Author: Jeet Sinha

Recently, the Bombay High Court observed a devastating state of the Stereotypical condition in the country that would stultify the Criminal Law (Amendment) Act, 2013. What should be chapters of history to learn from is repeated in the modern day. Any progressive society would criticise such a thing. It is the discussion of a rape survivor’s previous sexual history in a courtroom during a rape trial derail her consent or credibility. The real measure of progress is not merely the enactment of progressive legislation, but whether such legislation is adopted in society or not. Whether the advocates of the court take the sensitivity of the matter and refrain from committing such mistakes.

For decades, the credibility of women has been questioned due to their past sexual experiences. With the statutory bar, this kind of questioning was discontinued because it reflects a deeply patriarchal understanding of consent and takes away the important right of bodily autonomy from women. The Bombay High Court found out the during trial survivor was subjected to an invasive, humiliating cross-examination about her sexual history.

The problem with the idea of a “good” and “respected” woman

Society sets an image of a woman that has certain essential societal qualifications to be characterised as a “good” or “respected” woman; such notions are not only prejudicial in nature but also promote gender stereotyping. This creates a harsh atmosphere for women who genuinely suffer such heinous crimes.

The rape trial should cover questions of fact such as: “Whether the accused obtained consent for the particular sexual act?” when this question is replaced by the question what kind of woman is a survivor? Is she a good woman or a woman of bad character? It seriously derails the trial process, and it is against the concept of a fair trial under Article 21 of the Constitution, which mandates that cases should be decided on facts and not stereotypes.

Misconstrued meaning of ‘Consent’

Consent, once given, is not forever consent. Consent is specific and contextual. A woman’s sexual history does not determine that she is willing to give subsequent consent to a present or future sexual act. The sexual history determines absolutely nothing; it just belongs to her past and has no bearing on present consent. Society misconstrues women’s position and sees a woman as having loose morals based on sexual history. This is why progressive criminal law prohibits delving into the past of the survivor.

The 2013 Amendment

The 2013 criminal law amendment was made against the backdrop of huge protest for the demand of stronger laws to prevent sexual violence after the Nirbhaya gang rape that devastated society.  The Nirbhaya case created huge outrage in people’s minds, as they saw the evil with which the crime was committed in the capital city of India. Soon after that, the Justice J.S. Verma Committee was formed on December 23, 2012. Within 30 days of the formation of this committee, it submitted its recommendations, which were accepted through the Criminal Law (Amendment) Act, 2013.

Earlier, in State of Punjab v. Gurmit Singh (1996), the Supreme Court held that prior sexual activity does not imply promiscuity or habitual consent. A victim’s character or alleged prior promiscuity cannot be used by the defense to undermine credibility or infer consent.

Section 53A of Indian Evidence Act, 1872was introduced through the 2013 amendment, which barred evidence related to a survivor’s past sexual history or general immoral character as evidence to prove consent or the quality of consent.

Conclusion

It is not the law that creates a change; it is the institution which enforces the law. If the court allows such stereotypes to continue even after the introduction of law, we can never achieve progressive goals in society. Strict action should be taken by the court against those advocates who rely on such regressive arguments by bringing up a survivor’s sexual history. The Supreme Court handbook on combating gender stereotypes should be made compulsory for all the judges handling rape trials or otherwise, their stereotypes will perpetuate in society.