Kerala nun case: Can courts demand clinical precision from rape victims?

“The victim was not reliable; her testimonies to other prosecution witnesses (PWs) about the alleged offence had variations and inconsistencies.” In nutshell, this was the sole ground for the acquittal of Bishop Franco Mulakkal, who was exonerated from all the seven charges levelled against him.

Last week, the Additional District and Sessions Court I in Kottayam acquitted Mulakkal, former head of the Latin Catholic diocese of Jalandhar, of all charges related to a rape complaint filed by a nun.

Among the factors the court pointed out were a delay in filing the complaint, the failure of the prosecution in producing the mobile phone and laptop of the victim that allegedly carried obscene messages from the accused, the factional feud within the church, the filing of the rape charge after the initiation of disciplinary action against the nun by the bishop on a complaint by her relative, and the prosecutrix’s close interactions with the accused after the first instance of alleged sexual assault.

Also read: What it means to be a nun in Kerala: Stories of ordeal and steely nerves

After a thorough reading of the 249-page judgment — in a case followed closely not only in Kerala but also the rest of the nation — legal experts said the grounds for the acquittal were not tenable. No rape victim, least of all a nun, could be expected to recount the trauma with clinical precision, they pointed out.

‘Unreliability of victim’, as per judgment

The judgment stated that the victim “has given contradictory versions to different persons at different points of time”. To corroborate its observation, the court put forth nine points that run across five pages, indicating alleged inconsistencies in the nun’s version of rape as told to different people at different points in time. They are abridged as follows:

1. The victim allegedly revealed to PWs 3 and 4 in December 2016 that the bishop was forcing her to share the bed with him. She did not disclose to them that she was subjected to sexual violence on 13 occasions.
2. In the dispensation letter sent on May 26, 2017, she did not mention that she was subjected to sexual violence.
3. Her version to Bishop Kurian Valiakandathil (PW6) was that Mulakkal was taking retaliatory measures for “not sharing the bed with him, and not that she was raped or sexually abused”.
4. In the letter written by the victim to Cardinal Mar George Alencherry, she mentioned that she was unable to tolerate dealings with Mulakkal directly and through phone calls and messages, that it was not possible to reveal everything through a letter, and that she wanted to meet him in person to discuss her grievances.
5. “Contrary to the claim of PW1, PW18 (Mar George Alencherry) testified that apart from the grievances about the problems and harassment faced within the congregation, the victim did not disclose to him that she had been abused sexually by the accused.”
6. In the letter written to the cardinal, she said that she had been abused by the bishop several times, but it was not specified that she was raped on 13 occasions.
7. “In the complaint given to the District Police Chief, her version is that an offence under Sec. 376 of the IPC was committed against her. No other detail was stated (Page No 237, Point No 6).”
8. In the first information statement, she did not disclose any penile penetration. “Her version was that the accused inserted his fingers into her vagina and that he attempted to thrust his sexual organ into her mouth and that she was forced to hold his sexual organ.”
9. In her statement to the doctor, she said there was no history of penetrative sex. In her Section 164 statement, she said she was subjected to forced penile penetration 12 times and there was forced insertion of fingers only on the first occasion.

Also read: Nun rape case: Trial court acquits Bishop Franco Mulakkal

Finer meanings of legal terms

“This is an utterly disappointing judgment,” said advocate Harish Vasudevan. “A close reading of all the points raised by the court to establish contradictions in the nun’s statements are only the reflections of the trauma and distress that a rape survivor goes through,” he told The Federal. “We have to consider the fact that she is not an ordinary woman but a nun — even for ordinary women, it is very difficult to narrate the experience of rape with specific details in a mechanical way.”

“How many people around us know the difference in the meaning of abuse, sexual abuse, sexual assault and rape? Victims usually use these words for expressing their experience without fully comprehending their legal meanings. The judgment reminds the society that the survivors must use only exact legal terms while expressing their experience to even dear ones,” said Vasudevan.

“Unfortunately, we have not yet been able to understand the language of a rape survivor — especially that of an under-privileged woman who lives in a tiny space under the power structure of organised religion,” said advocate PM Athira, a public prosecutor who has handled rape trials.

“Even on a close reading of the judgment and all the points brought out to establish the contradictions and inconsistencies in her statements, I could only find the trauma of a nun struggling to find a language to express the sexual violence meted out to her. We all know how deep the taboo on sex is for nuns,” she observed. “To admit that she had lost her chastity even if by a forced sexual intercourse is a real trauma for a nun.”

Widespread anger

Many lawyers like Athira and Vasudevan expressed the view that the courts should not demand clinical precision and mechanical consistency from a rape survivor.

Social media in Kerala is awash with grief and anger and against the judgment. A statement from Superintendent of Police S Harisankar, who headed the investigation, that the State government would file an appeal and take the battle ahead, was widely welcomed.

Father Augustine Vattoli, a priest and one of the organisers of Save our Sisters, a coalition of human rights defenders, told the media that the survivor would no longer hide her identity, but come out in public and start the second stage of the battle for justice.