Pre Recorded Evidence in Sexual Assault and Rape Trails

Introduction

Pre-recorded video evidence in sexual assault and rape trials has been used and has the law of criminal evidence managed to form an appropriate balance between caring for the victims of sexual assault, who are the prime witnesses in prosecution proceedings, and assuring the due process rights of defendants owing with these crimes. It is assumed that victims of sexual assault are mostly the prime witnesses in prosecution proceedings for these forms of crime. The reasoning for this is that most sexual assault is carried out in private by someone already known to the victim. Often there is no availability of forensic evidence and so victims of such crimes are not only the prime witnesses in prosecution proceedings but, often, the only evidence that a crime has taken place at all.

This can be the real burden on sexual assault victims during the trial stage of the prosecution. Firstly, while explaining the situation to the court, jury and defence barrister, the victim must relive the awful events in question. Secondly, a common defence planning is to impair the credibility of the victim and to satisfy the Court either that no sexual contact took place or it was consensual. In the non-availability of forensic evidence, often it compresses the victim’s word over that of the defendant and it is very difficult to conclude two conflicting stories to the satisfaction of the criminal norms of proof required for a successful conviction. Moreover, the chances of protecting a successful prosecution against a sexual attacker or a rapist decrease considerably as time passes and thus, anything that shows delay by victim in reporting the crime to the Police has the substantial effect of decreasing the rate of a successful conviction.

While these hurdle to timely reporting and successful prosecution cannot all be regulated by criminal justice reform, though, in light of the fact that some of these hurdles arise from fear of or lack of confidence in the court process itself, the law of criminal evidence can play a significant role in weakening some of these hurdles; for instances, by protecting these vulnerable witnesses and making the difficulty of trial less awful. One day the law of criminal evidence could change victims’ perceptions of the trial process and make them less likely to grant their fears of that process to intrude with their opinions to report their sexual assault.

Challenges of Prosecuting Rape Offences

A constant opinion of rape prosecutions is that prosecution rates are low. Along with this, it has been observed in most of the cases that there is no availability of forensic evidence or other collateral evidence that take on the issue of consent or lack of consent. In some of the cases, it is the intimidation of violence rather than its actual use that solicits consent, which of course leaves no forensic indications. Certainly, many complainants are intoxicated by alcohol and drugs at the time of the stated incident. Alcohol may also destroy the ability of complainants to recall what happened and their capacity to resist their attacker. When all the challenges combined with prosecuting rape cases are taken together, it might be some hope that there is little room to increase conviction rates without increasing the risk of wrongful convictions through weak cases proceeding to trial, which is considered not in the public interest.

One of the best methods of evidence that may assist the prosecution to present is the use of pre-recorded video evidence.

In the case of State of Punjab v. Gurmit Singh & Ors, It was held by the Court that Proceeding should be in camera as mentioned in Section 327 of Criminal Procedure Code, 1973. Undisclosed of the victim must be maintained throughout the proceedings.

In case of Sakshi v. Union of India Apex Court was observed that “The provisions of sub-section (2) of Section 327 CrPC shall in addition to the offences mentioned in the sub-section also apply in inquiry or trial offences under sections 354 and 377 of Indian Penal Code and in holding trial of child sex abuse or rape:

A screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused.

The queries place in the examination on behalf of the defendant, in up to now as they relate on to the incident, ought to be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. The victim of child abuse or rape, while giving testimony in court, ought to be allowed enough breaks as and once needed.

Impact on rates of reporting and successful prosecution sexual offenders

Pre-recorded video testimony uses to describe to weaken these hurdles (ultimately) to prosecution by protecting these vulnerable witnesses and making the difficulty of trial less awful for them. As time passed, it has been concluded, victims’ perceptions of the trial process will change as well as they will be less afraid of the trial process and more active to report their sexual assault when they take place.

If a court has allowed the use of special measure then it is imperative that the defendant’s legal representatives ask the witness all of the questions, the answers of which they form to later depend on in court as they will not be designated to put any new questions to the witness on completion of this recording session but any new matters come to light which the defendant or his legal team could not have been normal to have disclosed formerly with reasonable diligence. Then, while this special measure might make it more convenient for a vulnerable or intimidated witness, it is not absolutely clear, how it aims to reduce the victim’s fear of cross-examination itself.

Another opinion which has been raised, specifically in respect of the use of pre-recorded video cross-examination, is that, in ancient times, these measures have not often been made available to victims of sexual offences, the Courts preferring to depend upon live testimony, whether given orally in court or via a live video link. While some are of the opinion which has been raised against the use of these video-based special measures is that somehow a victim’s testimony is impaired by the fact that the court is unable to see the witness in a live situation. While this argument has real perceptive appeal, in real-world there is very little evidence to support this aspect.

Cyberstalking and It’s Legal Provision in India

Nevertheless, Victims still have to experience an adversarial style cross-examination, which has been reported to be the most intimidating prospect of a rape trial for rape victims, and this might be organized in a venue outside the courtroom. The rape victim has to give all the answers directly to questions from the defendant’s legal representatives while knowing that the defendant is attending into the recording session.

In any event, it appears that especially pre-recorded video, cross-examinations are rarely used with victims, the Courts preferring to allow other special measures to these vulnerable witnesses such as screening or live CCTV links. In the case of T.K. Gopal v. State of Karnataka The court held that rape is an atrocious crime and points towards the beastly nature of the whole society. It’s additionally offensive of victim’s most cherished of the element rights, specifically the Right to life in Article 21 in Constitution of India.

Criminal Defendant Right to a Fair Trial

The first thing to do is to classify what kind of right is mentioned in Article 6(3)(d) of the Human Rights Act 1998; if the right is an absolute right then it would never be appropriate to humiliate from it in the interests of protecting vulnerable witnesses. However, if the right is a qualified right, then it might be lawful, where the situation dictates, to derogate wholly or partially from that right to serve a competing but lawful interest.

Accordingly, it is concluded that the right to cross-examine is a qualified right and that the possible for video-based special measures to cause any violation of a defendant’s right to cross-examine is narrow; and it cannot be said to be a violation of a right if that derogation can be regulated through legal authority.

Conclusion

To advance the health and wellbeing of child sexual abuse victims and to prevent secondary trauma, empirical assessment of the effectiveness of special measures plays a vital role in determining what is working, what is not, and what additional steps or interventions may be helpful. Pre-recorded evidence has the potential to improve the quality of information from rape complainants (which includes children, adults or vulnerable persons). Illustrating the best available evidence can be a positive influence on the ability of juries to reach just outcomes. To achieve this, police investigators need to work more closely with prosecutors in case construction, to assist not only the impact of that evidence but also to ensure that interviews proceed in a demonstrably fair manner. Only then the system will fully exploit the opportunities provided by pre-recorded evidence. Using pre-recorded evidence interviews has the potential to improve the court process for rape complainants, enhance the quality of evidence presented in court and help increase the likelihood of achieving justice – in other words, to promote both the interests of crime control and due process in equal measures.

There was a recently occurred case in India, i.e. Hathras Case in which it was stated in its final report by the Forensic Department that there was no sign of intercourse but however there was a sign of physical assault (injuries on neck and back). No sperm sample has been found and lack of evidence of intercourse does not rule out rape. Therefore, the lack of forensic evidence and pre-recorded evidence may result in a delay in the Justice system.

Written By– Shambhavi, Banasthali University

References

Websites Referred:

Books Referred

N.V Paranjape “Criminology &Victimology” 19^th Edition
Ratanlal Dhirajlal “Code of Criminal Procedure” 20^th Edition
Mishra S.N “Indian Penal Code” 19 Edition

Bare Acts Referred

The code of Criminal Procedure,1973
Indian Penal Code,1860