections 53A, 114A and 146 for the appreciation of evidence in relation to sexual offences. This amendment is where India draws its rape-shield from.

Section 53A provides that the evidence of character or of previous sexual experience is not relevant in cases of prosecution under certain cases of rape (or attempt to rape) where the question of consent is in issue. Section 114A provides for the presumption of the absence of consent for certain prosecutions of rape. Section 146 makes irrelevant any questions pertaining to character or previous sexual experience posed in a cross-examination. These provisions are extremely important since they foreclose several apertures to victim-blaming and character assassination. This is not to say that these practices have been wiped out, but that these practices do not have the categorical endorsement of the Indian legal system.

AN ANATHEMA TO THE RULES OF EVIDENCE

The 2013 amendment was lauded as an ‘absolute rape-shield’, yet, in Tarun Tejpal it did not prove sufficient to prevent the Sessions Court from adducing the sexual experiences of the prosecutrix. The judgment was high-handed to the extent that it did not bother to redact information related to the victim’s identity, which is violative of the guidelines issued by the Supreme Court in the case of Nipun Saxena v. Union of India.

Moreover, the conversations that the prosecutrix allegedly had with the accused (which he referred to as ‘drunken banter’) is vulgarly reproduced in the judgment. This alleged exchange was volunteered by a certain defence witness (DW4). The objection of the prosecution to such a deposition was rejected (¶161) by the judge on the grounds that:

‘…the above provisions would not apply as the witness is deposing to the facts which are relevant to decide the main issue in question and do not pertain to proving consent or the character’.

Now in studying the rationale of the judge, it is difficult to say that these details pertain to the question of whether the offence took place. The allegedly ‘sexual/flirtatious’ conversations reproduced in the judgment were justified as not being within the ambit of Section 53A as the question of consent was not in issue. However, the statements were squarely within the meaning of portraying a ‘general immoral character’. Since the accused himself did not allude to any such details, the testimony of DW4 amounts to hearsay. It caused irreparable damage to the perception towards the prosecutrix while serving no other purpose in determining the guilt or innocence of the accused.

REINFORCING THE RAPE-SHIELD

Victim-blaming and presenting the victim as an especially promiscuous woman was, and maybe still is, a practice common in not just India and other developing nations, but was also extensive in developed nations like the United States and the United Kingdom. This tells us that the gender-divide necessary to buttress the portrayal of a promiscuous prosecutrix is present across the world, and only a little more pronounced in the developing nations.

However, as of today, the issue has been dealt with in detail by the west. The USA upholds Rule 412 of the Federal Rules of Evidence (hereinafter, ‘FRE’), which renders evidence inadmissible in cases of sexual misconduct if it is related to the victim’s sexual behavior or sexual predisposition. A similar provision is envisaged by the UK in Section 41 of the Youth Justice and Criminal Evidence Act 1999 (hereinafter ‘YJCE’) which makes evidence inadmissible in sexual offence cases if it is related to the sexual history of the victim.

Understandably, the scope of the terms ‘sexual behaviour’, ‘sexual predisposition’ and ‘sexual history’ is much wider than that of ‘previous sexual experience’. The term ‘experience’ does not afford protection to the victim if an Indian court decides to recount text messages, supposedly promiscuous conversations, flirtatious admissions and so on.

Further, Rule 412 (FRE) and Section 41 (YJCE) do not qualify the inadmissibility of the evidence; rather they qualify the admissibility of the evidence. The purpose of the evidence (whether for proving consent or not) is irrelevant in deciding its inadmissibility. This makes the prosecution of a rape-accused in the USA and the UK much more victim-centric. The admission of any such evidence is allowed only if it is aligned to the exceptions mentioned in the statute(s). For instance, in the YJCE Act, the exceptions are provided in subsection (3), for which Section 41(4) provides that:

‘For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.’

Notably, in the Tarun Tejpal case, the objectionable evidence related to the prosecutrix was adduced by the Court because it ‘contradicts facts which the prosecutrix had denied or suppressed other than her immoral character or consent’ (¶238). The sole purpose of such a testimony, if not for humiliating and creating bias, was for the purpose of declaring that the prosecutrix is an unreliable witness. Such an admission by the Court is in contradiction to the substance of justice that rape-shield laws warrant.

CONCLUSION

Whilst the Tarun Tejpal verdict has received criticism from women’s activists, lawyers and academicians on account of it being a much debated case of prominent persons, innumerable such verdicts are dealt out by the lower courts in the country on a daily basis. In India, the ‘character assassination’ of the victim is not an exception, but the norm. It is adopted as a go-to measure in building the defence of the accused, and is cunningly made admissible, as was demonstrated in the present case.

The act of ‘discrediting the testimony’ of the prosecutrix by describing her sexual relationships is a Trojan Horse. It is assuredly not the standard of rape-shield that the 2013 amendment aspired to. The justice system ought to envision a stronger rape-shield provision while keeping in mind the sanctity of the rape-shield in human rights-compliant jurisdictions.


(Shruti is a law undergraduate at NALSAR University of Law, Hyderabad. The author may be contacted via mail at shrutiavinash@nalsar.ac.in)

Cite as: Shruti Avinash, ‘To Repair a Damaged Rape-Shield’ (The RMLNLU Law Review Blog, 18 July 2021) <https://rmlnlulawreview.com/2021/07/18/india-rape-shield-laws/> date of access

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