In a recent case, Tarun Tejpal, the owner and former editor-in-chief of Tehelka Magazine, has been accused of sexually assaulting a journalist of the magazine in an elevator. The accused was acquitted by the Goa trial court, which stated that the complainant’s sexual history was irrelevant to the current case. However, a review of the judgment reveals that allegations about her past were constantly employed under the garb of verifying the authenticity of her claims.
The author through this article aims to elucidate how the trial court of Goa has severely violated the ‘rape shield law’, guaranteed to the victims of rape, directly and indirectly, throughout the trial. The author further emphasizes the question that ‘why is the trial court’s perspective and judgment so significant in rape trials when the provision to further appeal already exists?’.
Disregarding the Rape Shield: A Giant Leap Backwards
‘Rape Shield Law’ prohibits inquiring about a victim’s past sexual morality or behavior. These regulations also make it illegal to publish the victim’s personal information. The failure to apply a rape shield statute infringes a woman’s right to privacy by exposing her personal life to the public during a rape trial.
Following the gang-rape case of Jyoti Singh in 2012, the Centre adopted the Criminal Law (Amendment) Act, 2013 to strengthen India’s sexual assault legislation. The Indian Evidence Act was amended in 2013 to include Section 53A, which deems evidence regarding the victim’s character and previous sexual behavior as irrelevant in establishing consent in certain criminal offences, such as rape.
The 2013 law also changed section 146 of the Evidence Act to make it illegal to use evidence or cross-examination questions in rape proceedings to describe a victim’s previous sexual experience. It’s important to note that the Indian Evidence Act includes an ‘absolute’ rape shield without specifying the situations when the rape shield would not be applicable.
In the case at hand, there was a gross violation of rape shield laws by the trial court during the proceedings, firstly, by directly character assassinating the victim by using her WhatsApp chats and emails. Secondly, indirectly by the sole reliance on a loose witness claim and erroneous circumstantial evidence that was ultimately used to erode the prosecutrix’s character.
The personal WhatsApp chats of the victim with third parties who weren’t even involved in the incident in any manner were scrutinized to establish the fact that ‘it was entirely the norm for the prosecutrix to have such flirtatious and sexual conversation with friends and acquaintances.’
Therefore, according to the court, the WhatsApp chat of the prosecutrix and her propensity to indulge in sexual conversation with friends and acquaintances, as well as her admission that the accused was talking about sex proves that the accused and the prosecutrix had a flirtatious conversation on the night of the assault.
The court, by focusing majorly on the character of the victim somehow wanted to establish that act was consensual, thereby depriving the prosecutrix of the right guaranteed to her under 114-A of Indian Evidence that states the presumption of absence of consent in rape cases.
The prosecutrix being a journalist, was apprehensive about sharing her emails as they contained certain confidential information. The court perceived this as another excuse to discredit the prosecutrix’s claim and held that she is hiding something. Moreover, documents with the complainant’s name and email address are quoted several times. It’s striking how the complainant’s identity is carelessly divulged under the guise of analyzing evidence. There was no consideration for the fact that a judgment should not expose any data that could identify the victim, which is ordinarily a criminal offence under Section 228A, IPC.
Such character assassination in the garb of character assessment violates not only the provisions of the evidence act and IPC but the right to privacy under Article 21 as well. Relevantly, in a recent case, even Delhi High Court has raised a question of whether private blackberry messenger messages can be relied upon by the state to impugn a criminal offence against the person, given the privacy ruling of the SC.
This conduct of the bench further demonstrates the superfluous difference in standards and burdens of proof of the accused and prosecutrix. The accused’s WhatsApp conversations or emails were never x-rayed like the victim’s to establish the fact that he was prone to sexually assaulting someone. Instead, hundreds of pages are spent extensively scrutinizing even tiny discrepancies in the complainant’s assertions, there are just a few extracts of the accused’s testimony.
It is worth noting that the Hon’ble Supreme Court (SC) held in Ram Das vs. State of Maharashtra that a conviction in a case of rape can be based exclusively on the testimony of the prosecutrix, but this may only be done if the testimony is “sterling” in nature and free of obvious and major discrepancies.
The SC has held that testimony can’t be subjected to the test of corroboration for minor inconsistencies in statements: anything discovered to be problematic has to be severe enough to cast doubt on the claim’s basic foundations. But the testimony was considered inconsistent on the grounds that she couldn’t remember the intricate details of an event that took place in 2013, 8 years ago, and viewed her testimony with the aid of spectacles fitted with lenses tinged with doubt, disbelief, and suspicion.
Astonishingly, as per the court, the prosecutrix initiating conversation with the accused over SMS after the assault amounts to unnatural conduct and is relevant as per section 8 of the Indian Evidence Act. Adding to the relevant conduct, a defence witness, whom the prosecutrix was earlier in a relationship with, said that she did not tell him about the alleged sexual assault after coming out of the elevator. The court solely relied upon this witness’s evidence and opined that “it wholly establishes and affirms the defence of the accused that whatever transpired between the accused and the prosecutrix was just drunken banter. Hence, the court turned a blind eye towards the psychological injury and the emotional turmoil and erred in assessing the circumstantial evidence in a rape case.
The SC in State of Maharashtra v Chandraprakash Keval Jain has enumerated the factors to be kept in mind while assessing the conduct of the prosecutrix. The court opined that the perpetrator and his position, the abuse or misuse of Office, and the despair of the victim that led to her surrender are holistically relevant factors that must be kept in the mind of the Court while assessing the conduct-evidence of the prosecutrix. A person with power carries the awe of office with him, which is bound to influence the victim’s behaviour. The Court must not ignore the emotional upheaval and psychological harm that a prosecutrix experiences as a result of being molested or raped. She is filled with embarrassment and the worry of being rejected by society and her close relatives hence she might be apprehensive in disclosing her experience. Further, the court held in this case that the prosecutrix not complaining to authorities cannot be described as unnatural conduct.
Ultimately, by basing the evidence majorly on the character and mentality of the prosecutrix, the accused was acquitted saying the prosecutrix’s testimony isn’t credible enough and that her conduct post the assault wasn’t the ‘ideal victim behaviour’.
Why is the Trial Court’s Perspective a Point of Concern?
The Indian judicial system provides for an appeal mechanism so one must think even if the trial court has erroneously judged a case one shouldn’t lose hope and approach the High Court. This premise might hold true in various cases but the paradigm substantially changes when it comes to cases of sexual assault, specifically rapes.
It is important to understand the psychology of a rape survivor, especially in the Indian society because ours is a conservative one where it concerns sexual behaviour. Firstly, it takes an enormous amount of courage for a victim to approach the court and revisit the entire trauma. So, if a victim is viciously character assassinated in the lowest court’s proceeding itself, then the victim gets petrified of what the appeal proceedings hold for her and as a result doesn’t approach the appellate court, leading to the failure of justice. Additionally, not all the victims have the financial capacity or the familial support to go through the lengthy procedure of appeals.
Another reason why the Trial Court’s perspective matters is because, in cases involving perpetrators holding a position of authority, the character assassination of victims sends a wrong message to the society and makes the powerful ones think that they have a chance of running scot-free if ever they indulge in such acts. Needless to mention, such steps would discredit crucial movements like ‘Me too’ and demotivate victims to open up.
This doesn’t imply that the right of the defence to cross-examine the prosecutrix be curtailed, but the same should be done with a certain level of decency and respect to women at large. The SC has further strengthened the premise in Nipun Saxena vs Union Of India Ministry Of Home where it is held that any repetitive, aggressive or harassive questioning of the victim particularly as to her character assassination which may impair her dignity shall not be permitted.
Women have been fighting for years to strengthen their position in society, such a mentality of the guardians of justice not only defeats the purpose of the entire cause but bolsters the social stigmas associated with rape victims, who are treated worse than the perpetrator of the crime.