Justice on trial
A trial court’s verdict acquitting the Bishop of Jalandhar accused of raping a nun gets criticised for ignoring changes in the country’s rape laws and the dampening effect it will have on hundreds of victims of
similar abuse, especially by the clergy.
THE verdict of the Additional District Sessions Court I in Kottayam acquitting Franco Mulakkal, the Bishop of Jalandhar, of all charges in connection with a rape complaint filed by a nun in his diocese has caused shock and outrage among a large section of people and deeply divided the Catholic community in the country.
The immediate jubilation expressed by the bishop and his relatives in the courtroom and the celebrations by his supporters inside some prayer halls and on the streets of Kottayam and Jalandhar notwithstanding, the 289-page judgment has been criticised by legal experts as insensitive, lacking in empathy and ignoring the context of the survivor nun and the important changes in rape laws in the country in the past decades.
Critics say that while acquitting Bishop Franco, the trial court, which rejected the testimonies of several prosecution witnesses supporting the survivor nun’s version and which sought to discredit the nun over minor variations in her statements to fellow nuns and church leaders over the years, has put the victim on trial. The court said it was unable to hold the bishop guilty relying solely on the survivor’s testimony. The prosecution has announced that it will file an appeal in the Kerala High Court.
The nun, a former mother general of Missionaries of Jesus, a diocesan congregation under the
Bishop of Jalandhar, had alleged 13 separate instances of rape by Bishop Franco during his visits between 2014 and 2016 to the convent at Kuravilangad in Kottayam district in Kerala, where she was residing. According to her statements before the court and the police, since 2014 or at least from early 2015 she had informed fellow nuns about her plight or complained to many bishops, two cardinals, the Apostolic Nuncio and sent letters to the Vatican, but to no avail. Finally, in June 2018, she filed a police complaint before the Kottayam District police chief. Franco Mulakkal was arrested in September 2018 on the basis of that complaint even as a public protest (‘Save our Sisters’) launched by fellow nuns and others gathered strength and gained media attention worldwide; it was sensational also because he was the first bishop in India to be arrested in a rape case. The Kerala High Court later granted him bail. (“Bishop in the dock”, Frontline, October 12, 2018, https:// frontline.thehindu.com/social-issues/gender/article25035934.ece#!).
Even though Franco Mulakkal
consistently denied all the allegations against him and contended that he had been “falsely implicated in the case by the sister for having initiated disciplinary action against her [for] alleged violations of religious norms and financial misappropriation”, demands arose for him to be stripped of his title until the trial was completed. But he continued to hold his position as Bishop of Jalandhar, even though a Vaticanappointed administrator was put in charge of running the diocese.
PROSECUTION CHARGES
The bishop faced serious charges under Indian Penal Code (IPC) Sections 376(2)(k) (for committing rape on a woman, while being in a position of control or dominance over her); 376(2)(n) (for committing rape repeatedly on the same woman); 342 (for wrongful confinement of a person); 377 (for having carnal intercourse against the order of nature with a woman); 376c (for inducing or seducing a woman under his charge in a woman’s institution to have sexual intercourse with him); 354 (for assault or criminal force on a woman with intent to outrage her modesty); and 506(ii) (for criminal intimidation to cause death or grievous hurt, etc).
The trial began in November 2019 and was completed (in camera at the bishop’s request) on January 10, 2022. On January 14, G. Gopakumar, the sessions court judge, pronounced the verdict by reading out a crisp statement in the courtroom: “The accused is found not guilty of the offences punishable under sections 376(2)(k), 376(2)(n), 342, 377, 376c, 354 and 506(ii) of IPC and is set free. His bail bond stands cancelled and sureties are discharged.”
No further details were made available immediately. An emotional Franco Mulakkal, who broke down in the courtroom upon hearing the verdict, later told the media: “I prayed that the verdict in God’s court should be reflected in this court on earth too. I am a missionary who has to show the world that there is God and what his power is. God gave me an opportunity for that. People irrespective of religion or caste have understood that prayer is powerful.”
But there was only scant support for the bishop and the judgment when the details of the court order were released two days later. And it left the police investigators, the prosecution and the large number of people who had stood behind the nun all through her ordeal stunned. By a strange logic, partly based on an earlier Supreme Court judgment but which many legal experts and women’s activists said was inappropriate in this case, the judge held that “when it is not feasible to separate truth from falsehood, when grain and chaff are inextricably mixed up, the only available course is to discard the evidence in toto” in order to reject all seven charges against the bishop.
The judgment recorded in detail the nun’s testimony and at several stages chose to reiterate the graphic details in her statements about her ordeal, including the sexual acts she had to endure from the very first instance on May 5, 2014.
Significantly, according to prosecution sources, any one of these sexual acts would have been enough to categorise the bishop’s reported actions as rape under the contemporary definition of the term, but the court chose to give importance to mere technicalities and ignore the amended provisions of Sections 375 and 376 of the IPC.
REJECTING THE NUN’S TESTIMONY
Instead, the judge chose to reject the nun’s evidence in toto, citing, among other reasons, that “there is no consistency in the statements of the victim” and that she “has given contradictory versions to different persons at different point of time”. Then, applying a curious logic that has attracted much criticism—and which formed the crux of the judgment that came to Franco Mulakkal’s help—the court went on to say that:
(a) while she told some of her fellow nuns that “the bishop was forcing her to share bed with him”, she did not disclose to them that “she was subjected to sexual violence on 13 occasions”;
(b) in a dispensation letter she had written to higher church authorities, she did not mention “she was subjected to sexual violence”;
(c) on another occasion, to another Bishop (Kurain Valiyakandathil), she merely said that the accused (Bishop Franco) was taking retaliatory measures for her “not sharing bed with him” and “not that she was raped or sexually abused”;
(d) in a letter to Cardinal Mar George Alencherry, she had only said she was “unable to tolerate the dealings of [the] Bishop directly and through phone calls and messages made with bad intention”, that her grievance was that the accused “used vulgar words with sexual tones in the messages sent to the sisters”, and that “she cannot reveal the matter in detail and that she want to meet the Cardinal and discuss her struggles”. The court said the Cardinal later testified that “apart from the grievances about the problems and harassment faced within the congregation, the victim did not disclose to him that she had been abused sexually by the accused”;
(e) in a letter sent to Cardinal Marc (a Church official in Rome) on
May 14, 2018, her version was that “the accused abused her for the first time on May 5, 2014” and that the abuse continued for several times but “it was not specified that she was raped on 13 occasions”;
(f) in the complaint given to the district police chief her version was that “an offence under Section 376 IPC was committed against her” and that “no other detail was stated”;
(g) in the first information statement (FIS) “she did not disclose about penile penetration” and that her “version was that the accused inserted his fingers into her vagina and that he attempted to thrust his sexual organ into her mouth and that she was forced to hold his sexual organ” and that “the explanation offered by the victim is that she had no trust in the woman police officer who took her statement and that the statement was recorded in an unsecured environment, and that both statements were proved to be incorrect”;
(h) her version before a doctor was that there was no history of penetrative sex. However, subsequently that entry was struck off. Even in the other portion of the history narrated to the doctor, there is no allegation of penile penetration;
(i) in her additional statement and Section 164 statement (statement given to a magistrate under Section 164 of the Code of Criminal Procedure), her version was that she “was subjected to forcible sexual intercourse, including penile penetration, on 12 occasions and that there was only fingering on the first occasion”.
CRITICISMS AGAINST THE ORDER
The main criticism about the court order is that the many indirect references the nun made to different people on different occasions— clearly to indicate that she was being subjected to sexual abuse by the bishop—were taken by the court adversely against her and in favour of the bishop. The court said that “these inconsistent versions at different point of time to different persons, pose questions on her credibility”. It listed “some other circumstances” too as “creating doubts about her version”, among them “e-mails, photographs and visuals produced as evidence to show that she had “interactions with the accused on days immediately following the alleged sexual violence”, and that she travelled long distances with the bishop in his car during the same period of alleged sexual violence.
Prosecution sources said the court had failed completely to take into account the aspect of fiduciary relationship between the nun and the accused bishop and its repercussions on the survivor’s mental status and her responses and that the judgment seemed to give a “colour of consent” to the whole act which was not even a claim raised by the accused. They also said that after discrediting all prosecution witnesses on doubtful grounds, the court went on to say that it was unable to place reliance on “the solitary testimony” of the nun and hold Bishop Franco guilty of the seven offences charged against him. For example, the nun had told the court that as early as the end of 2014 or in early 2015 she had informed another nun, Sister Lizzy Vadakkel of the Franciscan Clarist Congregation, whom she considered as her “spiritual mother”, about the unfortunate incidents. Sister Lizzy corroborated the nun’s version before the court, but the court rejected Sister Lizzy’s testimony as “unreliable” because it said the survivor nun had failed to disclose to Sister Lizzy the subsequent sexual assaults on her that took place later in 2015 and 2016 even though both of them had been regularly in contact.
The court also said that some untrue facts that Sister Lizzy included in a letter she had written to her provincial superior, Sister Alphonsa Abraham (fearing retribution from the Church authorities and to hide the fact that she had given a statement to the police against the accused bishop, as she later told the court), “also pose a challenge on her
credibility” and makes her disclosure “unconvincing”.
The court also sought to give much importance to a complaint given by the survivor nun’s relative, a woman, to church authorities in 2017 alleging that the nun was involved in an affair with her husband. Even though the relative later testified before the court that her complaint was false, the court clung on to it to suggest that the complaint could indeed be true and establish that the nun had some sort of an illicit relationship with her relative’s husband which, it inferred, would explain the finding in the medical report that showed rupture of her hymen.
Critics have questioned the relevance of this, even if true, in a case where the issue was the alleged sexual assault by the bishop and not the moral character of the nun. It is well established in law that in cases involving allegations of rape, the character and past sexual experiences of the woman are irrelevant and should not be used to tarnish the survivor’s image.
In conclusion, the court said: “In the said circumstances, the claim of the victim that she was raped on 13 occasions under duress cannot be taken reliance on the basis of her solitary testimony. There is no consistency in the statement of the victim. The grievance projected by her to her companion sisters was that the accused was taking retaliatory steps for not yielding to his sexual desires, whereas her version before the court was that she was forced to do sexual intercourse with the accused on 13 occasions, including fingering on the first occasion. Prosecution has failed to give proper explanation for the inconsistent version. Of course, it is contended that initially the victim was reluctant to disclose to her companion sisters about the sexual abuse. But there is no explanation for the omissions made in the First Information Statement and the history narrated to the doctor wherein also penile penetration was not disclosed. In fact, her original version to the doctor as evident from Ext. X1(a) is that there is no history of penetrative sex. In view of the inconsistent version of the victim, this court is of the view that she cannot be categorised as a sterling witness…. She cannot be categorised as a wholly reliable witness as well.”
Sister Anupama, a fellow nun who has been among those giving support and fighting for justice on behalf of the victim, said: “We cannot yet believe such a verdict. We did not get justice—which we got from the prosecution and the police—from the judiciary. But we will continue our fight until our fellow sister gets justice. You can gain anything if you have wealth and influence, and that is what I think happened here.”
While Jitesh Babu, the Special Public Prosecutor, described the verdict as “shocking” and “unexpected”, S. Hari Sankar, the Indian Police Service officer who supervised the investigation, said the verdict had not only let down the victim who had placed her trust in the investigation and the legal system but also silenced forever several others who were waiting for a favourable outcome for the nun in the case to speak out about similar injustices they themselves were facing in society.
Lawyers who represented Franco Mulakkal in the trial, however, said: “The prosecution failed. They miserably failed to prove their case.”
OUTPOURING OF SUPPORT
In the days that followed the verdict, there has been an outpouring of support for the survivor nun in public fora and in social media. Writers, actors, lawyers and women’s activists have come together in a social media campaign ‘#Withthenuns’ offering solidarity with the nun. Protests are increasing against statements in the media hailing the court verdict as a “major victory for the Church”.
‘Sisters in Solidarity’, a group comprising nuns, doctors, lawyers and other professionals, in a statement addressed to church leaders, including Bishop Agnelo Gracias, apostolic administrator of Jalandhar Diocese, five congregational provincials and the chairman of the Catholic Bishops’ Conference of India (CBCI) and many others, said: “We are pained to see how insensitively a daughter of the Church is disowned, discredited and devalued by the members of the ecclesiastical community. Is the survivor nun not part of the same Church?”
A common concern expressed by all such solidarity groups supporting the nun is the dampening effect the trial court’s verdict will have on hundreds of victims of similar abuse, especially by the clergy, who might have been waiting to draw inspiration from an outcome favouring the survivor in this historic case. m
The verdict left the investigators, the prosecution and the large number of people who had stood behind the nun through her ordeal stunned.