Chennai: There is nothing wrong in asking a rape accused to approach the mediation centre for exploring the possibility of settlement/compromise with the rape victims, say legal luminaries. Justice P. Devadass’ June 18 interim bail to a rape convict to enable him to participate in the mediation for attempting compromise with the minor rape victim, triggered widespread debate across the state as to whether these kind of cases could be referred to the mediation centre or not.
While activist lawyers are vehement in saying ‘no’ and could be said to hold the majority view on the subject, lawyers defending the judge say it could be referred. “In case of rape, punishing the offender is a social necessity. But, if there are chances of rapprochement between the victim and the accused, in proper cases, the court can explore it also. In some cases, this rapprochement may also erase the impact of rape on the victim. Further, one of the theories of punishment is “restitution” which means undo the effect of the crime on the victim,” said advocate A. Sirajudeen, author of several law books.
In the present case, the court has just advised the accused and not given a direction to the victim to accept mediation, he adds. “So, advising the accused to explore the chances of rapprochement through mediation is not going to cause any damage to society,” Sirajudeen added.Former additional public prosecutor Abudu Kumar said the judgment was pragmatic and progressive. It was also the case of the accused that it was consensual sex.
It was also not in dispute that the victim had given birth to a child and that she does not have any living parents.“In these overall circumstances, the progressive theory of victimology in criminal law has been applied by the judge. The court has only directed the parties to try and see whether a practical solution can be found in the paramount interest of the victim and the child who is fatherless at this point of time. It has also to be borne in mind that the accused is being asked to take upon a lifetime obligation and to take responsibility for his action. It is open to the victim to decide her future course of action. The court has not given any sort of relief to the accused. The victim is represented by the state in the appeal proceedings. The judge probably wanted to know the view of the victim in the proceedings and only for that reason it was sent for dispute resolution,” he added.
‘Recall rape case referred to mediation centre’
A group of activist lawyers and mediators on Thursday submitted a representation to the Chief Justice of the Madras high court to recall the case referred by Justice P. Devadass from the mediation centre. In their representation given to Chief Justice Sanjay Kishan Kaul, senior counsel Sriram Panchu and three others also requested him to issue guidelines to the courts on appropriate referral of cases to mediation, specific guidelines to trial courts on the kind of cases that ought not to be referred for mediation and guidelines to the legal services authority and lok adalats on such issues.
They said rape was sexual violence and sending such a case for mediation was highly inappropriate. In doing so, the referral reinforces patriarchal norms and stereotypes, such as once a child was born, the woman who was subjugated to the violence must marry the perpetrator. Further, the case was at the stage of admission of appeal. The victim was not a party to the proceedings. The observations relating to her in the order have been made without ascertaining her wishes.
Now, suddenly, with the order, she has been unnecessarily forced to re-live the offence. The order also does not consider the basic principle of mediation that both parties must be willing to come to the process, they said. They recalled that on earlier occasions, they had opposed rape cases being referred to the mediation centre.