Who is the real rapist?

An editorial on the Mumbai Gang Rape.

Last week, in a war between technicality of law and audacity of crime, the former won. There is a nationwide furore again over the 'half justice' given to the juvenile rapist in the Delhi gang rape of December 2012, as he was only six months short of becoming an adult when he brutalized the victim.

Is this anger because society thinks there could have been better judges than the ones in our honourable courts? Or, is it because society equates justice only with the notion of an 'eye-for-an-eye'? Or, is it because now two of the accused in the Mumbai gang rape are seeking to invoke the juvenile justice clause to escape maximum punishment?

It is not really the quantum of punishment or the crucial six months of the rapist's life that is causing the angst.

Something deeper is manifest here. The truth is we do not want to recognise who the real culprit is. That is why we also do not know where we must train our anger on the criminal justice system, or the individual offender. In reality, it is neither. Then who is the real culprit?

Tabloid hysteria amplifies and confuses the debate further, but there is no great mystery. Research reveals that the four key pillars of a child's life family, school, peers and community hold the key to understanding and addressing child and youth crime. And till we hold these pillars equally responsible and culpable for the crime, we will continue to feel our criminal justice system is unjust and unfair.

The objective of any law should be not only to provide fair justice to the victim, but also give maximum punishment to the offender. This is where the equation is perceived to be balanced. But in reality this is a warped equation. Any law that does not provide a strong deterrent to prevent crimes of a similar nature from recurring is in effect toothless and the law-enforcing bodies would continue to be perceived as delivering only 'half justice'.

A rapist is nothing but a result of a family's failure to bring up a child well in inculcating in him relevant values. World renowned jurist Benjamin Lindsay, in a landmark judgement in a juvenile court in Denver in 1909, had said, 'All the courts or probation schemes on earth can never effectively correct the faults of the child as long as there remain the faults of those who deal with children in the home, schools, in neighbourhoods in the community itself.' Imagine using this principle in our juvenile criminal laws.

Since rape has deep-seated cultural and patriarchal roots and is considered a social stigma, a fair justice would be to bring upon the rapist what the girl and her family suffer and incorporate appropriate punitive measures.

To alleviate the social stigma, when proven guilty the entire family of the perpetrator should suffer all members whether old or young, married or unmarried, educated or illiterate, illustrious or average, healthy or unhealthy must suffer incarceration for a short period.

The fear of ignominy being put behind bars may act as a deterrent. There are more ways of shaming and dishonouring the members of the family. But first, if it is a juvenile that is accused, we need to recognise who the real culprit is, rather than only think of putting him in a remand home where he hobnobs with inmates who have a similar mindset. There is no point in counselling him alone if the family is not counselled as well.

Our laws are woefully weak and do not offer a deterrent to prevent such acts. Hence, it is not surprising that after the Delhi gang rape we saw a slew of more such acts across the country, including the most recent case in Mumbai. It is true that more and more incidents of rape are being reported today with a less feeling of shame. It is perhaps equally true that more and more such acts are being carried out with more and more impunity and shamelessness.

In a radically egalitarian world, when a crime is committed, the public sympathy splits into two. Some are enraged over what the victim has undergone, perhaps they even imagine themselves or their kith and kin as victims, and therefore the demand for strong punitive action.

Others tend to question the circumstances and the mental capacity of the accused to contemplate and execute the crime, while trying to guard the rights of those who could be wrongly accused, in the larger interest of law enforcement. How could a teenager become so angry, violent and anti-social at such an early age?

In both these cases, the real victim and the real offender are forgotten, and there occurs a battle between maximum punishment and prevention of future injustice, rather than the enforcement of fair justice that is also a strong deterrent for such offences.

It's time to change the discourse in our criminal justice system and raise fresh questions.

The writer is managing consultant of The Key Consumer Diagnostics Pvt Ltd, a Mumbai-based qualitative research company.

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