Sexual assault and digital evidence in India (Part 2): Your right to privacy versus the right to complain

Read the first part of this article: Sexual assault and digital evidence in India (Part 1): Is electronic data determining whether a woman has been raped or not?

In many ways the answers to the problems thrown up by digital evidence in a rape trial lie, in examining the relevancy of evidence that is deployed by the accused and not merely by foregrounding privacy.

Evidence law in India requires a witness/victim to answer every question put to her,1 it however gives the court the discretion to disallow a question if "any such question relates to a matter not relevant to… the proceeding".2 There is also a specific prohibition on the cross-examination "as to the general immoral character, or previous sexual experience" of a victim in a rape trial. A provision which said that "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character" was deleted in 2002.3 The Evidence Act treats as relevant the "good character" and subsequent conduct of an accused. However, with specific regard to sexual offences, it says that "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".4

In many ways the answers to the problems thrown up by digital evidence in a rape trial lie, in examining the relevancy of evidence that is deployed by the accused and not merely by foregrounding privacy.

There is thus ample legislative acknowledgement that adjudication in a rape trial relies on "the past sexual history" of the victim, and through these provisions, a declaration that such material is irrelevant, extraneous and thus is not, in fact an evidence in a rape trial. Despite this, evidence relating to the sex life of the victim, whether in digital form or otherwise is allowed to be brought on record by the defence. Digital evidence is not singularly responsible for this, though it makes access to this information easier, and a matter of "right" for the accused. Considering the way it is allowed to enter the case by the investigating agency, often it is not even necessary for the accused to claim it.

The consequences of digital evidence however are not only that a victim's sexual relationships is made public or that it presents this as relevant to the incident. What is more concerning is the way in which a person's electronic communication is used to discredit their own testimony.

The victim's testimony is her memory and her experience. Her testimony of the time at which she entered the site of offence or left the site of offence can be presented as a lie by showing a marginal difference in timestamps of the cell tower location of her phone. Her memory that she immediately told her friend A and then told her friend B about the rape can be shown as an untruth by a call record which shows that the first call was made to B. Expert testimony of the mechanics of an elevator can be used to show that no rape could have happened in an elevator that doesn't have a pause function.

The consequences of digital evidence however are not only that a victim's sexual relationships is made public or that it presents this as relevant to the incident. What is more concerning is the way in which a person's electronic communication is used to discredit their own testimony.

Judicial reasoning has always been unable to comprehend evidence in a rape trial, without relying on rape myths (whether of the helpless woman who has been ravaged, or of the lying and scheming woman who cannot be raped, legally). The appearance of digital evidence with its promises of neutrality and accuracy seems to have provided Judges a scientific forensic way out of the truth of women's experiences. And scientific neutrality is well known to make itself available to use by dominant structures.