A RAPE VICTIM'S SEXUAL HISTORY IS IRRELEVANT IN A RAPE CASE - KERALA HC

Single Judge Justice R Narayana Pisharadi of the Kerala High Court held that a rape survivor's sexual history is irrelevant in a rape case and will have no significance on the credibility of the testimony of such a survivor. A rape survivor being habituated to sexual intercourse would not be grounds to exempt an accused of rape charges. The Court went on to state that the evidence provided by a rape survivor need not be viewed with suspicion as that of an accused.

"It is the accused who is on trial and not the victim."

A minor girl was repeatedly raped by her father, leading to her pregnancy and eventually giving birth to his child. DNA evidence proved that the father of the minor was responsible for the pregnancy. The survivor stated that her father committed penetrative and oral rape and threatened to kill her if she disclosed the act to anyone. She was able to disclose the heinous act to her mother and aunt after she became pregnant. 

It was argued before the Court that the survivor had admitted to sexual relations with another person. The Court acknowledged the fact and referred to the State of UP v. Pappu to state that the victim's previous sexual intercourse is not a decisive question. On the contrary, the question should be, did the accused commit rape on the victim?

The accused raised a plea of consent after the prosecution failed to provide a certificate to prove the victim's minor age. The Court dismissed the plea of consent and said that "The plea of consent is too shallow. One cannot even imagine that the victim girl consented to have sexual intercourse with her father. There is a difference between consent and submission. Helplessness clouded by fear cannot be considered to be consent as understood in law."

The single bench allowed the appeal to uphold the conviction of the accused to 12 years rigorous imprisonment and a fine of ₹50,000.

Author: Papiha Ghoshal