Why scrutiny of survivor’s sexual history in rape trials, as in Tarun Tejpal case, infringes on her right to fair trial

While issuing notice in the Goa government’s appeal against the judgment, the Goa bench of the Bombay High Court remarked, with some sarcasm, that “the judgment appears to provide a manual on how rape victims should behave”.

Over the last 40-odd years, the Supreme Court and the legislature have introduced a slew of measures designed to limit the relevance of a rape survivor’s past sexual history in rape trials. Nevertheless, gender-based stereotypes still come into play, most recently in the Tarun Tejpal rape case, where a Goa sessions court referred to the survivor’s sexual history in graphic detail while acquitting Tejpal. While issuing notice in the Goa government’s appeal against the judgment, the Goa bench of the Bombay High Court remarked, with some sarcasm, that “the judgment appears to provide a manual on how rape victims should behave”.

The court is right to be concerned. Rape accusations are serious, and the right of the accused to a fair trial, raising all possible defences, ought to be protected. But justice is not served if acquittals are based on stereotypes about rape survivors and their past sexual history, rather than the prosecution’s failure to prove its case beyond reasonable doubt. Instead, as studies show, stereotypes about rape survivors lead to acquittals and, where the accused is convicted, disparate sentencing in rape cases. As part of the Constitution’s promise of equality, Article 15 prohibits the state from discriminating against citizens based on stereotypes related to their sex and gender. State discrimination based on stereotypes also violates Article 14’s guarantee of equality before law and the equal protection of laws.

Earlier this year, in Aparna Bhat & Ors. v State of Madhya Pradesh & Anr., the Supreme Court warned of the dangers of stereotyping rape survivors. “Rape myths”, the court found, include “stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc.” Whether the survivor consented to similar acts in the past or behaved in a manner unbecoming of chaste or “Indian” women should be irrelevant, the court held, and directed courts not to doubt a woman’s testimony merely because she was sexually active.

Two basic issues arise in a rape trial: One, did sexual intercourse take place, and two, did the woman consent? A rape survivor’s past sexual history used to be admissible under Section 155(4) of the Indian Evidence Act, under which a rape accused could show that the rape survivor was of “generally immoral character”, and, therefore, argue that she consented to the sexual acts. Past sexual history was used to imply that the survivor was “loose” or “immoral” and hence not a trustworthy witness. The section was deleted in 2003 following recommendations in the Law Commission of India’s 172nd report, but still casts its shadow over rape trials. Past sexual history was also introduced in rape trials by way of the so-called “two-finger test”, which doctors used to determine whether the survivor was “habituated to sexual intercourse”, a stock phrase found in medical reports.

The move to exclude past sexual history was triggered by the Mathura rape case (Tukaram v Maharashtra, 1979), where the Supreme Court acquitted two policemen accused of raping Mathura, a 14-year-old Adivasi girl, in a police station. Finding that she was “habituated to sexual intercourse”, the court characterised her evidence as “a tissue of lies”. The outcry following the Mathura case led to the introduction of Section 114-A of the Evidence Act, which applied in aggravated rape cases where the accused was a police officer or member of the armed forces, for example, or a person in a position of control or dominance over a woman. Once the sexual act was proved and the survivor said she had not consented, the burden of proof shifted to the accused to prove consent.

In 1996, in Punjab v Gurmit Singh, the Supreme Court cautioned courts against making observations about the rape survivor’s character, holding that a woman who was sexually active could still refuse to consent. In 2013, the JS Verma Committee, constituted after the Delhi 2012 rape case, recommended that a prior relationship between the accused and the victim should be irrelevant while deciding whether the victim consented. Later that year, the Supreme Court held that the two-finger test violated the survivor’s right to privacy and dignity (Lillu v. Haryana, 2013).

The Criminal Law (Amendment) Act, 2013 incorporated many of these judgments and recommendations into statutory law. Section 53A of the Evidence Act now bars courts from relying on “evidence of the character of the victim or of such person’s previous sexual experience with any person” to decide questions of consent in sexual assault cases. The 2013 Act also amended Section 146 so that a rape survivor cannot be asked questions about her “general immoral character” or “previous sexual experience” to prove consent.

The 2013 amendments also introduced mandatory minimum sentences of seven years imprisonment for rape (increased in 2018 to 10 years) and 10 years for aggravated rape. Rape carried a minimum sentence before the amendment as well, but judges could impose a sentence lower than the minimum if they found adequate and special reasons to do so.

It was thought that removing judicial discretion would make sentencing in rape cases more uniform. However, studies show that conviction rates in rape cases fell after the 2013 amendment. In a review of 1,635 rape judgments passed by Delhi trial courts between 2013 and 2018, legal scholar Preeti Pratishruti Dash shows that the conviction rate fell from 16.11 per cent under the old law to 5.72 per cent under the new rape law, attributing this drop to the mandatory minimum sentences introduced under the 2013 amendment. Overall, she notes, the conviction rate for crimes against women is 19 per cent compared to 47 per cent for all crimes. In analysing the reasons for rape acquittals, Dash finds that in 29.06 per cent of acquittals under the old law and 23.8 per cent under the 2013 amendment, the trial court acquitted the accused because they found the survivor’s testimony was unreliable and did not inspire confidence. In the cases Dash examined, survivors were disbelieved because of “inconsistent statements at various stages of the trial, failure to disclose details of the incident to anybody, delay in registering the complaint, the survivor’s conduct before and after the rape.”

In Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, Mrinal Satish finds that rape stereotypes also lead to divergent outcomes in sentencing. Higher sentences were imposed in cases where the two-finger test concluded that the survivor was sexually active, where the survivor was unmarried, and if she was raped by a stranger rather than a relative, neighbour, or romantic partner. In a fascinating account, Satish attributes the persistence of rape stereotypes in part to classic medical forensic textbooks widely relied upon by courts. These textbooks, he notes, make class and gender stereotypes, quoting the ubiquitous Modi’s Medical Jurisprudence and Toxicology as stating that a “labour class” woman “accustomed to hard and rough work, will be able to deal blows on her assailant, and will thus succeed in frustrating his attempts at violation. On the contrary, a woman belonging to a middle-class or rich family, might not be able to resist for long, and might soon faint or be rendered powerless from fright or exhaustion”.

In the final analysis, rape stereotypes and reliance on past sexual history are damaging not only for rape survivors, but for the criminal justice system. The right to a fair trial under Article 21 mandates that cases should be decided on facts and not stereotypes. If the prosecution fails to prove its case beyond reasonable doubt, then justice demands the accused be acquitted. But acquittals based on stereotypes vitiate the faith of the public in the criminal justice system.

This article first appeared in the print edition on June 5, 2021, under the title ‘Putting the victim on trial’. The writer is a lawyer based in Delhi.

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