The acquittal of Bishop Franco Mulakkal, accused of repeated acts of rape by a nun, on 14 January, has been met with considerable shock and anguish.
It had taken a herculean effort by the survivor and fellow nuns to get the case taken up, with the Catholic Church offering little support, and instead taking retaliatory action against her and those who stood up for her. Bishop Mulakkal had fought all the way up to the Supreme Court to try and have the case thrown out, delaying the trial for two years.
Did this mean Mulakkal was certainly guilty? That the trial court could not possibly acquit him? No.
But it was an opportunity for the court to show that the legal system can be trusted to do justice in cases like this, by fairly weighing the survivor's allegations and the evidence, against the accused's defence.
If that had been done properly and Mulakkal was still found not guilty, whether because of lapses by the police/prosecution or because key facts could not genuinely be proven beyond reasonable doubt, then criticism of the court would have been unfair.
Unfortunately, the judgment of additional sessions judge G Gopakumar appears to have wasted the opportunity, with the reasoning behind Mulakkal's acquittal full of glaring flaws. Here's why criticism of the judgment is perfectly legitimate.
A Bad Start: Dismissal of Evidence of Sister Lizzy (PW2)
According to the statement made by the survivor in court, she informed her 'spiritual mother,' Sister Lissy Vadakkel, about the sexual violence by Mulakkal in December 2014, when the former visited the convent before Christmas. The court notes that documentary records from the convent prove that Sister Lissy did visit at the time.
This was a crucial limb of the prosecution argument, since it showed that the survivor had told someone about the abuse around the time it was happening (according to the survivor it started on 5 May 2014), which is helpful when dealing with a complaint made some time after the abuse happened (the complaint was filed in June 2018, the last instance of alleged abuse was in September 2016).
Sister Lissy had also made a statement to a magistrate during the police investigation under Section 164 of the Code of Criminal Procedure where she corroborated what the survivor said.
As a result, Sister Lissy was the second witness called by the prosecution (hence the designation PW2).
However, the court ended up dismissing her testimony as "unreliable" for two problematic reasons.
First, the court points out that the survivor did not mention she had told Sister Lissy about the abuse in December 2014 in her First Information Statement (FIS) to the police on 27 June 2018, which set the legal process going. This was also not mentioned in the survivor's Section 164 statement to a magistrate during the investigation.
The court also says that neither of the two testified in court that the survivor had told Sister Lissy about the subsequent acts of sexual violence in 2015 and 2016 despite their close relationship and evidence that they had met in 2016.
Second, the court points to the cross-examination of Sister Lissy, and notes she had sent a letter to Sister Alphonsa Abraham, a senior nun in the congregation in February 2019 about the situation. This letter made a number of statements that Sister Lissy herself admitted were not true, including a claim she spoke to a particular bishop about the case and had been questioned by certain police officers.
Why This Is Problematic
The first issue the court took with Sister Lissy's testimony is a strange one. The court is essentially trying to use a point not raised by the prosecution to beat the prosecution case, as Sister Lissy's testimony is not about the abuse which took place in 2015 or 2016.
The survivor has explained why she didn't mention certain details in her initial complaint to the police, including not being comfortable with the way in which the woman police officer was taking her statement, something many women who have tried to complain about sexual violence to the police across the country would attest to.
Moreover, there was also the risk of retaliation against Sister Lissy, something that all the nuns who supported the survivor have faced and testified to, and was indeed the reason for Sister Lissy's letter to Sister Alphonsa that the court used to discredit her.
Sister Lissy explained that the letter was an attempt to save herself from being forced to accept an old transfer she had fought against for many years. She could not disclose that she had made a formal statement against the accused as this would have been taken adversely against her, and so had to say other things that weren't true in that letter to make it seem realistic.
She was nonetheless transferred in February 2019 with a letter from Sister Alphonsa noting that this was "to correct the sister to mend her ways", and in a separate statement obliquely noting that Sister Lizzy had given a statement to the police against Mulakkal "clandestinely."
The letter from Sister Lissy was certainly admissible evidence, but for the court to use it to discredit her was strange given her explanation on the stand.
This proved to be just the start of something which runs throughout the judgment: its refusal to accept statement after statement by other nuns, who were witnesses as well in the case about the fear of retaliation and victimisation by the church, which is an extremely hierarchical and conservative institution. All this despite acknowledging in paragraph 70 that Mulakkal exercised "real authority over the congregation and the nuns."
The power imbalance this created is at the heart of the survivor's case, and is indeed one of the reasons why this case was such an important touchstone given the difficulty that women face in making complaints about such sexual assaults.
Instead, the court, right from the outset, ignored something that colours almost everything about the case, from the church's refusal to act on the survivor's complaint to the delay in filing a police complaint – all of which is instead later used to try and discredit the survivor.
A Bizarre Insistence on Describing Sexual Assault in Graphic Terms
The prosecution produced several other witnesses to support the survivor's testimony. Three of the most important witnesses were Sister Neena Rose (PW3), Sister Anupama (PW4), and Bishop Kurian Valiyakandathil (PW6).
All three testified that the survivor had informed them that she was being forced to "share a bed" with Mulakkal.
The two nuns had learnt about this during a retreat in September 2016 after asking the survivor what was wrong since they saw her take extra long when making a 'confession' – a religious rite for Christians where they confess sins and problems to a priest – and look unwell.
The judge insists that her disclosure of being forced to share a bed with Mulakkal, rather than details of the alleged acts of rape, cannot be taken to mean that she disclosed she was being subjected to sexual violence.
A letter from Sister Anupama where she appears to not know the details of the assaults, as well as an interview she gave to a TV channel in 2018 where she said she only got to know the details of the assault after the police complaint was filed, is also used to back this assertion.
The judge once again draws an adverse inference about the testimony of the two nuns because the survivor didn't mention attending the retreat or speaking to the two nuns in her FIS or her original Section 164 statement.
He also views the fact that the two sisters wished the accused for a religious feast day in October 2016 as grounds to disbelieve their testimony about being informed of the assaults the month before.
The bishop (PW6) was asked by her to hand over a letter to the apostolic nuncio, the representative of the Vatican in India, in early 2018.
When she asked him if he had given the letter to the nuncio, he asked her what was in the letter, and she then told him that it was a complaint against Mulakkal, and the problems she was facing for not sharing a bed with him.
The judge raises several issues with PW6's testimony, including a potential personal rivalry between him and Mulakkal and misgivings about whether he and Sister Lissy knew each other. However, at the end of it all, he says that even if the bishop's evidence is accepted, it still is only about being made to share a bed:
"At any rate the evidence of PW6 would only prove that he was informed by PW1, that the accused is demanding her to share bed with him. The alleged sexual violence committed by the accused was not revealed to PW6, as well."
Another bit of corroborative evidence similarly dismissed is a letter from the survivor to a cardinal of the church on 14 May 2018, where she said that the abuse by Mulakkal continued "for several times." However, the judge says "it is not specified that she was raped on 13 occasions."
Why This Is Problematic
That this is a bizarre approach by the judge is self-evident. When a woman is saying she is being forced to share a bed with a man, it is quite clear she is talking about sexual assault. Even if one were to put aside the context that the survivor is a nun, for whom discussions on sex are practically taboo, this choice of language is hardly difficult to interpret.
It is also inexplicable that the judge seems to insist that the survivor's failure to give graphic details of the assault to the other nuns should be used to discredit their testimony or makes her letter to the cardinal less important.
Instead, this insistence starts to look more like a search to find ways to dismiss the prosecution case, even to the point of bending simple language.
This can be seen in the veritable quest to say that the survivor could not have told PW3 and PW4 about the assault in September 2016. The judge acknowledges that across all versions, by December 2016 the survivor had told them that she was afraid about having to share a bed again with the accused.
Is the Survivor's Testimony Really Inconsistent?
According to the judge, there "is no consistency in the statement of the victim."
In addition to the strange dismissal of her disclosures about being forced to share a bed with Mulakkal, the key reason for this is that the survivor did not describe "penile penetration" by the accused in her FIS or to the doctor during medical examination.
In her additional statement to the police and in subsequent testimony, she said that she had been subjected to penetrative penile sex by Mulakkal on 12 occasions, but on the first occasion on the night of 5 May 2014, he had inserted his fingers into her vagina and forced her to handle his penis.
The judge also notes that she continued to interact with Mulakkal after the alleged instances of sexual violence, travelling with him in his car for long distances and attending functions on almost all the days.
Why This is Problematic
The survivor gave two explanations for why she held back in her FIS: a lack of comfort with the police officer who took it down (as mentioned, this is an all-too-common experience for women who complain about sexual assault) and the fact that it was recorded at the convent, albeit in a parlour with no other nuns present.
The judge dismisses both these explanations in a cavalier manner, ignoring the tremendous discomfort the survivor would have felt when discussing what was, even if against her will, a violation of her vow of chastity, one of the most important things for a nun.
Moreover, the survivor's testimony about the first occasion of sexual assault, on 5 May 2014, remains entirely consistent from the FIS to the medical examination to subsequent testimony. At no point did she alter her testimony to claim penile penetration on that first occasion.
Not to mention that the offence of rape isn't only about penile penetration of the vagina – insertion of fingers, forced oral sex, and handling of a sexual organ, all of these fall within the definition of rape in Section 375 of the Indian Penal Code.
Obviously, since the survivor later said there was penetrative sexual intercourse, the court has to look at that aspect of her testimony. However, the fact that this was not clear from her first statements is not grounds to dismiss all of her testimony as inconsistent.
As LiveLaw's Manu Sebastian has pointed out, there would be no logic to 'improve' on the initial allegations as those initial allegations already disclosed acts of rape under law.
Using a Complaint About the Survivor That the Complainant Said Was False
Another important part of the court's judgment is the complaint filed by Jaya, a cousin of the survivor, that the survivor had an affair with Jaya's husband.
The defence argued that this complaint was what set off the whole problem, with the survivor making allegations against Mulakkal since he recommended an investigation of the complaint.
This complaint is also used to explain the medical examination's finding that the survivor's hymen was ruptured, which the prosecution had argued was because of penetrative sex forced on her by Mulakkal.
The prosecution contended that the enquiry into Jaya's complaint was recommended by Mulakkal as part of his retaliatory measures for not yielding to his sexual demands again.
Jaya's complaint ends up adding to the reasons why the court says that it "cannot separate the grain from the chaff" when it comes to the case, and so it cannot rely solely on the survivor's testimony to convict Mulakkal.
Why This is Problematic
The problem is that Jaya herself admitted to the court that the complaint filed by her was false, and was motivated by her anger against the survivor and other relatives.
Even in the complaint, Jaya had noted that the whole thing arose out of the survivor sending her a message complaining that her husband was sending her inappropriate text messages.
However, the court decides to ignore Jaya's disavowal of the complaint, allowing it to factor the complaint into its finding that the truth is not clear. The court says:
"But it is hard to believe that PW16 would make such wild allegations against her own husband and her own relative, whom she had once considered like God, for forwarding an innocent SMS. It is also doubtful whether she would tarnish the image of her husband who is a practicing lawyer at the Supreme Court of India, by making false and frivolous allegations that he had attempted to commit suicide on account of his illicit relationship with a nun."
There was no testimony by any witness which rebutted Jaya's statement about the complaint being false. There are some issues that the court raises about the complaint which could raise questions, including some points about Mulakkal's late night calls to the accused.
However, none of that was proved before the court. The court in fact takes the prosecution to task for not bringing forward the phones of the survivor and Jaya and her husband as this could have proved the truth of the messages sent between them.
Yet this makes little sense since the allegations in the complaint had not been proved by any enquiry or other evidence. So what exactly would be the need for the prosecution to disprove anything about them?
Once again, this shows how the court was going to extraordinary lengths to find reasons to take apart the prosecution case, whether by casting doubt on the survivor's testimony or trying to say the prosecution and police had made mistakes.
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