The case sent shock waves down the Indian Catholic Church and its aftermath has left fissures and with it, a deep questioning. Known by some as the Kuravilangad Case, it is more familiarly associated with the nomenclature, ‘(Bishop) Franco Mulakkal rape case’, as the former was accused and charged with the sexual assault of a nun, also the Mother General of the Missionaries of Jesus is a Diocesan Congregation. The Bishop (in question) is the supreme authority and patron of the Congregation and had full hierarchical authority over the Survivor. After a five year saga of uncertainty and trauma for the Survivor who first brought this to the notice to the church superiors in July 2017, a lower court in Kerala, Additional Sessions Judge G Gopakumar, acquitted the accused on January 14, 2022. The appeal now lies in the Kerala high court.
In short, a survivor nun belonging to the Missionary of MJ (Missionaries of Jesus) had accused her superior, Bishop Franco Mulakkal, of sexually assaulting her thirteen times between 2014 and 2016. The uproar caused by the case had led to the Boshop being suspended by the Vatican in September 2018.
What has also emerged from within the Church and Indian Catholic community, since July 11, 2017 when she first brought the series of sexual assaults to notice within her church by writing to Cardinal Alencherry, the head of the Syro-Malabar Church in Kerala, is a small and tightly knit group of Survivor Supporters, from within the religious and laity that has made bold to look power brokers in the eye and stand by the Survivor.
On September 26, in continuance of this gritty battle from within, the ‘Forum of Religious for Justice and Peace’ held its XVII National Convention at the Montfort Social Institute, Hyderabad, Telangana released a 56-page booklet, The Kuravilangad Case – A Critical Study. With detailed legal analyses and comments by advocates and feminist activists, Flavia Agnes and Rebecca Mammen, and also advocate and editor, LiveLaw, Manu Sebastian, the very publication of this case-study has raised the hackles within sections of the hierarchy.
The booklet has been edited by the rights activist and Jesuit priest, Father Cedric Prakash. Fr Prakash has been canvassing for intersectionality within human rights for decades. He is also recipient of the President of India’s Kabir Puraskar. Mamen-John and Sebastian had spoken, a week after the session court verdict acquitting the Bishop, on January 22, 2022 at a webinar organised by the Forum.
Dorothy Fernandes PBVM, National Convener of the Forum of Religious for Justice and Peace has, among the others associated with this gritty initiative. She raises the question on the why of such a booklet and seminar discussions around this case within the Church are necessary. “The publication of this booklet (which also contains some other important documentation relevant to the case) we sincerely hope, will help clarify many doubts in the minds of the clergy religious and the laity at large. We also hope that women in the Church will try to enter into the trauma of a rape survivor and would have the courage to change their prejudiced lens and see the truth as it really and painfully is. Rape is rape, even if it happened once and it is a violation of the vow of celibacy. If adultery is a sufficient reason to deny sacraments to the laity, why is not defrocking also applied to Priests and Bishops?” Dorothy Fernandes asks in her foreword to the publication.
Rebecca M. John, a criminal lawyer practicing in the Supreme Court, has described the verdict as a travesty. “The verdict (of January 14, 2022) is a travesty, which has put the victim on trial instead of the accused. The verdict overturned the criminal law jurisprudence and completely disregarded the law of the land, said Rebecca Mammen John, noted criminal lawyer at a webinar held on January 22. John also bemoaned that the trial court went about nitpicking and disbelieving the victim “in a way which is impermissible in law.” The evidential value of a rape survivor, she explained, is different from other criminal cases and the court has failed to appreciate it, especially the fact that, as a superior in a diocesan congregation, the accuser was under a fiduciary relationship with the accused.
What does a fiduciary relationship mean?
The Bishop, who was the perpetrator, had full authority over her and the Congregation, and was capable of going to any extent to impose his will; all this paralysed her emotionally.
Advocate Manu Sebastian explains how, “In the evidence law we follow a principle that, even if a witness is saying some things which are not believable or exaggerated, that does not mean that the entire testimony of the witness should be discarded. This is based on common sense
because no person will be able to completely recount what happened a few years ago. There could be some lapses. The courts have the duty to separate the grain from the chaff. The court has to find out the elements of truth from what the witnesses are saying. In this case it is my humble opinion that the court has failed to extract truth from the testimony of the victim and the witnesses and rejected the entire testimony.
“Her character was put on trial. There are several paragraphs in the judgement to explain complaints made by a relative of the victim. The same relative later told the court that she had made a false complaint. But the court believed her. The court is disbelieving three nuns and believing another witness who admitted that she had made a false complaint. This is a contradictory approach by the court.
“The court said that the victim and the bishop had travelled together and attended a certain function and during the function she appeared to be happy and talking friendly to the bishop. From that the court presumes that she was in a friendly relationship with the bishops. There is a fundamental flow in this conclusion because Bishop Franco had no defence of consensual sex; he had not put forward a case of consensual sex. The court is taking up a case of consensual sex by referring to bishop and the survivor travelling together and exchanging some emails.
“The latest such verdict was December 1, 2021, when the Supreme Court upheld the conviction of Phool Singh, a Madhya Pradesh man accused of rape, based on the testimonies of the survivor in the absence of a supportive medical certificate or other collaborative evidences.
“The Supreme Court said that in a case of rape, no self-respecting woman would come forward just to make “a humiliating statement against her honor.” It also warns courts not to overlook the “inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression” while dealing with rape cases.
Dateline Complaint of Sexual Assault by Survivor Nun
After summoning much courage, the Survivor first wrote to Cardinal Alencherry, the head of the Syro-Malabar Church in Kerala on July 11, 2017. On January 28, 2018, nearly six months later, she wrote to the Apostolic Nuncio to India. Having received no satisfactory answers to her first plea within her church hierarchy. Having received no satisfactory answers, she then directly wrote on May 14, 2018 directly to the Pope himself and to three Dicastries of the Vatican. What this booklet stresses, addressing every Indian Christian is, that the survivor nun first made every effort to resolve the issue within the Church. Finally, distinctly uncomfortable with her firm stance, it was Bishop Franco who filed false, fabricated cases against her and her family members. It was then that she approached the police.
Well known feminist legal scholar and Mumbai-based women’s right advocate, Flavia Agnes has a section in the booklet authored by her that addresses the issue both within scope of newly amended Indian criminal law jurisprudence and the cannons of the reformed religious texts within the Catholic Church hierarchy. Agnes is also part of ‘Sisters in Solidarity’, a group which has been providing socio-legal support to the survivor.
Paying a tribute to the survivor nun, who, after first raising the issue of Bishop Franco Mulakkal, of sexually assaulting her thirteen times between 2014 and 16, within the church in July 2017, finally filed a police complaint in June 2018. Agnes informs us that the grit and courage of the nun, at great personal cost, including slurs on her reputation, needs note and support.
Nuns are extremely vulnerable within the formal power structures of the church hierarchy and “bound by the vows of chastity, poverty and obedience, a nun has no exposure as to how to ward of sexual abuse from her superiors, who she revers as the earthly embodiment of Jesus Christ. The mental shackles that she must overcome to acknowledge that what she is being subjected to is the crime of sexual assault, overcome the trauma that her vow of chastity is violated by this act, come to terms with the shame and stigma which will befall her when the abuse is brought to light, and her extreme vulnerability if disciplinary action is taken against her for her transgression, is something which those outside of these structures may not even be able to fathom.”
If the internal structures had been at all open to scrutiny and correction, they had ample time between the month of July 2017 when she addressed them and 2018, when she finally made the police complaint. The church, instead of responding with sensitivity, protecting the dignity of the survivor, seemed more concerned about its reputation, however.
Agnes critiques the internal processes of enquiry within church structures lack transparency. Bound by the provision of Pontifical Secrecy, seldom is there a judgement in the public domain that can be scrutinised to understand the canon law governing such transgressions, the procedure followed, the final outcome and the remedial measures adopted. Hence, there are hardly any lessons to be learnt or best practices laid down for future cases.
A measure of correction has been set in motion on December 6, 2019, when the current Pope Francis removed the archaic provision of Pontifical Secret, to bring in greater transparency while investigating sexual abuse within the church. In February 2022, the Pope Francis faced with myriad such examples of allegations of sexual abuse, gave a clear message to consecrated women to fight for their rights. “I invite them to fight when, in some cases, they are treated unfairly, even within the Church,” he urged, “when they serve so much that they are reduced to servitude —at times, by men of the Church.”
Acquittal does not mean Accused not Guilty
Flavia Agnes in her detailed and erudite analysis, also explains foe any acquittal in a criminal court does not exonerate the accused of committing the crime of sexual assault on a subordinate. It only proves that the prosecution was not able to prove the charge ‘beyond reasonable doubt’ as per the heavy burden imposed on the prosecution in a criminal trial. It nowhere establishes the innocence of the accused person. Further, it does not assure that the accused Bishop did not violate his own vow of celibacy, rendering him unfit to administer the holy sacraments.
She also states that, while it is true that this judgement may have dealt a lethal blow to all cases of clergy abuse by silencing hundreds of victims who might have received inspiration from this case to bring their abusers to task, there are crucial lessons to be learned. There is a crying need to create awareness and sensitivity within both church and state structures to bring justice to victims / survivors of clergy abuse.
Flaws in the January 20222 judgement
Instead of dealing with the issues mentioned in the FIR, the judgement, bases its conclusions on incidents which are extraneous to the facts of the case, in order to exonerate the bishop of all the allegations levelled against him. It seems to overlook that what is on trial is the crime of sexual abuse/rape by the accused and not the moral character of the victim. The judgement violates the legal mandate that a woman’s past sexual history (whether actual or fabricated) cannot be used by the defence to project the complainant ‘as woman of easy virtue’ and thereby to conclude that she is an ‘untrustworthy witness.
“Another major flaw is that the judgement ignores the amendments to the rape laws, introduced in 2013, after the gruesome rape and murder of a twenty-three-year-old paramedic in Delhi (popularly known as the ‘Nirbhaya case’), which had expanded the narrow definition of rape under $.375 of IPC to include various other forms of sexual assaults – finger penetration, oral and anal sex and forcing the victim to perform various sexual acts, etc. In fact, the term ‘rape’ itself was redefined broadly as sexual assault. So how can the victim be faulted for failing to use this archaic terminology when she confides about the abuse to her supporters or superiors?
“The various references to sexual acts while mentioning the abuse to her companions, church authorities, to the police and doctors, is discarded as ‘the victim did not mention that she was raped by the accused thirteen times’. Hailing from a conservative background, joining the convent at a tender age of fifteen and as a nun under the vow of chastity, it is but natural that she would shy away from using explicit language while disclosing the sexual abuse inflicted upon her. No adverse inference of discrepancy and inconsistency can be drawn from this.
“It is our experience that even in cases of child sexual abuse, the survivor or her mother, seldom ever uses technical / legal language while reporting the crime. Even the police officer recording the crime, while providing an elaborate background, describes the abuse in just one line as the abuser ‘did dirty things (kharab kaam) to her’ or ‘he spoilt her’ read as ‘he violated her’. The judge seems to be oblivious of this ground reality.
“The judgement contains graphic description of all that the victim was subjected to on the very first night on 5 May, 2014 in her court deposition. This is followed by the acts of sexual assault on all the subsequent instances, each of which constitutes sexual offences as per Section 375 of IPC. Even if a single act is proved, the accused would be liable for punishment under S 376 of IPC. (A reading of the judgement borders on pornography. This was totally unwarranted in a judgement which is in the public domain to protect the survivor’s dignity and bodily integrity.)
“The fact that the abuser was within a fiduciary relationship of power and authority over the victim as the patron of her congregation is also overlooked. After an elaborate discussion on this issue, the judgement concedes to the point advanced by the prosecution, regarding the fiduciary relationship between the victim and the abuser. Yet while appreciating the evidence of the survivor there is no reference to this finding. While the judgement hints at ‘consensual sex’ between the abuser and the survivor, whether it constitutes ‘valid consent’ or ‘tainted consent’ within a fiduciary relationship is not examined.
“The judgement fails to appreciate the power dynamics that prevails between them and the vow of obedience she is bound by which makes it impossible for the victim to resist the sexual assault by her superior. When a sexual act is established and the victim states that it is without her consent, there is a legal presumption in her favour, if the fiduciary relationship between the two is proved. The judgement ignores this well-settled legal principle while appreciating the evidence of the survivor.
“There are several legal precedents where such hyper technical approach has been discarded by courts in India. Even if some part of the evidence is discarded, the remaining part which withstands legal scrutiny is relied upon to secure conviction. But a reading of the judgement indicates that the judicial intent for conviction was lacking and hence the legal doctrine of “grain and chaff” is used as the rationale to secure acquittal. By holding that it was impossible to separate the “grain” from the “chaff”, the court appears to have abdicated its judicial functions.
Proactive approach by the Court lacking
Above all, a pro-active approach of the additional session judge is completely lacking. Agnes points out, how, in an earlier judgement, the Kerala High Court had held that trial courts must take a proactive role at the time of taking evidence and that there should be serious engagement in discovering the truth, rather than remaining as a “mute spectator”.
“The present case had several unique features, which need a different approach to be adopted. She had to fight several battles before approaching the legal system. For a woman conditioned to a cloistered and submissive existence, coming out in public with these allegations must have been an unbearable ordeal. It ought to have been appreciated that the complainant will face something similar to a “civil death” on expulsion from the congregation. The accused was powerful and influential. He had the backing from strong quarters of the community, whereas the victim and the witnesses supporting her faced extreme social hostilities.
“The inaccuracies and shortcomings in the evidence ought to have been appreciated in the light of the power dynamics and uneven level field in the case.
The effort at canvassing the issue for justice for the Survivor Nun, including the publishing of this booklet, has raised, irrevocably not just the prevalence of sexual abuse within the hierarchy, but the resistance to face the widespread malaise. It is a brave and valiant effort battling women’s rights as human rights from within, using tools that are public and transparent.
More than anything else, it is in an easy to read, user friendly format. The Kuravilangad Case: A Critical Study while unequivocally making its stance clear on the (disappointing) judgement of the lower court in Kerala, seeks to answer commonplace questions used to discredit the Survivor in this case as also any complainant of sexual assault.
While appealing in clear conscious to the thoughtful and committed Indian catholic, the booklet also underlines the universal values of feminism and human rights.
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Rape of a Nun: Bishop Franco Mulakkal Arrested
How the Church needs to change the way it addresses Sexual and Gender-based abuse