While granting pre-arrest bail to Palakkad MLA Rahul Mamkootathi, Justice Kauser Edappagath of the Kerala High Court stressed that “law and morality are not equivalent” and cautioned against treating every soured relationship as a case of rape. These observations are not new. However, how they are applied to the facts of this case is important, especially given that the matter is still under investigation.
The order deals only with the anticipatory bail applied for by Rahul. Courts deciding such pleas usually focus on whether an arrest is necessary for investigation or not. They do not go into the merits of the accusations, and bail orders are not a clean chit for the accused.
However, several men accused of sexual crimes, including Rahul Mamkoothathil, often use bail orders to project that they have been absolved of guilt. This is a tactic to garner public confidence and cast ambiguity over the genuineness of the survivor’s allegations.
In this particular bail order, granting bail, the court says that keeping Rahul in custody does not seem necessary for the investigation at the moment. The judge also explains why the court feels there may have been consent for the alleged sexual acts between Rahul and the survivor, as well as why the court concludes that the survivor may have consumed abortion pills voluntarily.
While neither of these is a commentary on the credibility of the survivor, those lobbying for the dismissed Congress leader seem to project so. Let us examine why the court came to these conclusions.
Treating consent as continuous
Consent is a central theme in the order.
The court says that while looking at the facts of the case, the survivor met Rahul after the first incident of alleged sexual assault and cohabited with him. The court points to her continued contact with him, her travel to his flat in Palakkad, and her decision to stay with him even after the first instance of assault.
From this, the court concludes that it is “improbable” that a woman who had suffered such violence would voluntarily return to the accused, and that the circumstances suggest continued consent.
Though this approach can be criticised as treating consent as something that flows automatically from the existence of a relationship, the legal reasoning is that once a woman condones an act of violence, it no longer becomes an act of violence. To be more explanatory, the subsequent conduct of the survivor, which shows that she met Rahul and cohabited with him even after the first instance of alleged assault, shows that there is some kind of condonation from her end.
This is why the court says that her “conduct prima facie suggests the existence of a consensual sexual relationship”. However, the court places a caveat.
It says, “the matter requires final adjudication at trial”. This clearly means that through granting Rahul bail, the court is not adjudicating on the veracity of his claim that the sexual intimacy was consensual, nor discrediting the survivor. It simply says that by means of her subsequent acts of meeting her alleged sexual abuser, it can be suggested that she condoned the violence.
But whether this was true or not, the court underlines, must be proven during the trial.
We are all familiar with several cases of gaslighting, where women go back to their abusers out of coercion, especially if the man in question has more power over her. In this case, the survivor has spoken about verbal abuse, sexual assault, and blackmail using nude videos.
During the trial, the statements of both parties will be examined, and the evidence will be weighed. Only then will the court pass a final verdict on Rahul’s guilt and the veracity of the survivor’s claims.
‘Ultimately consenting’ to abortion
On the charge of causing miscarriage without consent, the court relies heavily on WhatsApp chats showing the complainant asking for abortion pills and coordinating their delivery. On this basis, it holds that she “ultimately consented” to the abortion. The word ultimately is crucial here.
The survivor states that Rahul threatened her with suicide and forced her to consume the pill, which she refused at first. Later, she says that his friend has the pills delivered to her, which she consumed while he insisted on seeing her take it through video call.
The court simply says that since the survivor herself consumed the pill and it was not ingested by physical force, it must be presumed that she ultimately consented to it. But since he has mentioned constant coercion from Rahul, the court clearly says, “Whether such consent was vitiated by force, coercion, or undue influence as alleged by the 3rd respondent is a matter to be established through evidence during trial.”
Here again, the Kerala High Court simply applies the law to what is apparent in the case, without going into the merits of either party’s argument. The court leaves questions of brute force and mental coercion to be proved in a trial.
Finally, the court grants Rahul bail not on the basis of whether or not he is guilty, but whether keeping him in police custody is absolutely necessary at this stage of the investigation.
The DGP submitted that the phone used by Rahul to allegedly record nude visuals of the survivor must be recovered and examined, and for that, he must be in custody.
The court said, “ Therefore, the applicant can be directed to produce his mobile phone before the investigating officer. The prosecution has not been able to convince this court that custodial interrogation is necessary for any other purpose.”
Views expressed are the authors' own.