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Compensation is the last mile in recognising rape as a crime

No amount of money can restore the dignity and confidence of a rape victim, and certainly compensation is meaningless if the guilty are not punished. But monetary compensation does at least recognise rape or sexual assault as a crime, writes Manjima Bhattacharjya

On March 19, 2010 the Gujarat high court asked the state government and the centre how it intends to pay compensation to rape victims of the 2002 riots. It wasn’t as if compensation had not been given for other ‘injuries’. The state government had released details of the compensation it had given so far – Rs 463.10 crore had been disbursed to riot victims towards death, injury, damage to residential property and maintenance of livelihood sources. So why not compensation for rape victims?

It’s a complicated question. We are a country of compensations – come earthquake, train accident or riot, our government has been comically quick to announce ‘Rs 1 lakh packages’ to victims or the next of kin. In the morning papers it always sounds farcical, because clearly it cannot ‘compensate’, as the word suggests, for the incident. Still, it is a common practice.  

The question of monetary compensation for rape, however, has been more controversial even though as far back as 1994 the Supreme Court had ordered the National Commission for Women to evolve a scheme on the same. In their order (which was to be carried out within six months), they also advised the setting up of a Criminal Injuries Compensation Board (CICB) to disburse the funds. The NCW put in a quick draft but it took 10 years for it to become the ‘Scheme for Relief and Rehabilitation of Victims of Rape 2005’ and another six years before the wheels of action started turning.   

In the last few years this issue appears to have snowballed and seen furtive action from various quarters. In fact last year’s March 8 Women’s Day Special was the suggestion by Chief Justice KG Balakrishnan that a fund be created to rehabilitate and provide succour to rape victims through district legal service authorities. This sudden interest and action can be attributed to various factors: increasing cases of sexual assault in many states as well as increasing media attention to these (between 2001-2008, crimes against women increased by 112%); court orders; a thrust to the matter of compensation in cases of minorities and SC/ST; but critically, an amendment to the Criminal Procedure Code (CrPC), with a newly-inserted Section 357A which obliges states to have and implement a Victim Compensation Scheme. Various states have initiated the process. A few months ago, the Bihar Victims' Compensation Scheme 2011 sanctioned “Rs 1 lakh for loss of life, Rs 50,000 in the case of rape, Rs 25,000 for grievous hurt, Rs 25,000 for injuries after an acid attack, and Rs 25,000 for mental torture...., even if the perpetrators are not identified”.

In the backdrop of these events, there continues to be heated debate around certain aspects of  monetary compensation for rape. Who is more worthy of compensation: an adult or a minor? Someone merely raped or someone raped, beaten and wounded? A BJP women’s wing leader asked that compensation (of Rs 1 lakh) be given to minor girl victims between the ages of 7 and 16 years. Should compensation be more if a custodian of the law, for example a police officer, is the accused? What exactly is the ‘injury’? How do we justify monetary compensation for rape, when no ‘thing’ as such was stolen, destroyed or burnt? Earlier this year, the Madras high court granted a woman who was raped by a police inspector in 1984 compensation of Rs 9 lakh. The bench noted, “When police officials, who are the custodians of law and duty-bound to protect the life, liberty and property of the people, commit a barbaric act of rape, the state is bound to pay adequate compensation to the victim. It is clear that during the 15 years when the litigation went on, besides humiliation and torture, the victim had to sell her belongings including her residential building to get justice.”

Some of the controversies have been dismissed as politics-as-usual, preventing any real public conversation on the issue. Uttar Pradesh (UP) Congress President Rita Bahuguna Joshi was arrested in 2009 after she made provocative comments on the UP Chief Minister Mayawati’s rape compensation policy saying that recipients of rape compensation “should throw the money back in Ms Mayawati's face and tell her that if you are raped, we will give you one crore rupees”. (In the past, Mayawati had targeted her rival, then-Chief Minister Mulayam Singh Yadav, critiquing the poor compensation of Rs 200,000 paid to Muslim rape victims and allegedly saying that Muslims would happily pay Rs 400,000 if Yadav’s daughter or relatives were raped instead.) All these comments are of course in bad taste but they reveal two major anxieties: one, that rape is perceived to be something different from other crimes (which is troubling in itself) so much so that it cannot be similarly ‘compensated’. And two, no one is really clear what is an acceptable amount for compensation for the crime.

This is not surprising, given the confusion even about what is an acceptable punishment for rape. Judicial responses to cases have been straight out of every woman’s nightmare, with an insensitive process, police refusal to file FIRs, delayed trials, no convictions, and bizarre recommendations by the court (like wanting to ‘restore a woman’s honour’ by marrying her off to the rapist) made in absolute seriousness. Public response flails from ‘death penalty for rapists’ or ‘castrate them’ to a suspicion of ‘false cases’. Both sets mean essentially nothing in real terms. Even with many victims not reporting the crime, India had the third-highest number of rape cases in the world in 2008, with a dismal conviction rate – only one out of four accused of rape face conviction.

Living under the dark cloud of these realities, it is no wonder that women’s rights activists have not been celebrating the pronounced compensation schemes, many going on record with their cynicism to state that it is ‘too little, too late’. The bulk of responses though have been on the details, the nitty-gritties pointing out the gaps and slippages, and taking a forward-looking view of how the scheme could play out, given earlier judicial responses to rape victims in the country. In 2008, Saheli, an autonomous feminist group in Delhi, had responded to the announcement of the 2005 scheme with a detailed note stating its reservations clearly. Among these were the concern that the scheme covers only what rape currently defines (penile penetration); that the term ‘compensation’ is problematic, suggesting that it be called ‘paying damages’; the question of who will pay (if not the offender, then taxpayer’s money, a valid concern); and how two institutions (one for conviction and one for compensation) would only add to the running around a woman would have to do to follow through on both.

Recently, the Majlis Legal Centre in Mumbai organised a meeting on the issue, during which lawyers and activists pointed out various loopholes in the scheme including: the overemphasis in recording FIRs, the lack of assistance to victims of certain types of crimes like acid attacks, the pre-requirement of a bank account of the victim to which compensation can be transferred (so excluding many rural women as possible claimants) and the confusion around whether compensation can be given without conviction.

Most importantly, the essence has been that the state needs to explore possibilities within existing laws to pay damages to rape victims (including through the pending Sexual Assault Bill which reframes the regressive rape laws we have) and make existing systems work instead of creating parallel mechanisms. The bottom line, as victims who have sought compensation have said in the past, is that ‘compensation is meaningless if the guilty are not punished’.

However, compensation does have its own place in restorative justice. Activists in Western countries have opined that for a rape victim, the recognition that she has been the victim of a crime is the first step in the healing process, and compensation from an official criminal injuries institution can reiterate this. Yet the experience in India has caused activists to lament that once compensation is given, police lose interest in the case and there is a sense that there is no need to pursue a conviction any more. Research in India on what has been the experience of compensation for crimes against women is still rare and needs to be undertaken. There are massive gaps even in documentation of out of court settlements, as academic Pratiksha Baxi’s work has shown, because compromise is not legal in rape cases and even though this happens regularly, it is not recorded in court documents.

Even though compensation may not transform the essential power relations which allow for ‘rape’ and although it exacerbates a victim approach, it does at a conceptual level affect how rape is constructed (as a crime or not) and what terms it is constructed in (sexual assault vs rape; paying damages vs compensation). Compensation (even though the term is troubling given that no crime as such can be compensated, rape or otherwise) is the last mile in recognising an action fully as a crime, and rape, or sexual assault, certainly needs that if nothing else.

In the limelight recently was a case in the UK where a woman received revised compensation from the Criminal Injuries Compensation Authority (CICA) at four times the original amount offered to her 12 years ago after she was attacked at knife-point by a serial ‘sex attacker’. At the time she was granted 7,500 pounds which she said left her feeling “worthless -- just like I did after the attack”. She appealed and followed through with the case over the next decade and after her recent revision said, “No amount of money can restore the dignity and confidence that (he) took away from me…I'm delighted with this outcome even though they have taken their time in recognising what I went through that night and the consequences on my life…But the important thing is that they have now recognised the seriousness and for that I'm grateful.”

At the same time the British CICA has seen outrage and criticism for deducting amounts from compensation if the victim had, for example, been drinking alcohol – as if that contributed to her propensity to be raped! The clause that consumption of alcohol ‘contributed to the circumstances that gave rise to the injury’ was cited to reduce compensation values for 14 rape victim claimants in 2008. Cases in which victims were sex workers also faced cuts because of their ‘unlawful activities’. And this perhaps is the most worrying part of the compensation debates. That those old spectres which haunted rape cases (that they had to be ‘proved’ by the victim, that her sexual history was duly noted, her level of ‘consent’ ascertained, her ‘character’ was commented on, her occupation and lifestyle considered) in the past which women’s groups have struggled and fought bitterly against will again come to usurp compensation claims.

Moreover, what happens when a woman does take compensation? Bhanwri Devi did take compensation for what happened to her after women’s groups lobbied for it, but did not use it eventually as the community started ‘saying things’ like rape was an excuse for taking the money, implying that by taking money she was identifying herself as something like a prostitute. In the context of the gaze we live under – a gaze that is moralistic, and looks at rape as a sexual act more than a crime, and that finds offensive/immoral the idea of money for sexual exchange – speaking of money and a sexual act, regardless of the violence and force, is too close to other sexual taboos like sex work or prostitution. That to me is the subtext of these anxieties, and perhaps the root of much of the discomfort in giving and receiving monetary compensation for rape crimes. It would be a shame to let that come in the way of underlining that sexual assault of any person in any circumstance to any degree is above anything else, a violent and serious crime.

(Further reading at http://vawawareness.wordpress.com/)

Infochange News & Features, October 2011