Kerala HC Tells Lawyers Not To Ask Rape Survivor If She Has Had Sex Earlier And How Many Times “Not Relevant”

Kerala High Court paves the way for survivor justice, once again, by ruling that the survivor’s sexual history is of no relevance to a rape case, as it is the accused who is on trial.

In a recent case related to the rape and impregnation of a minor by her father, the Kerala High Court had reiterated that the survivor’s sexual history is not relevant to the ongoing case. The court has sentenced the accused to 12 years of imprisonment and a fine of 50,000 rupees.

Kerala High Court, in the judgement, had mentioned that, “”Even in a case where it is shown that the victim is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. Even assuming that the victim is previously accustomed to sexual intercourse, that is not a decisive question. On the contrary, the question which is required to be adjudicated is, did the accused commit rape on the victim on the occasion complained of. It is the accused who is on trial and not the victim.”

In one landmark judgement Kerala High Court, while addressing the wide scope of Section 375 (rape) of the Indian Penal Code, said that sexual gratification without penetration should also be considered sexual assault. In another such judgment, Kerala HC cited marital rape as an absolutely valid ground for divorce.

In a country where as recently as this year, a Mumbai court has let a man go off on bail despite sexually assaulting and paralyzing his wife while claiming it to not be illegal, the Kerala HC’s verdicts do come as breaths of fresh air.

It doesn’t matter even if survivor is ‘accustomed to sexual intercourse’

The Indian judicial system puts survivors through a lot of trauma during trials, the glimpse of which was shown to the Indian audience in the movie Pink.

The movie revolves around three women who were victims of attempt to sexual assault and the legal trial that followed. It held up the reality of almost all rape trials. Starting from the cross questions to character assassination to probing into the survivor’s sexual history, the judicial and legal system almost leaves no stone upturned in establishing that the abuse was everybody’s fault except the abuser’s.

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This form of cross questioning is no different from blatant victim blaming. Indian courts have been using this language to further traumatize the victims and put them under immense emotional and mental distress. From falling asleep after assault to having ‘confident movements’ in behaviour ‘not like a sexual assault survivor’, it is almost as if the judiciary blames survivors for being alive, or worse, reporting their abuses.

This is, no doubt, a form of maintaining gender hierarchies, with lawyers and judges perpetuating sexist, victim blaming narratives to save the men in power.

The recent judgement also took into consideration the varied reasons why a survivor would not approach the police right off the bat while also making it very clear that “there is a gulf of difference between consent and submission”.

While, survivors and victims are constantly discouraged from speaking out or reporting their abusers to the police, this verdict sets an example for how to sensitively deal with a rape case. With more sensible judgments being passed and more sensitization workshops being undertaken by judicial and legal officials, we can only hope and pray for victim blaming in courts to soon become a rare occurrence.

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