Making a case for bringing Sexting under India's Rape Shield Laws: Lessons from USA & Indian Culture
- Mallika Sen*
An Introduction to Rape Shield Laws in India
In simple terms, a rape shield law is one that seeks to protect the survivors of rape (most often in terms of their privacy). In India, rape shield laws broadly manifest in two major forms. The first prong of rape shield laws relates to protecting the identity of the rape victim. To this effect, as per the provisions of Section 228 of the Indian Penal Code, 1860, it is a crime to disclose the identity of the victim for certain sexual offences. The second prong aims to protect the rape victim from being questioned about her previous sexual history, in order to prove consent in a rape trial. This is based on the rationale that previous conduct has no probative link to establishing consent for the act being tried.
Section 146 of the Evidence Act, which deals with character evidence, makes an exception for cases of rape or attempt to commit rape. It states that in such cases, it is not permissible to cross-examine the prosecutrix as to her ‘general immoral character’. However, the greatest addition to the Indian framework of rape shield laws, often referred to as an ‘absolute rape shield’ came after the gruesome gang-rape of Nirbhaya in December, 2012. The widespread public outrage following the rape led to the passage of the Criminal Law (Amendment) Act, 2013. This Amendment Act made an addition to the Indian Evidence Act, 1872, inserting Section 53A into the Act. Section 53A states that-
“In a prosecution for an offence under section 354, section 354A, section 3548, section 354C, section 354, section 376, section 376A, section 3768, section 376C, section 3760 or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person's previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent."
Bringing Sexting Under the Protective Ambit of the Rape Shield
In recent times, a large part of inter-personal social interaction has begun to take place online. This interaction is usually routed through social media apps such as Facebook, WhatsApp, Instagram, Twitter, and Snapchat. This has led to the rise of a widespread phenomenon known as ‘sexting’. Sexting is a term, which originates from a conjoining of the words ‘sex’ and ‘texting’. It refers to “sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular tele- phones or over the Internet.” Sexting may not always be consensual. Often the perpetrators of sexual assault, blackmail or otherwise force the victim to send sexually explicit images of herself to them. Thereafter, they use these images to further blackmail the victim into other sexual favours. However, this paper covers consensual sexting as well.
In essence, this paper seeks to argue that ‘sexting’ should be included within the protective ambit of rape shield laws as a form of ‘sexual behaviour’ so as to give effect to the purpose of rape shield legislation. To this effect, it argues that an explicit amendment to Section 53A should be made, in order for such inclusion to be effective.
The Purpose Behind Rape Shield Legislation
The fundamental premise upon which rape shield legislation is based is that the knowledge of a woman’s prior sexual conduct has the ability to unfairly bias the judge or the jury in favour of the defendant. There are several factors that contribute to this purported ‘unfairness’. First, admitting evidence as to previous sexual conduct may be used to establish consent to the rape under trial, which goes against the established notions of consent. It is a settled legal principle that consent is not a continuing phenomenon and must be sought afresh for each new sexual activity. Consent to prior sexual intercourse, even if with the same person, cannot be understood to mean that consent was given to the sexual intercourse under trial as well.
Second, the previous sexual conduct of the prosecutrix is not the fact in issue before the Court. The Court is solely concerned with the particular sexual bodily violation being prosecuted. Third, and possibly most importantly, the nature of character evidence in general is extremely prejudicial, and influences judges, over and above its actual probative value. This, coupled with the inclination of society in general towards orthodoxy, and victim-blaming and shaming, makes it imperative to ensure that such prejudicial information is not admitted as evidence before the Court.
Reasons for the Inclusion of ‘Sexting’ Within Rape Shield Laws in India
It is important to include sexting within the rape shield laws, so as to give effect to the purpose of the Section. Given the prevalence of sexting in today’s day and age, it becomes extremely important for courts to ensure that such evidence is not used to prejudice the judge and jury against the prosecutrix.
In general, many people perceive sexting to be a ‘dirty’ or ‘immoral’ activity, indicative of a general poor character, particularly when the explicit messages are sent by a woman. Thus, if evidence of sexting is allowed to be admitted, it will end up having the very effect that rape shield laws seek to eliminate (as elucidated above).
In India, perhaps the most prominent case dealing with evidence of this nature, is the case of Vikas Garg v. State of Haryana, better known as the Jindal Global Law School (JGLS) Rape case. In this case, the Punjab and Haryana High Court, while hearing a bail plea, relied heavily upon evidence of sexting (amongst other activities such as drinking, smoking, consuming drugs and possessing condoms) to grant bail to the accused. The Court made explicit reference to the fact that since the victim of rape received nude pictures of one of the perpetrators and sent nude pictures of herself to the perpetrator, she had a “promiscuous attitude” and a “voyeuristic mind”. The Court considered this as a “compelling reason” to decide in favour of the accused, in terms of suspension of sentence.
When this judgement was appealed to the Supreme Court, it was overturned. The Supreme Court explicitly made note of Section 53A of the Indian Evidence Act, 1872 in this case. However, it is important to note that in this case, there were several other factors that the High Court used to label the prosecutrix as ‘promiscuous’. Moreover, there were multiple instances of sexual intercourse between the prosecutrix and the perpetrators. While citing Section 53A, the Supreme Court made reference primarily to the High Court’s labelling of her character as promiscuous relying on the multiple instances of sexual intercourse. However, the Supreme Court made no specific reference to the act of sexting. This leads to the question, that if sexting had existed in isolation, without any of the other factors used by the High Court to establish immoral character, would the Supreme Court still have brought it within the mandate of Section 53A? The answer to this question remains doubtful, making it all the more important for sexting to be explicitly included.
How and to What Degree Should Sexting be Included Within Rape Shield Laws?
This paper argues that Section 53A of the Indian Evidence Act should be explicitly amended to read- “such person’s previous sexual behaviour with any person, whether physical, digital or otherwise…” This paper argues for an explicit amendment including sexting as electronic (digital) evidence as opposed to a more general broadening (such as solely replacing the word ‘experience’ with the word ‘behaviour’). This is because, in case of the latter, the decision as to whether or not to introduce the sexting evidence falls to judicial discretion, which in a patriarchal and often conservative society is less than ideal.
This paper illustrates this point using the federal rape shield laws of the United States of America, that is- Federal Rule of Evidence 412 (‘FRE 412’). As opposed to the more specific term, i.e.- “sexual experience with any person” that is used in Section 53A of the Indian Evidence Act, FRE 412 uses the broader term “sexual behaviour”. In the opinion of the author, in terms of interpretation, the former term is likely to lend itself a narrower interpretation than the latter.
Using case law from the U.S.A., the paper illustrates that leaving the question of admissibility to judicial discretion leads to inconsistent outcomes across cases, depending on the mind-set of the judge and jury, which is detrimental to the victim.
Courts in the U.S.A. have not interpreted the scope of the phrase ‘sexual behaviour’ consistently. Some courts have held that sexually explicit social media content would fall within the purview of the term ‘sexual behaviour’ under the rape shield. For instance, in Montgomery v. Commonwealth, the Kentucky Supreme Court held that the admission of the rape victim’s sexually explicit MySpace page should be barred, as “the excluded evidence posed a substantial threat of casting [the complainant’s] character in a bad light and distracting the jury from the real issues in the case, the principal evils which KRE 412's shield is intended to avoid.” Similarly, in the case of Commonwealth v. Morgan, the Pennsylvania Supreme Court held that it was not an abuse of discretion to prevent the defendant from introducing evidence from the victim’s Facebook page.
However, this trend has not been followed uniformly across the country. In Oregon, a defence attorney used evidence from a victim’s MySpace page to dismiss a sexual assault charge. Similarly, a North Carolina court admitted evidence of suggestive photos from a victim’s MySpace page from before the sexual assault as evidence. Overall however, while there has been little to no case law regarding whether or not sexting would fall within the protective ambit of rape shield laws. Generally, it has been seen that while dealing with cases of sexually explicit social media communication, courts have treated such evidence similarly to other electronic evidence. That is, courts have decided whether or not the evidence should be admitted on a case-to-case basis, by applying the balancing test.
In India, social media evidence would be admissible as electronic evidence under Section 65B of the Indian Evidence Act. In the Vikas Garg case, the Court relied heavily on evidence of WhatsApp chats. In a recent case, the Supreme Court clarified, there is no requirement for certification under Section 65B(4) to make electronic evidence admissible, making the admission of such evidence even easier. If Section 53A was merely generally broadened to replace the phrase “sexual experience” with the term “sexual behavior”, there is no guarantee that the broadened scope would be meaningfully utilised to include evidence such as that of sexting within its scope, so as to protect the prosecutrix. This is especially so, in light of troubling judgements such as that in Vikas Garg v. State of Haryana and Mahmood Farooqui v. State, which have blissfully ignored the protection offered to the victim under Section 53A.
Indian society is undeniably patriarchal, and this is often evident through judgements delivered by the courts. In a patriarchal society, a woman exercising free choice in her sexuality is almost an unfathomable concept. In such a scenario, evidence indicative of the same can be severely detrimental to the success of the prosecution case. Thus, for all the reasons elucidated above, given the increasing prevalence of sexting amongst the youth of today, it is of imperative importance that such sexting be brought within the ambit of rape shield laws. This will prevent any unfair prejudice against the victim, which may hamper a prosecution case for rape.
*Mallika Sen is a 3rd year student at the National Law School of India University, Bangalore.
 This paper uses the words survivor, victim and prosecutrix interchangeably.
 Section 228, Indian Penal Code 1860.
 Section 146, Indian Evidence Act 1872.
 Sonali Pimputkar, Nirbhaya Gang Rape Case: Complete Timeline of Events in 2012 Delhi Gang-Rape Case and how the Case Unfolded, The Free Press Journal (July 9, 2018) available at http://www.freepressjournal.in/india/nirbhaya-gang-rape-case-complete-timeline-of-events-in-2012-delhi-gang-rape-case-and-how-the-case-unfolded/1312824.
 The Criminal Law (Amendment) Act 2013.
 Miller v. Skumanick, No. 3:09CV540, 605 F. Supp. 2d 634, 640 (M.D. Pa. 2009).
 Explanation 2 to Section 375 of the Indian Penal Code, 1860 lays down that consent is required to be given to ‘participate in the specific sexual act’.
 R v. Riley, (1887) 18 QBD 481 at 483–4. Lord Coleridge, in seeking to prove whether or not a criminal attempt to rape, has been made ‘upon her by A, evidence that she has previously had connection with B and C is obviously not in point’. He continued that any such evidence should be excluded: not only because to admit it would be unfair and a hardship to the woman, but also because it is not evidence which goes directly to the point in issue at the trial.
 Vikas Garg v State of Haryana, Cr.M.No.23962 of 2017 (India).
 Ms. X v. State of Haryana and Ors. available at https://www.sci.gov.in/supremecourt/2017/32720/32720_2017_Order_11-Jan-2018.pdf.
 Fed R Evid 412.
 This is because, in the opinion of the author, the term ‘experience’ is indicative of actual, physical, sexual activity between two parties, whereas the term ‘behavior’ may be used to encompass other, non-physical interactions/ activities as well.
 Montgomery v. Commonwealth, 320 S.W.3d 42 (Ky. 2010).
 Commonwealth v. Morgan, 2015 WL 9263617 8 (S.C. Penn. 2015).
 S. F. Ward, MySpace Discovery, Lawyers are Mining Social Networks for Nuggets of Evidence, ABA Journal, 93, 34 (2007).
 In re K.W. 666 S.E.2d 490 (N.C. Ct. App. 2008).
 According to the balancing test of evidence law (commonly followed in the USA), evidence should only be admitted if it has greater probative value than prejudicial value. See Fed R Evid 403.
 Section 65B(4), Indian Evidence Act 1872.
 Vikas Garg v State of Haryana, Cr.M.No.23962 of 2017 (India).
 PTI, Supreme Court says certificate not mandatory for making electronic evidence judicially admissible, Firstpost (Feb. 4, 2018) available at https://www.firstpost.com/india/supreme-court-says-certificate-not-mandatory-for-making-electronic-evidence-judicially-admissible-4334957.html.
 Vikas Garg v State of Haryana, Cr.M.No.23962 of 2017 (India).
 Mahmood Farooqui v. State (Govt. of NCT of Delhi), MANU/DE/2901/2017 (India). In this case, the Court relied heavily on the fact that the victim and the accused had had previous romantic encounters, exchanged several messages and emails, and knew each other well.