India: Manufacturing consent - rape verdicts reflect social prejudice

South Asia Citizen's Wire
What is it about rape that the judiciary cannot restrict itself to delivering verdicts about the guilt of the accused, but makes observations on the complainant's behaviour, her moral character and her marriage prospects?
Three recent judgments are indicative of this disturbing trend; they reflect and legitimise a social prejudice against rape survivors.
The most recent is the judgment on the rape of a nurse by an employee of the Shanti Mukund Hospital in east Delhi. On May 3, additional sessions judge of Karkardooma court, Justice J M Malik deferred his judgment by a day and ordered the victim to reply to a preposterous proposal by the rapist to marry her. The young nurse understandably refused to marry the man who in September 2003 had raped her and gouged out one eye. She instead demanded that the most stringent punishment be meted out to him.

Justice Malik, delivering his verdict of life imprisonment, called the rapist's marriage proposal "false, frivolous and mischievous" and observed that it was made with the mala fide intention to evade punishment. Inexplicable, then, is the judge's decision to entertain this proposal, withhold his judgment and consider reduction in sentence were the "proposal" to be accepted.

The pressures brought to bear on women subjected to rape and sexual assault are evident in the formulation of the proposal. The rapist is projected as helping the victim live a proper life. It is unlikely that a judge would remotely consider a proposal by a car thief that he marries the owner of the car so that they can both share the car.

Such attempts to exploit a rape survivor's vulnerability are not few and far between. In a recent case, the lower court in Mumbai seemed convinced that the resolution of a rape case lay in marriage. The acquittal of a rapist by Mumbai sessions court judge B C Singh on May 3 would border on the absurd were it not so tragic.

In a case that dated back to August 2003, the judge acquitted the accused after the trial was almost complete and the ground prepared for his conviction.

The judge reportedly (TOI, May 5) offered a police escort to the marriage party so that the accused did not flee the scene. What milord, of the evidence in the case establishing the proof of rape?

When patriarchal values determine the nature of judgments, who will hold judges accountable? In the infamous Suryanelli case, involving a minor girl who was abducted and gangraped by several men for about 40 days, Kerala high court judges decided that the girl was of a "deviant character" because she "squandered" Rs 450 given to her for her hostel fees, and subsequently tried to pawn an ornament to make up the deficit. Thus, according to the learned judges, the girl was not a "normal innocent" girl, and the court could not be expected to "swallow her version".

On January 20, 2005, justices K A Abdul Gafoor and R Basant of the Kerala high court exonerated all but one of the 36 accused in the case. The court's disbelief in the lack of the girl's consent led them to question "whether it was rape at all".

The girl, according to the judges, on returning home after her "escapade" was attempting to wish away all "consensual sexual intercourses." She was apparently "attempting to place the blame for her unfortunate predicament on the shoulders of all with whom she had sexual intercourse by making convenient omnibus assertions that they were all rapes".

Let us for now not go into the double standards in society whereby a girl who has consensual sex is considered to be in an "unfortunate predicament", whereas a man in a similar position can boast about his sexual prowess and invincible manhood. Let us, instead, delve into the assumptions made by judges while delivering their verdicts.

The high court judges found it fit to overturn the lower court convictions of 35 of the 36 accused, because the victim, in their opinion, could have "escaped at any time". Disregarding the trauma of sexually abused women who have been held captive, especially by politically powerful men, the court inferred from this that she was willing to go with the accused. The sole judicial conviction was not for rape, but for procuring a minor and using her for prostitution.

The judgment in the Suryanelli case is all the more disturbing as it is the first of several cases of sexual abuse and rape to be decided in the Kerala courts. Such judgments could set dangerous precedents in cases of sexual crime, particularly when mechanisms to ensure judicial accountability are not in place.

One can only hope that the Supreme Court, where the Suryanelli matter is now likely to come up, is more tuned into the harsh realities of women fighting for justice in cases of sexual violence.

As for matchmaking, that is a task best handled by marriage bureaus.

by Laxmi Murthy
The writer is with Saheli, a women's organisation.