On removing character evidence from the law
It is indeed a relief to know that section 155(4) of the Evidence Act that allows character evidence in rape cases will perhaps finally be removed. Rights activists had been protesting against the presence of such a degrading provision for several years now as admissibility of character evidence is viewed as one of the key reasons for low reporting of rape cases as well as for the extremely low rate of conviction in rape prosecutions. It is important as such, to acknowledge first, that such a reform would surely be a landmark step towards changing the discriminatory legal approach towards complainants of rape and sexual offences. However, needless to say, we need to address the root cause of the problem, i.e. the culture of degrading a complainant and questioning her integrity when her allegation is one of rape or sexual assault. This essentially leads to the necessary question—would removing section 155 (4) of the Evidence Act alone be sufficient? The answer would probably be "No", although I do believe such removal will not only be on principle, a positive step towards progressive reform, but may also positively impact the overall approach of the justice actors in treating a complainant of rape.
Hence it is important to address the issue more comprehensively and bring reforms both in law and in practice to ensure that the patriarchal standard of "morality" that defines a "good character" of a woman does not come in the way of her receiving justice. Thus, in addition to section 155(4), provisions that deal with cross-examination of witnesses generally, need to be scrutinised as well. Section 146 of the Evidence Act for instance, allows questions to be asked to witnesses during cross-examination, which tend to "shake his credit, by injuring his character". This section clearly keeps open the scope for asking degrading questions regarding past sexual behaviours of the complainants of rape. This is the precise reason that the Indian Evidence Act had added a proviso to its section 146(3) stating that "in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character".
Hence, positive legal provisions protecting the complainants of rape and sexual offences from facing degrading questions should also be incorporated so far as it is consistent with the ends of justice. Such "rape shield" provisions are inserted in the laws of a number of other countries. In UK, the Youth Justice and Criminal Evidence Act 1999 provides protection for complainants in sex offence cases by restricting the ability of the defence to introduce evidence or questions relating to the complainant's sexual history. In 2013, the Indian Evidence Act further added section 53A, stating that in order to prove consent in a rape prosecution, the victim's character or previous sexual experience will not be relevant. Then again, before adding a similar rape shield provision in our law, we need to thoroughly understand how such provisions are formulated and implemented in other countries.
It is also important to ensure that the court environment remains conducive for the rape complainant considering the sensitivity of the allegations and the lasting effect of the trauma that the complainant had suffered. Although the Nari o Shishu Nirjaton Daman Ain 2000 makes provisions for "trial in camera" in rape cases, in practice such trials seldom take place in the tribunals. More so, although the law says that such private trials can take place either on application of the parties or when the concerned tribunal considers it necessary, no further rules are provided to elaborate on how such trials can take place, and what should be the duties of the presiding officer of the tribunal in terms of ensuring that a rape complainant is always aware of such options.
In addition to incorporating positive changes in the laws, the justice system must also be sensitised towards the plight of the victims of sexual offences. Without realising such sensitivity of the justice actors, it is difficult to ensure that complainants of rape are treated with dignity during trial. Sensitising the judiciary thus needs to be given special attention at the policy level. On few occasions our apex court itself had given directions as to the treatment of complainants of sexual offences. For instance, in the 2018 judgment that banned the two finger test for rape survivors, one of the several directions that the High Court Division had issued was that the "Nari-o Shishu Nirjaton Tribunal shall ensure that no lawyer shall ask any degrading question to rape victim which is not necessary to ascertain any information of rape." Such directives, however, often remain unenforced and unknown to the key stakeholders.
It is also crucial that the Supreme Court proactively take initiatives in issuing specific directions to the lower courts addressing the approach to be taken when dealing with complainants of rape and other sexual offences. With concerted efforts from all relevant stakeholders, we also need to identify the strategies that may support and enable justice actors in all tiers, to avoid gender stereotyping when they are dealing with cases of sexual offences.
Taslima Yasmin is Associate Professor, Department of Law, University of Dhaka. Email: taslima47@yahoo.com