Session 9B: Rape and Legal Issues

1st Global Conference

Monday 4th May 2009 – Thursday 7th May 2009
Budapest, Hungary

Corroboration of A Prosecutrix ’s Deposition in Trial of A Rape Case: An Appraisal of Indian Sub-Continent Jurisprudence
Muhammad Mahbubur Rahman
Department of Law, University of Dhaka, Bangladesh

Although in most of the jurisdictions corroboration of a prosecutrix’s deposition is not an imperative requirement in trial of rape cases, the question remains what should be the approach of the court in making its choice: “to insist on corroboration in general and only waive the same in exceptional circumstances” or “to waive corroboration in general and insist the same only in exceptional circumstances”?. Here remains difference of jurisprudence. This difference arises, mainly, on following two sets of hypotheses: (a) a prosecutrix is to be regarded as an injured witness and as such corroboration should not generally be insisted on; the contrary view being that a prosecutrix is as good as an accomplice and as such corroboration of her evidence be generally insisted on; and (b) allegation of being raped should generally be presumed to be true and as such corroboration should not generally be insisted on; the contrary view being that any such presumption of truthfulness is violative of the general norm of criminal jurisprudence.

The testimony of a prosecutrix is historically received by the courts of Indian Sub-continent with some suspicion and as such they demanded corroboration of such testimony by independent evidence. This was partly due to doctrinal and jurisprudential discourses originated in the western countries, particularly, the United Kingdom. However, during the recent years, the judges of India, Bangladesh and Pakistan are challenging these discourses and coming forward with some pro-woman attitudes. They are putting forward the proposition that refusal to act on the testimony of a victim of sexual assaults in the absence of corroboration is adding insult to injury.

In this context, the present paper aims to examine the developing jurisprudence of Indian Sub-continent and compare the same with traditional western-origin rules of evidence and precedents, keeping the cry for justice of rape-victims in mind.

After the Fall”:  The Forensic Constructions of Victim Experience as “Other”
Mark Thomas
Faculty of Law, Queensland University of Technology, Brisbane, Australia

True to their Cartesian and liberal-legal roots, Western legal systems preference the rational and are inherently suspicious of, and marginalise as forensic raw material, that which is constructed as irrational or non-rational.  In 2000 and 2003, the Queensland Supreme Court entertained, but refused, applications to harvest semen from the bodies of deceased males by their surviving partners,  imputing to the applicants a deficiency in rational decision-making, bound as they were by grief in the immediate aftermath of their partners’ unexpected deaths.  The Court substituted, within the context of its parens patriae jurisdiction, its own conception of “the rational” – clearly in contradistinction to the expressed wishes of the applicants as evidenced by their applications.

The traumatised – whether by the death of a partner or in the shadow of sexual assault and rape – are constructed forensically as legal actors deprived of the capacity to reflect objectively on their condition or to provide meaningful input to forensic process.  In the wake of sexual assault and rape, the complainant is generally cast as “mere witness” within both common law and civil code prosecutorial models.  Even when a conviction has been obtained, the (traumatic) experience of the complainant is constructed forensically as alien to the “field of the prepared echo”  which constitutes the limits of legal discourse resonating in a matrix of shared linguistic/analytic conventions deriving from “schooled recognition”.

Moreover, even when statutory provisions mandate the reception of information for the purposes of sentencing offenders, there is a judicial (dis)inclination to take the traumatised victim’s own reportage of the effects of the offence (in Dworkin’s terms) “seriously”, preferring to relegate victim-authored statements of the impact of the offence into the therapeutic or cathartic domain, rather than allowing them full expression within the forensic.  The statutory presence of the victim is trumped by the conventions of legal discourse, and their forensic currency is devalued by the shadow of irrationality and the discontinuity between the implied epistemological axioms of legal method and the reality of the lived experience of sexual assault.