Recently, a week after lodging a complaint of sexual assault on a mentally challenged woman, preparations were made to get her married to the accused. This was due to an illegal arbitration between the families at the office of the Uthangarai Deputy Superintendent of Police. The victim and her family insisted on a compromise marriage to drop the complaint against the accused. The TARATDAC (Tamil Nadu Association for the Rights of the Differently Abled and their Caregivers) rightly questioned the police over the determination of consent of a mentally challenged victim, while ignoring the crime of rape committed against her. Recently, the Chief Justice of India (CJI), S.A. Bobde has received flak for his statements in the Supreme Court (“SC”) in Mohit Subhash Chavan v State of Maharashtra. Another instance of advocating compromise is when the Madhya Pradesh High Court ordered the accused to tie rakhi to the sexual harassment victim, with a promise to protect her in the future. These instances indicate that the criminal justice system continues to legalize compromises in rape cases and sometimes works as a marriage bureau.

The Crime in India 2019 Report buttresses the argument for gender sensitization, with a conviction rate of rape cases as low as 27.8%, pendency percentage of 89.5% and 190 rape cases compounded. The data also shows that 15,608 cases, under crime against women, were being compromised. Other studies indicate that the number of compromises in rape cases is much higher. Further, data from the National Crime Records Bureau (NCRB) indicate that over 1,100 rape cases were compromised after going to courts, with an average of 191 rape cases compromised every year since 2014. These recent instances and the appalling data make a compelling case for gender sensitization in the criminal justice system.

This article seeks to examine compromise in rape, from a socio-legal perspective and argue for gender sensitization in the criminal justice system. The first section will analyse the flaws in settling rape cases. The second section will analyse the legal status of compromise in rape, through the case of Shimbhu & Anr v. State of Haryana.

The Flawed System of Compromise in Rape Cases

Compromises are usually not freely consented to by the victims. These are reached due to coercion by the accused and his family members and by the investigating officers. This leads to the survivor or a relative committing suicide or being murdered for resisting a settlement with her rapist. In Vijay Sood v. State of Himachal Pradesh, the police pressurized the complainant and her family to compromise, which they resisted. When the press showed up at their home, her father committed suicide, in shame. Thus, compromise is a disgrace to the consent and the freedom of choice and expression of a victim.

As victims are coerced to enter into a compromise, there exists a power dynamic between the perpetrator and the victim. This is true, especially for women coming from socially and economically weaker strata of society. The affluent perpetrator can coerce the victim to compromise, using his money and muscle power. This could also lead to violence, initiated by the perpetrator against the victim. In Satyanarayan Chhinga v. State of Rajasthan, the victim was brutally murdered by the accused as she refused to compromise. Thus, compromises indicate an oppressive power relationship between the victim and the perpetrator and can terrorize the victim.

Compromise in rape cases has been used as a mechanism to protect the “dignity” of women and their community. These notions of honour force women to view marital relations or a compromise as the only future and rape as a “dishonourable experience” that threatens access to such “marital benefits.” Marriages are seen as social rehabilitation and an escape from societal death, which rape claims to cause. However, it is only a way to ameliorate a cultural fetish for the chastity and dignity of women and to reinstate the lost “honor” of the victim. The prospect of marriage for rape victims also seems dim, due to this cultural notion that a victim is “contaminated” and is a “damaged property.” This means that a compromise, especially of marriage, seems like a promising way to settle and is considered as a form of “justice.” This view also indicates how women are still considered as property and how their sexuality is manipulated by societal norms. Compromise marriages further prove to be disastrous to a rape victim. After marriage, the rape committed by the perpetrator is “legalized,” since marital rape is not an offense under the Indian Penal Code. It does not set the right precedent to prevent rape and crimes against women. It provides hope to the perpetrators that even after committing such heinous crimes, they can walk free, by coercing victims into a compromise. Thus, compromises legalize rape and offer an escape route to the perpetrators.

The adverse repercussions in compromising prove the failure of the criminal justice system as they further traumatize the victim by enforcing a compromise. It indicates the patriarchal mindset of the police and the judiciary and how their misconstrued notions of “honor” prove detrimental to the rape victim.

Legal Standing of Compromise in Rape Cases

After viewing the repercussions of compromise in rape cases, it is necessary to look at the legal standing of compromise in rape cases. According to Section 320(1) and (2) of The Code of Criminal Procedure, 1973, rape does not come under the list of compoundable offences. Rape, being a non-compoundable offence, cannot be settled outside the court through a compromise. It is also not an offence against personam (an individual) but rem (society). The pertinent question here is, how can some courts orchestrate compromises in such cases as if it were a private family dispute? It exhibits the privatization of state law and law influenced by patriarchal customs.

This has been recognized by the SC in Shimbhu & Anr v. State of Haryana. The case against the appellants was of repeated gang rape of the prosecutrix by confining her to a shop for two days. The trial court had sentenced them to ten years rigorous imprisonment, with a fine. The High Court had dismissed the appeals and confirmed the sentence of the appellants. However, a compromise was reached by both the appellants and the prosecutrix in the form of an affidavit, signed by the victim. The purpose of the compromise was to “settle the issue” since the accused belonged to the neighbouring village and she wished to maintain the dignity of her happy matrimonial life. She also stated, in the affidavit, that she had no objections in reducing the sentence of the accused to the period already undergone. The issue raised before the SC was whether the minimum sentence of ten years of rigorous imprisonment could be reduced due to special and adequate reasons, under Section 376(2), based on three grounds:

(i) The parties entered into a compromise;

(ii) The incident occurred in 1995; and

(iii) The victim is happily married and blessed with children.

The SC quashed the appeal based on these grounds and upheld the sentence of the trial court holding that these grounds do not come under special and adequate reasons and thus, Section 376(2) cannot be used to reduce the sentence. It declared that punishment should be proportionate to the gravity of the offense and the long-pendency of a trial; an offer made by the accused to marry the victim, or the happy matrimonial life of the victim, cannot be grounds to reduce the punishment. It stated that rape is a non-compoundable offence and an offense against society that cannot be settled between the accused and the victim. The SC mentioned that it cannot be sure whether the victim had come to a compromise of her free will or the accused had used his power to coerce her to settle. Thus, in the interest of justice and the victim, it upheld the sentence of the trial court.

This judgment was crucial in many ways. Firstly, it proved that compromises in rape cases have no legal basis. Secondly, it crushed the patriarchal notion that a compromise (especially a marriage) can restore a victim’s “dignity.” Thirdly, it recognised the pressure and the trauma a victim undergoes and how the power dynamic between the perpetrator and a victim can be a tool of terror. There are instances, where courts have followed the above trajectory. Recently, the SC declared that compromise is irrelevant in deciding rape and sexual harassment cases. It also issued new guidelines in Aparna Bhat v. State of Madhya Pradesh, which mandated courts to not suggest marriage in sexual offence cases. Still, there are many cases of compromises entered into and perpetrators acquitted or granted bail by courts. Thus, there is a need for gender sensitization in the criminal justice system so that a victim’s consent and dignity are respected.

Conclusion

Compromise in rape cases offends the dignity, consent and freedom of a rape victim, and traumatizes her further. They hide the heinous crimes committed and do not prevent future crimes against women. Compromises are based on the patriarchal notions of “honor” but, in reality, they do not help to preserve this “honor” in society. There are instances of coercion to enter into settlements that could violate a victim’s consent, which has other adverse implications as well. The legal standing of compromise is weak since rape is a non-compoundable offence, committed against society. The SC, in Shimbhu & Anr v. State of Haryana, has also held that there cannot be a reduction of the sentence based on a compromise reached. However, the criminal justice system neglects the trauma undergone by the victim and the legalities surrounding compromise, giving an impression that the police and the courts work like “khap panchayats.” This calls for gender sensitization and a deeper understanding and implementation of victim-friendly procedures to strengthen the law for the crime against women.

Sankari B. is a second-year B.A., LL.B. (Hons.) student at National Law School of India University, Bengaluru, India.

Suggested citation: Sankari B., Compromise in Rape Cases: The Need for Gender Sensitization, JURIST – Student Commentary, July 9, 2021, https://www.jurist.org/commentary/2021/07/sankari-compromise-rape-gender-sensitization/.

This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org