Report No. 84
7.19. General approach adopted.-
We shall indicate, in due course,1 our precise recommendations on the relevant provisions mentioned above. But it would be appropriate to mention at this stage that these recommendations are all connected by a common thread. The connecting guideline is this-in a case of rape or attempted rape, even if past immoral character of the "prosecutrix" is technically permissible as substantive evidence or in cross-examination under the present law, that position needs to be modified and such evidence or cross-examination should be prohibited except as regards sexual relations with the accused. The reasons for such an approach may be thus stated:
(a) in so far as such evidence relates to the issue of consent, there are social evils resulting from the tendering of such evidence and those evils counter-balance the possible probative value of the evidence,
(b) in so far as such evidence does not relate to the issue of consent and is offered merely to injure the character or shake the credit of the woman, it is not proper for the law to countenance it-when such evidence cannot be given against men who are victims of sexual offences.
We are happy to mention here that the general approach that we have adopted in regard to the purposes for which, and the extent to which, the past sexual history of the "prosecutrix" may be permitted to be raised as substantive evidence (or in cross-examination) is in broad and substantial harmony with the views expressed during our oral discussions by some social organisations, including an organisation of women lawyers.2
1. See infra.
2. Discussions from 9th to 15th April, 1980.
Back
