NEWS

Man Convicted of Rape Solely on Girl's Testimony

July 28, 2007
Ashish

I was reading this article in the TOI today about a man being convicted of rape. Now rape is a very serious crime, and especially in Indian society where a girl's rape means that she suffers grave dishonour (inflicted by society) in addition to the attack on her self-respect and confidence.

And rape is also seen as the subjugation of a women. It is a matter of such great shame that it is hidden many times with the lady left to deal with the emotional trauma on her own. The number of reported rapes per year are in the tens of thousands, and needs to be controlled.

So I read the story as a case of a person having committed this attack being punished. Then as I read further on, things started getting troubling:

The Supreme Court, which has always treated the testimony of rape victims as sacrosanct, has gone a step forward in convicting a rapist solely on a girl’s statement even when medical evidence showed no intercourse or any injury to her.
‘Though the report of the gynaecologist pertaining to medical examination of the victim does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, her oral testimony, which is found to be cogent, reliable, convincing and trustworthy, has to be accepted,’’ said Justice Panta, writing the judgement for the bench. The judgement reflects the reigning viewpoint that in the Indian context, where rape carries a huge stigma, no woman would like to slap a fake charge.
This view is the reason why the presumption of innocence, which is the defining feature of administration of justice in the country, does not extend to rape cases where the onus of proving his innocence is squarely upon the accused.

This decision was very troubling. Rape is a serious crime and needs to be punished, conviction levels need to be brought up, and potential molestors and attackers need to be shown that the law will have no mercy on them.

However, to put the onus of proof on the accused is a major problem. The cornerstone of justice is the presumption of innocence, until proved guilty, and this precedent setting judgment has ended up shaking this entire edifice. I do not know the details of this specific case, and whether the accused was guilty, but to convict a person just on another person's testimony is very troubling.

It will get even more troubling when this rule is extended to minors such that a testimony by a young child could be enough to send a person to jail for a long time. There is too much of a threat of mis-carriage of justice in this approach.

The court may be right in its belief that no women would like to take the stigma of rape, but the fact remains that one wonders whether this will be true 100% of the time. I guess not; just like any misguided person or evil person, it is possible that an adult women can, under the pursuit of a vendetta, accuse her enemy of rape and present a set of circumstantial evidence that will convict the other person.

It would also seem possible for the conviction to be based on the police force, in the sense that the rape happened in inadequate light, and while the rape happened, the victim is not able to clearly identify the accused, except for the fact that the police bringing forth a person and telling her that her attacker is the one.

What is needed is to improve the rate of conviction through old fashioned police work and forensic science.

Ashish is a blogger who got bit by the blogging charm a few months back, and it has hit him good. He is able to express himself through his blogs. Currently working with a software manufacturing company in NCR, India. Did a BE and then an MBA and has been working for around 9 years now. Is pretty passionate about current affairs, but did not have a vehicle to express his opinions till now. I primarily blog at Modern Indian Man, also write about Delhi, Tech News, and Photos 1 & 2
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#1
Amrita
URL
July 28, 2007
01:33 AM

Oh good grief, why is it always one extreme or the other? I agree that it's time we had better investigation techniques. Anybody who saw the bulldozers (!) come out during the Noida serial killing investigation couldn't help but agree.

#2
FF
July 28, 2007
04:40 AM

PatriarchyCharity begins at courtshome.

Firstly, Even when I am willing to admit to our courts decision(as a mark of respect to that highest office of our Land), The decision on the whole sets up very bad precedent in our society... which in this era of false and fabricated cases, is already reeling under the onslaught of radical feminism.

Now rape is a very serious crime, and especially in Indian society where a girl's rape means that she suffers grave dishonor (inflicted by society) in addition to the attack on her self-respect and confidence.

Why and How? There is no denying that rape is an offense (or at best a crime), But how is it a felony... a very serious crime. Is not it a patriarchal view of rape?

There are two components to it.

1) sexual intercourse
2) Consent.

Which of the two do you think makes rape a serious crime?

IF it is (1), then why is sexual intercourse "NOT" even considered anywhere close to a minor offense.

It may not be author, but I have seen feminists in bounty(who are part of our society too), cheer leading add promoting freewill sex (both pre and extra marital) and associating it to woman's emancipation.

IF (1) is to be assumed true, How is a sexual intercourse(say...pre or extra marital) not demeaning or derogatory to the status of woman.


However...

IF it is (2) which steals the show, then why is every other offense like beating, ragging, theft, snatching, extreme mental harassment at each and every Govt Office (all of which are obviously against consent) is also not a serious offense?

Also, if "Stigma" in society is the only issue...does that mean a rape committed by unknown and in the dark without society coming to know about falls in a "No crime" zone?

#3
suresha
July 28, 2007
09:49 AM

There are two kinds of rape in this country.
One is a statutary rape and another is normal rape.

Any sexual act with a minor(below 18 years even with consent) is Rape and the govenment grants Rs10000/- for every FIR and that money is shared by stakeholders

Another rape is where the consented women subsequently claims that consent was obtained under false promise of marrying her etc. Here if extortion for marriage or money fails FIR is filed.

The real rape is criminal rape which normally goes unnoticed in very rural areas

Normally rape cases are not reported within hours or days or months

#4
Siffer
July 28, 2007
05:35 PM

Wow!!

"Any sexual act with a minor(below 18 years even with consent) is Rape."

So, a woman above age of 18 having sexual intercourse with a boy below age of 16 is rape.

Why such women do not get convicted of rape (as it happens in US....e.g. Lina Sinha) and spend some 12 years in jail?

Patriarchy finds it very difficult to put females (in reproductive age) in jail.

Thats why the female criminals are let loose by special courts and even offered to act in movies.






#5
sami
July 29, 2007
02:21 AM

"So, a woman above age of 18 having sexual intercourse with a boy below age of 16 is rape."
The boy doesn't risk getting pregnant!

Seriously though, whenever reported by underage boys, sexual advances of adult women too should be punished.

#6
smallsquirrel
July 29, 2007
12:44 PM

just a coupla quick comments:

1) so it's only rape when there is unwanted penetration of the vagina by a penis? What if he did other things that were just a dehumanizing? maybe using a smaller foreign object. maybe he was unable to become erect fully and there was little or no trauma.

2) as a rape crisis counselor I attended the medicals of many rape victims and there is sometimes little physical evidence. Sometimes there is but the lack of it does not prove that there was not rape. If a man puts even the tip of his penis inside a woman with no consent and with malice it is considered (and should be considered) rape, but there will not be evidence of penetration.

3)per comment #4 There is a difference between rape and statutory rape, although both might occur at once. There is an age of consent, as there should be. Not sure about 18, cause in most states in the US it is usually 16.

#7
Ashish
URL
July 29, 2007
01:23 PM

My main doubt is whether if it boils downs to one person's word against the other, and then you are willing to risk a serious miscarriage of justice just on the basis of one person's word. Right in 90 or 95% of cases, but what happens to the cases where a person has been implicated?

#8
Sujai
URL
July 29, 2007
01:55 PM

First it was Mohammed Afzal, where the Supreme Court gave him death penalty only to satisfy the 'collective conscience of the society'.

Now, it is conviction of a B C Deva for raping a girl even though 'no medical evidence' suggested there was a rape, and even though the only witness or testimonial is that of this 16-year old girl. Here is what our esteemed Supreme Court has to say:

''Though the report of the gynaecologist pertaining to medical examination of the victim does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, her oral testimony, which is found to be cogent, reliable, convincing and trustworthy, has to be accepted.''

Hmm... sounds dangerous!

So, all you need is a good actor who is so good at acting that they appear 'cogent, reliable, convincing and trustworthy' and that testimonial will be accepted by the Supreme Court of India to convict someone.

Such precedents, 'capital punishment to satisfy national conscience' and 'conviction based on oral testimony of the victim without any forensic evidence', cast a doom for judicial system in this country.

What is to stop a young girl to take revenge on a man? Or parents with a young daughter to take revenge on another man? All she needs to do is say that she got raped, and then be 'cogent and convincing'. That's all. No evidence, no other witness and no medical examination need to prove it. The man is now convicted! Wow! What a shame!

The modern judicial system is based on the idea 'it is better that 1000 guilty men go free than one innocent man be imprisoned'. And what are we doing here?

May be, its time to cut off man's penises when any woman shouts 'Rape!'

#9
Sujai
URL
July 29, 2007
01:57 PM

May be the guys at Supreme Court should be shown the movie: TO KILL A MOCKINGBIRD

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