Evidence Int II

2nd Year B.A., LL. B (Div.-D and E) – Semester-V (2023)

2ND -Internal Assessment – LAW OF EVIDENCE

Research Article submission

Topic
‘THE CASE OF THE ‘BELIEVABLE’ PROSECUTRIX: Examining
the Inadmissibility of Character Evidence for Rape Victims in law as
opposed to the Practical Reality’

NAME: MANAVI SINHA

DIVISION: D
PRN: 21010125366 WORD COUNT: 2816
COURSE: BA LL.B. (H)
BATCH: 2021-2026

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Evidence Int II

INTRODUCTION –
 Among the different forms of violence against women, rape is often seen as the most
feared. Adding to this troubling situation is the regrettable inclination for bystanders
to hold victims of sexual assault partially responsible. In 2021, India witnessed a
staggering number of 31,677 rape cases, with an alarming rate of nearly 49 cases
reported every hour as per the NCRB data.1

 It becomes worrisome when judgments are made based on a perspective that

blames the victim, which is rooted in misogyny. When granting bail, judges take
into account the character of the prosecutrix as a deciding factor, which can impede
justice, despite conflicting with legal restrictions.

 PAST HISTORY OFTEN BROUGHT IN TRIALS - It is unfortunate that the past

sexual history of the victim/prosecutrix is frequently exploited to undermine their
credibility and integrity.

 LAW EARLIER -In cases of rape or attempted rape, it was possible to challenge
2
the credibility of the accuser by demonstrating a pattern of immoral behavior.
However, it is important to note that the accused's character could not be questioned
based on. On the other hand, the accused can present evidence of their good
character as allowed, thus giving huge power in favor of the accused.

 THE AMENDMENT -The Government has taken steps to tackle the issue by
enacting the Criminal Laws (Amendment) Act, 2013, which has brought India's
rape laws in line with international norms. Section 155(4) has been eliminated and a
new section 53-A has been introduced. 3This new section stated that in cases
1
Gupta, U. and Sharma, R., 2023. Analysis of criminal spatial events in india using exploratory data analysis
and regression. Computers and Electrical Engineering, 109, p.108761.

2
Bansal, R. (2021) Analysis of the Criminal (Amendment) Act, 2013. Available at:
https://articles.manupatra.com/article-details/Analysis-of-the-Criminal-Amendment-Act-2013 (Accessed: 05
November 2023).

3
Ibid

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Evidence Int II

involving sexual offences where the consent of the victim was in question, evidence
regarding the victim's past sexual experiences would not be considered relevant when
determining consent or the quality of consent.Furthermore, a modification was
introduced to Section 146(3) of the IEA, which incorporated a provision that
disallowed inquiries into the prosecutrix's general moral character during cross-
examination. These changes have ensured that they are protected from harassment
within the courtroom and have been instrumental in breaking down gendered
stereotypes that existed in the IEA.. 4

 HAS THERE BEEN CHANGE? However, even with the amendment, there has
been minimal change in the practical reality. Judgements from recent years also
reflect a similar mindset. This is a pressing issue that results in the miscarriage of
justice and requires immediate attention.

 This paper delves into the practical implications of taking character evidence into
account, investigates how other jurisdictions have tackled this matter, and proposes
methods to improve the existing system.

4
Ibid

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Evidence Int II

5
Figure 1Despite being an older statistic, the recent court judgments in India reflect a
certain expectation regarding the behavior and conduct of the prosecutrix.

CHARACTER EVIDENCE- BACKGROUND

 MEANING -
 Character evidence provides valuable insights into a person's personality traits,
inclinations, and moral character. In criminal cases, character evidence is
generally not considered admissible unless the defendant brings it up.
 In Michelson v. United States, 6the U.S. Supreme Court established that the
prosecution's case-in-chief should consider character, disposition, and reputation,
according to the common law rule.

5
Whatley, M.A., 1996. Victim characteristics influencing attributions of responsibility to rape victims: A
meta-analysis. Aggression and Violent Behavior, 1(2), pp.81-95.
6
Michelson v. United States, 335 U.S. 469 (1948)

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Evidence Int II

 The evidence is thought to have a significant impact on the jury, potentially resulting
in a biased view of someone's character and depriving them of a fair opportunity to
defend against a particular accusation.
 ADMISSIBILITY OF GOOD CHARACTER- Section 53 of the Indian Evidence
Act, 1872 (IEA)7 states the relevance of the accused person's character in a criminal
trial. This section is based on the idea that establishing the accused's good
character can lead to a presumption of innocence. Character evidence is typically
not as strong as positive evidence in determining a person's guilt.

 THE INSIGNIFICANCE OF BAD CHARACTER-

 In Section 54 of the IEA, the importance of an accused person's character is

determined by the presence of evidence supporting their good character. This
section explicitly prohibits the use of evidence of bad character to draw conclusions
about the accused's predisposition or likelihood of committing the charged crime.

 THE CHARACTER EVIDENCE OF PROSECUTRIX IN RAPE CASES

 The Government of India has taken action on this matter by passing the Criminal
Laws (Amendment) Act, 2013.India's rape laws have been updated to protect victims
8
from enduring an extensive and demeaning cross-examination by defense counsels.

RESEARCH QUESTIONS

1. How does character evidence affect the fairness and outcome of rape trials in India?
2. What challenges exist in implementing legislative changes and judicial precedents in
rape cases in India?
3. How do existing medical procedures and evidence collection methods in rape cases in
India impact fair adjudication and victim rights?
4. How do international legal approaches handle character evidence and victim consent
in rape cases, and what insights can be drawn for potential reforms in the Indian legal
system?

7
Section 53 , Indian Evidence Act , 1872
8
See- supra-2

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Evidence Int II

5. How can the Indian Penal Code be modified to provide a clearer definition of
consent?
6. What else can be done to improve the status quo?

RESEARCH OBJECTIVES

1. To explore the societal attitudes towards rape victims and their influence on judicial
attitudes in India, specifically examining cultural norms and victim-blaming in sexual
assault cases.
2. To analyze the influence of character evidence on the fairness and outcome of rape
trials in India, specifically its impact on judicial decisions and the credibility of the
prosecutrix.
3. To evaluate the difficulties in implementing legislative changes and judicial
precedents related to rape cases in India, examining the impact of legal reforms and
their practical application in the courtroom.
4. To assess the impact of existing medical procedures and evidence collection methods
in rape cases in India on fair adjudication and victim rights.
5. To analyze different international legal approaches to handling character evidence and
victim consent in rape cases, with the aim of providing valuable insights for potential
reforms in the Indian legal system.
6. To suggest changes to the Indian Penal Code to enhance the definition of consent and
establish a clear and unequivocal standard for consent in rape cases, with a focus on
protecting victim rights and ensuring fair adjudication.

JUDICIAL ANALYSIS -

THE “IDEAL” PROSECUTRIX IN EYES OF JUDICIARY -

 The Supreme Court has set important legal precedents in cases like State of U.P. vs
Pappu Yunus & Anr. (20059) and Narendra Kumar vs State (NCT of Delhi)

9
AIR 2005 SC 1248

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Evidence Int II

(2012)10. These cases have clarified that the character of the victim is not relevant.
Positive judgements are valuable precedents for the future.
 However, It appears that some judges consider a certain behavior from the victim
as grounds to dismiss her testimony and grant bail to the accused. It is as if
there is an "ideal" way a prosecutrix must behave. For example, based on
numerous precedents-

1. A PROSECUTOR MUST DEMONSTRATE RESISTANCE -

 In Rakesh B v. State of Karnataka . 11The judge questioned the complainant's

explanation of feeling tired and falling asleep after the incident, as it seemed to
differ from the typical reactions of Indian women in similar situations. Rape is seen
as a highly distressing violation that strips Indian women of their valued sense of
purity.
 In order to establish the credibility of a prosecutrix, it is important to carefully
consider their previous sexual encounters, especially those involving the accused.
Nevertheless, courts frequently face challenges when it comes to resolving cases
involving non-traditional and complex relationships.

2. THERE MUST NOT BE ANY PRIOR SEXUAL RELATIONSHIP.

 The court's assumption of consent in cases where the prosecutrix had a pre-existing
relationship with the accused and has maintained amicable contact post-incident
may overlook the contextual complexities of the situation.
 In cases like Mahmood Farooqui v. State (GNCTD 12), the court's attention was
mainly on the prosecutrix's message after the rape, ignoring the rest of her detailed
message that clearly expressed her lack of consent and dissatisfaction with him.
This case highlights the concerning issue of outdated standards that judges often
hold when it comes to women, particularly in cases involving non-Indian
prosecutrix. The lack of attention to context is concerning.

3. THE WOMAN SHOULD POSSESS A VIRTUOUS CHARACTER.

10
CRIMINAL APPEAL NOs.2066-67 OF 2009
11
CRIMINAL PETITION NO.2427 OF 2020

12
Mahmood Farooqui v. State (Govt. of NCT of Delhi),2017 SCC Online Del 6378, para 85.

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Evidence Int II

 Judges often feel compelled to address the ethical aspects of female behavior,
regardless of the age of the victim.
 In the case of Musauddin Ahmed v. State of Assam 13, the prosecutrix, who was
only 14 years old, was unjustly labelled as a "dissolute lady." This is absolutely
concerning as the character of the woman should be irrelevant in determining guilt
in cases of rape.

4. A TRADITIONAL WOMAN IS LIKELY TO RECEIVE MORE SYMPATHY.

 The Supreme Court analyzed the factors that impact the credibility of rape victims
in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat . 14 The court
highlighted certain qualities typically associated with "Indian women" in contrast
to the perceived traits of "western" women, which could potentially impact their
propensity for dishonesty.

CRITICAL ANALYSIS

1. ANALYSING THE JUDGEMENTS

 The Prosecutrix's character is still frequently brought up and attempts are made to
prove that she is immoral, implying that she gave her consent, despite the legislative
reforms that have been implemented.
 CHARACTER EVIDENCE IN ALL PARTS OF TRIAL NOT PROHIBITED-
 This continues to occur due to the poor drafting of the provisions. The explicit
prohibition on using character witnesses is only applicable when the character of the
Prosecutrix is being questioned during cross-examination. Using character evidence
to prove consent is still not expressly prohibited. 15 The current provisions allow the
accused to use character evidence to undermine the credibility of the witness's
testimony. It is crucial for the Judges presiding over rape trials to ensure that

13
Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541
14
1983 AIR 753
15
Srijita Jana, Degrees of Consent in Rape: The Dichotomy Between "Yes" OR "No": Does "No" Mean
"Yes"?, (2018) 2 SCC Cri J-16, (last accessed- 06/10/2023)

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Evidence Int II

character evidence or questions are not allowed, and that the sentencing is not
influenced by the character or past sexual history of the Prosecutrix. 16
 India does not have a specific law that outlines the conditions under which
evidence of prior sexual intimacy can be considered admissible in court. Legislative
intervention is urgently required in this arena.17
 IS A FEEBLE ‘NO’ GOOD CONSENT?
 The Mahmood Farooqui case highlights a concerning flaw in presuming consent,
where the woman's non-communication is disregarded despite her clear "no".
 In order to prevent any further flawed presumptions of consent that could potentially
endanger the rights of rape victims, the author believes that it is crucial to provide a
more explicit and clear definition of consent in the IPC. It is crucial for the accused
to ensure that the complainant has clearly and explicitly consented to each sexual
activity. Consent must involve a clear and mutual agreement between both
participants throughout the entire sexual encounter.
 Furthermore, it is important to consider that in a rape trial, the relevance of prior
sexual intimacy is highly questionable if the previous encounters and the incident in
question are completely unrelated. .

2. MEDICAL EVIDENCE- THE UNSPOKEN CHARACTER EVIDENCE

WHICH LEADS TO UNJUSTNESS-
 Even unspoken, the influence of character evidence is evident, particularly in the form
of medical evidence.
 It is crucial to highlight the significance of two commonly employed methods for
establishing virginity, particularly in the context of medical evidence in rape cases.
 OUTLAWING THE 2-FINGER TEST-
 One important test is the two- finger test, which assesses a woman's ability to
accommodate different numbers of fingers. This test helps to understand her level
of sexual habituation. The recent ruling declaring the 2-finger test unconstitutional
is a significant step towards ending this flawed and biased practice. 18

16
Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (2013) 66.
17
See supra-15
18
State of Jharkhand V. Shailendra Kumar Rai (2022 Scc Online Sc 1494)

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Evidence Int II

 The court exposed the inherent flaws in the scientific claim that supports the test,
highlighting its coercive nature and the potential harm it can cause to the well-being
of those affected.
 ASSESSING THE HYMEN
 Another approach is to assess the state of the hymen. Evaluating the condition of
the hymen and the elasticity of the vagina is a routine practice during women's
genital examinations after reports of sexual assault 19
 In the State of Uttar Pradesh vs Sabir & Ors 20 case, since the hymen was intact, the
court acquitted the accused. The high court's conclusion is deeply concerning.
Despite the presence of intact hymen, it is crucial to remember that medical
evidence alone cannot determine whether forced sexual intercourse occurred.
The court's reasoning was deeply flawed, as it falsely claimed that an intact hymen
could be used as evidence to prove the absence of forced penetration.

 INJURIES MUST BE PRESENT OR ELSE CONSENT IS ASSUMED-

 It is deeply concerning that medical jurisprudence perpetuate the harmful notion that
the lack of physical injuries on a woman automatically implies her consent to engage
in sexual intercourse.
 It is important to note that the definition of rape under the IPC does not require
women to prove maximum resistance during the incident. This is a crucial aspect
21
to consider when discussing the legal framework surrounding sexual assault.
 It is absolutely unnecessary for the prosecution to present any evidence of the
woman's injuries resulting from a violent altercation. The Supreme Court's view on
expert opinions as "weak evidence" contrasts with the special status that medical
evidence holds in rape cases, where it is often considered authoritative by the courts.
 The state's reliance on the hymen as a determining factor in rape cases is clearly
demonstrated in various judgements.22

19
(Nandi 2008: 193, 198).
20
1964 AIR 1673
21
Hazra, A., 2022. Ethical Medico-Legal Approaches towards Rape Survivors. Jus Corpus LJ, 3, p.555.
22
Ibid

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Evidence Int II

 This so-called "objective" and "scientific" logic is not only inaccurate, but also
23
perpetuates harmful stereotypes and victim-blaming.

COMPARITIVE ANALYSIS AND WHAT WE CAN LEARN FROM IT

 NO DIGGING IN SEXUAL HISTORY

 India should take into account the Youth and Criminal Justice Act, 1999 of the
UK24, which highlights the link between past sexual behavior and the alleged act of
rape.
 The Act ensures that justice is served and survivors' rights are protected by
prohibiting the use of a victim's sexual history as evidence during any part of a
trial.
 AFFIRMATIVE CONSENT -
25
 Consent under Colorado rape law and Canadian law requires it to be
voluntary and informed , allowing for it to be changed or revoked at any time
during sexual activity. When a woman decides to revoke consent because of the
use of excessive force and violence, it is crucial that she is able to exercise her
freedom to do so.
 CONSENT MUST BE ACTIVELY TAKEN EVEN AFTER PENETERATION
 This revocation of consent must be respected, even if it is communicated after
penetration has occurred. 26
 The importance of taking appropriate measures to ensure presence of consent has also
been emphasized in the Optional Protocol to the CEDAW Convention. 27

 FRIENDLY CONDUCT DOES NOT AMOUNT TO CONSENT

23
Mitra, D. and Satish, M., 2014. Testing chastity, evidencing rape: impact of medical jurisprudence on rape
adjudication in India. Economic and Political Weekly, pp.51-58.
24
Section 41(6), the Youth and Criminal Justice Act, 1999.
25
Section 18-3-401, Colorado Revised Statutes (1986)
26
Ibid
27
Vertido v. Philippines, Communication No. 18/2008, order dated 1-9-2010, CEDAW/C/46/18/2008.

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Evidence Int II

 The US case of State v. Robinson 28 emphasizes the significance of consent and the
responsibility to hold perpetrators accountable.
29
 The Appeals Court of Massachusetts in the Commonwealth v. Fionda case
clarified that prior instances of kissing and lewd conversations between the victim
and the defendant do not automatically imply consent for future sexual intercourse.
 It's important to note that these previous actions have no bearing on the ultimate
act of sexual intercourse.

CONCLUSION AND RECOMMENDATIONS

 Ultimately, it is crucial to revise the IPC in order to establish a precise and
unambiguous definition of consent that is in line with the affirmative model. This
would guarantee that consent is consistently clear and unmistakable, eliminating any
uncertainty.

RECOMMENDATIONS -

 INCLUSION OF AFFIRMATIVE CONSENT IN IPC: It is recommended to

include a requirement in the IPC that states that the defense of mistaken belief of
consent cannot be used if the accused did not make an effort to confirm consent. This
will ensure that individuals cannot claim ignorance or lack of knowledge as a defense
in cases of sexual assault.
 INCLUSION OF ONGOING AND COLLABORATIVE CONSENT: It is
recommended to view consent as an ongoing and collaborative aspect of sexual
intercourse. This means understanding that consent can be withdrawn at any time,
even after penetration, if the person decides to revoke their consent due to the use of
excessive force or violence. This approach ensures that any further sexual activity
without consent is classified as rape.
 BROADENING THE SCOPE OF THE LAW WHICH BANS CHARACTER
EVIDENCE OF PROSECUTRIX: It is recommended to ban the use of character
evidence throughout the trial, not just during cross-examination. It is recommended to
broaden the scope of the law to encompass all facets of the trial, including the process
of gathering of medical evidence. This means not making unfounded assumptions
28
496 A 2d 1067, 1071 (Maine, 1985).
29
599 NE 2d 635 (33 Mass App Ct 1992).

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Evidence Int II

about the credibility of a female witness based on her character or past sexual
history. This will ensure a fair trial that is free from victim-blaming and prejudice.
 Given these suggestions, it is crucial for legislators and decision-makers to carefully
evaluate the necessity of implementing extensive changes to the rape laws in India.
 By implementing an affirmative model of consent, taking reasonable measures to
establish consent, and guaranteeing a just trial for the victim, the legal system can
enhance the protection of women's rights and autonomy. These reforms aim to create
a fair and equal society where sexual violence is unacceptable.

REFERENCES

1. Hibey, R.A., 1972. Trial of a Rape Case: An Advocate's Analysis of Corroboration,

Consent, and Character. Am. Crim. L. Rev., 11, p.309.’
2. Orenstein, A., 1997. No bad men: A feminist analysis of character evidence in rape
trials. Hastings LJ, 49, p.663.
3. Mitra, D. and Satish, M., 2014. Testing chastity, evidencing rape: impact of medical
jurisprudence on rape adjudication in India. Economic and Political Weekly, pp.51-58.
4. Hazra, A., 2022. Ethical Medico-Legal Approaches towards Rape Survivors. Jus
Corpus LJ, 3, p.555
5. Whatley, M.A., 1996. Victim characteristics influencing attributions of responsibility
to rape victims: A meta-analysis. Aggression and Violent Behavior, 1(2), pp.81-95.
6. Gupta, U. and Sharma, R., 2023. Analysis of criminal spatial events in india using
exploratory data analysis and regression. Computers and Electrical Engineering, 109,
p.108761.
7. Bansal, R. (2021) Analysis of the Criminal (Amendment) Act, 2013. Available at:
https://articles.manupatra.com/article-details/Analysis-of-the-Criminal-Amendment-
Act-2013 (Accessed: 05 November 2023).

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