Today while going through the various dailies I came across an article about the Delhi Special Court disallowing questions about a rape victims sexual history. This was in the proceedings of the Delhi Gang Rape case. The piece can be accessed here.
This piece seems to bring out an important question to my mind, as to what is the legal relevance of a rape victim's previous sexual activity, in a rape trial. The 2013 Criminal Law Amendment, clearly states that a woman's prior sexual history will not be looked at while determining the question of consent. It should be noted that till 2003 the Indian Evidence Act, allowed the raising of a woman's prior sexual history to question her credit-worthiness. The repeal of section 155(4) in 2003 disallowed it, and this when combined with the 2013 amendments clearly suggest that the Courts should not under any circumstances and in any form give credence to prior sexual history of an alleged rape victim, in the rape trial.
It is important to note that even after the 2003 amendment, the medical reports continued to mention the results of the two finger test and the moral judgments thereon. This is a practice that is continued till this day. Thus, though the law disallowed the usage of prior sexual history, it came in through a back door.
So the question rises that even though there is a definite movement towards de-linking of a rape trial from the sexual history of the alleged victim, why is it still being used in the Courts.
Let us try and look at this issue from the standpoint of the two important stake holders, the bar and the bench.
Firstly, let us look at the issue from the perspective of a defense lawyer. The chief aim of a defense counsel is to use all possible legal arguments to save his client or at least ensure the minimum possible sentence. It is a known fact that the Indian society and therefore its judiciary tends to blame the victim in cases of rape or sexual assault. Thinking from the standpoint of a defense counsel, if proving that the alleged rape victim (especially if not married) is habituated to sexual activities leads to either acquittal or minimal sentence, it is his duty to prove the same. Some people might want to murder me at this point, and some would like to argue that this practice is unethical. For the first group I am not saying this is the best thing to do, but our Constitution itself provides that every person shall have a right to legal aid, and I guess a rape perpetrator is also protected under our Constitution. For the second group, yes I agree it is an unethical or rather an immoral thing to do. But, then it is also unethical for a lawyer to let his moral or ethical standards, affect the case of his client. So, for a defense counsel every rape case is a moral and ethical conundrum, and the only way out seems to be not accepting such cases. But, then what happens to the inherent right of a fair trial and legal aid that every citizen of India is entitled to. It can also be argued that, the lawyers should take a stand as a group and not use the sexual history of the victim as a defense tactic. This is even more problematic. It is so because arguing for the defendant is an art, and this art is in a lot of cases is dependent on using the flaws in the system. So, if such a limitation is applied, it would be akin to a handicapped match, and it somehow doesn't seem to be in congruence with our Constitutional scheme. The only place where in my understanding defense counsels should be reprimanded is if they are harassing the victim or are cooking up facts to support their claims. In such cases the strictest action should be taken against the erring lawyers. But, in other cases, its my humble opinion, that putting an artificial limitation on defense counsels, is not something that should be acceptable to either our constitutional scheme or the rule of law society that we claim to be.
I would like to highlight at this point that during the Jessica Lall murder trials, similar arguments about the moral standing of the victim were raised by Mr. Jethmalani. This was met by a wide spread societal disgust. In my humble opinion at the end of the day Mr. Jethmalani was just doing his job, and working a system, which is out there to be worked. So basically, why blame the player, when, the game itself is crooked.
Now moving on to the Bench and its standpoint on this issue. The Bench is not separate from the society it sits in judgment upon. The Bench is made up of people from the same society. This means that judges are also privy to the same faults as the rest of the society. This I think explains why even after the 2003 amendment, the Courts accepted the sexual history argument from the backdoor. This was so because in the eyes of our society and therefore its judges, the credibility of a sexually active women is doubtful in rape trials. This axiom seems to be dependent on a false understanding of the term consent in case of rape or sexual assault. This though an interesting area of discussion is outside the scope of this present piece, and will be dealt later. Thus, the Bench, will always be privy to giving acquittals or lighter sentences on the basis of prior sexual history of the victim. There are notable exceptions in the bench, but by and large especially in the lower judiciary this seems to be the trend.
So, by now I am sure you must be asking yourself, where am I leading you with this piece. I am basically arguing that the Bar can't be held responsible for either the state of things nor as a failing agent of change, and that the Bench is an extension of the society, so unless the societal perception of rape, consent, and associated concepts change, the Bench will continue to give credence to past sexual history. Well true, but there is a third stake holder the law maker, who can be seen as the game changer.
It is important to note that even after the 2003 amendment, the medical reports continued to mention the results of the two finger test and the moral judgments thereon. This is a practice that is continued till this day. Thus, though the law disallowed the usage of prior sexual history, it came in through a back door.
So the question rises that even though there is a definite movement towards de-linking of a rape trial from the sexual history of the alleged victim, why is it still being used in the Courts.
Let us try and look at this issue from the standpoint of the two important stake holders, the bar and the bench.
Firstly, let us look at the issue from the perspective of a defense lawyer. The chief aim of a defense counsel is to use all possible legal arguments to save his client or at least ensure the minimum possible sentence. It is a known fact that the Indian society and therefore its judiciary tends to blame the victim in cases of rape or sexual assault. Thinking from the standpoint of a defense counsel, if proving that the alleged rape victim (especially if not married) is habituated to sexual activities leads to either acquittal or minimal sentence, it is his duty to prove the same. Some people might want to murder me at this point, and some would like to argue that this practice is unethical. For the first group I am not saying this is the best thing to do, but our Constitution itself provides that every person shall have a right to legal aid, and I guess a rape perpetrator is also protected under our Constitution. For the second group, yes I agree it is an unethical or rather an immoral thing to do. But, then it is also unethical for a lawyer to let his moral or ethical standards, affect the case of his client. So, for a defense counsel every rape case is a moral and ethical conundrum, and the only way out seems to be not accepting such cases. But, then what happens to the inherent right of a fair trial and legal aid that every citizen of India is entitled to. It can also be argued that, the lawyers should take a stand as a group and not use the sexual history of the victim as a defense tactic. This is even more problematic. It is so because arguing for the defendant is an art, and this art is in a lot of cases is dependent on using the flaws in the system. So, if such a limitation is applied, it would be akin to a handicapped match, and it somehow doesn't seem to be in congruence with our Constitutional scheme. The only place where in my understanding defense counsels should be reprimanded is if they are harassing the victim or are cooking up facts to support their claims. In such cases the strictest action should be taken against the erring lawyers. But, in other cases, its my humble opinion, that putting an artificial limitation on defense counsels, is not something that should be acceptable to either our constitutional scheme or the rule of law society that we claim to be.
I would like to highlight at this point that during the Jessica Lall murder trials, similar arguments about the moral standing of the victim were raised by Mr. Jethmalani. This was met by a wide spread societal disgust. In my humble opinion at the end of the day Mr. Jethmalani was just doing his job, and working a system, which is out there to be worked. So basically, why blame the player, when, the game itself is crooked.
Now moving on to the Bench and its standpoint on this issue. The Bench is not separate from the society it sits in judgment upon. The Bench is made up of people from the same society. This means that judges are also privy to the same faults as the rest of the society. This I think explains why even after the 2003 amendment, the Courts accepted the sexual history argument from the backdoor. This was so because in the eyes of our society and therefore its judges, the credibility of a sexually active women is doubtful in rape trials. This axiom seems to be dependent on a false understanding of the term consent in case of rape or sexual assault. This though an interesting area of discussion is outside the scope of this present piece, and will be dealt later. Thus, the Bench, will always be privy to giving acquittals or lighter sentences on the basis of prior sexual history of the victim. There are notable exceptions in the bench, but by and large especially in the lower judiciary this seems to be the trend.
So, by now I am sure you must be asking yourself, where am I leading you with this piece. I am basically arguing that the Bar can't be held responsible for either the state of things nor as a failing agent of change, and that the Bench is an extension of the society, so unless the societal perception of rape, consent, and associated concepts change, the Bench will continue to give credence to past sexual history. Well true, but there is a third stake holder the law maker, who can be seen as the game changer.
Herein are a few suggestions as to how the law can be changed, for eradicating this menace, once and for all.
- Firstly, the law should disallow any medical tests or statements in the medical report, which can be used to verify the sexual history of the victim. To ensure the the efficiency of this, the medical fraternity should be made responsible if any such statement is found in the reports, or any such test is performed.
- Secondly, there should be a penal prohibition on questions being raised during the cross - examination, about any prior sexual activity, except, the alleged act of rape.
- Thirdly, it should be made mandatory on the judiciary to provide properly reasoned orders, for sentencing and/or acquittals in rape cases.
- Lastly, an accreditation process should be instituted for rape trials, which would measure the performance of various judges on a set of parameters towards ensuring fair rape trials. This process should be given weightage in promotions of judges, to make it more potent.
Though, some of these measures, might seem to be giving impractical, but looking at the increasing menace of rape in our society, it seems relevant and important, to give it our all in fighting this menace.
- Secondly, there should be a penal prohibition on questions being raised during the cross - examination, about any prior sexual activity, except, the alleged act of rape.
- Thirdly, it should be made mandatory on the judiciary to provide properly reasoned orders, for sentencing and/or acquittals in rape cases.
- Lastly, an accreditation process should be instituted for rape trials, which would measure the performance of various judges on a set of parameters towards ensuring fair rape trials. This process should be given weightage in promotions of judges, to make it more potent.
Though, some of these measures, might seem to be giving impractical, but looking at the increasing menace of rape in our society, it seems relevant and important, to give it our all in fighting this menace.
Thus, we have looked at the issue of linking of prior sexual history of the victim to rape trials. To conclude, I would like to state that, instead of waiting for a bottom's up approach towards reform from the Bar, we should focus on a top down approach, of reforming the judiciary, and making it nonviable and inefficient for counsels to use such arguments in rape trials.
