Bishop’s acquittal: Kerala court questions nun’s ‘conduct’, ignores change in law on rape

Indian Express [Noida, India]

January 16, 2022

By Apurva Vishwanath

Judge Gopakumar relies on three crucial contentions to hold that the complainant’s statement detailing 13 separate instances of alleged rape in a span of four years is inconsistent.

FROM notions of how an ideal victim must behave to theories of possible enemies within the system plotting against the accused; speculation that the complainant could have had an affair with a married man to an earlier, narrower definition of rape.

These are some of the key factors behind the Kerala court’s acquittal of Franco Mulakkal, the former Jalandhar Bishop of the Catholic Church, of all charges in the alleged rape of a nun.

In his 289-page order, Additional Sessions Judge G Gopakumar of the Kottayam district court held that the victim’s statement is inconsistent. Under the law, the statement of the complainant in a rape case is considered sufficient evidence unless the defence can establish material inconsistencies in it.

Judge Gopakumar relies on three crucial contentions to hold that the complainant’s statement detailing 13 separate instances of alleged rape in a span of four years is inconsistent.

First, that the complainant in her first statement did not disclose sexual abuse, specifically penile penetration by the accused. While the prosecution claimed that being a nun, the complainant was not very forthcoming from the beginning, the judge concluded that it is “hard to believe” the “victim’s explanation that she could not disclose in the presence of her companion sisters.”

The judge also holds, specifically, that “penile penetration” was not described by the complainant to in her statement or to the doctor.

The verdict quotes from the medical examination of the complainant to put on record the history of “multiple sexual assault by Bishop (Franco Mulakkal) who was occasional visitor at the convent Home.” According to this, there were 13 instances of assault in four years. The nature of the assault is clearly described, including touching of private parts and forcing her to touch his private parts.

However, referring to the cross-examination of the doctor and some portions struck off in the medical report, the judge holds that although “it is revealed to the doctor that there were 13 episodes of sexual assault, there is no mention of penile penetration.”

Significantly, after the crucial 2013 amendment to the law on rape, all these instances classify as rape while the old law had restricted its definition to non-consensual peno-vaginal penetration.

In two specific instances, the judgment even questions the conduct of the complainant.

“…she chose to return to the convent along with the accused, that too after being subjected to rape previous night. According to her the vow of chastity had haunted her after every abuse. After every rape, she pleaded for mercy. In the said circumstances these journeys and close interaction with the accused definitely undermines the prosecution case,” the judge noted. He referred to an incident where the complainant travelled with the accused who, incidentally, was her superior as part of her work in the congregation.

In another instance, the judge questions the complainant’s statement on how there were no witnesses to the alleged sexual assault since nobody heard her.

“Coming back to the evidence of PW1 (victim), it is her case that there was a struggle between herself and the accused, though she claims that her voice did not come out. The evidence of PW38 (Prosecution Witness 38) shows that the room had a ventilation opening. Other rooms were also there on the same floor. Of course, prosecution contends that the other rooms were remaining vacant. But there is no evidence to show that the other rooms were remaining vacant, on all the 13 days of sexual violence,” the verdict states.

PW38 is part of the investigation team who inspected the premises where the sexual assaults allegedly took place.

“The version of those who might have stayed on the floor, would have definitely given some inputs regarding the prosecution case,” the judge added, noting that the investigation did not specify if anybody stayed on the same floor at the time of the sexual assault.

In several instances, the verdict refers to allegations of sexual assault as the accused attempting to “share bed” with — which has a connotation of consent.

The complainant, in her statement, alleged that after she levelled allegations of rape against the Bishop, an inquiry was initiated against her based on a false complaint by her relative. The relative, a Delhi-based teacher, alleged that her husband and the complainant were having an affair.

The judge takes note of the fact that the relative testified that the complaint was “fake” and “motivated for personal reasons” but, curiously, he held that it could not have been so. The judge notes a theory by the defence attributing the mention of broken hymen in the medical report of the complainant to the alleged affair with a married man.

“It is true that PW16 (the Delhi relative) has deposed before this court that the complaint levelled against the victim was false and that she filed this complaint on account of her hostile relationship with PW1…But it is doubtful whether a lady of the stature of PW16 who is a teacher by profession would malign the reputation of her own husband, who is a lawyer practicing at the Hon’ble Supreme Court of India, for a silly verbal brawl with PW1 and her family members.”

The judge also finds merit in the theory of the defence that the accused has “enemies within the church” who used the complainant as a scapegoat to target him.

“Defence relies on the evidence of PW12 to prove that a rival group was working against the accused. PW12 in his cross-examination claims that the accused was ordained as a Bishop at the age of 44 years. According to him, the retirement age of a Bishop is 75 years. If the accused could continue as the Bishop, he may become a Cardinal or may even reach a higher position,” the judge notes.

“Thus, there is evidence to show that accused had many enemies within the church,” the verdict held.