The Bombay High Court’s observation that the survivor was subjected to an “invasive, humiliating cross-examination” about her past sexual history in its ruling reversing former Tehelka editor Tarun Tejpal’s acquittal in a 2013 rape and sexual assault case points to the prevalence of such questioning in rape trials despite a statutory bar, legal experts said. In a scathing indictment, the High Court found the trial court’s “noticeable silence” striking as “graphic details of the victim’s past sexual history” were used to attack her credibility.
A rape survivor’s sexual history was once expressly admissible as evidence under Section 155(4) of the Indian Evidence Act, 1872. the practice of invoking a survivor’s sexual history continues to cast its shadow over rape trials, experts pointed out Although the provision was repealed in 2003 following years of criticism and recommendations for reform by the Law Commission.
The provision allowed an accused to show that the prosecutrix was of “generally immoral character” to question her credibility or imply consent.
People Involved
Recalling a gang-rape trial involving a survivor who lived separately from her husband, Ms. “All these questions were put to the survivor to suggest that she did not have a good relationship with her family or conform to accepted notions of morality. Ms. Dash also pointed out that courts have repeatedly held that a conviction can be based on the sole testimony of a survivor unless there are compelling reasons to seek corroboration. “Courts fail to take into account that such crimes are generally committed in private, leaving little scope for direct evidence from anyone other than the victim. They must also recognise that survivors of sexual violence may hesitate to disclose the assault and may take time to process the trauma,” she added.
Section 53A of the Indian Evidence Act, now Section 50 of the Bharatiya Sakshya Adhiniyam (BSA), makes evidence of a victim’s character or previous sexual experience irrelevant to the question of consent in certain sexual offences. For instance, the Supreme Court’s 1996 ruling in State of Punjab v.
The 2013 amendment also inserted a proviso to Section 146 of the Indian Evidence Act (Section 149 of the BSA), barring questions from being posed to the victim during cross-examination about her “general immoral character” or “previous sexual experience” to prove consent or the quality of consent, Mr. Saxena said. Legal scholar Preeti Pratishruti Dash said defence lawyers often circumvent the statutory bar by framing questions that indirectly allude to a survivor’s character or previous sexual experience. Now, during cross-examination, they allude to them,” she said. Dash said the defence asked why her husband did not stay with her and whether her male colleagues visited her house. The idea was to use these insinuations to cast doubt on the credibility of her testimony,” she said. Gurmit Singh held that the statement of the prosecutrix, if it inspires confidence, is sufficient on its own to sustain a conviction, while expressing “strong disapproval” of trial courts casting a “stigma on the character” of the prosecutrix. Despite this, she said, survivors are often disbelieved on grounds such as inconsistencies in their statements, delays in reporting the offence, or their conduct before and after the assault.
“Before the amendments, defence lawyers used to put these questions directly.
Investigation and Response
The Criminal Law (Amendment) Act, 2013, subsequently gave statutory recognition to principles laid down in several Supreme Court judgments cautioning against stereotyping rape survivors or questioning their credibility based on their sexual history, according to advocate Nipun Saxena.
