Question
Consider the following statements regarding character
and sexual history evidence under Section 48 of the Bharatiya Sakshya Adhiniyam, 2023: Statement 1: In a case of alleged sexual assault, the victim's character and sexual history are generally relevant to determine whether consent was given. Statement 2: In sexual assault cases, the victim's sexual history is completely irrelevant and inadmissible under all circumstances. Statement 3: The character of the accused in a sexual assault case is relevant as raising the presumption of consent. Statement 4: The victim's previous sexual conduct with persons other than the accused is not relevant to determine consent in cases of alleged rape. Which statements are correct?Solution
Section 48 of BSA (amended from Section 53A of the Indian Evidence Act) provides that the character of the victim and victim's sexual history shall not be relevant when determining consent in sexual assault cases. Statement 4 is correct as it aligns with Section 48. Statement 1 is incorrect because Section 48 explicitly makes such character and sexual history irrelevant. Statement 2 is incorrect because while generally irrelevant, BSA does not use the phrase "completely irrelevant under all circumstances"—there may be narrowly construed exceptions. Statement 3 is incorrect because the accused's character cannot create a presumption of consent under modern BSA jurisprudence; Section 48 is protective of the victim, not the accused.
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