Court Orders adhering to patriarchal notions and endorsing objectification of women.

'Rakhi' for bail in a sexual assault case, Letting go rape accused in return of marrying

the complainant: Orders adhering to patriarchal notions and endorsing objectification

of women.

We have often seen court orders asking the accused to marry girls they sexually abused or raped make headlines. It always boils down to a bid to protect the woman’s reputation in the patriarchal society over the autonomy of women, but is that what women want and is it right? Autonomy and agency over oneself are essential for the realisation of a woman’s right to equality and patriarchy as well as misogynistic attitudes are just the perfect barriers for it. It is crucial for a woman to have control over her own matters, this is what forms the basis of individualism. But in a patriarchal society, the entire essence of freedom and independence is lost. The decisions are made for women not by them and because of this, women are not involved in the decision-making process and at the negotiation tables instead, misogynists take the matters into their hands.

Let us talk about ‘Judicial stereotyping’ which refers to the practice of judges ascribing to individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group like women. It is also used to refer to the practice of judges perpetuating harmful stereotypes through their failures to challenge them. Taking an example of the Madhya Pradesh High Court, in a horrifying order, a Madhya Pradesh High Court judge granted bail to a man accused of sexual harassment on the condition that he visits the complainant’s house on Raksha Bandhan with a rakhi and promise to protect her at all times and it does not end at that, the court also directed the accused to give 11,000 rupees to the complainant, as is the tradition during Raksha Bandhan and seek her blessings.

The point is that such observations and directions may result in normalising such heinous crimes like rapes and sexual assaults. These gender stereotypes which are intentionally or unintentionally reinforced in society make women feel as if they are bound to be below men and the entire gist of self-assertion is lost.

Out of all offences, Rape is an offence that is the most abusive and violative of someone’s physical as well as mental well-being. Many times, the victim chooses not to report a rape because of social taboo and to prevent loss of reputation in this patriarchal society. Nevertheless, the consequence of sexual abuses and rapes can be devastating and not just physical trauma but emotional stress as well.

In India, the mindset of compromise or settlements still persists when it comes to rape cases or sexual harassment and in many instances, it is found that victims often face hardships and struggling at the registration stage or the filing of FIR, sometimes the police also suggest them to settle the matter outside, varna ladki ki samajh mei badnaami hogi. The Madhya Pradesh case stated before, is the perfect example of such compromise. The High Court suggested physical contact between the accused and the complainant which would further aggravate the trauma for the complainant.

The concept of a compromise between parties in such heinous crimes like rape is a beta thought as it defeats the entire purpose of criminal jurisprudence. The idea behind harsh punishments for crimes such as rape or murder is that society gets the idea that these kind of horrific acts are not going to be tolerated and the offenders will be punished in accordance with the laws. Fair trials and conviction of rape accused also reduces the mental trauma or the grief in the mind of the complainant to some extent. We have seen through various instances such as the Nirbhaya gang-rape and murder case that how our society perceives these kinds of offences. These kinds of incidents not only cause great damage to the victim but to the public as a whole, every woman has the constant fear of walking alone especially at night, women are afraid to make their social media accounts public because they fear the constant rape threats or the vulgar comments and they are afraid to voice their opinions for the same reasons and because of this their voices are not heard, their needs not accounted for and decisions being made by the misogynists and therefore should not be seen with a view to compromise but should be conducted with the aim of convicting the offenders through fair and unbiased trial.

The challenges Indian women face are formidable, they include a misogynistic society with entrenched cultural values and beliefs, bias about the stereotypical role of women, most often legal enforcement structures that either cannot cope up with or are unwilling to take strict and timely measures and therefore, reinforcements of such stereotypes in the court order, impact fairness. Judges can play a significant role in cleansing the justice system of harmful stereotypes. They have an important responsibility to form their decisions based on law and facts in evidence, and not engage in gender stereotyping. This requires judges to identify gender stereotyping, and identify how the application, enforcement or perpetuation of these stereotypes discriminates against women or denies them equal access to justice. Stereotyping might compromise the impartiality of the judges' decision and affect their views about witness credibility or the culpability of the accused person.

The reputation of the one being raped is not to be protected but the rapist’s reputation is what should worry everyone. We need to stop victim-blaming and making it seem like its their fault when it is the accuser who deserves the punishment for his/her/their heinous crimes. It boils down to the woman’s agency and autonomy over herself and thereby, makes decisions for herself and compromise is against that as well as the woman’s honour.

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