Why the trial court’s acquittal of Bishop Franco Mulakkal in the Kerala nun rape case is legally vulnerable

Dissecting the trial court's judgment in the Kerala nun rape case will reveal several rape myths which our Judges must learn to avoid in the light of our own jurisprudence, writes PRASHANT PADMANABHAN.

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"IF you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality", said Desmond Tutu, a South African Anglican Bishop and anti-apartheid and human rights activist.

Those words of Tutu, who died on December 26, last year, came to mind while reading the judgment by the Trial Court in Kerala, acquitting the accused Bishop Franco Mulakkal of the charge of raping a nun.

Also Read: Kerala court acquits Bishop Franco Mulakkal in nun rape case

As is well known, a Bishop is a senior member of the Christian Clergy in charge of a Diocese. Any dispute of a sexual nature between him and a nun would therefore be in a hierarchical context where he had a dominant role of supervision over her. There is no recognition of this in the judgment.

A short description of the facts

Bishop Franco Mulakkal, the Bishop of the Roman Catholic Diocese of Jalandhar who was residing in Bishop House, Jalandhar city, Punjab was accused of offences punishable under Sections 342 (punishment for wrongful confinement), 376 (2) (k) (punishment for rape – being in a position of control or dominance over a woman), 376 (2) (n) (punishment for rape – committing rape repeatedly on the same woman), 376C (intercourse by superintendent of jail, remand home, etc.), 377 (unnatural offences), 354 (assault or criminal force to woman with intent to outrage her modesty) and 506 (ii) (punishment for criminal intimidation) of the IPC.

The victim/survivor is none other than a nun, who was the Head of the Congregation named as Missionaries of Jesus. She was in-charge of the Home at Kuravilangad, Kerala where she was residing along with some other Sisters. The Bishop used to visit Kerala occasionally.

On May 5, 2014, when he came to Kerala in connection with his official visit, he stayed in the Guest Room of the Home. The allegations are that at about 10 p.m., he called the victim/survivor (hereinafter 'Sister') to his room to bring the papers relating to the construction work of the kitchen, and when the Sister came to his room, the Bishop suddenly locked the room from inside and caught hold of her and forcefully removed her undergarment ignoring her resistance and against her will inserted his finger into her vagina and attempted to thrust his sexual organ into her mouth. This by itself would amount to rape under the amended definition and aggravated sexual assault since he was in a position of authority over her congregation. He then threatened her that if she disclosed the incident to anyone, she would have to face dire consequences.

On the next day, he raped her and thereafter repeatedly raped her in the night when he resided in the Home during his visits to Kerala.

The process of criminal law was set into motion when the Sister lodged a complaint on June 27, 2018, before the District Police Chief, Kottayam. On the basis of the complaint, an FIR was registered, the investigation was conducted and a charge sheet was filed.

Also Read: Kerala nun asked to leave convent for protesting against Bishop accused of rape

Some other nuns of the same congregation, have also given statements including Section 164 statements before the Magistrate and submitted that the Sister had disclosed to them that she was subjected to rape by the Bishop on various dates.

The case of the defence

The defence placed reliance on certain photographs and DVD of the functions attended by the Sister on May 6, 2014, to buttress their contention that no sexual violence had taken place on the night of May 5, 2014. The argument of the defence was that the victim appears to be quite happy and joyful in the photographs, wherein the Bishop was the chief guest. These submissions were based on stereotypical notions of how a rape victim is supposed to behave. The Sister stated that in the third video clip, she can be seen crying, sitting on the backside of the church.

The Judge took the pain to go through the photographs and video clips and recorded that the Sister was indeed very gloomy in the third clip. Thereafter, he recorded that nothing can be concluded from the joyful face of PW1 (Sister) or from her gloomy face as regards what was actually going through her mind. It may be noted that such findings were totally unwarranted as they reflect a blind acceptance of certain 'rape myths'.

Person in authority 

The Judge came to the conclusion that the accused Bishop was "a person in authority" at para 70,  page 41 of the judgment. In the circumstances, Section 376(f) of the IPC was attracted to the case and it would be aggravated rape. Section 114A of the Indian Evidence Act, 1872 would also be attracted under which, the burden of proving that there was indeed "consent" is upon the accused Bishop. This crucial aspect is totally ignored in the judgment by the Trial Judge.

The Bishop has argued that he has been falsely implicated in the case by the Sister. By relying on a letter, allegedly written by her own cousin (Jaya Francis PW16 in the Trial Court), it was contended that disciplinary proceedings were initiated against the Sister and she was removed from the post of Mothership and reverted as an ordinary nun and that provoked her to implicate the Bishop in a false case. It is contended by the lawyer for the Bishop that Jaya Francis has alleged in her letter that the Sister had an affair with her husband, Court Witness No.17.

It may be noted here that the alleged author of that letter, Jaya Francis herself, told the Court on oath that the complaint was fake (in para 375, pg. 226 of the judgment). The Judge then refers to a factional feud within the congregation and that the accused had many rivals. This appeared to have clouded his judgment on whether the rape took place.

The Judge, in his concluding part of the judgment, has recorded: "The evidence of PW1, PW3, PW4 and PW22 proves that they have placed some demands before the church, including a demand that the convent shall be placed under the diocese of Bihar and that they were ready to settle all issues if their demands are met. The complaint was filed after their demand was rejected."

Also Read: Explainer: Interpreting sexual assault: why High Court rulings continue to shock us | Part I

This seems to be the basis upon which the Trial Judge arrived at his reasoning for an acquittal. However, there is no basis to connect the complaint with the so-called dispute over the diocese. The Judge discusses, in detail, about the missing phone or laptop wherein messages were allegedly exchanged between the accused Bishop and the Sister. Clearly, the Judge has, in mind, a stereotype of how a rape victim should behave,  and followed the rape myths raised by the defence side.

It is submitted that the adverse inference drawn by the Judge against the victim is wholly unjustified. The Judge has recorded the statement of the victim (PW.1) in these paras at pages 61-62:

109. With the arrival of Sr. Alphy, Sr. Anupama and Sr. Josephine, PW1 could gather courage. The younger sister of PW1, who herself is a nun, wrote a letter to Sr. Regina pointing out the retaliatory measures faced from the accused and Sr. Regina, before leaving Bihar. PW1 sent letters to Pope Francis, Cardinal Marc and Cardinal Luis on 15th May, 2018, detailing the sexual assault and retaliatory measures, through Bluedart DHL Courier Services. Though they did not receive any receipt or acknowledgment, on searching the website of the courier service, they understood that the letters have been served.

110. Fr. Jose Thekkumvelikkunnu came to the convent on June 1st and 2nd. A committee was convened wherein her family members also participated. She openly disclosed in the meeting about the sexual assault to which she was subjected to. She also informed at the meeting that if adequate corrective measures are not coming from the authorities, she would inform the matter to the police.

When, in fact, the victim herself narrated the efforts taken by her to move out of the control and authority of the perpetrator, the sincere efforts taken by her for a resolution within the Home before approaching the Police, in the most honest words, were used by the Judge to draw an adverse inference against her.

It is submitted that the Judge ignored the three vows taken by nuns (of obedience, chastity, and poverty) within the Church, the circumstances within which the crime was committed, the fiduciary relationship and the power imbalance between the Bishop and the Sister, and the shrinking space and suffocating atmosphere in which the survivor resorted to all humanly possible efforts before invoking criminal law.

Urgent need for change in the judicial mindset

Trauma affects memory and recall. Unless trial judges show empathy to those who approach the Court, they will not be able to confidently put forth their case. In sexual assault investigations, if a victim is interviewed in a stressful way, and not treated with compassion, she will not be able to recall potentially crucial information that is stored in the brain. Trial judges in India must be sensitised in the light of modern medical science.

To conclude, it is apt to recall the words of Justice Ravindra Bhat in Aparna Bhat v State of Madhya Pradesh, delivered in March last year. Among other things, Justice Bhat held that "… courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing "consent" in sexual offence cases". The trial court's acquittal of the Bishop, therefore, is questionable in light of what Justice Bhat has laid down in this case.

In paragraph 46 of the judgment in Aparna, Justice Bhat has held that as far as the training and sensitisation of judges and lawyers, including public prosecutors, is concerned, a module on gender sensitisation be included as part of the foundational training of every judge. "This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training", Justice Bhat recommended.

Also Read: Why a Gender Sensitisation Training is the need of the hour

In paragraph 47 of the judgment in Aparna, Justice Bhat requested the National Judicial Academy to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges' continuing education with respect to gender sensitisation, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. "The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies, or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided", Justice Bhat held.

Likewise, he advised the Bar Council of India (BCI) to consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitisation to be mandatorily included in the syllabus for the All India Bar Examination, he suggested.

Justice Bhat's conclusion in this judgment is more relevant in understanding the implications of the acquittal of the rape accused in Kerala.  He observed: "Judges play – at all levels – a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors".

(Prashant Padmanabhan is an Advocate-on-Record of the Supreme Court of India. The views expressed are personal.)