Friday, July 27, 2007

Man convicted of rape only based on victim's testimony

I was reading this article in the TOI today, and I read this article 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.

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posted by Ashish Agarwal @ 12:00 PM