Valson Thampu

Rape cases are notoriously difficult to prove. By its nature, rape happens in secrecy. The extent of this secrecy, and the degree of difficulty in unravelling it, increases exponentially in rapes involving celebrities. It becomes most acute when religious luminaries armed with vote-bank politics are involved.
The fact that judges are human comes to the fore in instances like the Franco Mulakkal case verdict. Reading the text, especially the sub-text, it is hard to ward off the unease that the evidence in this case has been viewed at times tangentially. The 289-page verdict makes interesting reading for a variety of reasons.
I am no one to read the disposition of a judge. It is far from my intension to attribute motives. I believe that ascription of motives is malicious. But I believe, equally, that a citizen has the duty to read court verdicts rationally and objectively for the reason that they are public documents. A verdict is not only a statement of ‘truth’ regarding a specific dispute, but also a step forward, or backward, in the evolution of a society. This makes it imperative for those who believe in democracy to be vigilant about judicial pronouncements. Courts are a part of, not aside of, our democracy. Courts that respect constitutional democracy will not intimidate citizens by invoking contempt jurisdiction.
The Franco Mulakkal verdict relies, inter alia, on four points in discounting the case made out by the prosecution. First, the prosecution did not do a good enough job. It left many narratorial threads hanging in the air. Much of the evidence marshalled was not found to be admissible to the wisdom of the court. Second, the investigating officers did not do a fool-proof job. They did not go far enough. Third, the statements of the victim lacked technical consistency. Fourth, the case is vitiated by inordinate delay. The prosecution did not bother to make out a case for condoning this delay.
A major limitation of the court in the present case is that it lacked an ‘inward sense’ of the nuances of the life and discipline of the religious. Consider this one thing. For a nun, her physical inviolability is the supreme personal treasure. Can the court be sensitive enough to what a nun goes through even in admitting that she has been assaulted? The verdict makes much of the victim not stating upfront that she suffered ‘penile penetration’. I wonder if any rape victim in the entire history of global jurisprudence has ever been callous enough to say so! It is not enough that she shared her agony with a few that she has been ‘assaulted’ and ‘forced to be in bed with’? Surely, it is not the case that only ‘penile penetration’ amounts to rape? If the insertion of a man’s finger in the female genitals is not rape, what is? Not even if, as a result of it, she suffers hymeneal rupture?
Attempt is then made to fit this issue into an alternative frame of plausibility. It is hard to not sense a subconscious inclination to establish that the damage suffered by the victim is extraneous to the case in question. So, it is implied that the victim invited it upon herself. Much is made of the ‘affair’ between her and her cousin’s husband (PW 17); though this allegation was retracted by his wife who had made it. Strangely, that doesn’t convince the court! The ‘affair’ is pursued as if to arrive at an explanation for the hymeneal tear. The quest proves a bus-ride to nowhere, and the verdict leaves the matter hanging in the air. It is assumed that the victim did not suffer the outrage at the hands of the accused, who refrained from effecting penile penetration, and satisfied himself, with tender case and exemplary self-mastery, to rubbing his member on safer surfaces, where it was unlikely to inflict any gender-sensitive injury to the victim.
A clear need that arises from all of the above is to train and equip would-be rape victims with legal knowledge -especially pertaining to the Evidence Act- so that they may document their trauma persuasively and succeed in securing justice for themselves. Ideally rape-victims should have that the rapes filmed so that convincing visual evidence can be submitted to the court. There’s no point in saying that this is next-to-impossible. That the onus is on the rape-accused to prove that he is innocent is theory. The ground reality, going by the present verdict, is that the burden of proof is on the victim. It could stay that way for long.