This article has been written by Ms. Aditi Mishra, a 4th Year B.Com. LLB (Hons.) student from Institute of Law, Nirma University.
A woman who ‘cries rape’, strongly expresses her pain – “such overacting, she might be lying”; A woman who abstains from crying, calmly reports the sexual violence – “so normal, she might be lying”; A woman who gets delayed in reporting rape – “what took so long, she might be lying”; A woman who promptly reports rape – “so quick, suspicious, she might be lying” …and it goes on. We live in a society where women, when become victims to rape, are suspected and disbelieved, no matter what, when instead they should be heard, believed and supported.
Rape is an unlawful sexual activity, most often involving sexual intercourse, against the will of the victim through force or threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness, or deception. Rape is a horrific crime committed everyday across the globe, but India still manages to dominate headlines. Both cultural as well as legal obstacles stand in the way of any real progress in this regard. From cultural misogynistic attitudes to weak legislative frameworks regarding the prosecution of perpetrators of sexual violence, they become hindrances. Let aside the societal attitudes, at least the law should be capable enough to help curb this heinous crime. Attempts to address such issues of rape through amendments in evidence law and substantive criminal law have met with questionable success.
It would not be wrong to say that rape trials victimise the rape survivors by subjecting her to some tormenting experiences, like medico-legal examinations, harassment by the police, very disturbing cross-examinations, questioning of her character, and what not. In order to make this process a little less painful for the victim females, several efforts have been over decades, like amendments in The Evidence Act and the Criminal Law Statutes. This began in 1983, after the Mathura gang-rape case, and then on amendments kept on happening from time to time, with the recent one being the aftermath of the 2013 Delhi gang-rape case. There have been reforms brought about as a part of ‘rape shield legislations’ and making the character evidence of the rape victim irrelevant is also one of them. But looks like as if this has not been implemented that well and is still an issue in the rape trials leading to unnecessary harassment of the Prosecutrix during the trial.
History
The character of the Prosecutrix was used in two situations. Firstly, when ‘consent’ was in question, then her previous sexual history was used to suggest that since she generally consents to sexual intercourse, she would have done that with the accused as well. So, it was used in a way that women habitual to sexual intercourse were likely to give their consent for the same. Such submission was made under Section 155 (4) of the Indian Evidence Act, 1872 showing the immoral character of the Prosecutrix. Secondly, it was used during cross-examination to suggest that a woman habitual of sexual intercourse will not have any moral inhibitions to lying. Since, the Prosecutrix is also a Witness in her own case, Section 146 (3) of the Indian Evidence Act was used to discredit the entire testimony of the Prosecutrix by injuring her character.
Amendments
Exploiting these provisions, the accused really tried to prove that the act was consensual and that since the Prosecutrix was a woman of loose character and chaste, so her testimony should be discredited. Then, in 1980, the Law Commission of India in its 84th Report made recommendations so as to make the evidence regarding the character and past sexual history of the Prosecutrix irrelevant in rape trials. It was stated that even if the prosecutrix was of easy virtue/unchaste woman, it cannot be a determinative factor in the trial.
Now, the Indian Legislation failed in implementing these suggestions immediately. But the Courts started recognizing these principles through their judgements in different cases. An example of the same can be found in the case of State of Haryana vs Rem Chand. It was a 1990 judgement wherein the Court stated that the character or reputation of the victim was irrelevant in adjudging the guilt or punishment of the accused.
Later, in 2003, finally the Legislature acted upon those recommendations by the Law Commission and as a result, Section 155 (4) of the Indian Evidence Act was repealed, which was the provision that allowed using character evidence to imply consent. Then on, the Court recognized this principle and stopped entertaining any of the accused’s arguments questioning the character of the victim unless that was itself in issue. Also, a proviso was added to Section 146 of the Indian Evidence Act stating that “the general character of the Prosecutrix as a witness, cannot be questioned during cross-examination.”
Some landmark judgements regarding this are – State of U.P. vs Pappu Yunus & Anr. (2005); Narendra Kumar vs State (NCT of Delhi) (2012); and many more.
Then on, in 2013, as an aftermath of the Nirbhaya Rape Case, another amendment was made in the Indian Evidence Act with the insertion of Section 53A, which made character evidence irrelevant on the issue of consent or the quality of consent altogether. However, another amendment was also made to the proviso of Section 146 providing that “questions as to the general immoral character of the victim cannot be put into question…when consent is in issue.”
Current Situation
Even despite the various legislative reforms brought about, the character of the Prosecutrix continues to be routinely adduced and the victim is tried to be proved to be of an immoral character thus implying the presence of her consent. And this still happens because of the shabby draftsmanship of the provisions as the express bar against the use of character witness was only limited to the situations wherein the character of the Prosecutrix, as a witness during cross-examination, was in question. There is still no express prohibition in place against using character evidence to prove consent. Even the amendment brought in the proviso of Section 146 after the 2013 case did not make things any better. The earlier proviso barred the character questions of the Prosecutrix altogether, but the protection provided by the new proviso stands to be too narrow and extends only to the cross-examination on the issue of consent. The provisions in this regard, as they stand currently, gives the possibility to the accused to use the character evidence to discredit the entire testimony of the witness. Thus, it ultimately goes on to the Judges presiding over rape trials to not let character evidence or questions to be posed and that the sentencing is not influenced by the character or past sexual history of the Prosecutrix.
Conclusion
It is just simply WRONG to assume that a female witness is less likely to tell the truth when she has a generally immoral character. Character evidence of the Prosecutrix is IRRELEVANT in rape trials and the law should be clearer upon that. While in some specific cases, maybe the past sexual history of the victim is relevant in some way, but that is not the case every time. And it should not be forgotten that it is the accused who is at trial, and no the Prosecutrix. It is the duty of the Court to ensure that a rape trial does not become a means of harassment for the Prosecutrix, leading to her humiliation.
The Indian Legislature should take inspiration from the English Law in this regard as it completely bars any character evidence of the Prosecutrix in a rape trail. India is in dire need of an express provision just like this. This is an important step to take in order to make this society a little better for the women of this country!
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