In spite of an element of ‘reform’, this picture is markedly unpleasant, a rape victim choosing to marry rapist for the sake of bettering her suddenly traumatic, godforsaken life. And so when Chief Justice of India KG Balakrishnan suggested this sufficiently old theory, prioritizing victim’s interest over the punishment to the perpetrator, it seemed unbecoming and drew opposition, in plenty.
I don’t agree with our erudite CJI, too, for social rehabilitation of victim and administration of justice are two different things altogether to my mind, not to be mingled with each other, and should be let be so, and that Justice Balakrishanan’s suggestion can hardly change things any better than they stand today, rather has high legal, social cost. Demerits of the theory weigh over its merits, so as to speak.
Come to think of victim’s life, one, when she fights for justice and even, if luck favours, gets it and, two, when she decides to marry the man who has wildly forced sex on her. She is immediately doomed to undergo ‘secondary victimisation’ in first case, tough police examination, uncomfortable questioning by defence counsel, that kind of things, coupled with a deep trauma with little or no family and social support structure to get over it. Besides, she has very dim prospects of someone marrying her and there may be issue of illegitimacy of the child, a consequence of the crime, if she decides to give birth to it.
In second case, if she chooses to marry the rapist for receiving an otherwise unattainable sustenance for her and her child, society has to finally accept this relation. But the question is what kind of sustenance she will have, that of a man who has already disrespected her honour and has been violent to her, a man who is less likely to make a good father and least expected to be a good husband. Thus putting her in custody of the culprit is in fact to subject her and her child to a life time of domestic violence and torture, making their life hellish.
Obviously, none of the two really offers a choice to the victim. While first one gives her the chance to get culprit punished, the second one settles the issues of her social rehabilitation – though not mental and emotional, something which is truly important and must be on the top priority of the rehabilitation process. Settling physical sustenance of victim over her psychological rehabilitation is a ‘secondary victimisation’, as well.
The crux of Justice Balakrishnan’s advocacy of the controversial theory is ‘due respect’ to victim’s ‘wishes’ and her ‘freedom of choice’. To be very frank, choice is an inappropriate term in this context. Choice lies wherein one is free to choose among a variety of options, what a rape victim gets on proposal of marriage by the rapist is not a choice but a dilemma, to opt for one of the two unpleasant options. A victim will undeniably want the culprit to be punished, naturally hate the idea of marrying him and can consent to it for mere rehabilitation, which has already begun to seem inaccessibly distant, thus making the marriage a ‘compromise’ from the scratch. I shudder at the thought of putting a girl into such relation.
Though such a marriage, if allowed, is of negligible help to the victim, it can have serious consequences, socially. Legal experts believe that the victim can use this proposal of marriage to steer clear of the punishment; he can then convince the victim and her family of the reasonability of the offer and can even get them to turn hostile, which means that he is absolved of his crime. Even if they don’t turn hostile, proposal of marriage naturally becomes a factor for awarding lighter punishment to the perpetrator.
Thus this will, on one hand, bring down the conviction rate in rape case further low and on the other, eliminate the little fear of punishment for rape that exists today, turning it from a cognizable offence to an easily acquittable crime. It’s also wrong in that it strangulates justice and promotes bantering in the name of social rehabilitation. You simply cannot let a murderer go scotfree if he proposes to pay dependents of the deceased for life.
There’re two very interesting and seemingly rationale arguments about this suggestion, that it should be read on case-by-case basis and that both administration of justice (that is, punishment) and rehabilitation of victim (that is, marriage) can occur simultaneously independent of each-other. None of the two has real merit.
Reading the suggestion on case-by-case basis means that it has to be implemented on the ground of merit of a particular case otherwise not. Many past cases have indicated that most of the times when culprit got scotfree, it wasn’t primarily due to victim’s inability to withstand secondary victimization imposed on her by investigating agency and the defence counsel but because the perpetrator hailed from an influential background and could buy his way both into the investigation and the justice. This makes case-by-case criterion minimally, and also discriminately, implementable, for a powerful culprit can masterly use the system to his favour.
Even more riveting viewpoint is that proposal of marriage doesn’t mitigate the crime of rape and so he can be allowed to marry he victim but his punishment should remain unaffected by this. It’s unachievable. If you allow him to marry the victim, he will in the first place get her to turn hostile and will never be punished. In other case, if girl is adamant on getting justice, testifies against him in the court and still decides to marry him to inflict on him additional punishment for his crime, anyone can guess how he and his family will treat the girl later and what life she will be doomed to.
The suggestion has more implications, it jolts efforts of getting certain laws framed like one seeking to make forced sex by husband on wife culpable and may, perhaps decades later, pave the way for similar relaxation in other crimes like road accidents by drunk drivers in which victims are rendered handicapped for life.
What’s actually needed to change things is a better, efficient investigation process, proper delivery of justice and a tougher punishment to the guilty so that conviction rate could be enhanced and incidences of rape minimized. As for social rehabilitation of the victim, civil society has to develop social support structure for them, sooner than later. No doubt, it’ll take ages. But, it’s path towards crime free society and not the other way round. And it’ll happen when rapist is not allowed to escape the punishment by proposing marriage to victim.