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Mainstream, Vol. XLVII, No 34, August 8, 2009

Can Money Compensate for Rape?

Sunday 16 August 2009, by Vasudha Dhagamwar

The recent battle between Mayawati and Rita Bahuguna Joshi seems to be over and one hopes permanently. However, it does raise a very basic question: is money the right compensation for rape? Can the victim’s feelings be assuaged by giving her money? If so, then why not give it to all victims of rape? At the moment compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. The number of tribes exceeds the number in the Schedule. They too are left out. The real compensation seems to lie in speedy justice, accompanied with legal aid, in-camera trial, sympathetic officials and discreetly given travel allowance and daily allowance to travel to court.

Compensation for rape is not new. The Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act was enacted by the Congress Government in 1989. One provision of the law dealt with compensation in cases of rape. It has not been explained how compensation can prevent the atrocity, especially as it is not a fine levied on the convicted rapist. Uttar Pradesh has a similar scheme going as far back as 1978 for paying five thousand rupees to SC and ST rape victims once the charge-sheet was filed. Again, the rapist had to be non-SC and non-ST. The stages are first information report (FIR), medical examination followed by charge-sheet of the accused by the police before the court. If rape is not detected by medical examination then the police files what they call final form meaning ‘there is no case’. When married women and mothers are victims, unless the man has been particularly violent, unless the examination is done within hours the signs of intercourse disappear and the doctor notes that there are no marks of injury, and the evidence is inconclusive as the ‘woman is used to sexual intercourse’. Horrendous words for which alone she should be given compensation, if that is the right way to go. Once the charge-sheet is filed then the special inquiry cell is informed and the bureaucratic wheels begin to groan towards sanctioning Rs 5000 to the victim. The amount sanctioned was always the same. The amount is sanctioned, the cheque is made and then it is paid. All this is a slow process.

But does money really compensate for rape? In search of it, in 1994 MARG undertook two research studies based on field work, with SC rape victims in UP and with ST rape victims in Madhya Pradesh. The States were chosen because of their demography. According to the 1991 census, 21 per cent of the Indian SC population resided in UP. Of this over 88 per cent lived in rural areas. This study was done by two women researchers from MARG.

Our plan was first to look at the police records, then records of the special inquiry cell and lastly to talk to the victims and their families. Our target was of 50 cases. We were going to concentrate exclusively on the aspect of compensation. None of this was going to be easy. Government servants—least of all the police—do not share their records with the public. This was before the RTI Act. Rape victims do not like to talk about it. Getting 50 cases in one district would not be easy. So we decided to visit two districts where we had some contacts among police officers who could vouchsafe for us. The time-frame was dictated by practical possibilities, and it was 1991-1994.

In Meerut district 33 cases were registered. We could follow up a total of 22 cases. Of these in only 15 cases we could get to talk to the victims or their families, though we did see the paperwork in all 22 cases. In Banda district, a total of 44 cases were registered. We could follow up 28 of them. But only in 18 could we talk with the victims or their kin. So altogether we could talk with 33 victims or their families. In some of the other cases, we spoke with the neighbours or other relatives. It goes without saying that in all the 50 cases the stages of FIR medical examination and charge-sheet had been completed.
Thirteen of the victims were minors. Two were six years old. One was between four and five years of age. One was 12 years old, others less than 14 years of age. One of the minor victims was medically found to be 19 years old. She had eloped with her lover and did not collect the cheque. The furious father had filed a complaint of kidnapping and rape.

In the 50 cases the castes of the accused were meticulously mentioned. The men were: OBCs 22, Thakur or Rajputs 11, Muslims eight and Brahmins five. In four cases the caste was not mentioned and we could not guess at it. A Lala is a baniya and a Bhat is a Brahmin. So where does one put a Lala plus a Bhat? And the three Singhs were not necessarily Rajputs. Brahmins are trickling out of even backward States into cities, and their presence is low in rural areas. Of the others OBCs now seem to be more dominant; when the media cries ‘rape by upper castes’, it is often wrong—except that in comparison to a Dalit, everyone else may claim to be upper caste.

As per the Indian Penal Code, in case of rape of a pregnant woman or gang rape only the fact of intercourse has to be proved. The burden is on the accused to prove that the woman had consented. But out of 50, in 34 cases there was only one accused, only in 16 cases more than one man was charged with rape. Yet the charge-sheet was filed and the special inquiry cell deemed enough for paying Rs 5000. In only four cases the medical report confirmed that rape had taken place. Please note that 13 victims were minors. Yet, in the medical examination of only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no ME record with the police. In 35 cases the police records did not have the medical examination report at all. In nine cases the doctor wrote ‘no opinion’ or no evidence, using the disgusting language that is standard in rape cases.

Let me begin by saying that compensation is paid on the most liberal terms. In all, payment was sanctioned in 41 cases. Out of the 35 for which there were no records of ME with the police dossier, money was sanctioned for as many as 28 cases. These included the nine cases in which there was no finding of rape. Of the remaining nine cases, in seven the process to sanction the money and make the cheques was underway. In only two cases money was not sanctioned, because there was ‘no case’. In one case the woman had refused to be medically examined. From the report it seems that she was under severe pressure from the rapists to change her mind. The police obliged and ‘expunged’ the record. In the other case four men were charged with raping two women. Three were Scheduled Caste. One was an OBC. The women specifically insisted that he had not raped them. The victims and the rapists were of the same Scheduled Caste. The women said to the researchers that that they were not medically examined. Once they fell out of the compensation scheme it seems a complaint of rape as under IPC Sec 375 was not taken up by the police.

We are equally glad to say that sooner or later all money was duly paid. Only one woman had not heard that the amount had been sanctioned. In another case two women who had been victims in the same case denied having been paid although the noting in records said so. In one exceptional case the cheque was delayed after the money had been sanctioned because of budget problems.

Conviction Rate

THIS has been poor. There had been only two convictions and three acquittals, all from cases that had arisen in 1991. The remaining cases were pending. It seems that the police and government departments understood the whole purpose of the exercise to be to sanction some money to the complainants. Once that was done, cases languished and records were not completed. Justice was nowhere in sight. So far the Act does not seem to be doing much to prevent atrocities.

If knowledge is power, then the women were not empowered. Seven of the women who had not yet received compensation did not know about the scheme. Often they were given wrong information. One was told by a policeman that she would get Rs 5000 and a plot of land. The last is not correct. A police official told one woman she would get Rs 25,000 and a government official told yet another victim that she would get Rs 10,000. One was told by her husband that there was some scheme but he did not know the amount. Two said that a policeman told them that the sarkar would give them something.

This created problems. One who was told she would get land invited the envy of her neighbours who taunted her for being lucky. Another’s neighbours spread rumours that she had not been raped but had run away with the three men—it was a case of gangrape.

Who received the cheques? Whether the victim was a child of five or a grown-up woman the government records showed ‘paid to victim’. This question is quite immaterial. With the minors it was expected that the guardians would be given the cheques. The adult women would be expected to receive the cheque themselves but in rural India one cannot be too sure, especially as it required banking know-how.

In either case men controlled the money and took decisions. With minors it was their guardians. Many of them said that they had put it in the bank or post office for the girl. One mentioned he had kept it for her marriage. One father had collected it but he had not told even his wife or the 12-year-old victim.

Even when the victim is a grown-up woman in their social milieu it is impractical to expect her to use the money as she wishes. From what the women said, the money was spent on diverse things such as daily expenses, building a house, clothes, mother-in-law’s illness, a child’s ailments and even relatives’ weddings. In any case there is no clear idea of how compensation is meant to be used and in the woman’s socio-economic circumstances this kind of use may well be right. They all need to eat and a house is a good investment. The victim needs her family’s support and she ensures it by spending on them.

But two had paid to hire lawyers (Rs 2000 each) because they did not have confidence in the government counsel. Two had paid middlemen who helped to access the money (between Rs 1500 and Rs 2000). One man did not take the cheque because someone claimed a cut of Rs 2000. How can these expenses be explained? Four thousand rupees of one minor victim’s money had been spent in running around for the case. Surely good legal aid and quick processing is part of what they should be guaranteed.

Impact of the Rape on the Families

AS many as 13 families found it better to relocate altogether or at least to send away the victim. One father sent away the adult victim, her younger sister and brother. This was done to preserve their privacy and keep the rape a secret. Sometimes the family just disappeared, leaving behind a locked house. Four were minors. Only one went to school and her schooling was stopped. In the city her father’s earnings were not sufficient to support the family; so she had to find work. Of the married women the marriages of two were threatened by in-laws. The husband of one of them was willing to stay by her and relocate to her mother’s house. Another supportive husband simply took his family away and left a locked house. Apart from one girl who had actually eloped and one woman who left to remarry, none of them were comfortable with their lives. Of the 13 minors, only four had attended school. Three had stayed on but they too were stopped from going to school.

Those who stayed on perhaps did not know where to go. As many as six families said that they were afraid of the rapist because he had threatened them. Nine had said they had no support from the village. In some cases the victim’s family had refused to settle the matter in the panchayat and the village was no longer supportive. But it stands to reason that where the rapist is more powerful he will send threatening signals. Indeed that is how one case was ‘expunged’. To some degree every one was apprehensive.

Most significant is the research team’s finding that:

The women do not face social ostracism from their own community merely because they have been raped. Much of it begins to happen when rape, which is supposed to be kept secret, becomes public on account of the police or government officials coming to the village for inquiry.

According to some reports, the Chief Minister of Uttar Pradesh has introduced some novel changes. She had already increased the amount to Rs 25,000. Lately it had to be delivered to the victim by a police officer of the rank of Director General who would go by helicopter. This is precisely the kind of publicity that the victims abhor. Under the UP scheme no allowances are offered. Under the central law TA-DA maintenance are all provided. The trouble is that every time the woman wants to access them she has to say she is an SC and that she has been raped. Everyone will then stare at her, appraise her looks, her figure, her age. Besides, this constant repletion does not allow her to get over the trauma.

The compensation is eaten up in no time. But because it is given, the police are indifferent to pursuing the cases. There is unseemly publicity. Prevention lies in efficient inquiry, efficient prosecution and speedy trial. We talk of trial in camera to preserve the victim’s self-respect and we also expose the woman to relentless public gaze by offering her compensation. How can we possibly reconcile the two opposites?

After all is said and done, the experience in UP is not half as bad as it is in Madhya Pradesh. There, as we found, it is nightmarish.

Dr Dhagamwar is an independent scholar. She was the Founder Executive Director of Multiple Action Research Group (MARG), New Delhi. She is now based in Pune.

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