The gang rape and murder of the Delhi girl has stirred the conscience of the nation with an unprecedented call to solidarity and action. But the response has been marked by an unusual degree of rhetoric and few practical suggestions seem to have emerged. Predictably calls have been made to make laws more severe – from chemical castration to decapitation to lynching to death everything has been suggested to deter the potential rapists. But lynch mobs rarely make good laws consistent with the legal and cultural practices of a society and even the best laws are not self propelling mechanisms; the machinery of law has to be brought into action by first reporting of the crime.
To stay practical and sure footed crime against women- especially rape- has to be contextualized so that one sets realistic goals. In our social milieu which forever treats woman as “the second sex “in the memorable phrase of Simon De Beauvoir, for the female of the species, if she survives the gender discrimination test then other degrading prospects like domestic violence, curtailment of reproductive rights and female sexuality, eve teasing, sexual harassment stare her in the face despite institutional guarantees. The discourse relating to issues affecting women belong to two different discursive worlds and legal narratives certainly belong to the world of male concerns and values. The suffering of the raped victim– injury to her body but the more lasting psychic destruction-is never the dominant issue. Rape is largely an issue between contesting males; between one who is her custodian as her father brother or son and the other who is the trespasser illicitly seeking carnal knowledge of her. That is the key to the whole problem- the problem is never seen from the viewpoint of the victim. Honour killing is just one variant of the gamekeeper mentality. So it is not only the laws but the social order that needs to be changed.
Rape is one of the most grievous of crimes but its reporting is extremely tardy for a variety of reasons foremost among them is that the victim is made to feel like the shamed party. The criminal aggressor often exploits the silence of the victim for fear of public humiliation to his advantage. Quite simply men feel encouraged to rape because in many cases they know they can rape without the fear of being reported or punished. The casual approach of the society can be gauged from the fact that the marriage of the victim to the perpetrator of rape is often considered as an amende honourable.My long stint in the CID as head of the cell for offences against women confirmed the general belief that rape is not a rare misfortune suffered at the hands of a depraved stranger. Much more often the culprit comes wearing the mask of a father, brother, friend, and teacher and the society colludes to sweep the incident under the carpet? So any serious initiative to fight this crime must take into account long history of rape with impunity, a legacy of indifference and silence about abuses and a very philosophical often tolerant and sometime appreciative attitude to the indignities inflicted on women in domestic settings. Given the nature and context of the crime reliable data is not available. In strife torn areas allegation of rape by security forces abound and the attitude of the governments to these rapes are akin to incestuous rapes in familial setting-one of unofficial condonation.
So it instills in the victims a strange diffidence to their own degradation. The reluctance of the victim to report rape and other abuses is matched by an equal indifference in the authorities to register the complaint.
The procedure to secure justice has its own hazards. Rape is a crime which is generally committed in secrecy, in the presence of few or no witnesses at all. In case of gang rapes the witnesses are also accomplices. So the victim has only her words by way of evidence. The material serological evidence on the person of victim as well as the accused is often degraded or lost because of delay, sometimes for unavoidable reasons but sometimes with intent. In any other offence against the body the injury is palpable and demonstrable but in case of rape the victim has to undergo the necessary but demeaning examination of her private parts. At the trial she is made to relive her private shame publicly. The victim is interrogated and cross-examined. Physically and psychically shattered, the victim is, in a manner of speaking reduced to an inhuman exhibit. As a strategy the most indelicate questions, calculated to embarrass and intimidate her into disassociating herself from trial are posed to her. In seeking retribution for her present misfortune her sexual past quite unnecessarily becomes a subject matter of mischievous curiousity. After all this ignominy she has only one in five chance of securing a conviction for her tormentor!
The question of sentencing comes only when these conditions have been met successfully; a case has been reported in time, the police have put up a good and professionally investigated case, the prosecution has presented its case cogently, the presiding judge is satisfied that rape has indeed taken place as to warrant the verdict guilty. The provision of law itself gives the judge a lot of freedom as to the award of the sentence. To introduce a bit of legal realism, in practice, adjudications – particularly gender based adjudications – often lead to widely divergent outcomes. A host of subjective factors including the particular social background, intellectual leanings, gender bias and other prejudices of the presiding judge may come into play.
So those clamouring for adequate justice to women must dispense with rhetoric and emotion and put their cool heads together to consider measures which are consistent with the current thinking on penology and the legal enforceability of the measures. The history of sentencing philosophy during the last century or so has seen a move away from the physical pain of the body to an economy of suspended rights. In a situation where demands are being made for dispensing with capital punishment altogether, taking away of the life of a person whose victim has survived the crime is not likely to be favoured by many. Retribution has forever to be tampered with the chances of rehabilitation. The emphasis should be on ensuring speedy and successful trial so that the nexus between crime and punishment is firmly established and acts as deterrent to potential rapists.
Propaganda has its value. A concerted campaign must be launched to draw out women to report rape. Rape is not their fault and the tormentor must be punished. Reliable data on unreported rape is not to be had and it is any body’s guess is as good as mine but my hunch is that barely one out of a hundred rapes gets reported. Out of that one percent, for every hundred rapes reported 75 walk free. So one can only imagine the unconscionably large number of rapists hidden amongst us and the danger that they pose to women.
Exclusive women police stations where specially trained officers and counselors, an idea long on the police agenda, must become available in adequate numbers. The registration of the case should be as unobtrusive and private an affair as is possible under the circumstances. Police has for so long been an exclusively male domain that the entire organizational culture has come to have a bit of a locker room flavour especially when it comes to a case of rape. Rape which is a special report case must be investigated by a cadre of trained officers.
During the trial questions leading as to the character of the victim should be statutorily barred and the medical report should be businesslike and relevant to the issue. The needless two finger test and other things reflective of sexual history of the victim should be barred. Such trials should be necessarily held in camera. The accused should be put to a polygraph test and his refusal should be taken note of by the presiding judge.If the victim volunteers to undergo a polygraphic test it should redound to her credit.
Especially designated fast track courts should dispose of cases so that the demonstrable nexus between crime and its punishment which is of the essence of deterrence.
The legal soundness of this proposal may be debatable but as an out of box idea I would suggest that since the courts are already overburdened a trial by jury where equal number of men and women who are aware of the local social conditions and values were represented.( I know jury trials are getting out of fashion.) I would argue for a punishment that is not so much rooted in the physical pain as in public humiliation and suspended rights of the accused. For example the accused could be deported to some isolated settlement to live in perpetual shame of his ignoble deed just as the victim is forced to suffer in memory’ pain. After he has served his sentence, in addition to the various forfeitures that a convict is subject to , he should not be allowed admittance to any public place without the tutelage of a close female relation. The idea is that he must be “revealed” every moment of his life he lives thereafter as a leper of the social and moral order. His name should be put on a national register and it should be available to all the citizens at all times. The newspapers have reported the state of mind of the five accused persons who overwhelmed by the public opinion are horrified at their own deed. The punishment as suggested does not take away life, limb or liberty but it would be a fate worse than death or physical torture.