This article is written by Indrasish Majumder.

Introduction

The issue of rape shield laws has been brought in a foray by the highly publicized prosecution of Kobe Byrant the NBA star in light of the charges of sexual assault against him. The internet and social media reciprocated the allegations by dispensing light on the past sexual history of the alleged victim. The trend to glean negative attention on the sexual history of victims reinstates the need for strong rape shield laws safeguarding the decision making power process for jurors in rape trials.

Historically, rape shield laws were aimed towards condemning women for not having led sexually chaste lives. It was insisted by law to consider the importance of the sexual history of a woman in adjudicating the truth of her allegation in a complaint of rape. It was considered more likely that a chaste woman would withstand the sexual advances of the accused and would have lodged a legitimate rape complaint. On the other hand, an unchaste woman was considered more likely to have yielded to the advances of the defendant and to have lied later. Therefore, a powerful informal normative narrative was ingrained in the rape laws; that to procure legal protection, women should sustain an ideal of sexual abstinence in rape crimes.

The second wave of feminism and the enactment of rape-shield laws 

The second wave of feminism of the 1960s and early 1970s can be credited to the implementation of the Rape Shield laws in the United States and it was the wave’s Anti-Rape propaganda that reformulated the notion of rape. Before the 1960s rape was perceived as a sex crime committed by “pathological men” incapable of controlling their sexual desires. With the introduction of concepts such as gender, power differences, and equality during the second wave of feminism, rape was perceived as a medium of power-play reinforcing notions such as masculinity, femininity in a chauvinist hierarchy placing men over women. This viewpoint of rape was revolutionary in defining the crime from the perspective of the survivor, as a matter of paracentric dominion over a woman’s sexuality. 

Consequentially, by the 1980s majority of states had included marital rape in their laws, excluded the requirement to have rape witnesses, decreased the age for statutory rape from twelve to ten, redesigned the definition of consent (particularly in cases of submissions out of fear, lack of consent) and included Rape Shield Laws in their books of the statute. The inadmissibility of the sexual history of the survivor in court inspires the women to report more crimes relating to rape and stand in court with honour deprived of the fear of their past sexual conduct being utilised as a weapon by the defendants, to demean them causing a metaphorical “second rape”.   

Shortcomings of a rape-shield legislation 

However, irrespective of the victim-centric approach of the laws as exemplified by their inclusive stature, there are loopholes. E.G. Rape shield laws often fail to include cases involving women engaged in sexual relations with the defendant, prostitutes, women regularly visiting bars to lure sexual partners and other women deemed similarly licentious. 

Even though the admissibility of a rape complainants’ sexual history is disallowed by most rape shield laws, except under limited circumstances, the exceptions more often than not impact the protections the law approbates to the victims. The “Federal Rule of Evidence 412” enumerates for instance “evidence of a rape complainant’s sexual is inadmissible, except (1) when offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence,” (2) “when it is offered to prove consent and it consists of specific instances of sexual behaviour by the alleged victim concerning the person accused” or (3) “when the exclusion of the evidence would violate the constitutional rights of the defendant.” 

While the first exception, considering its narrow stature may be deemed appropriate, the second and third exceptions to the federal shield, in certain ways, impact the effectiveness of the armour. The second exception for instance creates a crack on the shield. Data from the “Department of Justice” elucidate “sixty-two percent adult” and child rapes are perpetrated by prior acquaintances i.e ex-spouses, boyfriends and in cases of children adult males with whom the child shares a fiduciary relation namely brother, uncle, father etc. The third exception allowing admission on grounds of violating the defendants’ constitutional rights-almost breaks down what is left of the shield after the second exception considering the trend among courts to routinely exaggerate the scope of the constitutional right of the defendant to inquire into the past sexual history of the complainant.

Rape shield laws: a study in the context of India

After the “Jyoti Singh Gang Rape Case of 2012”, the center in an attempt to make “sexual assault laws” robust implemented “the Criminal Law Amendment Act, 2013”. Section 53 A incorporated by the 2013 Act in the “Indian Evidence Act” perceives the character of the victim and her past sexual history with the victim as immaterial in establishing consent.

Provisions in the Indian evidence act protecting survivors of rape 

Section 146 of the Evidence Act amended by the 2013 Criminal Law Amendment Act, 2013 explicated character evidence of the victim does not carry any probative value in trials and denied the admission of questions in cross-examinations for purposes of corroborating the previous sexual experience of a victim in rape cases thereby bridging the unequal power dynamics between the parties. The Legislature has attempted several times to prevent defence lawyers from hurling attacks on the character and credibility of the victim and re-track the trial based on more relevant evidence e.g. lack of injury, consent, which holds more probative value. The Indian Evidence Act does not enumerate any specific circumstances when the rape shield law should not apply thereby approbating an “absolute” shield. The “Indian Penal Code” under “Section 228A” penalizes disclosure of the rape victim’s identity.

Shortcomings of the legislative reforms 

However, partly due to shoddy draftsmanship, irrespective of the legislative reforms, the character of the victim is regularly adduced and questioned. While provisions in statutes allowing the usage of character evidence in rape trials or sexual harassment cases were disallowed in 1983, only in 2002 such a line of questioning was banned, with the incorporation of Section 146 of the Indian Evidence Act”. Even after 2002, there have been instances wherein the names and other details of the rape victims have been published by the Indian Courts in judgments. 

In one such instance the High Court of Bombay in 2017, observed the need to corroborate the testimony of the victim in rape or sexual assault cases, particularly where the women are habituated to sex, and acquitted the man of all charges. It was upheld by the court in such situations there is a possibility for the women driven by an “instinct of self-preservation” to level accusations of rape against the accused. The Bombay High Court effectively in its judgment recognized the relevancy of the past sexual behavior of the victim and mandated for the victim to corroborate her testimony in accusations of rape/sexual assault failing to provide a “rape shield” to victims in-process and leaving him/her victim vulnerable to shaming and criticism.

Considering the micro-linguistic procedures via which evidence is introduced in a rape trial the current Rape Shield Laws fail to consider such intricacies. Inferences concerning the past sexual conduct of a victim are embedded in our social fabric.

Stereotypes concerning survivors of rape and the Indian judiciary 

In the case of State v. Narendra Singh @ Monty, for instance, the complainant a domestic help deployed through an agency, filed a complaint of rape against her employer. In course of the trial and the judgment, the judge made several observations on the nature of domestic helps to falsely accuse their employers of rape to coerce them into submitting to their demands. He noted in the present case that a report of theft had also been filed by the accused, pending against the prosecutrix. The prosecution’s failure to establish beyond a reasonable doubt, of the accused’s guilt, was presumed by the defence lawyer to imply she had lodged a false complaint, more so because of the occupation of the complainant. Presumptions of such kind about certain socio-economic groups in the mind of judges and lawyers adversely influence the outcome of cases.

In another case before the “Apex Court” “State v. Mahinder Singh Dahiya” the prosecution’s description included the victim’s serial monogamous nature. While a description of such kind may not be expressly barred under Section 144A, it influences the mind of the judge, compelling him/her to believe consent on part of the complainant was high. Therefore, when interpreted in this manner, the interactional environment of evidence in testimony, reveals the systemised limitations of “rape shield laws” in the face of “covert descriptive inference”. 

Without completely rephrasing the language of evidence that governs testimony more generally, rape shield laws transform only specific elements of the language of evidence. Therefore, these laws render only a limited effect in terms of assuring the rape victim that her past sexual conduct shall not be relied upon in court to shame or defame her. The ability of a rape reform legislation to revolutionize in this context is limited considering the relation between law and society and how it is deeply embedded in our language practices and social fabric.

Repercussions of stereotypes against the victims on the effective implementation  rape-sheild laws 

In addition to defeating the purpose of Rape shield laws, indirect referencing to the victims’ past sexual conduct and humiliation and objectification that comes along with can render alarming consequences on the physiological health of the victim and society. It dissuades women from reporting crimes of rape. Numerous cases point to the above-stated concern e.g. Bodhisattwa Gautam v. Subhra Chaudhury wherein the court deliberated on the implications of allowing evidence concerning the past sexual conduct of women in court. The court explicitly stated allowing such evidence in court would lead to more cases of sexual assault going unreported in our country and add to the country’s already lamentable statistics on rape trials. 

Using such language prevents the court from getting to the root of the problem and clouds the judge’s application of mind, thereby infringing the victim’s right to a “free trial”. The focus shifts from the accused to the victim and the question changes from whether a rape occurred to whether the victim was capable of being raped, in the first place. The improper usage of “Rape Shield laws” infringes a women’s right to privacy by setting her private engagements to public exhibition. 

Two-finger test 

The two-finger test (often referred to as the “virginity test”) is often used in rape trials to discern if the complainant is used to sexual intercourse. The test before being criminalised in several jurisdictions involved inserting two fingers in the victims’ vagina to determine vaginal laxity; the test is surmised on the belief that the women are sexually active if the vagina was “lax” enough, and if so she may have consented to the sexual assault in question. However, the test was determined as arbitrary because the laxity can be attributed to physical activity and exercise as well. The test was used to prove consent in rape cases in India until a Supreme Court bench comprising of “Justice B.S Chauhan” and “F.H.I Kalifulla” held in 2013 that the test violates a women’s “right to privacy” and suggested to the government the formulation of better medical procedures confirm sexual assault. 

The presumption that a sexually active woman is dishonest is the inherent problem with virginity testing. While the concerns of a woman bringing charges of rape against an ex-boyfriend/husband are justified, the rape shield laws even in such cases can be eclipsed only to the extent of allowing evidence of the victim’s past sexual history with the accused in question and not any third party.

While accusing a woman of leveling rape charges against a former partner out of malice is easy, there is a possibility the accused was seeking revenge on the victim (with whom he was in a relationship) and chose to showcase that by raping her. The uploading of sexually explicit pictures and videos of a person (usually a former partner) without his/her consent (also known as revenge porn) is an example of how men use sex as a weapon to seek revenge on their former partners. The Indian judges must additionally recognize how the law expressly provides for a rape shield to ensure the victims are protected in rape trials.  

Paving the way for a new rape shield law

The trend of computing victims of rape against a prototype of sexual propriety must be spurned as unethical and be exposed to the public. Even though rape shield laws have been critiqued by many lawyers, there has been limited developments on the subject of rape law and narratology. “Legal Narratology” allows us the levy to inquire into how stories are appraised, and if the stories elicit any iota of justice. The prevailing injustice in the current system of rape laws is exemplified upon approaching rape laws through narratology. “Truth Beyond Reasonable Doubt” is the clarion call endorsed by law, however in cases of rape, a fictitious and domineering narrative gains preponderance over the victim’s real experiences. The law must aim to address and rectify this “narrative problem”. It becomes apparent that a new model needs to be formulated via a legal narrative. The model would not be limited to defining rape shield laws as a protective measure but would create a space enabling individual narratives to gain success in court, creating in the process a substructure offering justice and respect to rape victims.

The leering innuendo’s often used in a courtroom trial concerning a victim of rape renders massive irreparable psychological damage. Therefore, the mere consideration of evidentiary rules is not likely to render any success unless the language of evidence is accounted for. The course of courtroom discourse is not mechanically shaped by statutory innovations. The language used in rape trials needs to be empirically scrutinized by the pronouncers of reform, to envisage the success the proposed reform is likely to render. The phallocratic assumptions in a rape trial need to be scrutinized, to make the trial endurable and inspire women to take recourse to law and not any extra-judicial means. 

An important role is played by judges in this respect in influencing the direction the trial steers, the kind of and manner in which the questions are asked. Their inaction is therefore unjustified. Lawyers on similar lines are duty-bound to strike a balance between their roles of operating as officers of Courts and defending their clients. As long as a phallocentric view is adopted concerning a women’s past sexual history in a chauvinistic society, elements of a tormenting rape trial are likely to persist despite reform legislation. However, the same does not imply there is no room for improvement or critique. It is, therefore, the author’s urge to further a dialogue concerning the above suggestions with women across the world that Rape Shield laws shall one day become a matter of intercontinental treaties, namely the “1981 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)” if not of regional legislations. Rape Shield Laws could become globally particular. It needs to be understood rape survivors prevail across the world and not only where the law safeguards them.

Conclusion

An important function is played by Rape Shield Laws in safeguarding victims from unethical prying by the defence into their past sexual shenanigans to devalue her account of events. However, the shield despite its commendable intentions, when gleaned through legal narratology, propounds an archetypal story of rape that renders a harmful impact on those victims who fail to align their story with the stereotypical dogmas. The protection approbated by rape shield laws, therefore, needs to be refurbished into a consent framework. The law by basing the inquiry on consent would enable the complainant to provide his/her personal account of events, then compelling them to fit in their stories and characters to a socially acceptable “believable” set of events. Therefore, it is maybe time to reinforce the rape shield laws and ensure the achievement of two important purposes i) provide all victims of rape real protection during the trial process ii) safeguard the fundamental function of the criminal trial i.e. seeking the truth. 

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