Rape and restitution
THE attacks took place approximately a week ago. Two Indian soldiers, Sachin Gupta and Saurab Chopra, both in their late 20s, allegedly lured a 21-year-old girl to their hotel room in the Indian state of Uttar Pradesh. According to the police reports filed against them, they then raped the girl and filmed the attack on their mobile phones.
The victim’s family filed police reports. What happened next is what makes the story strange. Instead of demanding that the perpetrators be tried and duly punished, the family offered to drop the charges if the officers in question married the girl and her younger sister.
The wedding took place a few days later in Bareilly and the charges against Sachin and Saurab were dropped. As far as the community was concerned, the matter seemed to have reached a satisfactory conclusion. The girl and the younger sister, who would bear the burden of the dishonour brought by rape, were thus seemingly absolved from the fate of being maligned for life. The rapists, who had violated a woman against her will, were stuck with supporting her and her sister for life.
The conclusion of the story is based on a cold calculation, one that sees rape as a crime of a male giving in to temptation, and that sees the female victim always complicit and at fault in having presented it. While the case in question took place in India, these perceptions dominate in many other parts of the world.
The Malaysian newspaper The Star also reported a case last week in which a man, Mohammad Hunain, had been charged with three sexual offences. Prior to his court hearing, Hunain had confessed to violating a physically disabled girl, aged 14 years and 10 months, on at least two different occasions in March. However, at the hearing, Hunain withdrew his guilty plea. In pleading for bail, Hunain offered to meet the parents of the young girl and to marry her. The Malaysian prosecutor, however, said that such a plea could amount to tampering with the case and urged the court to not allow bail. In support of his argument, he cited another Malaysian case in which a man who had raped a 13-year-old girl was sentenced to 12 years in prison and whipped twice, even though he had married his victim.
While the outcome in the Malaysian case is not yet clear, the premise behind it is. Punishing rapists means treating rape as a crime that violates the physical body of another person, causing emotional harm and bodily injury, which in turn necessitates that the punishment applied be proportional to the harm suffered once the accused is found guilty of the offence. In this sense, the criminal punishment is imposed because of the violation of law. Allowing the perpetrator to marry the victim not only denies this premise but punishes the survivor yet again by imposing a lifelong punishment that victimises her forever.
The cruelty of imagining marriage as restitution for rape was revealed in Morocco two years ago. In March, 2012, 16-year-old Amina Al Filali poisoned herself after being forced to marry her 23-year-old rapist. Her family and the judge had pushed the marriage through in order to avoid dishonour to the family. This January, the Moroccan parliament managed to pass an amendment to Section 475 of their penal code, which had allowed a rapist to escape punishment if he married his underage victim. Rights activists in Morocco had long decried the law because it treated women as objects and enabled further abuse by the same men who had already abused them.
In Pakistan, various religious scholars and quasi-legal institutions such as jirgas have repeatedly suggested marriage as a means to erase the criminal act of rape. So entrenched is this perception as a corrective to a ghastly criminal act that not only are marriages offered as a means of restitution but revenge rapes are threatened if such marriages do not take place.
The core belief that permits them is the same in every case — in India where it was recently accepted, in Malaysia where it has been considered and in Pakistan where it is quite acceptable: a woman is not a person but an object that can be damaged, traded, exchanged, and peddled, all for the larger, more important objectives of men. This reason, however, is unlikely to convince the majority of Pakistanis, used as they are to patriarchy and its unforgivingly male centric perspective.
For them, the argument against rape as a form of restitution is best poised on the harm it does to marriage, an institution they do pretend to care about. Indeed, if a rapist can be imagined as a husband, then the marital relationship is also reduced to a mere transactional one between husband and wife. There is no talk of love or compatibility, let alone genuine respect, sincerity, or commitment. Instead, agreeing that marriage can be restitution for rape means simply that the marital relationship is one primarily of legality and economics.
Hence imagined, it doesn’t matter if the husband is a rapist or the rapist is a husband, but simply that the transgressions of men are erased, marriage hence transformed from a relationship that sustains society into merely a cover for past sins.
The writer is an attorney teaching constitutional law and political philosophy.