Maze of belief-disbelief: Corroboration in rape cases

Corroboration rule in rape cases has mostly evolved in the sub-continent including in Bangladesh as a rule of prudence as opposed to one of law. It implies that the solitary evidence of the alleged victim cannot be accepted as sufficient, rather it requires corroboration by other evidence connecting the accused with the crime or circumstantial evidences connected with the woman which can by itself render her claims sufficiently believable.

Roughly during 50s, almost in all the reported cases, it was considered by the High Court of the then West Pakistan ‘extremely dangerous and permissible only in exceptional cases,’ to convict someone on the uncorroborated testimony of the complainant in a rape case. Interestingly, in around mid-60s, in one apparently pro-complainant case, it was observed by the same Court that without corroboration, a conviction can be made based upon the solitary contention of the complainant, when the same is reliable and is in accord with all probabilities. In the late 60s, without referring to the aforementioned judgment, another observation was made by the Court to the effect that the evidence of an alleged victim in a rape case is to be ‘customarily received with some suspicion’. The observations prove that ‘prudence’ indeed is subjective and its exercise is bound to be variegated. It is not to question the necessity of corroboration in those cases (there might in fact have been the necessity), rather to see whether the ‘custom’ of being ‘suspicious’ was at all necessary.

In a late-90s case, our High Court Division (HCD or the Court, hereafter) said that ‘the victim must always be believed but it is a rarest of rare cases when she can be disbelieved on the face of the quality of other evidences necessitating corroborative evidence.’ Around early 2000s, in another case, the Court further opined that if the victim’s solitary evidence is found not to suffer from any infirmity and to be trustworthy, the same can be believed in awarding conviction to the offender even without material corroboration. Technically, both the opinions branch out from the same source; it is only the words ‘the victims must always be believed’ that prima facie makes the former observation look more pro-victim. However, a prudential judicious approach mindful of equality before the law, in my understanding, is the later one - without expressing bias to either of the parties.

In the mid-2000s, the HCD observed that, where the only evidence is that of the rape victim, there is actually ‘no objective standard to gauge the truth’. By way of substantiating the statement, the Court drove back to the old lane of 60s because the reason for the Court for not believing the victim apparently was the fact that the victim did not have the ‘extraordinary’ marks of violence on her body that were ‘supposed to be there’ since she was alleging to be raped, in the Court’s words, ‘by a macho hero of youthful exuberance’. These words used by the higher judiciary uttered suspicion favouring the alleged accused, loud and clear and are also tainted with projection of subjectivity.

During early and mid-2000s, there have also been instances where the HCD took firm positions against inflexible corroboration rules in rape cases. It has quite a good number of times been said by the Court that a rape victim is not an accomplice and it is undesirable and improper to treat her as one and to see her testimony with certain amount of suspicion. It has also been said at least in one case that evidence of victims of sexual assault stands on a par with evidence of an injured witness and to an extent is even more reliable.

The Evidence Act however does not contain a categorical rule on corroboration. To put it differently, the Act has not made corroboration mandatory for proving any offence (including sexual) rather it has spelt out certain rules with regard to adduction of corroborative evidences. It has kept the domain of judicial discretion wide open through section 134 which says that no particular number of witness is necessary. This statutorily makes conviction based upon sole testimony a possibility.

An abolition of corroboration in rape cases can prove to be counter-intuitive. Similarly, a generalised suspicion or uncompromising insistence on corroboration, too is extremely dangerous. In our criminal justice system, the accused does have the right to be considered innocent until proven guilty; however, expressed ‘suspicion’, right from the very beginning, is something the prosecution does never sign up for. Both waiver of and insistence on corroboration should be based on a balanced weighing of facts and circumstances, without an expressed bias towards either party. The law as it stands in black and white with regard to corroboration in rape cases, in my understanding, is not problematic as long as the judiciary considers seeking for corroboration or doing away with the same, as a rule in fact of prudence.

A proper way could be to appreciate the nuances of custodial rape, diminished capacity rape, aggravated rape and gang rape, to name a few, as certain kinds of rapes and then to try and judge them. Realities at times are so nuanced that any generalised assumption can run counter to warranted consequences. The necessity is to apply corroboration rule while being mindful of the subtleties and dynamics of different categories of rape, previous unprejudiced decisions of the higher judiciary and certainly of the dignity of the alleged victims of rape and fair trial rights of the alleged accused of rape. And judges may be required to spell out reasons for taking resort to other evidences to fortify the contention of the complainant. This may add jurisprudential value to rape discourse and pave a way for the making of future decisions in a well-thought out manner.

The writer works with Law Desk, The Daily Star.