Consent Or Character?

Psychologists have claimed that the perception of attributing one's character on the basis of a unitary action carried out by them leads to a fundamental attribution error[1]. The admissibility or consideration of character evidence possesses a high persuasive nature which interferes with a judges propensity to the law and further questions the morality of a person's past behaviour or character which then tends to move away from the statute.

The paper seeks to elucidate the concern arising out of the consideration given to either the victims or the accused person's character which could render the fate of a rape trial and how the applicability of character evidence is not confined to the accused but rather acts as a further degradation of the victim's morality and character in a trial.

The paper also portrays how Indian courts have been flawed in determining consent by superseding it with the character and behaviour of the victim on many accounts. The paper would also seek to convey that character evidence is not confined within the scope of the Indian Evidence Act but rather, is importantly dependent on the court's interpretation and mind set of judges who also question the character of the victim prior to and post the occurrence of the event or sexual intercourse.

The Accused point of view

Advantageous Accused
Through the plain reading of the Evidence Act, the accused person attains a favourable position over the prosecutrix at the initial stages of the trial. By virtue of Section 54 of the Indian Evidence Act, previous bad character of the accused cannot be called into question or is irrelevant whereas Section 53 allows the accused to adduce material portraying the previous good character of the accused.

However, the inclusion of evidence portraying the previous good character of the accused could also render the fate of a rape trial at a premature stage of the case. For e.g. in the case of Jagannivasan v State of Kerala[2] the court was of the view that:
There is evidence on the record that the appellant had been employed in Dubai and presumably had mastered a handsome income when compared to persons working in his home state. He was a bachelor and obviously an attractive catch for girls in his brotherhood to be bonded in matrimony. It would rather be safe to lean in favour of the appellant and accord him the benefit of doubt.

It must also be kept in mind that the statute also specifies that section 53 & 54 is only applicable for the accused. Section 53 A (evidence of character or previous sexual experience of the victim to be irrelevant) is applicable for the victim but the scope of the section remains limited and only deals with matter of 'consent' under section 354 & 376. As Section 53 A only deals with ascertaining consent, most courts rely solely upon the victim's character to ascertain the veracity of the accusation (this matter will be looked into detail in the latter half of the paper).

Section 53 A of the Indian Evidence Act holds evidence of character or previous sexual experience of the victim to be irrelevant in 'certain cases' and makes such a provision applicable under to cases or offences that is under Section 354 & Section 376 of the IPC. Section 354 is related to sexual harassment of women whereas Section 376 deals with punishment for rape committed by public servants.

It must be understood that Section 375 of IPC does not fall under the ambit of Section 53 A IEA, implying that in cases of rape committed by a man other than a public servant, the defence or the accused can introduce evidence of character or previous sexual experience of the victim. This seems quite prejudicial to women and is portraying patriarchal norms within the statute because an accused persons or a man's bad character used as evidence is barred from being introduced into a trial by the virtue of Section 54 of the Indian Evidence Act.

Such an analogy can also be found in Section 114 A of the Indian Evidence Act. Section 114 A allows the court to presume that a women did not consent to intercourse on the sole basis that she states she did not consent before the court and thus implying that the burden of proof is on the defence or the accused. However Section 114 A is made applicable only for the offence under Section 376 of the IPC, which is punishment for rape committed by a public servant.

The exclusion of Section 375 would hence imply that in cases where rape is committed by a man other than a public servant the burden of proof is to be upon the woman or the prosecution because there exists no presumption that she did not consent to the intercourse. Substantially, section 146 (3) also allowed for the defence to shake the credit of a witness and injure his character in a cross examination, but was amended to remove its applicability specifically to section 376 of the IPC.

Persuasiveness of Character Evidence

Character evidence is of utmost importance and has a substantial persuasive value, so as to say even though character evidence is to be considered irrelevant, it is of common practice that prosecution lawyers introduce such evidence because of the persuasive position it comprises and to mainly ensure that the adjudicators are aware and take into consideration such a matter during the adjudication process. For e.g. in the case of Rajendra Pralhadrao Wasnik v State of Maharashtra[3], the man was accused of raping a 3-year old girl and during the trial, the prosecution bring to the judges awareness about the man being simultaneously accused of abduction and rape of minor girls in another trial.

However, the prosecution failed to produce corroborative evidences such as the DNA samples and such evidences were not considered by the court. The court holds that the man being accused of abduction and rape is irrelevant (only conviction is relevant) to the trial but go onto convict the accused for life imprisonment on the sole basis of circumstantial evidence. It must be kept in mind that even though the prosecution erred on bringing forth corroborative evidence the court convicted the accused and it clearly portrays the impact on the judgement caused by the introduction of the accused persons previous character/behaviour.

Should Conviction be a Criteria to Convict Again?

As per Section 54 (explanation 2) of the Indian Evidence Act, a prior conviction of the accused could be used to portray his previous character as bad. On the face of it, such a provision sounds logical. However, there has been no criteria laid as to what extent a prior conviction can be used to convict the accused again, so as to say, courts could rely on the sole fact that the accused was a prior convict and convict the accused even though there actually never existed any evidence against the accused in the latter case.

Such a practise of looking into past convictions moves away from ascertaining the veracity of the victims testimony through corroborative evidence or most importantly the medical report of the victim and thus discharges a supplemental burden of proof on the defence.

As mentioned above, psychologists from the American Bar Association[4] have reiterated that attributing a person's character on the basis of a unitary action carried out by them leads to a fundamental error by the courts. Such a practice by courts also leads to increased cases of wrongful accusation and courts must not take up prior convictions as a ground to determine whether the offence was carried out in another case, prior convictions must only be of a minute concern to the courts.

The Victims Point of View

Backlash on the Victim
It is quite common that women refuse to come forward with an accusation of rape as it destroys their public image and most importantly because they do not want to narrate the harrowing experience in a manner of a trial or otherwise. Another matter of concern from the victim's point of view is that the question of her character is called upon by the court and the society, such a problem was elucidated through the 84th Law Commission of India Report[5], wherein it called into question as to how a woman's immoral character/sexual history, acts as a determinate source for ascertaining the veracity of her entire testimony whereas the man's sexual history or character is not called into question and is also further protected by the virtue of Section 54. The Indian Judiciary and statute tending to be patriarchal is a matter which has been brought about in the Law Commission Reports but to no avail.

Another point of concern for the victim was section 155(4), which enabled a man being prosecuted for rape to get himself acquitted or adjudication in his favour if he could prove that the woman portrayed immoral character by looking into her past sexual history. Through the recommendations by the 172nd Law Commission Report[6], section 155(4) remains repealed as of now but the practice is still in motion.

While analysing the medical report it is quite frequent that judges explicitly take into consideration the involvement or habituation of sexual intercourse by the victim while adjudicating the matter and judges have portrayed such consideration in several cases[7] and thus impliedly putting section 155(4) in practice.

Determining Consent Through Pre-conceived Characteristics of a 'Moral Woman'

Indian courts have always expressed stereotyped characteristics that a 'moral woman' is to possess and have also held that if a woman was not to act within the stereotyped character of a moral Indian woman they ought to have consented to the sexual intercourse. Such a practice of courts cannot be deemed as an archaic practice and courts have acquitted the accused in recent times as well.

A recent judgement (July 2020) by the Karnataka High court[8] held that there exists no reason as to why the woman went to her office at 11 p.m. the fact she had not objected to drinking alcohol and let the man stay with her till morning were acts that were unbecoming of an Indian woman which led the court to the conclusion that the woman had consented to the sexual intercourse. Courts have also been given such immense powers as per Section 114 of the Indian Evidence Act to 'presume the existence of any fact which it thinks likely to have happened' and use such a measure to ascertain that a woman of immoral character is presumed to have consented to the sexual intercourse.

Presumed Behaviour of a Woman Post Sexual Intercourse

Courts through various judgements have also assigned certain behaviour or characteristic to rape victims which are to be carried out by them after the sexual intercourse has taken place. Courts are further of the opinion that if a woman was to deviate or not react in accordance with such presumed behaviour, it is likely that the woman has consented to the sexual intercourse.

In a recent case[9], the court was of the opinion that, if non-consensual sexual intercourse had taken place the woman must be in a state of distress, humiliation and devastation or it will be unusual through which the court determined that the woman has consented to the sexual intercourse. It is again through the application of Section 114 that courts presume that a woman acting in an unusual manner, has consented to the sexual intercourse.

Empathizing With The Victim?

The Indian judiciary's attitude is such that, the rape victim must exhibit visible trauma and torment during the testimony and it certainly plays an important role in the adjudication process. Such portrayal of the character has to be read in accordance with Section 280 of the Criminal Code of Procedure which allows for judges to record remarks regarding the demeanour of the witness. However, courts have rather sympathized with the victim and have held that such characteristics portrayed by the victim increase confidence in the victim's testimony.

In the case of Kamalanathha v state of Tamil Nadu[10], the court was of the opinion that while recalling the forcible act of rape, the court noticed torrential flow of tears from the eyes of P.W 8 with all pain and conscience shocked, the court listened to the most startling and saddening story of P.W 8.

Such a consideration by the courts may act as a barrier of justice toward the accused because courts may render a judgement in favour of the victim merely by sympathising with the victim's demeanour during her testimony. But Most importantly, such consideration by the courts could also be harmful toward the victim because it becomes an implied expectation from courts that the victim is to act in such a manner during the testimony to sound more convincing and thus imposes a 'burden of performance' on the victim.

Other Stereotypes and Considerations of the Court

The Judiciary's attitude towards a situation wherein a virgin is raped is of peculiar nature. Courts are likely to convict the accused if the accusation was for the rape of a virgin, the logic behind this is that, courts feel that the victim has lost her characteristic of chastity and hence loses her matrimonial prospect and must consider it as an act of sexual offence[11].

The court in the case of Madan Kakkad v Naval Dubey[12] conveys such a consideration taken up by them by stating that:
Evidently, the victim is under the impression that there is no monsoon season in her life and that her future chances for getting married and settling down in a respectable family are completely marred.

Such considerations of the courts tend to move away from corroboration and are likely to be of belief of the victim's version of the facts.

Indian courts have not only refrained from including personal or private characteristics of the victim but also bring about other characteristics of the accused and victim such as caste, economic status etc. One of the most bizarre judgements regarding character evidence and a rape trial is from the district and sessions court of Jodhpur of the Bhanwari rape case[13], wherein, Bhanwari, a woman belonging to the lower caste was gang-raped by five men belonging to the upper caste and was eventually murdered. The defence contended that, as the victim belonged to a lower caste it was against their morality to indulge in intercourse with a woman of a lower caste and the court sided with the defence and went on to declare since the accused are upper-caste men, the rape could not have taken place because Bhanwari was from a lower caste.

The Last Resort
The issue of rape is factual and circumstantial in nature and the basis of corroborative evidence mainly pertains to the medical analysis of the victim's body. Courts have held that false allegations of rape is no more an uncommon practice and place a heavy reliance on the medical reports of the victim in a rape trial[14].

Initially, courts relied on the two-finger test practice which became one of the earliest reasons for taking the victims character into account as it determined the woman's sexual habituation[15] and thus courts further ascertains that sexual habituation implied immorality on behalf of the woman which amounted to consent.

Due to the inaccuracy and considerations for the woman's privacy court struck down the two-finger test. However, courts carry on with the practice of determining a woman's character of habitual sexual intercourse through medical reports and such evidence from medical reports have been used against the victim in various cases[16].

Who is to be Blamed?
Throughout the trial the victim character has been put under the limelight but who is to be blamed? Even though section 155 (4) remains repealed and does not allow for the scrutiny of a woman's so called 'immoral character' to be introduced by the defence, the Indian Judiciary from the various above mentioned cases and otherwise has given utmost importance to the victim's character and must be the sole party to be blamed.

The character and behaviour of the victim is scrutinised before, while and after the event has taken place and have been assigned moral and immoral values whereas the scrutiny of the man's behaviour remains limited as immoral values of a man remains limited in the Indian society. An analogy of such scrutiny of the victim's behaviour over the accused by the court can be found in the Mathura rape case[17].

In the said case, the court was of the opinion that the victim did not oppose the action of the accused dragging the victim towards the latrine (where the sexual intercourse occurred) and is concerned with how the victim has behaved or reacted whereas, the question of the court should have been, if the victim had consented to the intercourse why was she being 'dragged' towards the latrine? The courts tend to fail or do not scrutinise the character and behaviour of the accused which gives the accused a benefit of doubt and completely imposes the burden of proof on the prosecution or the victim.

Legal reforms / The Way Forward
Section 53 & 54 must be made applicable to the victim (statute only extends its applicability to the accused), so as to put both the victim and the accused on the same pedestal.
Extending the applicability of Section 53 A and 114 A to Section 375 of the IPC, so as to shift the burden of proof to the accused rather than the victim.

Limiting the scope of Section 114 into Rape trials. As Section 114 gives courts enormous powers to presume facts, most of the rape trials are done away by acquitting the accused with absurd presumptions by the courts. However, it should not be an absolute limitation but rather be used only to make a fact logically applicable.

Conclusion
According to the National Crime Records Bureau (NCRB) report of 2019[18], the conviction rate in rape trials is as low as 27.8% meaning that only 28 get people out of 100 accused people are convicted for rape and 90% of rape cases in the Supreme court end up in acquittal of the accused. Such low rates of conviction are of certain concern and it certainly points towards the Indian Judiciary's archaic and patriarchal practice by analysing and shaming a woman's character with comparison to an 'ideal and moral' characteristic of an Indian woman.

End-Notes:

1. ABA Journal, August 2015, Vol. 101. Pp 26-27
2. Jagannivasan v State of Kerala, (1995) Supp 3 SCC 204 (India).
3. Rajendra Pralhadrao Wasnik v State of Maharashtra (2014) 9 SCC 737 (India).
4. ABA Journal, August 2015, Vol. 101. Pp 26-27.
5. 84th Law Commission Report of India, Rape and Allied Offences.
6. 172nd Law Commission Report of India, Review of Rape Laws.
7. Virender Singh v State of Haryana (2007) Cri LJ 2459 (P&H) (India).
8. Rakesh B v State of Karnataka (2020) SCC 844 (Kar) (India).
9. Raja v State of Karnataka (2016) 10 SCC 506 (India).
10. Kamalanathha v state of Tamil Nadu (2005) 5 SCC 194 (India).
11. Veena Das, Discursive Formations and the State, Economic and Political Weekly, Sept.14, 1996.
12. Madan Kakkad v Naval Dubey (1992) 3 SCC 204 (India).
13. District and Sessions court (1995) Jaipur (India).
14. Ratan Dass v State of West Bengal 2005 Cri L J 1876 (Cal) (India).
15. Ashok Kumar v State of Haryana AIR 2003 SC 777 (India).
16. Ram Lal v State of Rajasthan (2006) Cri LJ 2530 (Raj) (India).
17. Tuka Ram v State of Maharashtra (1979) SCR (1) 810 (India).
18. National Crime Records Bureau, Crime in India (2019).