Sexual assault and digital evidence in India (Part 1): Is electronic data determining whether a woman has been raped or not?

Read the second part of this article: Sexual assault and digital evidence in India (Part 2): Your right to privacy versus the right to complain.

In May 2021 a Trial Court in Goa acquitted journalist Tarun Tejpal of raping his younger colleague during a work event seven years prior. The judgment of 500 pages devotes hundreds of pages to defence arguments that the woman is a liar. Shockingly, the defence was allowed to access and rely on the contents of the woman's phone that are unconnected to the incident of rape. The judge uses this material to then conclude that this woman either could not have been raped or that she is fabricating the entire incident. What stands out in this judgment is not the ease with which the courts can be convinced that women lie about rape, but the manner in which conversations and photographs from a woman's phone, spanning a period of two years before the rape and entirely irrelevant to it, are manoeuvred and deployed to undermine her experience of rape.

A series of critiques of the judgment have been published, some of which can be read here, here and here.

In the context of a growing public discourse on privacy, particularly digital privacy, the verdict highlights the ways in which a person's own electronic data and communication are increasingly deployed against them, by the state and with the state's participation.

In February 2020, Delhi witnessed communal violence targeted at the Muslim community. Later the same year, the Delhi Police filed a 17,000-page chargesheet against at least 15 students and activists for conspiring to incite these riots and thereby for "terrorist activities". These students and activists participated in protests against the Amendment to India's Citizenship law which is designed to exclude Muslims from citizenship. The Delhi Police's chargesheet is constructed entirely around WhatsApp group conversations available in 75 electronic devices seized by the Police, from accused and witnesses.1 The conversations in the WhatsApp groups, on the logistics of the anti-Citizenship Amendment Act (CAA) protests range from updating the group about which area the protests were being held in, to sharing lists of speakers at these protests site and later when violence began, to coordinate information on help and relief. Based on these conversations the police have constructed a theory that the anti-CAA protests were conceived and carried out, for the purpose of inciting riots between the Muslim and Hindu communities.

Through this piece I try to look at how digital evidence is overwhelming the legal and judicial imagination by looking specifically at cases of rape. Given the reality of systemic disbelief of women's testimony, the existence of electronic evidence in many recent cases of rape produces hope that women finally have irrebuttable "proof" of rape. Women's experience and articulation of their sexual violations also increasingly pivot around text messages, email and video or audio recordings. How then does such material ricochet to distort the woman's telling of her own experience?

Given the reality of systemic disbelief of women's testimony, the existence of electronic evidence in many recent cases of rape produces hope that women finally have irrebuttable "proof" of rape.

Sexual violence, does not produce "evidence" like other offences do. There is no dead body, no murder weapon, no eye-witness, little to no bodily injury. Sexual violence does not necessarily leave signs of physical injury; the World Health Organization and the Indian Ministry of Health maintain that only 30 per cent of victims of sexual violence bear marks of injury.2 Sexual violence is almost never committed in the presence of witnesses.

In a rape case, the "evidence" is the victim, her testimony, her memory and her life. Appellate Courts in India have repeatedly said that the "sole testimony" of the victim is sufficient to convict the accused, if this sole testimony is credible, reliable and "inspires confidence".

In the process of ensuring that the testimony of the woman is credible, reliable and inspires confidence - invariably, the investigation, prosecution and courts collect and rely on corroborative evidence. Corroborative evidence proves the surrounding circumstances as stated by the victim. Medical examination reports may be relied upon if they record physical injuries or semen. Call data records and location will be relied on to prove that the victim and the accused were indeed in the same place at the same time. Text messages or emails may be relied upon to support the part of the victim's statement where she says she told her friend and family about the rape. Friends and family or other persons including expert/technical witnesses may be called as witnesses to testify about any of the surrounding circumstances.

There is a growing acknowledgement, judicially as well, that the absence of physical injury or lack of forensic proof of semen does not mean that rape did not happen.

While courts are moving away from requiring medical corroboration of rape, there appears to be an increasing reliance on digital or electronic evidence to prove rape.

Digital evidence is no longer treated as corroborative, but in fact is used to overwhelm, contradict and disprove the testimony of the woman. Rape, both in public discourse and in court is presented not as a legal offence but as a "he said, she said" situation, where men are imprisoned on the "say so" of the woman.3 In this context the Police and courts appear to be fascinated with electronic evidence as the only "objective" element in a rape trial.

Through this piece I try to contextualise how digital evidence comes into picture during rape trials. I look at the manner in which it is collected during investigation, the manner in which it is deployed by the accused in his defence; and the court’s approach in prioritising digital evidence over human testimony.

With the smartphone becoming an extension of peoples' lives and minds,4 our phones naturally contain information that can provide a contemporaneous corroboration of our experiences. A simple statement that the day before yesterday was a good day or a bad day can be supported by material from your phone, WhatsApp messages to friends, the amount of time spent on social media, the kind of articles or images you viewed. But, should your statement be disproved and declared a lie, by using this same material?

While electronic evidence may not contain any evidence of the rape itself, it contains material that goes towards proving the surrounding circumstances in which the rape was committed, or in proving the subsequent conduct of the victim. Particularly, cases where the victim and the accused are known to each other and have communicated through the phone, the smart phone becomes a relevant piece of evidence.

While electronic evidence may not contain any evidence of the rape itself, it contains material that goes towards proving the surrounding circumstances in which the rape was committed, or in proving the subsequent conduct of the victim.

When a woman's complaint is registered as an F.I.R, the Police begin the process of collecting evidence. They record witnesses statements, and seize documents and objects, including the clothes worn by the victim at the time of the rape. They also seize the phone and/or the laptop of the victim, where it contains communication or photographs that are relevant to the incident. Printed copies, photographs or word files of communication are susceptible to tampering, and so for the court to be able to admit this communication as evidence, the communication needs to be extracted from the device, not by the victim or the Police, but by the Forensic Laboratory, which uses extraction software that is said to be incapable of being tampered with. For this, the entire phone or laptop are seized, since this is the only way electronic communication can be "proved" under law.

The extraction is meant to be targeted, and the Police are expected to send a written request to the Forensic Laboratory instructing them to extract all communication between the Victim and X, Y or Z. Or the instruction may specify that all material or communication between say, the 20th July to 24th July be extracted. However, defective investigation being routine in India, often we see that the Police don't provide information to enable targeted extraction. The entire contents of the phone are then extracted onto a hard drive, which becomes a part of the chargesheet that is filed by the Police in court. The accused has the constitutional right to fair trial, which includes the right to defend himself effectively and thus, the right to be provided with every piece of evidence that is intended to be used against him.

At this stage, the Police have the power to withhold material that is not relevant to the rape. Procedural law allows the distinction between material that is relied upon by the prosecution and material that is not relied upon by the prosecution. Only the former is required to be given to the accused.5 The Police therefore can and should provide only those portions of the mobile phone data that are relevant to the rape or to connect the victim and the accused. In some cases, this is followed. In most cases, mechanical and perfunctory investigation laced with systemic incompetence appears to make the Police hand over the entire contents of the phone to the accused.

The Police can alternatively withhold certain material that is part of the chargesheet from the accused. This practise is typically resorted to in terror trials and results in the a ccused having to defend himself against an unknown. Not an ideal practise either for the accused or for an ethical legal practise and jurisprudence on sexual violence.

In this manner, in many rape cases, the accused are given access to the entire contents of the mobile phone of the victim. The problem with this is not merely that the privacy of the victim is being violated. In some ways, the filing of a complaint of rape amounts to a waiver of the right to privacy, however, and most crucial is that this waiver is limited to the extent of the incident of rape and the relationship between the victim and the accused. Often in criminal trials, the defence is not simply a narration of a counter-view but is an alternate, even imaginary theory constructed out of the material provided by the prosecution, the only burden being discrediting the prosecution's case. When it comes to indiscriminate access to mobile phone data, the question is not about whether the woman should be allowed to withhold or hide any part of her life, but of whether the accused should be allowed to "build" his defence based on material that is not connected to the rape. Advantage is naturally taken of the fact that there is a lack of comprehension (or a deliberate refusal to accept), both socially and judicially about what factors (or evidence) is relevant in a rape trial, and that the sex life of the victim is made relevant to the rape.

In many rape cases, the accused are given access to the entire contents of the mobile phone of the victim.

In cases where certain portions of the mobile data of the victim have been withheld from the accused, either because they are not relevant, or because they violate the privacy of the victim, this has been challenged by the accused.

Tarun Tejpal, an affluent man and a well-known journalist was initially provided only certain electronic data - SMS and WhatsApp messages that were relevant to the case. Tejpal argued that the denial of the entire contents of the mobile phone would violate his right to fair trial, as the mobile phone contains material that may acquit him, the Supreme Court allowed him access to the complete data spanning over 2 lakh messages over a period of 2 years. Ultimately, he was acquitted, by a judgement that violates statutory and jurisprudential rules of evidence by considering and referring to the victim's “past sexual history”.6

Dileep, an extremely popular and powerful actor and producer in the Malayalam film industry was charged with the abduction and rape of a woman actor in 2017. Dileep approached the Supreme Court challenging the denial of the entire contents of a memory card/pen drive that was submitted in the chargesheet against him. The memory card contained footage of a part of the incident of rape and abduction and while Dileep was allowed to view it, he argued that a cloned copy must be provided to him to rule out tampering. Considering apprehensions of misuse of this material by an accused in a rape trial, the Supreme Court refused to hand over this material in the form of a clone copy but allowed for an additional forensic examination to be done to rule out tampering, thus securing the specific aspect of the accused's right to fair trial.7

In a departure from earlier judgments on rape, the Supreme Court considered the right of the accused to a fair trial against the victim's right to a fair trial and the victims right to privacy. Whether the right to privacy of one party can be prioritised over the right to fair trial of the other party, both rights flowing from the right to life under Article 21 of the Constitution is the difficult question that will continue to guide such cases.

Unless, in the first place, the issue is being wrongly framed as one that affects the right to fair trial of an accused. What if we were able to dislodge the belief that the right of an accused to fair trial lies in being able to rely on the sexual relationships or sexuality of the victim, or in parts of her life that no person would ordinarily want exposed to public scrutiny? It is in this context that an accused is able to deploy any piece of information about the victim’s life, including her sex life, to construct a defence that first shows that she has sex and then, uses this scaffolding to make the Judge feel8 that the accused was led to infer her consent, or that a woman who has sex is likely to lie and fabricate allegations of rape.

What if we were able to dislodge the belief that the right of an accused to fair trial lies in being able to rely on the sexual relationships or sexuality of the victim, or in parts of her life that no person would ordinarily want exposed to public scrutiny?

A victim may refuse to hand over her phone, in cases where her phone contains material that is likely to corroborate her own testimony, the refusal may (will most likely) be read against her.

If a victim of rape refuses to submit her phone, the Police can issue a notice to the victim to hand over her phone.9 If she continues to refuse, the Police will require that she give a written statement of her refusal with reasons for the same. The Police may then file the chargesheet without the phone. In court, when the chargesheet is taken cognizance of by the Judge, or at any stage after this, the Judge has the power to direct the victim to hand over her phone to the Police.

A victim may refuse to hand over her phone despite this.

In law, the refusal to share material that is likely to aid in solving crime, only casts a shadow of doubt on the honesty of the person who refuses. That the refusal may not be evidence of 'guilt' but merely a means to protect and assert your privacy is only now being articulated and hasn't yet been accepted by the courts.

In March 2021, Viren Khanna,10 arrested for narcotic related offences, challenged the Police's direction requiring him to unlock his smart phone, provide his email and other passwords. He argued that this violated his right against self-incrimination and his right to privacy as laid down by the SupremeCourt in the 2017 judgement of Puttaswamy v. Union of India.11 The Karnataka High Court rejected this. It treated the phone as a home or property, and compared the disclosure of passwords to a "search" of a property, which the Police has the authority to carry out. Would it have been more appropriate to treat the phone as an extension of the mind, in which case, the requirement to disclose passwords would amount to conducting a non-consensual polygraph or forensic brain mapping exercise, which, violating the right against self-incrimination, is not permitted by the law.

In April 2021 a group of academics filed a Petition before the Supreme Court of India challenging the Police practice of seizing the entire laptop, mobile phone and hard drives of the accused or potential accused who are under investigation. While pointing out the right against self-incrimination and the possibility of electronic devices being tampered with, the Petition also argues that electronic devices contain people's work, this seizure, in a manner makes it inaccessible to the accused, and is violative of the fundamental right to profession.12