INTRODUCTION
The criminal justice system is more sensitive in dealing with rape and sexual assault cases of the prosecutrix. Rape trials are held in in-camera proceedings in the courtroom and exclude previous sexual history as proof for analyzing the cases. To make the rape trials feasible for the relict, amendments are made to criminal law and notably The Evidence Act, of 2013 made amendments in Delhi gang-rape case[1] in 2012 (Nirbhaya case). “Rape shield legislation” compels two significant factors namely in-camera proceedings and character evidence is irrelevant.[2] The aim of the “Rule of Best Evidence” is to limit what lawyers interpret or do during trials. The Burden of proof always lies on the prosecution[3] in arriving at criminal justice. Character evidence is often used by the defence to prove the woman as a ‘loose character’ that she consented to sexual intercourse with the accused. It can be used to check whether an individual acts in a certain way, such as being violent, honest, bounded to the law or against the law. Character evidence gives information about the previous sexual history of the accused and victim, But it is controversial in laws and regulations are inadmissible character evidence in rape cases. Accused use this as a strategy to escape from being guilty and lead to bias, particularly in the case of sexual offences. However, the relevance of character evidence depends upon the jurisdiction and specific facts of the case.
THE ROLE OF CHARACTER EVIDENCE IN RAPE CASES
Character evidence is an instrument used by counsels mainly in rape trials, it often shields the accused and injures the image of the prosecutrix[4] when admitted, and can be utilized by both the prosecution and defence to support their arguments. This means that evidence relating to the complainant’s past sexual behaviour, reputation, or general character traits is typically not allowed to be proven in court. This restriction aims to protect the complainant from having their personal history used against them and to prevent the perpetuation of harmful stereotypes or victim-blaming and character evidence regarding the accused, particularly evidence suggesting a pattern of sexual misconduct or a propensity to commit sexual offences may be permitted in certain circumstances. Whenever the courts determine a person’s character based on a single action, they make significant errors. The Reputation or character of the victim was immaterial in adjudging the guilt or punishment of the accused.[5] Character Evidence does not contain Evidential value weightage to judge the accused or victim, mainly it taboos their character and influences other people at large.
In 2013, after the Nirbhaya gang rape case, ‘rape shield legislation’ and making the character evidence of the rape victim immaterial. Through Criminal Law (Amendment )Act,2013 pierced the shield and made some recommendations of Justice Verma committee report.
CHARACTER EVIDENCE-ACCUSED SIDE
Section 54 of The Evidence Act, of 1872 prohibits the accused presiding bad character from being interrogated and considered as irrelevant.[6] while Section 53 permits the accused to present the evidence of their former good character of the accused.[7] The accused enjoys an edge over the prosecution at the beginning of the trial given in the Indian Evidence Act, of 1872. Sections 53 and 54 of IEC,1872 apply only to the accused. The burden of proof lies on women when prosecuted under section 375 (rape committed by public servants) which makes a biased part towards the accused. The proof of the victim’s previous sexual experience is not taken into count [8]but in Section 354 (sexual harassment of women) and 376 (Punishment for rape committed by public servants) IPC imposes restrictions on ‘consent’.
Women’s loose character is considered for the accusation. Subsequent character, conduct, and attitude are considered in cross-examination. [9]
Suba Rao, J said strongly that “ character evidence was very weak evidence. It could be used to tilt the case in favour of the accused in doubtful cases or to explain the reaction of the accused in certain situations. However, it had to give way to positive evidence and once positive evidence with regards to the guilt of the accused had been tendered, character evidence could not be used to turn the scale in favour of the accused.” [10]
CHARACTER EVIDENCE-VICTIM’S SIDE
Women whistleblowers restrict themselves to come forward for reporting the accusation of rape as it injures their image or character in society. Women do not want to chant the excruciating experience during prosecutions. 84th Law Commission of India Report questions the problem of the woman who acts as a victim in her case and how her previous sexual history or immoral character shows significant proof for viewing the originality or trust towards her statement whereas the man’s past sexual history is not taken into accountable or questioned under the section 54. By this strategy, the defence councils show their client is a victim and show that a falsely accused triggers the statement and injures the victim’s character.
In the R v. Rowton case, the personal experience was given by his opinion and it eliminates the reputation of the accused charged with assault. [11]
This shows the male-biased society when the subject matter is taken under the law commission report. Concerning the victim,172nd law commission section 155(4) allows prosecuted man for rape to adjudicate himself by manifesting his truth by showing the women’s immoral character. Later it was repealed and section 53-A which provides the consent of the victim is questioned in sexual offence cases, where the victim’s previous sexual activities are irrelevant evidence. Moreover, Section 146(3) was also amended and added that the women’s general moral character is not permitted to be interrogated by the female prosecutor during cross-examination.
JUDICIAL RECOGNITION -MISUSE OF CHARACTER EVIDENCE
The practice of misusing character evidence by the defence lawyers in such cross-examination by posing questions in a ‘wild and indecent’ manner to the rape complainant is criticized by Justice A.K Badrul Huq. Section 53A of the Evidence Act, of 1872 has limited scope where the principle favours the accused side and it acts against the victim side.
In Pappu v. the state of Uttar Pradesh, the accused does not abstain from the charge of rape that consent must be given for the act even after observing the previous sexual experience of the victim. [12]
CONCLUSION
In rape trials, Discrimination, and sexual experiences are still uncontrollable in rape cases. It brings stress and pressure on the rape victim and leads to burdensome to them. The significant factor that provides an understanding of “consent” under the law of crimes. There are many sources present in the judiciary system and evidence that is harmless to the victim’s reputation during the proceedings should be maintained. The character of the victim is injured and brings harmful stereotypes in society. It is also the responsibility of the judges to deal with the cases reasonably through judgments to safeguard the interest of victims through law. Many misuse this character evidence to escape from guilt. It is important to recognize that previous bad behaviour is not a determining factor in providing justice. Defendants in all the cases are presumed to be innocent until proven guilty in a fair trial. The focal length should remain on the credibility of the witness, the particular circumstances of the case and the presence and absence of the comment. There is no connection between acknowledging “good” and bad” character evidence of victims in rape cases. It is the practice of patriarchal society that is prevalent still today by comparing the “mental” and “ideal” characters of the Indian women and the viewpoint should be changed in the society in empowering the women.
Author(s) Name: D.Suvathi (The Tamilnadu Dr.Ambedkar Law University,Chennai)
Reference(s):
[1] Ram Singh v NCT of Delhi [2013] AIR SC 2595
[2] Indian Evidence Act 1872,s 53A
[3] Code of Criminal Procedure Code 1973,s 101
[4] Abhishek. A& Srjita .C, ‘Character Evidence and its Evidentiary Value and Moral Implications in Rape cases’ (2022) <http://www.ijlra.com> accessed on 10 December 2023
[5] State of Haryana v. Prem chand [1990] AIR 538
[6] Indian Evidence Act 1872, s 54
[7] Indian Evidence Act 1872 ,s 53
[8] Indian Evidence Act 1872 , s 53A
[9] Raja v. state of Karnataka [2016] 10 SCC 506
[10] Bhagwan Swarup v. Gangaram [1920] Bom LR 1274
[11] R v. rowton [1865] 169 ER 1497 (CCR)
[12] State of U.P v. pappu [2005] SCC 594
