The judgment of a trial court in Kottayam, Kerala, acquitting bishop Franco Mulakkal, accused of having raped a nun from Kerala as many as 13 times, has been met with widespread cries of incredulity as it questioned her conduct.
It has outraged not only women activists but others, too, because it is only very rarely that victims dare to raise their voice against sexual assaults by men holding powerful positions, and denial of justice to those ‘courageous women’ will discourage others from even filing complaints, and thus render a great disservice to the cause of safety and well-being of women in India.
The case, in brief, was that in June 2018, a 43-year-old nun from Kerala, also a Mother Superior belonging to the Missionaries of Jesus congregation based in Punjab, had filed a police complaint in Kottayam, claiming that Mulakkal, former head of the Latin Catholic diocese of Jalandhar, had raped her several times between 2014 and 2016.
Mulakkal was arrested only in September 2018, after five nuns sat on an indefinite hunger strike at a public square in front of the Kerala High Court, demanding the arrest of the bishop. He got bail a month later.
A Lonely Nun Against the Mighty Church
The question of getting justice for hapless women against powerful men and institutions becomes particularly important in light of the fact that one of the first things Mulakkal did after his acquittal was meet then-MLA PC George. The latter was quick to remark, “A move to dent the powerful church was foiled by believers.” It may be recalled that George has had been supporting Mulakkal since the beginning, and in September 2018, he was summoned by the National Commission of Women for his remark, “No one has any doubt that the nun is a prostitute. Twelve times she enjoyed it and the thirteenth time it is rape? Why didn’t she complain the first time?”
Sister Jesme, who walked out of the congregation questioning alleged ill-treatment by church authorities, also points out that soon after the victim had filed a police complaint, there was a concerted social media attack on her by people close to the church. In other words, it had become a fight of a lonely nun against the church.
The prosecution has decided to file an appeal and hence, I am refraining from a detailed legal critique of the 289-page-long judgment. Some general observations would, however, be in order.
The Prosecution’s Criticism
I agree with the special public prosecutor, Jithesh Babu, that the judgment sought to discredit the survivor on minor differences in various statements, whereas the principle adopted by the Supreme Court is that “minor changes in a deposition is a sign of credibility while it is the parrot-like version that has to be discarded”.
Almost all prosecution witnesses have been discredited as unbelievable on minor grounds. For example, it has been pointed out that when an explanation was given by PW2 (another nun) to her superiors, her main concern was that the congregation should not take any disciplinary action against her and expel her from the congregation. It was due to this concern that she wrote that she had given the statement to the police under pressure, and hence, she should not be proceeded against.
In my opinion, she used the word ‘pressure’, lacking articulation. Even if the police illegally pressurise a witness to say something, the witness is at complete liberty to state in the court that he or she was pressurised by the police. In fact, every year, thousands of witnesses claim so in courts across the country. However, the mere use of the word ‘pressure’ in her explanation to her departmental superiors cannot be used to conclude that she is an unreliable witness.
According to the prosecution, the judgement seemed to give a colour of consent to the act, which had not been raised even by the accused. The bishop, on the other hand, had taken a line that the charges against him were fabricated and in retaliation for taking action against her with regard to a complaint made by a woman.
I also agree with their contention that the judgment missed the context even as the court admitted that the accused was the supreme authority over the victim who had the power to influence her life. In Chandraprakash Kewal Chand Jain (1990), a Division Bench of the apex court had pointed out that the position held by a person in authority was bound to affect the behaviour of the victim.
Under such circumstances, the inability to resist or delay in reporting, etc., is quite natural. The aspect of the victim’s fiduciary relationship with the accused and its repercussions on the mental condition of the victim was also not appreciated.
Why the Insistence on Penile Penetration?
I also agree with the prosecution that the fact that the term penetrative sexual intercourse was not used each time by the survivor cannot be looked upon as an omission, as the survivor has no legal knowledge. Given the unique sociocultural background of the nun and the atmosphere of religiosity in which she was raised, I find it perfectly natural that she spoke in terms of “forcing her to share a bed with him”.
In any case, according to the definition of rape under Section 375 IPC as amended by the Criminal Law Amendment Act, 2013, penetration of the vagina by the penis in the conventional sense of sexual intercourse is not at all necessary to constitute the offence of rape.
Now, insertion, to any extent, of any object or a part of the body, constitutes rape. “To any extent” is the critical part. It means that the slightest contact with the concerned part would also make for rape. That fits perfectly with her case.
Why the Insistence on Post-Rape Normative Behaviour?
There are certain aspects of the judgment that are acutely reminiscent of the judgments in the case of Tarun Tejpal, which, too, has been appealed against. In that case, the court had spoken of the absence of ‘normative behaviour’ that a victim of sexual assault might plausibly show. The fact of the victim having sent messages to the accused giving her location, or her staying back in Goa, were held against her as proofs that she was neither traumatised nor terrified of being located or found by the accused.
In this case, the court observed, “The PW1 (victim) could have stayed at her sister’s home after the Holy Communion function of her nephew. Instead, she chose to return to the convent with the accused, that too after being subjected to rape the previous night … In the said circumstances, these journeys and close interaction with the accused definitely undermine the whole prosecution case.”
The fact is that post-rape normative behaviour is just a notion without any scientific or legal basis. In Aparna Bhat (2021), the Supreme Court had specifically commented that the stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault.
Rape myths undermine the credibility of 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 Need to Look at the Larger Picture
Justice B Kemal Pasha (Retd) of the Kerala High Court has commented that it was a clear case of miscarriage of justice. He said the court looked at all the reasons not to believe the nun rather than believe her.
I find that in the context of factions and feuding in the church, a line of reasoning that the victim was swayed by the influence of others who had other vested interests in the matter is rather far-fetched. According to the court, the infighting, rivalry and desire for power of the nuns were evident from the victim and her supporting nuns agreeing to settle the matter if their demands for a separate region under the diocese of Bihar was accepted by the church. But for a woman to make an allegation of having been raped 13 times, staking her honour, career and everything else merely because of a power struggle in the church is difficult to believe.
In Bharwada Bhoginbhai Hirjibhai (1983), the Supreme Court had held, “Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male-dominated society … Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault … The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society.”
This case highlights the horrors that nuns face within the constrictive confines of the church and the absolute control it exercises over the ‘consecrated religious’, which puts them in a position far more disadvantaged than that faced by other women.
(Dr NC Asthana, a former DGP of Kerala, is the author of 46 books and 76 research papers. His latest book is ‘State Persecution of Minorities and Underprivileged in India’ that has been reviewed by Justice J. Chelameswar (Retd) of the Supreme Court. He tweets @NcAsthana. This is an Opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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