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No, Marriage Will Not Extinguish Rape

Arya Suresh
19 July 2020 7:11 AM GMT
No, Marriage Will Not Extinguish Rape
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The abhorrent approach of 'marry your rapist' stems from antiquated patriarchal ideas.
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 An outrageous claim was made by a rape convict before the High Court of Kerala last week.

Robin Vadakkumchery, a former priest of Catholic Church, convicted for rape of a minor, filed an application seeking suspension of sentence to "marry" the rape-survivor. The crime  had resulted in the impregnation of the girl, who was aged 16 years then.

In his plea, Vadakkumcherry said the only impediment to the marriage was his priesthood and now he is eligible for entering wedlock as he had been dispensed with priestly duties and rights by the Pope and has been reduced to the state of a layman.

When the matter came up for consideration, the special public prosecutor opposed his plea seeking stating that the court cannot be made a forum for marriage of a rape convict with the survivor as it would send the wrong message.

 The High Court has adjourned the matter till July 24.

The circumstances which embolden the rapist to make such an appalling offer need critical examination. 

Marrying one's rapist is a very common "law" practiced by Khap panchayats in India. In 2015, a woman from Orissa married her alleged rapist as the family said that she had "no other option". The man was freed on bail for the ceremony, post which the family of the survivor withdrew their complaint. In the same year, the Madras High Court let a rapist out of prison on bail so he could 'mediate' with his victim. 

Disapproving such practices, the Supreme Court later said that any compromise between a rape victim and a perpetrator would be a 'spectacular error' to adopt a soft approach in rape cases and there cannot be any compromise in such matters, while weighing in on a different case (State of Madhya Pradesh VS Madanlal).

Urging the Courts to "remain absolutely away" from such marriage offers made by rapists, the SC said :

"We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of.

There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility".

Recently in 2019, the Kerala High Court held that a rape case in which the allegation was that the accused had sexual intercourse with a woman by obtaining her consent on promise of marriage and when he subsequently marries her legally, such a case can be quashed. This decision was given after the rapist married the victim during the trial. Such judgments give a daunting message to the society as it send out a message that marriage extinguishes rape. The accused has already committed an act that lowers the integrity of the entire the social order- as a crime is an offence against the society as a whole. Marrying the victim at a subsequent stage cannot and should not be a defence to this atrocious crime.

Many women's rights activists strongly feel that such laws and judicial precedents come from the patriarchal system. Most of the misogynistic judgments are made by a male judge.  The courts make such decisions mainly due to an ancient cultural stereotype - that a woman who is the "victim" of sexual assault should marry her assailant to protect her "honour", especially if she is impregnated as a result of the rape. Such thinking stems from the patriarchal concepts which link a woman's individual dignity to perceived notions of 'chastity' and 'purity'. This patriarchal thought process is what causes honour killings in India.  

This reminds me of the very famous lines by Kamla Bhasin, an Indian feminist icon and an activist, "If I'm raped, people will say that she's lost her honour. How did I lose my honour? Who put my honour in my vagina? I didn't place my honour there. If anyone loses their honour when a woman is raped, it's the rapist. Not the woman who is raped."

Rapists being acquitted from the crime, by subsequently marrying the rape survivor, are a common practice that is even legal in many parts of the world. In November 2016, in Turkey, the government proposal to reinstate the marry-your-rapist law and exonerate around 3,000 rapists by having them marry their victims was cancelled due to mass protests. The law was in practice till 2005, after which it was repealed. Now, there are proposals to reintroduce the law, amid outrage by women activists.

In Algeria and Tunisia, rapists can avoid prosecution for raping minors if they marry their victims in accordance to Article 326 of the Algerian Penal Code and Article 227 of the Tunisian Penal Code. By the provisions of the penal code of Morocco, the severity of punishment for rape depends on whether the woman was a virgin or not.  

Most women are deprived of the basic human rights over their own bodies, including the basic right to be free from sexual assault, violence, and rape. These atrocities against women are an outcome of a global culture of discrimination. The rampant rape culture has been under scrutiny and for a while now. The #MeToo campaign led women to open up on the sexual crimes that they have endured. The recent boys' locker room issue in India opened a dialogue on rape culture and how it is propagated. The practice of marry-your-rapist enables the propagation of this rape culture. The fact that it's considered a 'solution' to sexual assault against a woman itself is discriminatory and trivializes rape to a large extent.

The courts have a responsibility to combat social stigma for victims along the lines of the law, because only they can truly bring about a reformative change within the society; but if the court themselves act on societal biases, reformation and progress will remain stagnant.
Before concluding, it will be apposite to refer to a film scene, which, as a woman, appeared liberating(Forced to make movie reference due to dearth of equally inspiring real life events). 

In a recent popular Malayalam movie  - Uyare - that tells the tale of an acid attack survivor, the flaw in our patriarchal justice system is aptly depicted. During the trial, the attacker makes an 'offer' to marry the acid attack survivor; the male judge then looks at the survivor, suggesting that she should take up the offer. Shocked at the audacity of the accused and the insensitivity of the judge, the lead character Pallavi - played by Parvathy Thiruvothu, declines the offer and  goes ahead to live her life on her own terms and to make a name and space for herself in the world, without any crutches of marriage. This celluloid story is an assertion that woman need not have a man beside her to reach the heights they aspire. Moreover, the best thing a survivor can do, is stay away from her assaulter as much as possible.

(The author is a fourth year law student of Govt Law College, Ernakulam, and may be reached at [email protected])

(The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same)

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