Saturday, March 12, 2011

Compromise Formula in Rape Sentencing

This guest post has been contributed by Mrinal Satish, JSD candidate at the Yale Law School. Mr Satish has taught criminal law and procedure for several years and is working on a thesis examining sentencing policy in India. He can be reached at mrinal.satish@yale.edu

“Court frees Rapists, Agrees they can pay Victim” bemoaned headlines on February 24, 2011. The judgment of the Supreme Court in Baldev Singh v. State of Punjab led to discussions as to whether the Court was right in what it did. The headline though was not exactly accurate. The Court did not really “free” the three rapists, but reduced their sentence to the period undergone (three and a half years). Though the minimum sentence for gang rape is 10 years, it used its discretion to impose less than the minimum. It also enhanced the fine imposed on each of the defendants to Rs.50,000 from Rs. 1000. It asked them to deposit the amount within 3 months, failing which the amount was to be recovered from them as arrears of land revenue. Was the sentence justified? I don’t think so.

S. 376(2)(g) of the Indian Penal Code deals with gang rape. On the issue of sentence, it provides a minimum punishment of 10 years imprisonment and a maximum of life. A court has the discretion to impose less than the minimum sentence if it finds “adequate and special reasons” for so doing. Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated that it considers aggravated rape (including gang rape) deserving of higher punishment. It is also pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term “adequate and special reasons” ought to be strictly interpreted. (See for instance: State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530).

In Baldev Singh, the Supreme Court used the "adequate and special reason" exception to impose a less than minimum sentence. What were the adequate and special reasons cited? First, that the incident was an old one and had taken place 14 years prior to its judgment and secondly, that the parties had entered into a compromise. It also mentioned that persons accused of rape and the victim were now married (albeit not to each other) and that the victim had two children. Further, the parties had reached a compromise stating that they wanted to “finish the dispute” and that there was no “misunderstanding between them.”

Let us look at the reasons expressly considered by the Court in reducing the sentence. Should delay in judicial proceedings be considered as a factor for reducing sentences? I believe that it should not for two reasons. First, our judicial process is not known for its timeliness. Delay in proceedings is a common occurrence and hence ought not to be considered as a mitigating factor. Second and more importantly, the victim does not have control over the judicial process and delays therein, even though the accused might. If she did, one could justify reducing the sentence. As the system presently operates, it is patently unfair to the victim and is an incentive to the accused to delay proceedings.

Further, can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law. Does it intend to do so? When plea bargaining was introduced in India a few years ago, the Legislature expressly exempted crimes against women from being subject to a plea bargain, because of the often unequal bargaining power of the parties involved, as well as the expressive importance of prosecuting such crimes. This to me indicates that the Legislature did not want to permit “compromises” where victims of crime are women. The Supreme Court in this has hence acted contrary to express legislative mandate. Unfortunately, this now constitutes precedent and before it leads to trading in sentences, one hopes that the Court corrects this anomaly at the earliest.

This case also reflects the state of sentencing in rape in India. I have been studying this issue and I find that determination of sentences based on patriarchal notions of shame, value, honour and chastity of the victim is a prevalent practice. Recently, the Supreme Court reaffirmed its underlying assumptions in rape adjudication when it said: “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person” [State of U.P. v. Chhotey Lal, (2011) 2 SCC 550]. The Court has also frequently said that rape leads to “deathless shame.” Questions of value and shame are determined by a victim’s chastity and her “marriage-ability.” Thus, past sexual conduct (even after the repeal of Section 155(4), Indian Evidence Act) or subsequent marriage of the victim, have significant impact in reduction of sentences. This is also where compensating the victim for this “loss of value” in return for reduced sentences for the accused comes into play. Courts have in the past awarded compensation and used that as a factor for reducing custodial sentences. Baldev Singh’s mention of the current marital status of the victim and the accused, and of the fact that the victim now had children from her marriage, is therefore consistent with the past practice of Indian courts and of the use of sentencing as a site for perpetuation of stereotypes.

7 comments:

Dilip Rao said...

Good post. What would you suggest as the factors to ideally take into account in framing a more rational sentencing policy? Have studies identified factors, social or otherwise that would heighten (or diminish) the predilection of an individual to commit rape?

With a skewed male/female ratio and increasing education, urbanization and progress, one might surmise that the value attached to chastity is declining together with a betterment of marriage prospects for rape victims. Do I take it then that there is a corresponding trend towards more lenient sentences over the decades?

mrinalsatish said...

Thanks for your very interesting questions. My response is as follows:
(1) In order to introduce rationality into sentencing, it is essential that a clear and consistent theory of punishment be identified. Aggravating and mitigating factors can accordingly be determined. Indian courts generally do not use or cite any theory while sentencing. This leads to disparity in sentencing, as well as to irrelevant factors being considered.
(2) I am not aware of any studies in India which have assessed factors that heighten or dimish the propensity of an individual to commit rape. Some jurisdictions (like Virginia in the U.S.)use risk-assessment as a factor in determining sentences for sex offences. I am personally uncomfortable in doing so in the Indian context, especially with our history of labelling entire communities as criminal based on their perceived propensity to offend.
(3)Interestingly, most rape cases before High Courts and the Supreme Court are from rural areas. Hence, education and urbanisation don't really make a difference. Courts believe (and have articulated) that chastity is of more value to a rural woman, than to her urban counterpart.That said, factors like absence of proper medical evidence, the fact that the woman knew her attacker (a common occurence in rural areas), that the court had to rely solely on the woman's testimony to convict, lead to reduction in sentences. There has been a decline in sentences (at least at the High Court level), but a variety of factors cause this, with stereotyping being the overarching one. The guilt determination phase used to be the main site of stereotyping earlier. But, with the Supreme Court and Legislature tightening up factors that can be considered while adjudicating guilt, it has gradually moved to the sentencing phase.

Sushant said...

I was very intrigued by this judgment. You have provided a very nice explanation of what is happening in rape sentencing. Can't believe that this is our SC and I hate that legislatures gave an open hand judiciary in reducing the sentencing. Surely as Dilip said, we need new guidelines [from the legislatures] considering the judiciary has failed this time

A student said...

Good Post....If the readers are interested they can read S.V. Joga Rao, “An attempt to judge a Judgment”,NLSIU review

kickinhard said...

While I agree that crimes need to be punished, I do not agree with the premise that "crimes against women" deserve any special treatment than other crimes.
Why should it be so? Just because they are women?
The other side of the coin would be, do not punish women just because they are women.
The notion that women are somehow are incapable of committing crimes - whether heinous or not - emanates from such ideas that crimes against one sex is somehow more heinous and deserves no mercy whilst others may.

john gray said...

I would just like to ask that did Baldev Singh got punishment form court.

john gray said...

When i read this post i was shock.But it was interesting.
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