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

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. However, it gives the court the discretion to disallow a question if "any such question relates to a matter not relevant to […] the proceeding." 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. 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."

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, 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.

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