That the justice system, of which the police are a part, does not work for rape or other victims is no accident, writes Sonali Ranade
Rape is a cognisable offence in most places in the world. Which means, it is an offence that should be investigated and action taken against the offender irrespective of whether the victim complains about the crime or not.
Yet, studies show that nine out of 10 rape victims do not report the crime. And cases abound where the police, the press, and society drag the victim of a rape through filth when she dares to take the case to court. Some of the mud-slinging is no doubt a legitimate part of the defendant's defence against the crime. A variety of other factors explain the perverse police behaviour.
The thing that puzzles is society's reaction to the reported crime. Far from supporting the victim in her hour of travail, we are busy "explaining away" the crime and what the victim could or should have done to avoid it. One way or the other, the central fact in the discourse, that rape is a crime and the girl was the victim, is obfuscated.
What explains our attitude?
Recently I was summoned home for a family council. As it turned out, the powers that be at home were more than a little concerned about the unwelcome attention that my tweeting was attracting from certain quarters. There was nothing wrong with what I was doing. To be involved in advocacy for economic reforms or to have a considered view on social and political issues was not only legitimate but also deserving of appreciation. Even writing on such issues, it reluctantly was conceded, was praiseworthy, if it was a little out of the way considering my present experience and station in life.
But all said and done, would I please tone down things a bit? My tweeting was making waves, drawing unwelcome attention, and exposing me to unspecified hazards that could cause severe problems down the road, no only for me but for others around me. As an intelligent and responsible person I ought to know the difference between what is right and what is customarily acceptable. There is after all a 'Lakshman rekha' that one may not cross. What had I to gain from such "public" advocacy anyway? There are no medals for heroes or heroines in our society.
That in a nutshell is a conversation that takes place in many homes. It captures the essential difference between what is legitimate and legal on one hand and what is not legitimate but still the customary norm in our society. Where does the dichotomy come from?
That the justice system, of which the police are a part, does not work for rape or other victims is no accident. In any such police case, the cops have no incentive to favour the victims. On the other hand, most rapists will pay a fortune to get off lightly with the crime. So the battle for fudging details, introducing "mitigating circumstances" and establishing "partial connivance if not consent" on the part of the victim begins from day one.
This ambiguity serves everyone well except the victim who picks up the "blame" for the crime even before it is investigated and brought to trial. In most cases the ambiguity is deliberately created for shaking down the rapist for money by the cops themselves. But that is not really the issue here. What concerns me is society's indifference if not hostility. Where does that come from?
The justice system hasn't been dysfunctional since independence. If you go back in our history, then for perhaps some 500 years and more, very few parts of India ever had a credible justice system to begin with. Law, such as it existed, was capricious, dependent on the whims and fancies of the local tyrant and his court officials, and if you weren't of the nobility or the upper caste or class, your access to justice did not exist.
Our society's customs and practices over the millennia arose in such a milieu. If the law doesn't exist, or won't work as it is supposed to, then the onus falls on potential victims to take all such precautions as may be necessary to safeguard themselves. So we keep our girls indoors or in purdah, deny them an education that may expose them to risk, and draw up all sorts of restrictions on their personal freedoms.
Naturally, if a girl violates those customary restrictions, we have little hesitation in blaming her for the initial violation. Surely, if she is sensible and knew the rules, she knew better than to violate them and "invite" the rape. Her fault.
It is worth noting that this is not specific to just rape or other abuses. The tyranny that our forefathers faced has left deeply embedded scars on our society which modernity of the last 65 years has not yet uncovered, let alone address and repair. You see this lack of faith in government, distrust of society and a reluctance to get involved in community projects and goals over vast swathes of our public life. It is manifest in our behavior in queues at bus-stops. It is evident in the small liberties we take with the law everyday. We do not expect others to obey the law or rules. So the smart thing to do is to break it yourself first.
It is the same distrust of government and authority that marks our trust in gold rather than government bonds, not today but through millennia. It is the lack of trust that prevents us from effective collaboration in workplaces, communities or public life. It is the same unreliability of others that compels us to build needless redundancies in our systems and ways of working. It is the same inability to take anything for granted that adds layers and layers of unnecessary costs throughout the economy that makes most of our products, except direct labour, uncompetitive in world markets. Our doctors or software engineers may be the best, but we can't produce either good software or good healthcare to compete in world markets because our systems are so capricious and unreliable.
No police force can prevent rape by guarding all potential victims. The justice system works by deterrence. It is a fallacy to think that deterrence in aimed at the five per cent criminally inclined elements in our society. It is not. Deterrence is instead aimed at the 95 pc of normal people to prevent them from giving in to an impulsive violation of the law because others are doing so with impunity. You cannot deter the bad apples. You can only weed them out. The law and justice system is instead aimed at keeping the good apples good.
For some strange reason, our intellectuals have forgotten this elementary purpose of the law. Instead, in just about every crime that comes to trial, we rush in examine the perpetrator's motivation, compulsion, circumstances and instinctively empathise with the perpetrator who mysteriously now turns into a "victim" of the justice system.
Does that inversion ring a bell? Yes, it is the same syndrome -- our deep-seated distrust of authority and government -- that turns the rapist into a "victim". If capricious authority is now prosecuting someone, that someone becomes the new "victim". We are oblivious both to the original crime or the original victim's distress.
The need to punish the perpetrator, not because we seek vengeance, but because we must deter others from committing the same crime, is not even a part of our discourse.
Sonali Ranade is a trader in international markets