Why it is important to run crimes through the system and prevent parallel settlement

Should victims of rape and possibly other crimes have a choice to opt-out of the criminal justice process ? Mrs Shome Choudhary repeated again this morning that she would never involve the police unless the victim asked for it (TOI print edition page 4).  She subsequently backtracked but that might only  be because the victim DID want to involve the police.  There have also been a flurry of op-eds by articulate women and feminist lawyers that propose a paradigmatic change – that  victims of sex assaults should be allowed to opt out mainly because the trial is too traumatic. Not dismissing the traumatic part in any way but lets examine the proposal.

A quick scan of some of their Twitter timelines indicate widespread and even enthusiastic support for this proposal from fellow lawyers and a public policy think tank. This is an extremely disturbing situation where  emotions are running high and arguments are weak.  Things are the way they are for a reason – they all know it being trained lawyers.

Hope this post brings out the legal issues in a way all stakeholders can understand.

Before we proceed – lets set the frame of reference.  The question is this : Should a victim of rape be allowed to opt-out from the criminal justice process and settle for other kinds of punishments. This settlement can involve the criminal or can involve just herself – perhaps in a spiritual way.  The key additional assumption is 1) the crime has been brought to the notice of society and by extension the police.  This means she has already told someone about its occurrence and not kept it to herself.

Here are the reasons why I think we should be very very very wary of this idea. This post isnt particular to the Tehalka sex assault story dominating news headlines today.

The choice

In the case of Tehelka Editor-In-Chief Mr Tarun Tejpal – the forum for such a settlement was suggested to be the Sex Harassment Committee setup following the Vishakha guidelines.  The choice was presented as if the victim could choose the civil route and/or the criminal route probably because assault can be both tort and crime. But that is not a choice at all because the options aren’t independent.

For example : If the victim chooses the civil route and releases all the criminal acts – then she automatically throws water on the civil case as well. The prosecution is going to challenge any compensation she seeks with “You cant possibly hurt that bad that you need 20 Crores (or whatever) – because you didnt even bother the criminal case” See?   So that is it not the real choice here  – the choice is a) go through the public justice system (criminal and civil) or b) settle it privately in an alternate forum.

If we allowed this, how would the law and order landscape of the country look.

Record

It is critical that crimes are processed through the public process because that is the only way the authorities can build a criminal record or database. These are the people who are going to have to deal with catching and prosecuting criminals in the future.  Any police will tell you how critical it is they have this database.  Those who settle will never figure in these records and those unable to settle (probably due to being poor) will figure disproportionately in the record. Cant allow this.

Stigma

David Friedman has a great definition of stigma.  It is the cost to you owing to the fact that other people know about your previous criminal history.   Say you are caught for rape and serve 3 years. The cost to you is not just the 3 years you spent in jail but also that when you get out others know about you and increase  your costs by modulating their own behaviour.

Example : You are a habitual sex offender who gets out of jail for an offence.  Even after you are rehabilitated as a free man, things are going to be very different for you. The girls who work with you in your new job, know about your history and are going to make it very hard for you to score with the same nonchalance you were used to before your conviction.  This very crucial deterrent is missing from a settlement system.  It doesn’t matter how you wing it procedurally in the forum – it wont work.

Access

This is a clincher for me in the Indian context.

There are a lot of things convicted criminals cannot do.  You only have to look at UPA minister Laloo Prasad Yadav who had to lose his MP seat and probably wont be able to contest in the future.  You are denied participation in political process, you are frequently rounded up for preventive detention, getting  a passport requires court permission, you cant apply for a US Visa easily, you cant get a job in many private security firms and on and on.  Given the likelyhood that rich and sophisticated people are more likely to be successful in settling  than the  poor and earthy – you will end up with a bizarre anomaly.

You will have MPs and MLAs who zoom around Delhi and TV studios while some poor sod is rotting in jail for committing the same crime. The only difference is the suave guy had the money or the charisma or the smooth talking power of veiled threat to have won the victim over.  This is a gross situation.

Only rape? Think again

It may seem easy to clearly separate sex assault and only allow the above settlement for those cases, but it is very hard to pull this off in a general manner. What if a call girl gets thrashed black and blue ?  She may fear entering the criminal system too for fear of having her true profession revealed.  What if a gay man gets his face smashed up by a bigot – he too may balk at the criminal justice system if he is not ready to come out yet. The list goes on and on.

Hope this clarifies my tweets earlier on the subject.  It is very critical that we as a country hold the ground on this one and not let it be carelessly discussed in an adhoc manner.