On Friday (January 14), the Additional Sessions Court at Kottayam acquitted Bishop Franco Mulakkal of the Catholic Church in the infamous nun rape case. The verdict was delivered by Justice G Gopakumar in the presence of Bishop, who was accused of raping a 44-year-old nun several times at her convent.
According to an article by Manu Sebastian in Live Law, the trial Court discarded the testimony of the victim completely in contravention with the well-settled principles of law. Reportedly, the Court relied on the principle of ‘falsus in uno, falsus in omnibus (false in one thing, false in everything)’, despite the norm against rejection of victim’s testimony in entirety even if parts of it are exaggerated or inaccurate.
The Additional Sessions Court at Kottayam contended that the victim did not mention ‘rape’ or ‘penile penetration’ in her initial complaint and only alleged that Bishop Franco Mulakkal forced her to ‘share the bed with him.’ The Court observed, “…She did not disclose about 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….”
It further added, “In her additional statement and Sec.164 statement her version was that she was subjected to forcible sexual intercourse including penile penetration on 12 occasions and that there was only fingering on the first occasion”. Although the nun informed that she was not comfortable sharing details of the case in an unsecured environment with a Woman police officer, the trial court did not pay heed to her statement.
Trial Court dismissed victim testimony, despite initial allegations pointing towards rape
Manu Sebastian argued that it was a well-established principle that a First Information Statement(FIS) only have corroborative value and that an FIR need not be an encyclopedia of facts. “A Court cannot reject the prosecution case as given in the FIR merely because of some omissions(see: Motiram Padu Joshi v State of Maharashtra (2018),” he pointed out.
Furthermore, Section 375 of the Indian Penal Code includes forced non-penile penetrations under the ambit of rape. “The striking point here is that even going by her First Information Statement, which alleged insertion of fingers into private parts, the ingredients of the offence of rape has been made out,” Sebastian added.
The Court lay emphasis on the fact that the victim did not explicitly mention about ‘rape’ in her confessions to the witnesses without considering the societal stigma attached to it. “…The Court has taken the words “sharing bed” quite literally without understanding the intent with which the words have been used. The Court appears to be adopting a highly unrealistic standard, which is totally out of tune with normal human conduct,” the article in Live Law read.
The trial Court also dismissed the testimony of a prosecution witness named Sister Lizzy Vadakkel, whom the victim considered as her ‘spiritual mother’. The victim had opened up about two incidents of sexual assault allegedly committed by Bishop Franco Mulakkal on May 5- 6 in 2014. However, the Court questioned the victim for not disclosing the subsequent instances of assaults in 2015 and 2016 to her ‘spiritual mother’.
“If PW2 (Sister Lizzy) was in fact acting like a spiritual mother of PW1 (victim), she would have definitely disclosed these incidents to PW2 regularly. PW2’s version before this court and the Magistrate will not prove that PW1 disclosed to her about any of the incidents after 2015,” the Court observed. The decision of the victim to not ‘disclose’ about the alleged rape in 2015 and 2016 to Sister Lizzy was considered a valid ground by the trial Court to disbelieve the victim.
Unrealistic expectation of the trial Court from the victim
The nun had spoken about the actions of Bishop Franco Mulakkal to Sister Anupama and Sister Neena Rose in September 2016. “If the Bishop comes, I will have to share the bed with him. I did not tell them that I have slept with him,” the victim confided in them. When the two nuns testified before the Court that the victim had informed them about ‘rape’, the Court questioned the duo about the inference drawn from the statement of the victim.
Manu Sebastian pointed out, “When a person says with despair that she will “have to share the bed” with another (a person in authority), it is implicit in that statement that the person has been subjected to forcible sexual acts in the past and that the person apprehends the recurrence of such acts in the future. That is the common sensical understanding. From a lay perspective, it is unrealistic to expect a person to use the technical definition of rape in such a conversation.”
Although Section 56A of the Indian Evidence Act states that a woman’s past sexual experience is irrelevant to a rape case, the trial Court discussed the ‘character intent’ of the victim to discredit her claims. The trial Court discussed in detail the relationship of the nun with her cousin’s husband to judge the character of the victim. “It seems both the character and body of the victim were put on trial!” wrote Manu Sebastian.
Kerala Court relied on judicial stereotypes to define relationship between accused and rape victim
The Additional Sessions Court at Kottayam also took into consideration the ’email exchanges’ between Bishop Father Franco Mulakkal and the nun to suggest that they were on ‘friendly terms.’ The article in Live Law questioned the Court’s move to use ‘judicial stereotype’ to define the victim-accused relationship in the context of a rape case, despite clear directions by the Supreme Court of India against the same.
The Supreme Court had observed in Aparna Case, “The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault. Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc.”
The trial Court failed to take into account the power hierarchy between the nun and Bishop Franco Mulakkal. “There are several precedents that hold that consent obtained by abusing authority or fiduciary position is not valid consent. Section 114A of the Evidence Act presumes the absence of consent in rape cases. There is no meaningful discussion in the judgment on these aspects,” Manu Sebastian concluded.
