“Why was she smiling while sharing a stage with the accused?” “Why didn’t she mention every single detail to her friends?” “Why was she civil with him if she claims he raped her?” No, not Twitter comments from anonymous handles, but insinuations from the judgment that acquitted Bishop Franco Mulakkal, in a case where a nun working under him accused him of sexual assault on multiple occassions over a period of two years. The order by the Additional Sessions Court judge Gopakumar G in Kottayam, Kerala, on January 14, 2022, claims a lot of “flaws'' with the survivor nun’s testimony, and her behaviour — reinforcing societal expectations of an “ideal victim”.
In this case, these expectations are from a woman who, in addition to being socially conditioned to believe that sex is taboo like many of us, has also learnt to hold virginity or “chastity” as sacred by the religious institution she is part of. And beyond sexual abuse, is also a victim of abuse of power. On one hand, the expectation from the victim is that she be pious and unsexual, and on the other, the judge expects her to explicitly mention “penile penetration” to sisters Anupama and Neena in whom she confided about the abuse. She is then disbelieved because her screams were not heard when the alleged rape happened; for being seen smiling at a public function she attended with Bishop Franco after one of the alleged instances of assault; and not having a hostile exchange with him on email after the alleged rape despite her stating that she was afraid of retaliation against her and her family if she spoke up. In other words, the judge expects the nun to be demure, but has a problem with her being too demure to explicitly mention how she was allegedly raped. Then, he points out that if she was indeed a victim, how could she be so compliant as to travel in the same car as the bishop after the assault; and then not be visibly vengeful despite his explicit threats. In some places, the judgment even becomes prescriptive, going into what the survivor should or could have done.
The thing is, these expectations of what a survivor or victim should “ideally” have done, exclude the lived experiences of sexual violence that women face. In fact, they fail to take into account that sexual and gender-based violence are not exceptions — they are the norm in many women’s lives. Patriarchal notions of how a woman should behave after “loss of honour” are removed from the reality — women’s lives do not end with sexual violence. Life goes on, work happens, bills have to be paid, family taken care of, food has to be cooked as usual. The ideals of a “true victim” that this judgment seems to prescribe leave little to no room for survivors to process trauma and exercise their agency in how they want to deal with the violation.
In a paper published in the journal Feminist Legal Studies in 2002, Wendy Larcombe wrote that a perceived “real” victim is one who is “not only morally and sexually virtuous she is also cautious, unprovocative, and consistent.” Building on Norwegian criminologist Nils Christie’s definition of the “perfect” victim — “virtuous, weak in relation to the offender, and blameless” — British lecturer in law Siobhan Weare wrote for The Conversation in 2014 that a rape survivor, to “qualify” as a “true” victim, should not do what is seen in patriarchal societies as inviting assault with "risky" behaviour — like walking home alone at night, wearing revealing clothes, consuming alcohol etc. If she has done any of these, she is less likely to be believed as a victim by both society and the criminal justice system.
Similar arguments have been used to malign sexual violence survivors including in high-profile cases like the Tarun Tejpal case and the Mahmood Farooqui case. In the Tejpal case, judge Kshama Joshi while acquitting the ex editor-in-chief of Tehelka magazine, went into intimate details of the alleged assault and also into the survivor’s past sexual history, her views on consuming alcohol and having sex, what she could and should have done etc. All of this should have no bearing on whether she was sexually assaulted.
In the Farooqui case, the Delhi High Court acquitted the writer accused of raping an American researcher saying Farooqui may not have understood he was raping her because her hesitation was not strong enough: “Instances of woman behavior are not unknown that a feeble “no‟ may mean a “yes”,” the judgment said.
In the Kerala nun’s case, judge Gopakumar seems to have similar ideas. While the survivor says that on one instance of rape, she did try to stop the bishop and there was a struggle, she is disbelieved due to lack of discernible proof.
“[...] 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 [...] 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.”
This, despite section 375 of the Indian Penal Code clearly stating lack or absence of resistance does not amount to consent: “a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
It also defines consent as an “unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.” The nun clearly stated in her testimony that she told the bishop to not hurt her, and expressed fear and unwillingness too. However, courts continue to look for “visible” evidence of harm -- notably, Wendy’s analysis of rape trials in Australia also showed that a rape case was more likely to end in conviction if it is “clearly interpretable as violence”, i.e., the perpetrator is a stranger, and overt resistance by the survivor is visible as a physical injury or documentable.
However, there are many examples where even if a woman checks all of these boxes, she is still not believed. Take the case of Amber Heard, Hollywood actor Johnny Depp’s ex-wife, who accused him of domestic abuse. Amber did everything she was supposed to do -- she went to the police, submitted elaborate evidence, including photographs of injuries, and after her divorce in 2016, she donated the $7 million settlement she received to charity. She was the “ideal” victim, by many standards. Yet, she was called a liar and a gold-digger by individuals, tabloids and more, even accused of faking injuries to her face.
The fact of the matter is simply this: in the deeply misogynistic society we live in, the “ideal victim” trope is used to discredit victims and survivors of sexual violence, and not necessarily in the quest for neutrality or justice. The goalposts of what is ideal keep shifting to favour men. If the ideal victim in one instance is someone who records and remembers every single second of assault or abuse; in another instance, the fact that a survivor has in fact recorded every instance of assault or abuse is used as a stick to beat her with — because “what woman will recall everything in such detail, so she must have made it up.”
The judgment has an entire section on “events and programmes by PW1 (the survivor) and the accused, on the next day after the sexual violence”. The insinuation seems to be that if a sexual assault took place, a survivor would withdraw, not be in public, especially with her perpetrator. Then, the judge also noted that the survivor’s exchanges over emails seemed to be cordial, indicating she had a friendly relationship with him even after the alleged sexual assault — apparently, yet another reason to discredit her.
“The language used in the mails are neither formal nor official. These emails definitely give an insight into the relationship between the accused and the victim. The picture of a tyrannical, or vengeful person is not revealed from these emails.”
However, contrary to popular culture representations, people who commit sexual violence often do not look “villainous”, and people who experience sexual violence do not always bear signs of it.
Supreme Court advocate Vrinda Grover points out that “ideal victim” stereotypes and myths invalidate lived experiences of scores of survivors. “When a woman’s behaviour does not tally with the traditional stereotype of what the court thinks of how a woman should have behaved before, during, and after sexual assault, it is used to disbelieve her. Earlier, it was a common belief that if she didn't have injuries, she did not resist, and had consented to it. In this case, such arguments have been used to disbelieve the nun, and those whom she confided in,” the lawyer says.
Interestingly, the judgment explicitly states that “the bad character of the accused is not a relevant piece of evidence in a criminal case” under section 54 of the Indian Evidence Act. It even dismisses an experience of another witness nun who alleges that Bishop Franco once put his hands on her shoulder and pulled her towards him.
However, judge Gopakumar does not extend the same courtesy to the survivor. Instead, he gives a surprising amount of space to her cousin’s complaint about an alleged “illicit relationship” between the survivor and her husband, which the cousin later withdrew too. Despite the cousin’s testimony, the judge is convinced that this alleged relationship explains why the survivor nun is not a virgin, and not the sexual abuse she faced at Franco’s hands.
The survivor was allegedly sexually assaulted 13 times between 2014 and 2016 by Bishop Franco — a man who not only held authority over her, but was made to be akin to god himself. “PW1 (the survivor) swears that Bishop was like God to her. She had placed him in her father’s place. She didn’t expect such a person to abuse her sexually,” the judgment said. These are indicators of the hierarchies of power in which the alleged sexual abuse took place.
Further, when you consider the fact that “chastity” is a prerequisite for being a nun, it is not difficult to imagine why it would have been tough for the survivor to speak up about the abuse. At multiple places, her sense of shame and guilt comes across.
“She also went for meditation at a retreat center [...] where she confessed to the priest about the incidents. She was assigned with Bible reading at the [...] meditation, hosted by [redacted name of the priest], at Attapadi. As she stood sad, [the priest] came backstage. She knelt before him and confessed that she was not qualified for Bible reading. [He] consoled her and told her that god, the omnipresent, perceives everything. He encouraged her to read holy Bible without any fear.”
In the second of the 13 instances of the alleged sexual abuse, the survivor said she complied with Bishop Franco’s summons to “come to his room without drama” because “she was afraid that the accused would take revenge on her junior sisters, and [...] would eliminate her own sister. Hence, with no choice left, at 11.30 pm, she went to the room of the accused and knocked at the door.” The survivor’s sister stayed in Jalandhar, near Bishop Franco’s house.
“The facts are that the nun lives in a convent in a church where the bishop has power over her. While the judge initially acknowledges this, he does not consider how this will play out in her circumstances. There is no one size fits all response to sexual violence — whenever a woman faces violence, if and when she speaks up, who she confides it, and how she reacts will all be determined by her own location, and that of her perpetrator’s in relation to her. There is no fixed pattern to how a sexual violence survivor should behave,” Vrinda argues.
Another reason that judge Gopakumar is inclined to disbelieve the survivor, he stated in the judgment, is because she failed to mention that “penile penetration” had also happened during the alleged sexual abuse, even while telling her two fellow sisters. When asked about this, the judgment said that the survivor did not mention it because she was not in a free environment. However, the judge dismisses this, saying that it was on the survivor’s request that a woman police officer was deputed to take her statement.
“Victim's explanation that she could not disclose in the presence of her companion sisters that her chastity has been lost, is hard to believe. She admits in her cross examination that [the] complaint was prepared at the convent with the help of her five companion sisters. [...] When PW1 had no issues to draft a complaint with the help of her companion sisters, wherein the commission of rape also was disclosed, her explanation that she could not reveal about penile penetration in their presence cannot be believed.”
“It is almost as though the court is using a linguistic alibi to disbelieve her,” Vrinda says. “In India, women often use phrases to describe sexual assault instead of the words “rape” or “penile penetration”. In Hindi, when a woman says “galat kaam” or “zabardasti”, it is understood that she means sexual assault.” She adds that similarly, the judge’s argument that the survivor told her confidantes that she was made to share a bed with the bishop instead of explicitly saying she was raped, is problematic. “It is understood in the case of a bishop and a nun that it means forced sexual interaction between them. The nun would have been constrained in using language because of the setting she is in,” Vrinda says.
Further, regardless of whether there was “penile penetration”, the Criminal Amendment Act of 2013 expanded the definition of rape beyond just peno-vaginal penetration, to oral sex and digital rape (rape using fingers) as well. “By disregarding all of this, the judgment has turned back the clock in appreciation of evidence, adhering to the law of evidence, and misplaced emphasis on other aspects of the survivor’s life. It certainly warrants an appeal and reconsideration,” Vrinda asserts.