Rape is becoming much more common in India, and women are at even greater risk of becoming victims of rape. The term “rape” induces a variety of images, emotions, and concepts.’[1] Rape can be divided into two forms: one is aggravated and the other simple.[2] An aggravated rape includes violence, multiple assailants, or the victim and the accused who were absolute strangers at the time of the crime. None of the three aggravating factors concerned a simple rape.[3] The research found that most rapes occur without physical abuse or multiple assailants.[4] Simple rape cases frequently are not prosecuted, and even if they are prosecuted, the cases rarely end in a conviction.[5] As a result, mediation is frequently more appropriate in simple rape cases.[6] As we know that, mediation refers to a voluntary process that occurs in an out court settlement between two parties involves in a dispute with a third-party mediator who tries to solve disputes between the two parties through informal dialogue. In cases where a victim has reported for aggravated rape, our criminal justice system is most often geared to protecting the interests of the alleged perpetrator, not the victim. According to the principle of criminal law, any person accused of a criminal offense shall be presumed innocent until he has been found guilty beyond a reasonable doubt. Furthermore, rape causes a survivor with significant emotional distress after and during the procedure.
Crime is categorized in the Indian penal system in two types: compoundable crime and a non-compoundable crime under Sections 320(1) and (2) of the Criminal Procedure Code (CrPC). Non-compoundable offenses under the IPC cannot be settled because of their grave nature and the impact they have on society. Though the Supreme Court had allowed ADR in cases that are not compoundable. In the case of Dharmendra Dhirajlal Soneji vs. state of Gujrat case[7], 1996, the Gujrat High Court ruled that an affidavit by the victim pardoning the accused was acceptable in determining the quantum of sentence. In these situations, the punishment can be either lowered or acquitted if the court limits the term to the duration of legal imprisonment already imposed.[8] In the case of B.S Joshi and other vs. the state of Haryana and another, the apex court noted that ‘in the light of the specific facts and circumstances of the case, it is permissible to quash criminal proceedings under the powers conferred on it by sec 482 Criminal Procedure (Cr. P.C) even where the offenses were not compoundable.[9] In the case of K. Srinivas Rao v. D.A Deepa[10], The apex court noted that in some instances, if the parties are willing and if settlement conditions are in place, the criminal court shall, while not diluting the seriousness, validity, and purport of a non-compoundable offense, guide the parties towards a potential settlement by mediation.
In the case of Parabatbhai Aahir and Parbatbhai Bhimsinhabhai Karmur and Ors vs. State of Gujarat and Anr[11], The Supreme Court stated that the power should be exercised in a sparingly and cautious manner under section 482. The High Court will take the essence and gravity of the offense into proper consideration. Heinous and severe crimes involving mental depravity or crimes such as murder, rape cannot be quashed because such crimes have a severe impact on society. In Nattu vs. State of M.P. case[12], The court held that rape couldn’t be compromised between the perpetrator and the victim or her family. Further, section 213 of the Indian penal code (IPC) states that it is a crime when there is an agreement not to bring the criminal to justice in exchange for some pecuniary or other gratification.[13] The rule of law also prohibits a judge from invoking special powers to compound a case. Family members, community leaders, panchayats, lawyers, or even the police routinely make compromises – putting tremendous pressure on the victim to turn hostile. In the case of Vijay Sood vs. State of Himachal Pradesh[14], The police persuaded the complainant to compromise, and her father committed suicide once the case was published in the case of Sajina T. vs. State of Kerala and Ors.[15]The court was observed that the investigators appear to be more interested in persuading the petitioner to settle and compromise the dispute rather than to ensure that the offenders are brought to book, in the case of V. Mohan vs. The inspector of police, 2015, the Madras High court favored mediation in a rape case, the Supreme Court held that it would be a “spectacular error” to adopt “any kind of liberal approach” in sexual situations.[16] In the same case, the court also referred to the matter of Shyam Narian Vs. state[17] (NCT of Delhi) and observed that “The basic civility of a civilized society demonstrates respect for the reputation of women in society. No member of society can conceive that he can create a hollow towards a woman. Such kind of thinking is not only lamentable but also deplorable. The idea of selling women’s natural frames is not an exaggeration to claim the destruction of the civilized norm, i.e., “physical morality.” There is no space in this area of impetuosity. There is no room for young excitement. The truth is that culture as a whole is not able to preach social, economic, and political equality between the sexes from the Chapter, and many other perverted members of society are dehumanizing women, abusing their bodies, and running their chastity. It is an assault on a woman with the mind to represent men’s individuality and intrinsic integrity elegantly.”
According to Mark Umbreit, mediation should only be performed in relatively few cases where a reconciliation meeting between the victims and suspects is deemed to be appropriate.[18] He identified two essential factors for mediation. First, the victim and perpetrator must be prepared to take part in the mediation. Second, the offender must be an appropriate mediation candidate. Offenders with long histories of conviction that show a sociopathic disposition won’t make successful mediation candidates. Either mediation will be carried out pre-trial or mediation would be post-trial and used as a method for bridging the gap where the criminal justice system doesn’t meet the needs of both victims of both rape and perpetrators.[19]
However, rape is probably the easiest crime in the present society and the most difficult task to prove in the existing criminal system. There are various flaws within the criminal justice system that discourage several victims of simple rape from disclosing the rape. Mediation can be a more efficient solution in such a situation. In such a scenario, victims will be able to inform perpetrators about the damage they have inflicted on someone’s life. Otherwise, Mediation would be a simple way out for offenders in escalating situations such as aggravated rape and attempted murder, and it would contradict all fibers of justice.
[1] Toni M. Massaro, ‘Experts, Psychology, Credibility, And Rape: The Rape Trauma Syndrome Issue And Its Implications For Expert Psychological Testimony’ (Papers.ssrn.com, 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584121> accessed 20 April 2020.
[2] The American Jury | Work By Kalven And Zeisel’ (Encyclopedia Britannica, 2020) <https://www.britannica.com/topic/The-American-Jury> accessed 20 April 2020.
[3] Ibid.
[4] (Psycnet.apa.org, 2020) <https://psycnet.apa.org/record/1988-29885-001> accessed 20 April 2020.
[5] ‘Real Rape — Susan Estrich’ (Hup.harvard.edu, 2020)<https://www.hup.harvard.edu/catalog.php?isbn=9780674749443&content=reviews> accessed 20 April 2020.
[6] ‘Domestic Violence And Mediation: Concerns And Recommendations’ (Mediate.com, 2020) <https://www.mediate.com/articles/vestalA3.cfm> accessed 20 April 2020.
[7] See Dharmendra Dhirajlal Soneji vs. state of Gujrat, 1996. (2) GLH 727.
[8] Ibid.
[9] B.S Joshi and Ors. Vs. State of Haryana and Ors. (2003) AIR 2003 SC 1386.
[10] K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.
[11] Parabatbhai Aahir and Parbatbhai Bhimsinhabhai Karmur and Ors Vs State of Gujarat and Anr, (2017) 2017 SCC OnLine SC 1189.
[12] See Nattu vs state of MP, 1990, Cri I.J 1567.
[13] The Indian Penal code, 1860. S, 213.
[14] 2009CriLJ1530
[15] 2008(2)KLJ43
[16] State of M.P. Vs the inspector of poice, 2015 SCC online Mad 3578, decided on 01.07.2015.
[17] (2013)7 SCC 77.
[18] Mark S Umbreit, ‘Victim Offender Mediation And Judicial Leadership Judicature.’ (http://www.justiciarestaurativa.org, 1986) <http://www.justiciarestaurativa.org/www.restorativejustice.org/articlesdb/articles/5167> accessed 21 April 2020.
[19] Matthew J. Sauter, ‘Post-Conviction Mediation Of Rape Cases: Working Within The Criminal Justice System To Achieve Well-Rounded Justice’ (Scholarship.law.missouri.edu, 1993) <http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1026&context=jdr> accessed 21 April 2020.
This article is authored by Md Raihan, student of LLM at South Asian University, New Delhi.
Also Read – Rape – The Heinous Crime Amongst All Crimes
