Sunday, June 28, 2015

Marriage cannot amend statutory rape

A rape convict, serving a 10-year sentence was granted relief by Justice Devadoss of the Madras High Court, after the victim from the Irula community, whom the convict married and had a child with, requested the judge to reduce the sentence. The Judge, saying justice had to be tempered with mercy, reduced the sentence to the term already served in jail. ‘The majesty of justice lies in its magnanimity,’ said the Judge.
Earlier, Justice Devadoss has granted bail to an appellant who was convicted of statutory rape of a minor girl, 15 years of age, slapped up with a 2 lakh fine and a 7 years prison sentence by a Sessions Court in order for him to settle the dispute by mediation.

The Apex Court, in Gian Singh v. State Of Punjab & Another, has explicitly stated, Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.Therefore, the Honourable Judge, in both the orders quoted above, is flying in the face of express reasoning of the superior court, with several resultant and avoidable aftershocks, both to the victim and to gender justice.

Rape is a grave offence and is non compoundable. After conviction the only option before the said Judge is to decide on the merits of the case before him. Even if mediation takes place and the appellant marries the victim, he would still be facing a jail term unless the appeal is decided in his favour. By insisting on mediation after conviction the Honourable Judge is in fact saying that the appeal would be decided not on the merits of the case but the decision is contingent on the marriage to the victim; i.e., he is not interested in administering Justice with regard to the merits of the case. This reasoning is completely in opposition to women rights and gender justice and denies the woman a true remedy. This is especially so in the light of the fact that Rs. 2 lakhs, has been imposed as a fine on the offender which would be paid to the victim as a compensation. If after the marriage the offender abandons the victim, she will again have to approach the Court for maintenance as solace, albeit meager.

In the first  case, the survivor has married the perpetrator, we do not know if she has been forced into it by faulty social constraints of being a tainted woman if exposed to sex out of marriage, or because she was pregnant as a result of the rape. This unhealthy Hobsons choice for a rape survivor should not be encouraged as it will lead to perpetrators marrying the victim to get out of a jail term and then abandoning them. Yet the judge chooses to encourage it , terming it magnanimity, without considering or being aware of the social consequences. In the second case,  the survivor has issued a public statement that expressly conveys that it is against her will, to reconcile the crime of rape with her rapist, in exchange for marriage. 

Therefore it is inappropriate that the judiciary should assume the role of the quintessential patriarch and condemn the survivor to the fate of accepting the rapist's hand in marriage as a peace offering, to emancipate her from the graver trials of bearing the cross of being nobody's wife. In allowing this decision, the High Court is effacing the autonomy and agency of a single woman, her right to a partner of her choice and to be the authority where her body is concerned.

So the question to be asked here is, to whom is the judge showing mercy- to the offender who is guilty o f grave violence and not to the poor survivor, who had no choice in deciding on having a  child, who was forced by social convention to marry a violent man and forced by society to petition for his release.
The two cases set  bad jurisprudential precedents as convictions in rape cases despite amendments in law in favour of victims are few and far between them due to bad investigation, judicial caution and cultural gender prejudice. If this order is allowed to continue to its logical course, then even the few Judges willing to convict the rapists will be hesitant to do so and mediation will become the norm in such cases.

Mediation in cases of gender violence and grave crimes must be discouraged. Victims who come forward to give complaints against offenders under conditions of grave social stigma and discouragement hence the victims will not be in an equal position to negotiate during mediation. They will be facing pressure from the lawyers of the offenders, mediators and in some cases from their own family members “to settle the case rather than pursuing it in Court and such settlement in sexual crimes is generally presented as marriage to the perpetrator exposing them to grave personal danger due to factors such as revenge as well as abandonment, harassment etc. Therefore mediation is not the solution even from a social point of view for sexual offences.

This reference to mediation has exposed the survivor to harassment as she is constantly being threatened by the police to appear for mediation where the appellant will be present as he has been enlarged on bail. Hence the victim has to relive the whole trauma of the incident and come up with super human efforts to resist the coercion of the appellant to marry him since the marriage is an advantage to the appellant which will be a forced marriage which in effect the Honourable Judge is facilitating.

Several lawyers and eminent jurists as well as the public have spoken out against the  reference to mediation but within two days, there has been another news report about the reduction of sentence in another rape case. The High Courts word is the law and lower courts are bound by it, they are also bound to follow the High Courts lead. It would be a poor day for women if  the rape law is diluted by the effect of  judicial decisions.