Whammy of Mediation and Negotiation in Sexual Assault cases

This article has been written by Yuvina Goyal. Yuvina is currently pursuing BA LLB(Hons.) from National University of Juridical Sciences(NUJS), Kolkata, West Bengal.



Beyond the shadow of doubt, it can be hooted that, non-traditional dispute resolution processes, like Alternative Dispute Resolution, are being widely accepted and are doing a stupendous job in resolving personal, commercial and civil disputes. In recent years, similar processes have been adapted and applied in a criminal justice context as part of an overall package of criminal justice reforms. Now the debate is, whether such ‘outside the court settlements’ can or should be applied in a criminal justice context. This raises normative questions as to the role of the justice system, sociological questions as to the nature of criminal offending and the relationship between the individual, the community and the state, and descriptive questions as to the adequacy of particular justice practices.

Undeterred by the  above arguments, in some of the cases involving rape or other sexual abuse or assault of the victim, the courts have ordered compromise between the parties by stressing on the need to enhance the role of mediation processes in criminal justice system in order to have an alternative to the time consuming expensive conventional court system. The human sentiments and social elements are taken into consideration while making such decisions. It may well be that participants in these types of disputes, also, opportunistically go for the process of mediation because of the promise of privacy and confidentiality.  These compromises are alleged to be justified on the grounds of Right to live with human (woman) dignity.

In this regard, I would moot, having criminal cases in hand, embroiling alleged commission of offences and not merely a civil wrong or a breach, it is pertinent to note that such offences are committed against the society as a whole. Here, not only the victim’s body and privacy and autonomy are barged, but the spirit of the society is besmirched and tampered. So, how can a few individuals go for ‘outside the court settlement’ and step back from the criminal prosecution.

Doesn’t such settlements, for instance, an agreement by a victim to marry one of the offenders who have previously gang-raped and assaulted her;   shake one’s conscious and minds and urge us to resort to the roads seeking justice? Some might say that this is more evidence of the coming of age of mediation in India, while others will cringe at how pragmatism has hijacked what was once a pure and principled process. But, the legal position stands as under:

Sexual assault is a crime against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”[1]

Thus, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. What the Indian experience demonstrates is that, ADR programs must be adapted to the needs of particular communities. But, while adapting them in the criminal jurisprudence, caution of greatest possible degree must be observed while keeping in mind its impact on the society. This is particularly relevant to a consideration of whether mediation is appropriate for cases involving offences such as sexual assault or rape. Therefore, in the interest of justice the cases of sexual assault cannot be resorted to ADR as the compromise or settlement may be against her honour which matters the most.

[1] State of M.P. v. Madanlal,  2015 SCC OnLine SC 579, (decided on 01.07.2015).

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