In the same week that the world celebrates the legalisation of gay marriage across America, India has returned to mediaeval times for the third time in two years.
In December 2013, the Supreme Court re-criminalised “unnatural sex”. Earlier this year, the courts balked at criminalising marital rape. And now, one judge has shocked us all by working backwards from the idea that rape is forgivable as long as it is sanctified by marriage.
Of Mediation – the Unlikeliest Solution
Madras High Court judge P Devadass, in directing mediation between a rapist and his victim, despite the latter being unwilling, has indicated that marriage can sanctify and annul a rape.
The judge’s reason for “attempting compromise” was that the victim had been impregnated by her rapist, and he deemed that the “illegitimate” child was the greater victim. Troublingly, this is the second case of this nature that the judge has directed for mediation.
Even worse, his wording in the interim order suggests that he believes it is the rapist, who “agreed to marry” his victim, who is making the compromise. And he calls this a “happy conclusion”.
What’s interesting is, the same judge has come down harshly on other rapists. In a strongly-worded order, he recently upheld the 10-year-sentence of a man who had been convicted of raping a 4-year-old child – calling the rapist a “beast” and a “vulture” who “does not deserve sympathy”.
Victor and Vanquished –the Dual Face of Rape Politics
Why, then, does he exercise so forgiving an attitude towards other rapists, desiring a result that leaves “no victor, no vanquished”? Why does he declare women to be “soft targets for male lust” – subscribing to the same line of thought that has made the hijab compulsory in certain countries and introduced dress codes in places of worship in India? His statement is reminiscent of those made by the defence lawyers of the 16 December Delhi bus rape convicts – behind them is the idea that men cannot help but rape a woman they find attractive.
If mediation were to occur, it would indeed have a victor – a rapist who marries his way out of jail – and a vanquished victim: a woman who must choose between legitimacy for her child and punishment for her rapist.
Imagine the trauma of a woman who must sit across a desk from the man who raped her – leave alone live with him. Let us remember that, thanks to the legitimacy of marital rape, he can repeat his crime with immunity. As it stands, her rapist is now out of jail and lives on the same street as she does.
The victim told The Hindu that she “hates the very sight of him”. And yet, the irony of calling for ‘humanity’ in the context of a rape seems to have eluded the judge entirely.
According to Indian criminal law, rape is a serious offence, with no scope for withdrawal of the case by the victim, or plea bargains. Mediation is usually recommended in civil cases involving property, where a settlement can be reached with the assistance of an unbiased mediator. To direct a criminal case for mediation will set a precedent that has ramifications for the society as a whole. What if more rapists ‘offer’ to marry their victims? What if murderers want to get out of jail by paying blood money?
The argument that mediation will allow more active participation from the victim makes little sense in this context. The victim, for one, did not want her rapist out of jail. If she had desired representation through a lawyer at the criminal proceedings, there is a precedent which provides for it – the Sathyavani Ponrani vs Samuel Raj case.
The ‘80s Hangover: Rape Culture and the Cinema
As if the judge’s khap panchayat like suggestion were not bad enough, the Tamil Nadu State Commission for Women, rather than oppose it vociferously, has been ambivalent, remarking that “mediation is good”, but that the order is “odd” – as if it were an intriguing bit of eccentricity.
Back in the Eighties, before the likes of Mani Ratnam and Kamal Haasan began making movies in which rapists were portrayed as criminals and women as victims, there was a slew of mainstream Tamil films which told quite a different story.
In these disturbing depictions, the heroines would be raped by the heroes, and – in order to retain their ‘virtuousness’ and reclaim their dignity – marry the rapists and pamper them into realising that they should not have got ‘carried away’. They would bear harassment from their in-laws with fortitude, until their rapist-husbands were moved to defend them, at which point a glissando would signify a turning point, and a, you know, “happy conclusion”.
It would be a terrible pity if our judiciary subscribed to this worldview.
(Nandini Krishnan is a writer, playwright, columnist, and stand-up comedienne. She tweets @k_nandini.)
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