Editorial: Fallen short
The law may be constant but its interpretation varies. The acquittal of the former bishop, Franco Mulakkal, by an additional sessions court in Kottayam in the case of a nun’s rape offers such an instance. Although the nun’s complaint detailed sexual assault of different kinds and mentioned 13 incidents between 2014 and 2016, the court felt that her solitary testimony had too many discrepancies and should be wholly discarded. The Supreme Court, though, had said that it was up to the courts to separate the grain from the chaff unless that meant constructing a new case altogether. The 2013 amendments in the law against rape brought in non-penile penetration together with penile penetration. Proof of any one instance of such assault — the complainant mentioned more than one — is culpable, according to Section 375 of the Indian Penal Code. The Kottayam court, however, laid greater store on the fact that the survivor did not use the word ‘rape’ and mentioned penile penetration after some time. A survivor’s evidence, it is usually acknowledged, may have inconsistencies because sexual assault is a traumatic event causing pain, confusion, humiliation, shame, and the horror of having to recount the incident before the police and the court. A nun with her vow of chastity cannot be expected to speak of rape easily. Besides, the former bishop was her superior; any allegation of sexual assault would imply coercion and an abuse of power. Just making a complaint could be taking a risk.
The understanding of sexual assault and its impact that has evolved since the Mathura rape case judgment of 1979 has effected certain changes in the law and its sensitive interpretation in some cases. An over-technical assessment and stringent demands for consistency and completeness in the first information report and evidence given before the magistrate — meant as merely corroborative — in a sexual assault case may not be helpful in uncovering facts. The law is not heartless. The Indian Evidence Act even makes the complainant’s character and other sexual relationships irrelevant to the complaint of rape. The Kottayam court included these considerations on the basis of an allegation against the survivor that was subsequently withdrawn. Activists have struggled to make the laws against sexual violence somewhat forward-looking. Reviving old regressive elements and assumptions undermines their possibilities.