INTRODUCTION
There is no doubt that victims of rape are particularly vulnerable. “In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings”, as giving evidence in court constitutes a traumatic experience, often even worse than the rape itself.[1] Cross-examination of victims of rape might be particularly stressful, as victims are often required to repeat over and over again specific details of the assault and are consistently tested for credibility. The court should, therefore, play a crucial role in ensuring that “cross-examination is not made a means of harassment or causing humiliation to the victim of crime”.[2] The court should also provide adequate measures to guarantee a smooth testimony, as the nervousness of providing evidence on such traumatic facts, in unfamiliar surroundings, might lead to further discrepancies and contradictions in the victim’s evidence.
IN-COURT MEASURES FOR RAPE VICTIMS IN INDIA
In the Indian criminal justice system, several legislative provisions and jurisprudential statements took account of the particular position of rape victims during the trial and provided for a series of guarantees:
- PROTECTION OF THE VICTIM’S IDENTITY: Section 228A of the Indian Penal Code, introduced in 1983, prohibits publishing the identity of victims of rape offenses without the prior permission of the same victim with a fine and imprisonment of up to two years.[3] In this regard, the issue of maintaining the anonymity of victims of rape was raised in several rulings of the Supreme Court of India, starting from the Delhi Domestic Working Women’s Forum case in 1994[4] and then reiterated in the Gurmit Singh case.[5]
- IN-CAMERA PROCEEDINGS: Section 327 of the 1973 Criminal Procedure Code, deals with the right of an accused to an open trial, as amended in 1983 by the addition of sub-sections 2 and 3. Section 327(2) allows rape trials to be conducted on camera.[6] In addition, Section 327(3) prohibits the publishment of material related to these proceedings, in the absence of the previous permission of the court.[7] This will enable the victims of rape to be more “comfortable and answer the questions with greater ease in not too familiar a surroundings”, thus improving the quality of evidence.[8]
- PRESUMPTION OF ABSENCE OF CONSENT: Section 114A of the 1872 Indian Evidence Act, introduced less than one decade ago, establishes that whether sexual intercourse is proved and the victim has stated a lack of consent, the court must presume that the victim did not consent.[9]
- QUESTIONS ON THE VICTIM’S PAST CHARACTER: According to Section 146 of the Indian Evidence Act (1872), as amended in 2013, it is not admissible to adduce evidence or put questions during the cross-examination of victims of rape on their general immoral character, or their previous sexual experience, to prove consent or the quality of consent.[10]
- CORROBORATION: Following the example of the English criminal justice system, the rule of corroboration is a “well-settled rule of practice” in rape cases in India.[11] However, in the Gurmit Singh case, the Supreme Court of India observed that, given the particular sensitivity of rape cases, the court should assess the “broader probabilities of a case” without putting excessive emphasis on minor contradictions or discrepancies of the victim.[12] Moreover, in all those cases where evidence of the prosecution seems sufficient, the court should not seek corroboration of the victim’s statement in material particulars, which might instead be required when the victim appears unreliable.[13] More recently, the Allahabad High Court, in the Ram Pal case, observed that corroboration is “not an imperative component” of trial cases but only a “guidance of prudence under given circumstances”.[14]
CONCLUSION
Despite several provisions providing favorable in-court measures for rape victims, criticism of their treatment during trials, and in particular during the cross-examination stage, can still be raised. Experience demonstrates that the identity of victims is often revealed, particularly through social media.[15] Moreover, even though open trials seem to be only an exception in rape cases and in-camera trials are the rule,[16] these latter are often exploited by the accused with offensive private questions while the victim is “rendered anonymous and voiceless”.[17] There is, therefore, an urgent need to establish guidelines on in-camera trials.[18] Lastly, despite the prohibition on questions about the victim’s past character and the lack of physical resistance during the assault, rape victims are still posed humiliating questions, and the two-finger test is still a common practice.[19] Whereas it is hard to quantify the number of women withdrawing their cases due to humiliating cross-examinations practices, there is no doubt that efforts still need to be undertaken to repeal patriarchal attitudes toward victims of rape in the country.
Author’s Name: Sara Ciucci (Post Graduate, University of Nottingham, UK)
[1] Supreme Court of India, Delhi Domestic Working Women’s Forum v Union of India (19 October 1994) 1995 SCC (1) 14, para 13, <https://indiankanoon.org/doc/1765970/> accessed 19 April 2022.
[2] Supreme Court of India, The State of Punjab vs Gurmit Singh & Ors (16 January 1996) 1996 SCC (2) 384, <https://indiankanoon.org/doc/1046545/> accessed 19 April 2022.
[3] Indian Penal Code, 1980, Section 228A, <https://legislative.gov.in/sites/default/files/A1860-45.pdf> accessed 19 April 2022.
[4] Supreme Court of India, Delhi Domestic Working Women’s Forum v Union of India (n 1) para 15(6).
[5] Supreme Court of India, The State of Punjab vs Gurmit Singh & Ors (n 2).
[6] Criminal Procedure Code, Section 327(2), <https://indiankanoon.org/doc/445276/> accessed 19 April 2022.
[7] Ibid, Section 327(3).
[8] Supreme Court of India, The State of Punjab vs Gurmit Singh & Ors (n 2).
[9] Indian Evidence Act, 1872, Section 114A, <https://legislative.gov.in/sites/default/files/A1872-01.pdf> accessed 19 April 2022.
[10] Indian Evidence Act, 1872, Section 146 (n 9).
[11] Bombay High Court, Emperor vs Mahadeo Tatya (3 December 2941) 44 BOMLR 2016, para 6, <https://indiankanoon.org/doc/134247/> accessed 19 April 2022.
[12] Supreme Court of India, The State of Punjab vs Gurmit Singh & Ors (n 2).
[13] Ibid.
[14] Allahabad High Court, Ram Pal vs State of U.P. (7 November 2018), <https://indiankanoon.org/doc/21089980/> accessed 19 April 2022.
[15] Pro Bono India, ‘Identity of rape victims should be protected so that they are not subjected to unnecessary, ridicule social ostracization and harassment’ (28 April 2019), <https://probono-india.in/blog-detail.php?id=32> accessed 19 April 2022.
[16] Firstpost, ‘Delhi rape: Why lawyers have challenged in-camera court proceedings’ (9 January 2013), <https://www.firstpost.com/india/delhi-rape-why-lawyers-have-challenged-in-camera-court-proceedings-581445.html> accessed 19 April 2022.
[17] Sanjukta Basu, ‘Anonymity for Rape Victims, In Camera Trial Do Not Help the Victim, says Advocate Rebecca John (14 September 2021), <https://sanjukta.wordpress.com/2021/09/04/anonymity-for-rape-victims-in-camera-trial-do-not-help-the-victim-says-advocate-rebecca-john/> accessed 19 April 2022.
[18] Human Rights Watch, ‘”Everyone Blames Me”: Barriers to Justice and Support Services for Sexual Assault Survivors in India’ (2017) 77, <https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors> accessed 19 April 2022.
[19] The Print, ‘Laws repealed, but rape victims continue to face humiliating questions’ (29 August 2017), <https://theprint.in/theprint-analysis/laws-repealed-rape-victims-continue-face-humiliating-questions/8416/> accessed 19 April 2022.
