Justice Is a Secret: Compromise in Rape Trials, Pratiksha Baxi
The criminal process is not only subject to corruption but also influenced by social norms and practices outside the legal system, such as out-of-court settlements. Not all settlements are legal, yet many are influential in communities as well as in court.
Pratiksha Baxi's study of rape trials in India provides a telling example of how the patriarchal practice of “compromise” in rape cases, which is not a legal procedure, nevertheless becomes a tool of defense lawyers and an influential element in trials. As a result, justice is distorted, and the rape victims are injured again with the excuse of keeping secrets and restoring social relations.This article is based on an extended case study of a trial of rape, abduction and kidnapping which I documented in a trial court in Ahmedabad, Gujarat, in 1996-98. In the court, I was repeatedly told that rape cases are routinely compromised. Intrigued by this practice, which the law books clearly state as against the intent of law, I decided to pursue the story of “compromise cases”. In this article, I argue that the sociolegal process encapsulated in the word “compromise” (or samadhan, the coexisting Gujarati usage) is an exposition of how secrecy may be thought of as “indispensable to the operation of power rather than as an abuse of power”. Unlike other forms of out-of-court settlements described as mechanisms of alternate dispute resolution, pleabargaining or mediation in courts of law, compromise is not legal in rape cases in India. In such cases, witnesses turn hostile routinely after an out-ofcourt settlement and yet, the processes of compromise are effaced from the judgement.
I suggest that the specific manifestation of the rape trial as a “compromise case” allows us to examine the courtroom as a site of public secrecy. Michael Taussig persuades us to query how “so easily we join truth and secret” and how “with rapture we skid between them, envelop the one in the other: truth = secret”.
He asks, “what if the truth is not much a secret as a public secret, as in the case with most important social knowledge, knowing what not to know?” If public secrecy is one of the “most interesting, the most powerful, the most mischievous and ubiquitous form of socially active knowledge”, then Taussig argues that..it is the task and the life force of the public secret to maintain that verge where the secret is not destroyed through exposure, but subject to a quite a different sort of revelation that does justice to it”.Drawing from this insight, I argue that compromise as a form of public secret is not destroyed by its utterance before the judge, but rather, is subjected to a specific revelation in court. This specific revelation in a courtroom is actualised through the law of evidence, where we find that the prosecution witnesses turn hostile to the prosecution case. Trial transcripts or trial court judgements do not record these as “compromise cases” except as a residue via the category of hostility. The ethnographic account of the way testimony is structured in a “compromise” case demonstrates how this effacement in law produces a specific revelation, which is perceived somehow to perform “social justice”. [...]
During the trial, compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a courtroom. Let us turn to a recent case from Agra wherein a young Dalit woman was gang-raped and the rapist let off on bail. The accused threatened to rape the victim again if she did not compromise. Nearly a year after she was raped, she committed suicide. While we find that the judgement records that the victim committed suicide following the pressure to compromise, the judgement does not criminalise the pressure to compromise as criminal intimidation of the victim and her family. The normalising function of the socio-legal category of compromise converts terror into a bargain in a context where there is no witness protection programme.
This often accounts for why prosecution witnesses routinely turn hostile by the time the case comes on trial, if the victim does not lose the will to live.Compromise also moves across another set of cases where it is difficult to read the distinction between consent and coercion from the legal records. In this article, I focus on such cases where compromise acts to signal the dissonance between what is legally constituted as rape and the social uses the rape law is put to. This set of cases operates under the sign of seduction, love and illicit sex. Police complaints on the charge of kidnapping, abduction, rape and theft are routinely filed against couples who elope. In such cases, when the couple is found, the woman may be forced to support the version of the complainant, usually a parent, and return to her lawful guardian. The family then get her married to someone else and compromise is seen as the only way of preserving her marriage. Or, if the woman continues to hold her ground and deny the charge of rape and abduction, she may face violence from the police and/or her family. Such cases are often registered when the man is from another community or from a lower caste. Thereby the distinction between elopement and abduction, or rape and consensual sex is blurred by this criminalisation of love and seduction.
The construction of rape as a sexual offence, which is concerned with offences against codes of alliance rather than concerned with the bodily integrity of all women, allows for this criminalisation of love. The severity of caste violence is most stark in hypogamous unions, that is, unions between upper caste women and lower caste men. In such relationships, the distinction between love and consensual sex on the one hand and rape, on the other hand, is not socially intelligible. [... ]
By pointing out that the court is a site where public secrets are negotiated, I aimed to show how different actors during a trial agree to hide the very meaning of rape such that these meanings remain unacknowledged in the legal record.
The operations of public secrecy are detailed by following the socio-legal processes that make the legal record. I have drawn attention to the culture of compromise that underwrites rape prosecutions, an aspect of rape prosecutions that has not been sufficiently discussed either within the women's movement, the judiciary or the contemporary discourse on judicial reform. The term “culture of compromise” emphasises how a criminal trial becomes a site for the contestation over the monopoly of an out-of-court settlement between the accused, the complainant and the prosecuting agencies. Through this case study, I have shown how the struggle to monopolise the compromise is staged between the father-complainant and the accused, but the subjectivity of the woman whose violation is prosecuted is difficult to read from the court records. The court records detail a politics of ambivalence where two versions of what may have happened are recorded simultaneously as a potential for the father-complainant to use in the future. The laws on rape, kidnapping and abduction then situate violation in the realm of the collective rather than represent individual women's experiences of coercion or consent.In other words, I have shown how legality is actually perceived as disruptive of sociality; in this instance, a sociality that is marked by caste-based patriarchies, such that compromise is actively perceived, to put it in the words of a woman judge of a district court, as a mechanism for “restoring social relations in society”.