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Chapter 3.7.3: Trial of Rape Cases

(December 2012)

Herein, I am trying to suggest certain measures that can be taken to expedite the rape/sexual assault proceedings and, more importantly, the measures that can be taken to bring in the certainty of results reflected in the larger number of genuine convictions.

Assumptions

1. The amendments in the IPC expanding the definition of rape to include sexual assault and making the offences gender neutral, is acceptable, and the same should be passed along with the appropriate consequential amendments in the procedural laws, including the law of evidence.

2. The long delays in the trial of sexual assault cases make the sexual assault victims amenable to compromise including to marriage with the perpetrators.

3. The criminal trial per se is offensive and injurious to the dignity of the victims irrespective of it being an in-camera trial.

4. The public prosecutors, in general, fail to protect the victims from the needlessly offensive and/or annoying and/or insulting and/or scandalous and/or indecent and/or unreasonable questions from the defense counsels.

5. A large number of false/trivial/motivated sexual assault cases are filed reflected in the large rate of acquittals.

6. The laws with respect to the conviction on the basis of the sole testimony of the victim, the irrelevance of the general “immoral” character of the victims, the irrelevance of the past instances of sexual transactions between the victim and the offender unless there is a prior written agreement for entering into sexual activities over a defined period in accordance with law (esp. in light of the expanded definition of rape to include sexual assault), etc, are desirable.

7. The sexual assault cases can be tried independently irrespective of the commission of other crimes in the same transaction.

Suggestions

Special Fast Track Courts and In-Camera Trial.

The need for fast track courts and in-camera trials is obvious. I don’t need to even elaborate on it, so I won’t.

Forensic Evidence

The forensic evidence, though not necessary, is always desirable in the sexual assault cases. The sexual assault cases, which are, by their very nature, devoid of independent eye-witnesses, require corroboration by forensic evidences. However, there is a catch: People may start creating videos of their sexual acts just to produce them in evidence, which obviously is a very serious concern; I don’t know how to take care of this problem, but the need for forensic evidence can’t be understated.

Private Prosecution

Sexual assaults are undoubtedly personal attacks; a sexual attack against a woman is considered as attacking her “Izzat” linked to her modesty and virginity and thus the public conscience; but, now, when the law is being made gender neutral, there is no occasion for attaching a false value to a woman’s sexual identity, and this, I think, is a positive development. Under these circumstances, there is also no occasion for imposing a responsibility upon the State to protect a woman’s “Izzat”. However, there is a definite need to provide state support in terms of legal help to those who need it or even to those who desire it for whatever reasons. As far as the collection of evidence is concerned, the state support is required more in terms of forensic testing than in collection of evidence per se (as per stats, in 92% of the cases, the perpetrator is known to the victim; even when the perpetrator is unknown, an enquiry can be conducted u/s 202 CrPC) in the sexual assault cases, especially when the statement of the victim per se is enough to lead to conviction. Ideally, a victim should approach the concerned magistrate, who should immediately take cognizance of the case u/s 190(a) CrPC and examine him and his witnesses u/s 200 CrPC (including the private medical report and/or forensic report, if any, but excluding the witnesses of the private medical examination and/or forensic testing), and the magistrate taking cognizance should have the power to issue commissions, and, if the need be, he should indeed issue commissions for the medical examination of the victim at this stage itself. Thereafter, the magistrate should immediately commit the case to the designated fast track court, where further proceedings, including those under section 202 CrPC, should take place. One big benefit of private prosecutions in the sexual assault cases would be at the trial stage because of the balancing of the positions resulting in a situation where the prosecution counsel can and will take relevant objections at the time of cross-examination of the victims; the lack of which, at present, is one of the main reasons for the low conviction rates in sexual assault cases.

Scientific Techniques

I know I am now entering a conflict zone. The SC has, more or less, put to rest the question of admissibility of evidence obtained from scientific techniques like Narco Analysis, Brain Mapping, Polygraph, etc: If involuntarily obtained, the evidence from these techniques is completely inadmissible, and, if voluntarily obtained, it is admissible only u/s 27 of the Indian Evidence Act; s. 27 applies only in the case of an accused persons, but not in the case of a witness, thus, the evidence of a witness obtained through scientific techniques is completely inadmissible. However, I feel, there can be no better use of scientific techniques than in sexual assault cases. It can not be doubted that there is a great likelihood of and a strong motivation to file false cases, especially under the pressure from the politicians. And, now, when the law would be made gender neutral, the motivation will increase further for obvious reasons. In such circumstances, it becomes but necessary to find some mechanism to test the veracity of the testimonies of the victims scientifically, ideally, before the issuance of processes. I think a compromise can be made: The voluntary scientific testing can be allowed, and the negative inferences can be drawn in suitable cases for refusal to volunteer for scientific tests.

Compensation Suit

The special fast track courts should have power to conduct parallel civil trials for compensation in all the cases of sexual assault; irrespective of whether a suit has been filed or not, the issues should be framed suo-moto on the basis of the facts of the case as soon as the parallel criminal trial starts, and the evidence should be allowed on the basis of the same. The fast track court should impose appropriate costs u/s 35 CPC, u/s 35A CPC, u/s 35B CPC, and u/s 151CPC during the trial and at the end of the trial — the power to impose cost is not available to the subordinate criminal courts as they don’t have any inherent powers. The civil trial should, in all cases, end along with the criminal trial. This, though not sufficient, may compensate some loss of dignity of the victims.

Collateral Issue (Criminal Law Amendment Bill)

I will forward my arguments with the help of a hypothetical testimony of a sexual assault victim:

I, Mr. X, went to watch the late night show of the “T” film with Ms. Y on Z day. After the show, I went to the residential apartment of Ms. Y. We started fondling each other sexually, and, in the process, took off our clothes. Ms. Y engaged in fellatio with me, as a result of which, my penis erected. At this point, Ms. Y held my erected penis in her hand and tried forcing it in her vagina, to which, I said NO; however, she didn’t stop and successfully forced me to enter into her vagina.

Under the assumptions made by me above, the above testimony per se, if proved, should lead to conviction. So, the only chance available to the defense is either to successfully attack the credibility of the victim or to create doubts by leading evidence in rebuttal. However, an interesting situation would arise when Ms. Y also files a similar complaint against Mr. X arising from the same transaction. Can the two trials be clubbed together in such a case? If yes, who should lead the evidence first? If not, should the other trial be stayed till the decision in the first trial? And should the decision in the first trial, if leading to conviction, act as res judicata in the second trial? I think these questions have not been answered in the Criminal Law (Amendment) Bill introduced in the Parliament. © 2012-2015 Ankur Mutreja