The words were uncompromising. “One day, I’ll tell my girl her father was a rapist,” the 21-year-old woman — raped when she was 14 — said. In an interview to a newspaper, she rejected a Madras High Court’s recommendation for mediation between her and the rapist. “Did the judge ever think how I suffered all these years,” she asked. 

On July 1, the Supreme Court stood by the mother of the six-year-old. “In case of rape or attempt of rape… compromise under no circumstances can really be thought of,” it said. It reflected a “lack of sensibility” towards the dignity of women, the court added.

The Supreme Court’s observations came in the context of a criminal appeal filed by the state of Madhya Pradesh against Madan Lal, accused of raping a seven-year-old girl. The MP High Court had restricted the jail sentence of five years given by a sessions court to the period already undergone, which was a little more than a year, because a compromise had been reached between the accused and the victim’s parents.

The word “compromise” comes up often in cases of crimes related to women. Often, courts have suggested a marriage between a rapist and the complainant. Now, the court’s strictures have given hope to lawyers and activists who have been opposed to such attempts at mediation.

“The law declared by the Supreme Court is that no compromise can take place in rape cases. Despite this we find judges succumbing to this route when marriage is suggested as a compromise. Hence the judgment is a timely reminder,” former additional solicitor-general and senior advocate Indira Jaising stresses.

The Supreme Court’s observations prompted the Madras High Court on Friday to recall its order referring to mediation and cancelled the interim bail given to the rape convict.

The issue of mediation has always been a thorny one, because “mediation” is often thrust upon the victim. “Before sending any case for mediation one first needs to take the consent of both the parties,” points out Supreme Court lawyer Vrinda Grover.

Recommendations for mediation are also indicative of mindsets which many lawyers say need to change. “It is better if the judges stick to the human rights arguments rather than referring to archaic notions of chastity when they want to defend the rights of sexually violated women,” Mumbai-based women’s rights activist and lawyer Flavia Agnes holds.

While the Supreme Court judgment has been hailed, there are some concerns about it, too. The court said: “These are crimes against the body of a woman which is her own temple… When a human frame is defiled, the purest treasure is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay”.

As Jaising points out, the opposition to the Madras High Court recommendation was not about “a temple being desecrated” but the fact that consent had not been taken. “Dignity resides in every living species, why make it out to be a gendered concept,” she asks.

Legal experts feel that the belief that a woman’s dignity and honour are intrinsically related to her body needs to be questioned.

“One has to move away from looking at rape from the paradigm of honour and recognise the right of a woman to exercise consent and sexual autonomy,” Grover stresses.

But there is another side to this debate, and that is why many believe that there cannot be a blanket ban on any sort of compromise. “When we discuss rape in a public forum we only discuss rape by strangers and jump to all sorts of conclusions. In such cases a victim does not wish to marry her abuser. But there are other types of rapes too,” Agnes says. 

The Mumbai-based non-government organisation  Majlis conducted a survey based on police data for Mumbai during the period March 2014 to March 2015. The study shows that 90 per cent of the rapes in Mumbai were by known persons, and 24 per cent out of these were rape on the promise of marriage.

“If it’s a rape under a promise of marriage, most of the times the victim wants to marry the abuser. In cases of a rape by a neighbour, the girl may wish to marry to save herself from the stigma,” Agnes explains. 

Another serious issue is the so-called rape of minors. Under the Criminal Law (Amendment) Act, 2013, anyone having sex with or without consent with someone under 18 years will be seen as a rapist. The punishment for raping a minor brings a minimum sentence of 10 years in jail.

But while that protects minors, it also leads to cases of rape being levelled at young men in consensual relationships, especially when the girl’s parents are opposed to their relationship on grounds of caste, religion and so on. When minor girls and boys elope and get married against the wishes of their families, it’s not unusual for the brides’ families to lodge a first information report (FIR) under Sections 376, and 366 of the Indian Penal Code (IPC), levelling kidnapping and rape charges at the boys.

“We have handled many such cases,” lawyer Debashish Banerjee points out.
Experts believe that while dealing with rape cases, judges must look at every angle. The judiciary needs to take into account the circumstances under which a rape took place before asking for a compromise, they feel. Also, if the victim has already married the offender, they may need to consider whether punishing the offender would be detrimental to the victim.
“People are prevented from having consensual sex till they turn 18. But under IPC, marital rape is an offence only when the wife is below 16. So what is the actual age of consent? I wonder how judges are going to handle such cases,” exclaims Ruchira Goswami, professor of sociology, National University of Juridical Sciences, Calcutta.

But there are also cases where societal pressure leads a woman to compromise with her rapist. “We don’t recognise rape by somebody known. Women don’t get support to take the case forward, so it’s often under duress that they enter into an agreement or marriage with the rapist. So it’s a forced compromise,” Grover says.