Rape Trial Survivors Face Scrutiny of Sexual History Despite Legal Bars

Legal experts have observed that the sexual history of rape survivors continues to be a significant factor in trials, despite laws designed to prevent such inquiries. This observation follows a Bombay High Court ruling that characterized the cross-examination of a survivor in a sexual assault case as "invasive and humiliating." The court noted the trial court's "noticeable silence" as "graphic details of the victim’s past sexual history" were used to undermine her credibility.

Background

Historically, Section 155(4) of the Indian Evidence Act, 1872, permitted the use of a rape survivor's sexual history to question her credibility or suggest consent. This provision was repealed in 2003 after widespread criticism and recommendations for reform. Subsequently, the Criminal Law (Amendment) Act, 2013, introduced measures to protect survivors. Section 53A of the Indian Evidence Act (now Section 50 of the Bharatiya Sakshya Adhiniyam) renders evidence of a victim's character or past sexual experience irrelevant to the question of consent in specific sexual offenses. Additionally, a proviso to Section 146 of the Indian Evidence Act (Section 149 of the BSA) now bars cross-examination questions about a victim's "general immoral character" or "previous sexual experience" when used to prove consent.

What Happened

Legal scholars and advocates report that defense lawyers are employing indirect methods to circumvent these legal protections. Instead of direct questioning, they frame inquiries that allude to a survivor's character or past experiences. For instance, questions about a survivor living separately from her husband or the frequency of visits from male colleagues have been used to imply a lack of morality and cast doubt on her testimony, according to legal scholar Preeti Pratishruti Dash.

Key Facts

• The Bombay High Court criticized the "invasive, humiliating cross-examination" of a rape survivor regarding her past sexual history in a recent ruling.
• Previously, Section 155(4) of the Indian Evidence Act, 1872, allowed evidence of a rape survivor's sexual history to challenge credibility.
• This provision was repealed in 2003.
• Current laws, including Section 53A of the Indian Evidence Act (now Section 50 of the Bharatiya Sakshya Adhiniyam), make evidence of a victim's character or previous sexual experience irrelevant to consent in certain sexual offenses.
• A proviso to Section 146 of the Indian Evidence Act (Section 149 of the BSA) bars questions about a victim's "general immoral character" or "previous sexual experience" during cross-examination to prove consent.
• Defense lawyers are reportedly using indirect questions to allude to a survivor's character and past sexual history, circumventing legal bars.

Why It Matters

Legal experts note that despite legislative changes and Supreme Court judgments emphasizing that a survivor's testimony can be sufficient for conviction, the practice of scrutinizing their sexual history persists. Courts sometimes disbelieve survivors based on minor inconsistencies, delays in reporting, or their conduct post-assault, failing to account for the private nature of such crimes and the psychological impact on victims. This scrutiny can influence perceptions of credibility and potentially sentencing.