- Mansi Gupta*
Introduction
A ‘complainant’s credibility’ is defined as the veracity of the narrative painted by the victim and its consistency with the contours of the criminal justice system.[1] The construction of such a credible narrative by the victim is at the heart of the decision-making process in rape cases, given that she is often the sole witness to the incident.[2] However, scrutiny of the victim’s behaviour is not disjunct from the countervailing notions of gender relations and patriarchal ideology.[3] This could be noticed in the recent order of the Karnataka High Court wherein the judge justified the grant of bail to the accused based on stereotypical notions of rape victim’s behaviour.[4]
It is in this context, that an attempt has been made to introduce expert testimony regarding ‘Rape Trauma Syndrome’ (‘RTS’) to corroborate the testimony of the victim. This syndrome includes an analysis of the behavioural symptoms present in a rape victim, determined by approximation and examination by psychologists. In this paper, it is argued that syndrome evidence should be allowed in a rape trial as corroborative evidence to rebut the challenge to the credibility of the victim. It has probative value in dispelling the doubts regarding the victim’s testimony. However, it cannot be conclusive evidence of guilt. Additionally, it cannot be necessary or sufficient evidence in a rape trial. The article is divided into four parts – the first explains the syndrome and the necessity of RTS evidence; the second part looks at the standard of test to be used to analyse the admissibility of expert testimony; the third part compares the syndrome’s probative and prejudicial value; and, the fourth part attempts to overcome the criticisms of its usage.
I. Rape Trauma Syndrome
RTS is defined as a post-traumatic stress disorder which is characterized by a combination of behavioural, physical, and psychological symptoms after a ‘life-threatening situation.’[5]The first phase of RTS comprises immediate reactions of shock, disbelief, and fear, which can either be in an express or a controlled manner.[6] In a controlled reaction, the victim masks her feelings by calm or subdued behaviour. A series of peculiar symptoms, such as loss of sleep, self-imposed ostracism, nightmares, anxiety, etc. shows the psychological impact of rape.[7]The second phase is referred to as the phase of pseudo adjustments wherein the victim tries to attain normalcy either by accepting or denying the incident.[8] All victims do not present the same level and type of reactions. Reactions may vary widely due to age, support system, and family background. A qualified expert should be able to objectively present before the court -first, the general nature of the syndrome;[9] second, that the victim exhibited those symptoms; and third, that the likely cause of these symptoms was rape.[10]
It cannot be disputed that the uncorroborated testimony of the victim has been given substantial merit and has been deemed sufficient for a conviction of the accused in certain cases.[11] However, one cannot turn a blind eye to the scathing reality of the prevalence of rape myths and an undue focus on the credibility of the victim. The notions of dignity, a victim’s likelihood of being raped, and corresponding behaviour of an ‘unwilling, terrified and anguished victim’ repeatedly find mention in judgements at the appellate level as well.[12] The Supreme Court has recently reiterated that for an accused to be convicted on the sole testimony of the victim, the testimony should be “absolutely trustworthy, unblemished and of a sterling quality,”[13] indicating the burden on a victim to be unassailable. It is to be presumed that judges have risen above their personal prejudices and stereotypical preferences. However, it is often witnessed that the ‘anxious’ or ‘calm’ demeanour of the victim leads them to draw different conclusions regarding their testimony.[14]
An uncorroborated testimony is likely to be discredited by the judge when he assesses the victim based on her post-rape behaviour. The introduction of RTS evidence as expert testimony in a corroborative capacity will aid in resolving inherent difficulties with the uncorroborated testimony of a victim.[15]An expert explains to the judge the possible, immediate, and long-term psychological experiences post rape, and confirms the presence of such symptoms in the victim. This makes it likely that the judge will then assign more weightage to the victim’s testimony, which he would have discarded earlier. It may be particularly helpful in situations where the circumstances surrounding the rape are not typically what the judges assume them to be, such as the past history of the victim with the accused or where the accused was not armed. It also informs them about the conditions surrounding the assault, such as the socio-economic background of the victim, type of response to different situations, etc.[16] This will enable the judges to make a better-informed decision.
A. Contextualizing Relevance of RTS under the Indian Evidence Act, 1872
Even though such evidence has not been introduced in India, there are a few judgements which have acknowledged the presence of RTS in a victim as a tool of analysis. Though it has still not been routinely accepted by the Courts, they do believe that there can be multiple reactions of a victim post rape.[17] Though all victims might not suffer from RTS, it is argued that RTS can be made a relevant fact in a rape trial to explain the victim’s conduct, particularly where her credibility is in question. Under S. 3 of the Indian Evidence Act, 1872 (‘IEA’), ‘fact’ also includes mental facts, thus, qualifying RTS as a relevant fact for identifying the condition of a raped woman.
S. 5 of the IEA defines any fact, which makes the existence of a fact in issue or a relevant fact more probable, as relevant.[18] S. 7 of the IEA also makes the effect of a fact in issue as relevant. The mental effect of the fact in issue, that is, non-consent in case of rape can thus be made relevant. Further, S. 8 and S. 14 can be used to make the fact of RTS relevant. S. 8 makes the subsequent conduct of a victim relevant. S. 14 makes the existence of state of mind, or of body, or of bodily feeling relevant, if the existence of these aforementioned is relevant.[19] In a rape trial, the state of mind, bodily feeling, and subsequent conduct of the victim, showing the presence or absence of consent, are relevant facts.[20] The presence of psychological symptoms, such as anxiety, shock, etc. in a victim, which relates to a traumatic experience, renders the fact in issue pertaining to non-consent of the victim, more probable. Thus, this should be allowed as a relevant fact in a rape trial.
II. The Standard for Admissibility of Evidence
In India, expert testimony is evaluated on two counts –first, the expertise offered should be of a relevant fact, which is out of the common knowledge of the judge; second, the expert should present impartial and reliable evidence, based on scientific techniques.[21] Usually, scientific evidence has not been allowed as a standalone proof of guilt and the courts have considered implementing an effective check of corroboration against it.[22] Even in cases of polygraph tests or narco-analysis, the Courts have been reluctant to administer the test as evidence. Only the subsequent information discovered from those tests has been accepted under S. 27 of the IEA.[23]
The two standards commonly used for assessing the admissibility of scientific evidence of expert testimony are known as the ‘Frye’ test[24] and the ‘Daubert’ test.[25] While the former evaluates the evidence based on the ‘gained general acceptance in a particular field’, the latter encompasses a stringent threshold for a testimony to be admissible. The Frye test was overruled by the Daubert test as it was considered less reliable and did not meet the rigours of testing the required scientific evidence as ‘substantial’ evidence. The criteria laid down by the Daubert test for admitting scientific evidence includes the use of a specific scientific technique, peer-review, publication of the technique, rate of error, and general acceptance of the technique.[26] Therefore, this test presents a higher objective threshold for admitting scientific evidence and near-complete accuracy rate.
With a large number of studies done in this area, it is safe to presume that RTS has been widely accepted among the scientific community as a reliable means of assessing the behaviour of a victim.[27] Several studies in India and abroad have laid down the parameters generally used by psychologists to administer the test.[28] However, RTS evidence or any psychological test generally cannot withstand the accuracy and reliability of a ‘hard’ scientific test, such as the Daubert test.[29] Unlike DNA or blood tests, the purpose of RTS is not to establish the veracity of the occurrence caused by the accused. It is merely to support the victim’s testimony and to apprise the judges of various response patterns.[30] Hence, it cannot be classified as substantial evidence for establishing the guilt of the accused. It is therefore contended that it is unreasonable to test RTS evidence as per this rigorous test.
It is important to realize that the threshold for corroborative evidence is lower than substantial evidence under the IEA since the former cannot prove or disprove guilt, but only make the latter concrete. In fact, courts routinely admit physical injuries, such as signs of violence as corroborative evidence in rape cases.[31] Just like psychological injuries, physical injuries can also be perpetrated by someone else and neither of them identifies the rapist. However, this evidence supports the victim and bolsters the credibility of her testimony, which is substantial evidence. RTS, explaining the probable absence of consent, serves to counter the attack on the complainant’s credibility with facts that are generally unknown to the fact finders. Hence, even if RTS evidence is unable to satisfy the Daubert test or complete accuracy tests, it can be admitted because of its limited scope and purpose.
III. Probative versus Prejudicial Value
For any evidence to be admitted, the judge must balance its probative and prejudicial value. Only if the probative value outweighs the prejudicial value of the evidence, can it be admitted.[32] It is commonly presumed that there might be unfair prejudice in the minds of fact-finders when the corroborative evidence might be suggestive of an immediate connection between the complainant’s behaviour and accusation of guilt. In State v. Saldana,[33] it has been held that expert testimony, couched in scientific terms, has a “misleading aura of certainty”, capable of swaying the jury as they may consider this evidence as dispositive on the question of consent.[34] For instance, the expert testifies that the victim is displaying symptoms of RTS. Then, the jury is led to believe that rape would have definitely been caused and the accused is certainly responsible for it. Even though RTS is unable to give such concrete conclusions, they might draw the same. This can impede the admissibility of RTS evidence.
However, this problem can be resolved by implementing some safeguards during the trial. First, given that the purpose of RTS is to establish the victim’s credibility, the prosecution’s case-in-chief shall not be allowed to present expert testimony until the credibility of the victim is under attack. Second, the defence shall have the right to cross-examine the expert and counter his evidence by presenting inconsistencies within it while overcoming its potentially prejudicial effect.[35] Third, since the purpose of RTS is to dispel the doubts in the victim’s testimony, the defence usually has no right to introduce their RTS expert’s opinion on the issue at the first instance.[36] This prevents the defence to reverse engineer the explanatory role of RTS by basing their defence largely on the fact of absence of RTS in the victim. RTS evidence is given only at the instance of the prosecution, only after which the defence may obtain a court-ordered examination of the victim by their expert. But, once the defence presents an expert on their behalf, he can provide his opinion after examining the woman. If the testimonies of both the experts are contradictory, the judge can use its powers under S. 165 to put questions to the experts to decide the matter. He might also put the same questions to them concurrently and record their answers. Last, any testimony which comments upon the guilt of the accused should be declared inadmissible as that would be outside the ambit of RTS evidence.[37] These solutions do not entirely remove the problem of ‘perceived certainty’ or prosecutor’s dilemma[38] of using RTS evidence, but mitigate them to a large extent. However, it should be borne in mind that such an effect is possible even with the use of most objective scientific evidence, such as DNA. Thus, it is the judge’s onus to be cautious while placing reliance on RTS evidence. Courts have generally reinstated that expert testimony shall only be advisory since the person is not a witness of the act.[39] Hence, these safeguards shall limit the potential prejudicial value of RTS evidence.
IV. Combating the Criticisms
Even though the educational and corroborative role of RTS cannot be denied, there still remain some concerns for its evidentiary use. This section explores two main criticisms against the use of RTS evidence: (A) Creation of a new male standard, and (B) Effect of non-occurrence of RTS on the credibility of the victim’s testimony.
A. Creation of a New Male Standard
RTS evidence has been critiqued by several feminist scholars, who argue that women’s reaction in such a test is expected to meet the male norms or the ‘reasonable man’ test. According to them, this discredits the reactions falling out of the determinative tests.[40] In the landmark decision of Mahmood Farooqui v. Union of India,[41] the judges did not approve the use of RTS as it creates a predisposition against the victim by creating a new standard for the determination of consent. Thus, consequently, to effectuate the process, there may be pressure on women to react in a particular manner, thereby creating a new ‘ideal rape victim’ standard. This argument relies on the assumption that the test is entirely objective and experts mark checkboxes while examining the victim and do not go further in their analysis. This concern can, however, be dispelled by-first, allowing subjective discretion to the expert to analyse the test rather than following a strict parameter; second, appreciating the social framework evidence together with RTS to inform judges about the possible social and psychological context of the crime.[42]
As argued before, RTS tests are not hard tests, but soft scientific tests capable of having an element of subjectivity in them.[43] These tests have been evolving and experts are now considering a wider range of experiences than ever before.[44] It is not the presence or absence of one symptom which leads to the conclusion, but a holistic observation of the victim’s behaviour. The tool of analysis is continuously developing and experts have now recognized that different women have different reactions based on their coping mechanism, support mechanism, age, etc. Moreover, they acknowledge that RTS is merely a way to understand victim’s reaction et al.[45]Additionally, RTS evidence could be supplanted with ‘social framework evidence’ to expand its scope for explaining different symptoms and busting rape myths. Social framework evidence is a useful analytical tool,[46] based on a wide array of data, such as clinical experiences and studies of responses and patterns to delineate the reactions of a victim and allay the concern of ascribing stereotypes to the women’s behaviour. This evidence is particularly helpful to inform the judge of the social fallout of the crime. It also explains the framework in which these rapes take place, such as the socio-economic background of the parties, a culture of victim-blaming, the casual attitude of the police, etc. These two, RTS and social framework evidence, together instil the notion that different women react differently to rape occurring in different contexts, thereby preventing medicalization of rape law.
B. Non-Occurrence of RTS Symptoms
Another criticism which piques interest is that, what if the victim does not display the symptoms of RTS? Several studies suggest that more than 50% of the women display symptoms of RTS post rape and it is unlikely that a large number of women show these symptoms otherwise.[47] Thus, the presence of RTS means a high likelihood of a victim having undergone rape.[48] There might be a possible conundrum in a case where the victim is tested by the expert presented by the defence counsel and he testifies the non-existence of the syndrome.[49] It could then be argued that the negative finding is a probative determinant of consent by the victim. However, the US Courts have specifically held that non-existence of syndrome is not conclusive of consent.[50]
The likelihood test cannot be applied in a reverse fashion which means that the absence of RTS would not mean that the rape has not happened. If a victim is mentally built to withstand the trauma, her testimony should not be discredited. The way in which RTS cannot prove rape, the non-existence of RTS cannot disprove it either. Hence, neither necessity nor sufficiency can be considered as the attribute of RTS. Given the chance of high likelihood ratio, RTS potentially maintains its probative value overpowering its prejudicial value. Thus, this additional medical evidence, with its high probability, certainly has a corroborative value to make the victim’s case more reliable and resolve the weakness of a sole testimony.
Conclusion
Throughout this article, an attempt has been made for advocating the admissibility of RTS evidence in rape trials where the credibility of the victim has been attacked upon. This might prove to be a helpful tool for aiding the victim’s testimony, which is required to pass a high threshold. It has been shown that the evidence passes the tests of relevancy and admissibility. The evidence is not ‘hard’ scientific evidence, however, widely accepted among the general scientific community, which could help in corroborating the victim’s testimony. Even though there might be a fear of prejudice in admitting the testimony, certain procedural safeguards can help in mitigating its effect.
It is stated as a caveat that the use of RTS evidence is not easy as this kind of evidence might also have the potential of initiating a ‘mini-trial’ on the psychiatric history of the complainant. However, after a calibrated decision, if the prosecution thinks that the utility of evidence outweighs the potential harms, the scales should tip in the favour of its usage. This might provide credibility to the victim’s narrative, especially in cases where because of a dearth of other reliable evidence, a judge is predisposed to disbelieving the victim’s testimony.
* Mansi Gupta is a III Year student at the National Law School of India University, Bangalore. She would like to thank Prof. Kunal Ambasta and the editors at the NLS Socio-Legal Review for their insightful comments on an earlier version of this article.
[1] Ravinder Barn and Ved Kumari, ‘Understanding Complainant Credibility in Rape Appeals: A Case Study of High Court Judgments and Judges’ Perspectives in India’ (2015) 55 Brit J Criminology 435-453. [2] Irina Anderson and Cathy Doherty, Accounting for Rape: Psychology, Feminism and Discourse Analysis in the State of Sexual Violence (Routledge 2008) 51. [3] K Sperry and JT Seigel, ‘Victim Responsibility, Credibility, and Verdict in a Simulated Rape Case: Application of Weiner’s Attribution Model’ (2013) 18 Legal &Criminological Psychology 16-29. [4] Sri Rakesh B v. State of Karnataka, (2020) Criminal Petition No. 2427 of 2020 (Karnataka High Court). The judge noted “after perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman; not the way our women react when they are ravished.” [5] Carole Lewis Iles, ‘Rape Trauma Syndrome’ (1985) 50 Mo L Rev 947. [6] Ann Wolbert Burgess, ‘Rape Trauma Syndrome’ (1983) 1 Behav Sci &L 97. [7] P Gail Patton, ‘Admissibility of Rape Trauma Syndrome in California Courts’ (1992) 2 Res Ipsa Loquitur 31. [8] David McCord, ‘The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions’ (1985) 26 BC L Rev 1143. [9] State v. Saldana, (1982) 324 N.W.2d 227 (Supreme Court of Minnesota). [10] Susan Ehrlich, Representing Rape: Language and Sexual Consent (Routledge 2001) 174. [11] Rameshwar v. State of Rajasthan,AIR 1952 SC 54 (Supreme Court of India). [12] Raja v. State of Karnataka (2016) 10 SCC 506 (Supreme Court of India). [13] Santosh Prasad v. State of Bihar, (2020) 3 SCC 443 (Supreme Court of India). [14] Ravinder Barn and Ved Kumari (n 1). [15] Fiona E Raitt and M Suzanne Zeedyk, ‘Rape Trauma Syndrome: Its Corroborative and Educational Roles’ (1997) 24 JL & Soc'y 552. [16] Toni Massaro, ‘Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony’ (1985) Minnesota L Rev 2450. [17] Mahmood Farooqui v. State Govt. of NCT of Delhi, (2017) 243 DLT 310 (Delhi High Court); Kanjara v. State of UP,(2016) 6 All LJ 691 (Allahabad High Court). [18] The Indian Evidence Act 1872, s 5. [19] ibid, s 8, 14. [20] Farooqui (n 17). [21] IEA, s 45; Vepa Sarathi, Law of Evidence, (7th ed., EBC2018) 218. [22] State of Maharashtra v. Sukhdeo Singh, AIR 1992 SC 2100 (Supreme Court of India). [23] Selvi v. State of Karnataka, (2010) 7 SCC 263 (Supreme Court of India). [24] Frye v. United States, (1923 DC Circuit) 293 F. 1013 (Court of Appeals of the District of Columbia). [25] Daubert v. Merrell Dow Pharmaceuticals,(1993) 509 US 579 (United States Supreme Court). [26] ibid. [27] Massaro (n 16); Sanjeev Davey, ‘Rapes in society: An Emerging Public Health Problem of Indian Girls and Women’ (2020) 2 Acta Scientific Women’s Health 2. [28] GS Bajpai, ‘Psychological Consequences of Victimization in Rape’ (2006) 2 Intl Perspectives in Victimology 1, 67-81; See, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed., 2013). Symptoms can be- Panic attack, hypoactive sexual desire disorder, restlessness, eating disorders, numbness. [29] Cynthia F Feagan, ‘Rape Trauma Syndrome Testimony as Scientific Evidence: Evolving beyond State v. Taylor’ (1992) 61 UMKC L Rev 145. [30] Saldana (n 9). [31] Susan Murphy, ‘Assisting the Jury in Understanding Victimization: Expert Psychological Testimony on Battered Woman Syndrome and Rape Trauma Syndrome’ (1992) 25 Colum JL & Soc Probs 277. [32] Chandrakant Jha v. State (2016) 1 DLT Cri 913 (Delhi High Court). [33] Saldana (n 9). [34]Saldana (n 9). [35] State v. Marks, (1982) 647 P.2d at 1299 (Kansas Supreme Court). [36] Government of Virgin Islands v. Scuito, (3d Cir. 1980) 623 F.2d 869, 874-76 (United States Court of Appeals for the Third Circuit). [37] Vishnu v. State of Maharashtra, (2006) 1 SCC 283 (Supreme Court of India). [38] The prosecutor's fallacy is a fallacy of statistical reasoning typically used by a prosecutor to exaggerate the likelihood of a criminal defendant's guilt. [39] Sarathi (n 21) 214. [40] Raitt (n 15). [41] Mahmood Farooqui (n 17). [42] G S Bajpai (n 28). [43] Feagan (n 29). [44] Massaro (n 16). [45] Jacqueline R Castel, ‘Prosecutorial Uses of Rape Trauma Syndrome Evidence: A Critical Analysis’ (1991) 7 Journal of Law and Social Policy 175. [46] Walker and John Monahan, ‘Social Frameworks: A New Use of Social Science in Law’ (1987) 73 Virginia Law Review 559. [47] Katilin A Chivers-Wilson, ‘Sexual Assault and Post-Traumatic Stress Disorder: A review of biological, psychological and sociological factors and treatment’ (2006) 9 McGill J Med. [48] Likelihood/Relevance Ratio = Proportion of Abused Who shows symptoms Proportion of Non-abused who Shows Symptoms “This ratio reveals that a condition i.e. “consistent with” abuse is relevant for proving the abuse occurred if the numerator is greater than denominator.” See, Thomas Lyon, Jonathan Kohler, ‘Relevance Ratio: Evaluating the Probative Value of Expert Testimony in Child Sexual Abuse Cases’ (1996) 82 Cornell L Rev 1. [49] Nina Gupta, ‘Disillusioning the Prosecution: The Unfulfilled Promise of syndrome Evidence’ (2014) 76 Law &Contemporary Problems 4. [50] McQuillen v. State, (1984) 236 Kan. 161, 689 P.2d 830 (Kansas Supreme Court).