The Predicate

Lost in the Indian media coverage of the reservations issue was a landmark ruling by the Indian Supreme Court. My views on this ruling are below.

From The Hindu:

The Supreme Court has held that the sole testimony and evidence of a rape victim is sufficient for the conviction of the accused. Her evidence does not require any corroboration including by a doctor, said a Bench consisting of Justices Arijit Pasayat and S.H. Kapadia.

"In a given case, even if the doctor, who examined the victim, does not find [any] sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix."

The Bench said, "in the normal course a victim of sexual assault does not like to disclose the offence even before her family members, much less before the public or the police. Indian women have a tendency to conceal such offence because it involves her prestige as well as the prestige of her family. Only in a few cases, the girl or the family members have the courage to go the police station and lodge a case."

The Bench said, "a prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime.

The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

So, the gist of the ruling is this: If the victim's background is credible, if there is no tangible reason to disbelieve her, then, if she says a person raped her, that person can be convicted just based on her testimony alone. i.e., even if there is no sign of rape. The SC has asked all the trial courts to take the victim's testimony as the truth and go ahead and convict the accused.

On the surface, the ruling seems to be a very positive one. Statistics show that rape is on the rise, and women more often than not, do not speak up. Due to social stigmas, and the judicial/police process itself, most women do not report a sex crime. As the court observed, rape is not only a violent physical act, but also damages the psyche of the victim for life. It looks like this ruling will encourage more women to come out and try to punish the persons who raped them. From what I read, the womens' organizations strongly welcomed the ruling.

That said, I don't think this was a right judgement. The potential for misuse is enormous. The traditional view that a woman will not lie about getting raped, and that if she says she was, then it should be true, is very questionable. In the legal world, I don't think such an assumption can be made by the courts.This is like saying, if you swear on the bible, you must be telling the truth. What next? If a woman accuses someone of forcing her to have sex in exchange of money, will the man be convicted for prostitution even if there is no evidence?

The reason that such a one-sided judgement raised my eyebrows is more because of the complex issues involved in a rape case. Yes, lots of cases are open and shut (no pun intended). i.e., there is clearly an aggressor, and there is clearly a victim. If the guy is a stranger, then it is simpler. But, the slippery slope in a scenario comes when it is not clear whether there was consent, or assumed consent. For e.g., the man and the woman might have been on a date, and one thing leads to another, and soon they find themselves in a position where there is a possibility of a sexual intercourse. In this case, if the woman changes her mind in the last minute and tries to get out of it, and if they still end up having sex, then it becomes questionable whether this was a rape. The way the courts would look at it till now, is to prove that she resisted it enough and that it was clear through medical evidence that the sex was not consentual. Scars, nail marks, evidence of forced entry, torn clothes etc. Now, what will happen if there was no evidence? The ruling will say that if the girl accuses him, then convict him, even though it is not clear whether it was rape or consentual. If you take a scenario where she didn't object much (she might have, but not forcefully physically), the man might have continued assuming that the resistance was also a part of the game, that it was consentual all the way through. What happens then? How do you define rape?

The case of Kobe Bryant comes into mind. If this ruling was applied, he would have been behind bars for life, not scoring 80 points in a game.

The Kobe Bryant case also brings up another question. What if the girl is a gold digger, and seeks out a wealthy celebrity, gets him in bed with him thinking that it was consentual, then turn around and accuse him of rape? Is it that much a far-fetched scenario? Heck, I can even visualize a Tehelka underground operation using this technique to expose politicians that they don't like. Good enough provision for blackmail.

Cases in which the victim and the accused are not strangers, but are well known to each other, or even relatives, are murkier. Family politics might come into play. A woman who has an extra-marital affair with some guy, if caught by the husband, can turn around and accuse her lover of raping her. Again, proving consent vis a vis non-consentual intercourse is a very slippery slope. The Supreme Court has ordered that the victim's name should not be disclosed. "Section 228-A of the Indian Penal Code makes disclosure of identity of the victim [of certain offences] punishable." Makes it even better for a person who wrongfully accuses. She doesn't need to worry about her name being sullied and her reputation questioned. Game, Set and Match!

There is another angle in this. Cases involving rape try to prove that a forced intercourse actually happened. At least, that is what I think the Indian system was doing. They would try to prove that there was an intercourse, and it was forced. Vaginal scars and other medical evidence of a violent entry. I think the Indian courts earlier didn't consider forced oral sex or anything other than an intercourse as rape! With this ruling, what is going to happen? Does this change? Is rape now being redefined from forced intercourse, to just a non-consentual sexual situation? That is a big change in definition. I am not sure what the precise legal definition is.

One can argue that all the scenarios and possibilities that I listed are just a small fraction of cases reported. In majority of the cases, the victim might just be telling the truth. In the broader context, this might bring down the number of rapes. I agree, but I think an interpretation of law should not be such that it will work only in a fraction of cases, however big that fraction can be. The ruling should be watertight so that an innocent man is not wrongfully convicted.