Franco judgment uses alleged 'illicit relationship' to disbelieve survivor’s accusations

The survivor had to go through two breast examinations to disprove a claim made in the complaint against her of “illicit relations”. Yet, the judgment still ends on an ambiguous note with regards to this.
Bishop Franco
Bishop Franco
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When a woman speaks up about sexual violence, her truth is often questioned with impunity – not just by society, but even by mechanisms that are meant to disburse justice. And when one looks at the Additional Session Court’s judgment acquitting Bishop Franco Mulakkal of raping a nun from the Missionaries of Jesus convent in Kottayam’s Kuravilangad in Kerala, this view is further reinforced. Judge Gopakumar G gives an undue amount of space and attention to a complaint made by a cousin of the survivor, Meena*, who had initially accused the survivor of having illicit relations with her husband. This, despite the fact that the complaint was later withdrawn. 

On January 14, 2022, Bishop Franco Mulakkal was acquitted in the case of having sexually assaulted the nun 13 times between 2014 and 2016. The court’s decision has caused dismay and outrage among the nuns and women’s rights advocates, especially since the alienation of the nuns, who supported the survivor, and their harassment have been well documented over the last few years. And in what is certainly not the first judgment of its kind, judge Gopakumar, while acquitting Franco, seems to have relied on “evidence” from Meena’s complaint to apparently draw the conclusion that the survivor’s accusations against Mulakkal were less “believable”, though the two are entirely different cases. 

At the end of December 2016, the survivor learnt from a nun in Punjab that Meena had filed a complaint with the church alleging that the survivor had a relationship with Meena’s husband, and had “broken their family life”. In the complaint, Meena also apparently made a reference to a surgical scar that the survivor had along with an “accessory nipple” on her breast – seemingly, proof that her husband had been intimate with the survivor. The sister who informed the survivor nun of the complaint made by Meena about the “illicit relationship” also asked her to come to Punjab in relation to the complaint – notably, Mulakkal is the bishop at the Jalandhar dioceses in Punjab. 

The complaint about “illicit relationship”

The survivor alleged Meena’s complaint was false, and that while Meena’s husband, Ravi*, had sent her a few inappropriate messages, she had told him off, and also informed Meena about it. The cousins had an argument over the phone about the same. However, after the complaint, in early 2017, the same nun who informed the survivor of the complaint told her that Mulakkal had directed her to take action against the survivor based on Meena’s complaint, the judgment states. On February 9, 2017, the survivor was removed from the position of Kerala in-charge, and, on May 20, demoted from the post of Mother Superior to an ordinary nun – something that has been unheard of in the congregation. 

Eventually, Meena said that her complaint was fake, however, Franco’s counsel argued that Meena was “won over” by the survivor since their family’s reputation was at stake. “According to the prosecution the complaint of Meena* was a cooked up one, while defence contends that the complaint was true and that aspersions were cast against the accused, to shield the inquiry ordered on the complaint,” the judgment says. The defence basically implied that the survivor nun cooked up a complaint against Franco as he was investigating this complaint by her cousin.

Judge Gopakumar then goes on to make several observations, asking if nothing happened between Ravi and the survivor, then why had Meena not been speaking to the survivor’s sister, and if Meena ultimately found nothing controversial in the messages between Ravi and the survivor, why would she create “a fuss” over them in the first place. “Meena is not an ordinary housewife. She is a teacher in a private school in Delhi. Her husband is a lawyer practicing at the Supreme Court of India. The conduct of Meena has to be appreciated in the said background,” the court noted. Though Meena told the court her complaint was false, the judge insisted it probably was true.

If the court believes Meena was empowered enough to make a complaint, then why is her denial of its authenticity less believable? Further, the judgment says that since Meena knew of Franco’s “late night” calls and texts to the survivor – which the latter did not reveal to her cousin, apparently – Meena must have learnt of them through Ravi. And for Ravi to know the same, he would have been with the survivor late at night. “What is needed is a credible explanation regarding the circumstances in which she (the survivor) happened to narrate these private facts to Ravi. Non-explanation of the facts creates a shadow of doubt on the prosecution case that the contents of [Meena’s complaint] is a mere figment of imagination,” the judgment says. 

While the survivor's alleged "illicit relationship” was used to discredit her allegations against Mulakkal, the latter's inappropriate behaviour against another nun was seemingly not a matter the court considered important. The nun in question had deposed in the case. She had said that the accused had once put his hands over her shoulder and pulled her towards him. But the judge pointed out that the behaviour of the accused to this nun was not a relevant issue in the trial. Even while the bishop’s actions didn’t seem to matter to the court, still, the nun’s entire personal history had to be checked during the proceedings.

What does an “illicit relationship” have to do with sexual assault?

Here is the elephant in the room – what does the survivor’s past, existing, or non-existing relationship with Ravi have to do with her accusations against Franco Mulakkal? Even if, for argument’s sake, we say that a woman did have an “illicit relationship”, does it mean she should not be believed if she says she is a victim of sexual violence at someone’s hands? Patriarchy not only enables sexual and gender-based violence but also typecasts “believable” victims – ones who are “chaste”, appropriately and immediately devastated, and ashamed with their outward behaviour reflecting the same. Whereas, the truth is that sexual violence can happen to anyone. The film Pink hit the nail on the head during one of the courtroom scenes where Falak (played by Kirti Kulhari) admits that she took money for sex from the men even though she actually hadn’t. However, she says in court that she did simply to put an end to the argument that since she solicited money, she could not have been sexually assaulted. The court is compelled to acknowledge then that even if a woman provides sex for remuneration, she could still be raped. 

In the Franco Mulakkal case too, even if the court did believe that the survivor nun had a relationship with her cousin’s husband, it should ideally have had no bearing on her allegations of sexual abuse by a man as powerful as a bishop. However, among the many indignities that the survivor went through, she also had to disprove the claim from Meena’s complaint that she had an “accessory nipple” not once, but twice. 

First, the survivor did so by demonstrating to the nun from Punjab when she visited Kerala that she did not have an accessory nipple. “PW1 (the survivor) also showed sister [redacted], her breasts, after sending out her companion nuns, and proved that she had no accessory nipple,” which convinced the sister. The second occasion was on October 2, 2018, the survivor underwent a medical examination for this alleged “accessory nipple” by a doctor. The judgment goes into detail about the “normalcy” of each of her nipples. There was also the survivor’s explanation that the scar she had on her abdomen was from an appendix surgery that some of her peers were aware of. 

However, in spite of the survivor nun having to prove she did not have an “accessory nipple” twice, the judgment ends on an ambiguous note, which makes one wonder the extent of bias towards disbelieving the survivor. “As regards, the right breast, PW21 (the doctor) has noted that PW1 had no accessory nipple at all, but as regards the left breast, her version is that no accessory nipple was “seen” which implies that the nipple was subsequently removed by surgical procedure,” the judgment said.

The survivor was subjected to this in addition to the trauma of navigating the criminal justice system, medical examination for the rape, and alienation and slander from Mulakkal’s supporters.

The context of church and chastity

The fact that Meena’s complaint has been given this much importance in the present case is problematic not only because it appears as an attempt to malign the survivor to ultimately make her accusation of rape seem less credible because she wasn’t “chaste”, but also in the context of the church and the emphasis it places on nuns’ chastity – which the judgment failed to consider. Judge Gopakumar noted that during the medical examination it was found that the survivor is not a virgin, but had failed to mention “penile penetration” in her complaint, or to the two nuns whom she had confided in, when she described the alleged sexual abuse by Bishop Franco between 2014 to 2016.

Brinda Adige, a women’s rights activist, observes that the judgment ignored the context in which the abuse happened and that survivors often don’t have words to describe sexual abuse. “Being a virgin is an important requirement of being part of a convent. And being a woman and a nun, the idea of disobeying a bishop – someone who confers sisterhood to her – puts her in a difficult spot. Between chastity and obedience, the nun is of course torn. And especially after a sexual assault, how can she even come up and tell her fellow nuns that her chastity is gone while theirs is intact? It is a matter of great shame, and very difficult to put into words. It is the defense’s job is to break the prosecution’s arguments, but at least the judge and prosecution should have understood this,” she argues. 

Brinda also points out that the timing and emphasis on Meena’s complaint cannot be understated. “Once the complaint was made, the bishop would have known there was going to be a medical examination. Orchestrating a complaint such as Meena’s to explain why the survivor is not a virgin not only helps him save his own face but also malign the survivor by raising doubts over her credibility.”

Character assassinating women not new in Indian courts

To use other examples from a woman’s life to slut shame or moral police her, to show her as anything but docile and unsexual to disprove her is not a tactic that is new in Indian courts. 

In 2017, when former French diplomat Pascal Mazurier was acquitted by a Bengaluru court of sexually abusing his own daughter, the court relied on similar arguments. The judgment went into detail about the clothes the child’s mother wore, questioned her “morality” for having male friends, and sending a private photo to Pascal, to whom she was then married. The judge even went on to question why a father would rape his child if he was having regular sex with his wife – an absurd and highly regressive argument that reduces women to bodies meant to please men at the latter’s whim.

In many rape cases, the defense tries to prove that the survivors are “habituated” to sex to discredit them, which ties into the archaic idea that a woman who has or seeks sex regularly or of her own volition cannot be a victim of sexual abuse. Though some recent judgments have been more progressive in acknowledging a woman’s right to say no regardless of her sexual preferences or behaviour. But despite the Indian Evidence Act stating against insinuating an “immoral character” of a prosecutrix during cross-questioning in court, this argument continues to sway courts.

*Names changed

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