Why I think Bishop Franco Mulakkal should not have been acquitted
Glaring lapses in the Kottayam Session Court's judgement
Church related sexual assaults have become undeniably banal news for the entire world. We have now become immune to hearing horror stories of predators hiding behind God, while committing unspeakable acts upon voiceless victims - mostly nuns and children at the bottom of the Church’s hierarchy.
So, hearing of another such “Bishop Franco”, in the long line of notorious holy men who have come before him, doesn’t stir as much outrage as it should. However, upon reading the judgement of the Sessions Court at Kottayam, the heart sinks a little.
I mean no disrespect to either the Court or the Church. I am prejudiced against neither. But in any autonomous self regulating institution, having its own rules and hierarchy, there are bound to be a few bad eggs. Bishop Franco, I am afraid, is the Church’s bad egg and in my humble opinion, the Kottayam Session’s court judgement in the present matter suffers from various glaring lapses.
A Hypertechnical Approach
The court took a hyper technical approach when it ought to have taken a reasonable one.
For instance, in Para 26 of the judgement the Prosecution sought to produce an email sent to the Apostolic Nuncio (probably informing the Catholic Church of the incidents of sexual abuse. The contents of the email have not been disclosed in the judgement.). The court held the said email to be “inadmissible” due to lack of a S.65-B certificate.
What does this mean?
The Indian Evidence Act, 1872 states that whenever electronic evidence is sought to be produced before the court, it must be accompanied with a section 65-B certificate. Otherwise, the court will discard such evidence and will not consider it.
Electronic evidence is any evidence which has been produced from an electronic device. For eg:- print-outs of emails, WhatsApp messages, or any document printed from a laptop, computer or a smartphone would all be considered electronic evidence.
The Indian Evidence Act requires that if a party is producing electronic evidence to support its case, it must mandatorily also produce a certificate identifying the electronic device from which the evidence has been produced, who was usually in charge of or in ordinary and rightful possession of such electronic device, contents of the document etc.
So for instance, in the present case, when the prosecution sought to produce emails sent to the Apostolic Nuncio, it ought to have produced a certificate, identifying
the computer from which the emails were printed (by specifying the model number, unique number or a code given by the manufacturing company),
who was the owner of such computer
What was the content of the email
Whether the computer from which the email was taken was ever hacked/compromised in the time such email was written or printed out, etc.
The point of the certificate is to make sure that the electronic document being produced is as good as the original.
While appreciating documentary evidence, the court always requires the litigant to produce original documents. But electronic evidence is always a copy of the original. For instance, one can only show a printout of an email to the court because the original would be in his/her laptop or smartphone. So how does one show original copies of emails/messages?
It is important to remember that portable communication devices such as laptops and smartphones are a very recent invention. The Indian Evidence Act was drafted in 1872 and did not originally contemplate such advances in technology. Moreover, even today, if one were to send emails from one’s desktop, it would be impossible or atleast highly impractical to produce the desktop and CPU before the court.
This is where a S.65B certificate comes in handy. It is attached with any electronic evidence sought to be produced, so that the court can identify the electronic device from which the evidence was produced, the owner of such device, the content of the evidence, etc. without actually having to physically inspect the electronic device itself.
But what happens when a S65B certificate is not produced with electronic evidence? What would happen if, for instance, print outs of emails sought to be produced before the court are not accompanied by a S.65B certificate? Should the court not rely on such evidence at all?
The Supreme Court of India answered this question in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473, and said that where a S.65B certificate has not been given the court would not mechanically discard such evidence. It would first summon the person seeking to produce such evidence and give him/her an opportunity to produce the S.65B certificate. Thus, lack of a S.65B certificate is a curable defect.
Moreover, it is also not difficult to make a S.65B certificate. Contrary to its nomenclature, one doesn’t have to go to a government body to procure it. The format for the certificate is the same as an affidavit and needs to be attested the same way. Typically, it takes about 5 minutes to make.
This is why it is surprising that the court has chosen to dismiss certain evidence as unreliable, simply due to lack of S.65B certificate. In my humble opinion, the court ought to have given the Prosecution an opportunity to supply it, instead of dismissing credible evidence altogether, over a technicality.
“Sharing a Bed”
As language has evolved over a period of time, different languages have used different words and phrases to describe the act of having sexual inter course. Words like “sleeping together” and “sharing a bed” are commonly used to describe sexual activity.
But, the court’s interpretation of the expression “sharing a bed” is shocking to say the least.
On Page 237, the court observes “In Ext.P1 FIS 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. The explanation offered by the victim is that she had no trust in PW37, the woman police officer and that the statement was recorded in an unsecured environment. Both explanation have been proved as incorrect.”
At the outset, I must disagree with the court’s conclusion on the victim’s statement being recorded in a secure environment. In my humble opinion, there is nothing in the judgement to show that the court has considered the kind of environment in which the victim’s statement was given. It only traverses the questions posed to her and the answers she had given, without putting into context the difficulty with which she had to narrate the facts of her sexual abuse.
It is also important to keep in mind that most nuns join the church at a very young age and take a vow of eternal chastity. It is also the only way of life they ever know. So, for a woman in the victim’s position, not only is sexual intercourse strictly prohibited, it is also deeply stigmatised. Therefore, it is understandable why she might feel embarrassed about doctors inquiring about her sexual activity or insecure when police women ask her about the intimate details of her sexual abuse. Due to the cultural stigma against sex and ironically, rape victims (and not rapists), it is difficult for women to answer such questions. However, the court refuses to consider such factors, while considering her testimony.
Moreover, the court also seems to have misinterpreted the common expression “sharing a bed” to mean that the Bishop and her only had to share a bed literally and therefore no rape took place. With all due respect to the court’s verdict, by no stretch of imagination can this be considered a reasonable interpretation.
Furthermore, how many times do rape victims in any part of this country ever directly say “he raped me”? Such a statement might actually appear to be peculiar. One might find that such women use expressions like “He did a bad thing with me” (‘usne mere saath galat kaam kiya’) or “he forced himself on me” (‘usne mere saath zabardasti ki’). Imagine if one began to interpret such statements literally. Rape convictions would reduce by half simply because the court might say ‘the victim only said that he used force on her. Perhaps he was running her over with a car or hitting her with a log. But surely an offence of rape is not made out.’
The court must not adopt a literal interpretation of such statements and must be alive to the realities of the plight of women in this country, along with language used in ordinary parlance.
Court put the victim on trial
The court seems to have tried the victim instead of the Bishop.
During the proceedings, the defence argued that the victim had been having an illicit relationship with her brother in law, i.e., her cousin’s husband. The Bishop alleged that the rape allegations against him were levelled by the victim to hide her own unchastity and disobedience to God. Upon medical examination, the victim’s hymen was found to be torn and the reports thereof were sought to be used as evidence to corroborate her illicit relationship with her brother in law.
For the sake of argument, even if one assumes such allegations to be true, why should that affect the merits of her case? Her illicit relationship would not erase the incidence of sexual abuse against her. A woman could have an affair and be a victim of rape. Thus, the court ought not to have allowed the defence to elaborate on such an argument, thereby publicly humiliating the victim.
Placing such significance upon the victim’s sexual experiences is also against S.53A of the Indian Evidence Act, 1872, which states that:-
“In a prosecution for an offence under… S.376 of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experiences with any person shall not be relevant on the issue of such consent or quality of consent.”
Therefore, there is no apparent reason for the court to have immoderately expended ink deliberating the victim’s previous sexual experiences. Especially when, the victim’s cousin herself admitted to making a false complaint.
The Defence also argued that the victim only raised allegations of sexual abuse by the Bishop to circumvent the inquiry initiated against her by the Church for having an affair with her brother-in-law. Unfortunately, despite there being evidence to the contrary, the court seems to have accepted the defence’s argument.
Upon perusal of the judgement, it becomes clear that the victim has on multiple occasions disclosed the incident of rape to other sisters at the congregation, even before the inquiry against her was initiated. In fact, it is actually curious to see that the inquiry against her seems only to have been initiated when she tried to raise the issue of sexual abuse by the Bishop, with the official authorities at the Church.
The consistent support that the Bishop has received from the Church, even outside the courtroom has made the priorities of the Church very clear. Its priority was never to prevent its nuns from being sexually abused, but to protect its abusers who are in positions of power and are higher up in the hierarchy.
But I digress.
It seems that the court has accepted the defence’s argument, on the ground that the victim only told the other sisters of the congregation that she is being forced to “share a bed” with the Bishop. and not that “she was raped” by the Bishop.
So, according to the court, the victim never disclosed the incident of sexual abuse before the inquiry and has only disclosed the same to the police for the first time in 2018, after the inquiry against her was already initiated.
Inconsistencies in her testimony
The court has rejected the victim’s testimony on the ground of inconsistencies in her statements and disclosures. It has observed that “There is no consistency in the statement of the victim. The grievance projected by her to her companion sisters was that the accused was taking retaliatory steps for not yielding to his sexual desires, whereas her version before the court was that she was forced to do sexual intercourse with the accused on 13 occasions including fingering on the first occasion. Prosecution has failed to give proper explanation for the inconsistent version.”
The court goes on - “Of course, it contended that initially the victim was reluctant to disclose to her companion sisters about the sexual abuse. But there is no explanation for the omissions made in Ext.P1 FIS and the history narrated to the doctor wherein also penile penetration was not disclosed”
It is humbly submitted that the First Information Report/Statement (FIR/S) cannot be treated as an exhaustive narration of all the facts of the offence. If that were the case, why even bother having an investigation at all? Or why allow the prosecution to argue during the trial, since the victim has already narrated everything in the FIR?
This, in my humble opinion, is a flawed approach. Simply because a fact was not narrated in the FIR would not mean that the victim is deliberately improving upon the testimony.
The purpose of an FIR is simply to set criminal law in motion and record such facts as are fresh in the victim/informant’s memory, so as to prevent embellishments or improvements in testimony at a later stage. However, this would not mean that any fact sought to be raised by the Prosecution, would automatically be discarded if it did not find mention in the FIR. Where such a fact is not contrary to narration in the FIR and where it is corroborated by other circumstantial evidence, it cannot mechanically be regarded as deliberate improvements in the victim’s testimony.
If one considers the testimony of the other nuns, an offence under S.376 IPC is made out atleast once. The court has raised some doubts about the 13 instances of rape cited by the prosecution but remember, only one instance needs to have ben made out in order for the accused to be convicted under S.376 of the IPC. Unfortunately, the court has not been mindful of the same.
The Untold story
Overall, the narration of facts in the judgement seems to indicate a more telling tale outside the courtrooms.
Witnesses of the prosecution randomly turning hostile, the prosecution unable to comply with small technicalities of the Indian Evidence Act, the victim’s cousin lodging a complaint against her, etc., all seem to indicate that there is a side of this tale hidden from public eye.
At the end of the day, one cannot look at the session’s court judgement too begrudgingly either. The verdict is almost certainly going to be overturned. The evidence recorded by the court is organised and well recorded. In my opinion, it has simply been dismissed and disregarded for the legally wrong reasons.