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Associated PressActivists in
New Delhi marched on Parliament earlier this year, protesting in one of several high-profile sexual-assault cases that have focused attention on women’s rights in
India.
NEW DELHI—Just weeks after a gang-rape that shocked India, the National Human Rights Commission convened a meeting to discuss what to do about violence against women.
At the January gathering, G.P. Mathur, a retired Supreme Court justice, startled the crowd: He said it can be appropriate for women to marry their alleged rapists, provided the marriage isn’t coerced. In a recent interview with The Wall Street Journal in which he elaborated on his views, Mr. Mathur described such marriages as “compromises” that victims and their families seek in order to avoid the stigma of a public trial.
As India engages in soul-searching after a series of high-profile sexual assaults, prominent lawyers, professors, women’s advocates and even some judges say the views of some of India’s judiciary can be an obstacle to justice. The Indian legal system is built on British common law, and cases are decided by a sitting judge, not by a jury.
There is “a bias that begins in the society and spills over to the courtroom,” in certain sex-assault and domestic-violence cases, said Indira Jaising, an Indian additional solicitor general, a top federal legal-advisory position. She has called for a “gender audit,” an examination of rulings for bias, to be added to the process of elevating judges to higher courts.
“Courts repeatedly talk about getting married as the most important thing for a woman,” said Mrinal Satish, a National Law University professor whose research shows that courts have given shorter sentences to rapists of women judged not to be virgins, compared with rapists of virgins.
The rape of an unmarried virgin was viewed by the courts as “a loss of value because of which she’s not being able to get married,” Mr. Satish said. “It’s not legal reasoning.” He examined some 800 High Court and Supreme Court rape-case appeals decided between 1984 and 2009.
Since the December gang-rape and death of a 23-year-old woman on a bus in New Delhi, there have been widespread calls for better protection for women. The government has toughened rape penalties and vowed to put more female police officers on the beat. In recent weeks, new attacks—including the alleged rape of a five-year-old in Delhi—have sparked fresh protests.
Even though it is unusual for judges to criticize their peers, some are speaking out. A Supreme Court ruling in January expressed “anguish” over remarks by a lower-court judge suggesting that “wife-beating is a normal facet of married life.”
In the Journal interview, Mr. Mathur, the former Supreme Court justice, explained his view on marriage “compromise”—where a woman weds her alleged attacker—saying it can be an acceptable outcome if both people believe they can live happily together. He said victims’ families are often motivated to pursue such arrangements because the stigma of rape might otherwise make it difficult for the woman to marry. He reiterated that “it should be voluntary, a free consent.”
As an example, Mr. Mathur cited a case he adjudicated in 2007 that ended in marriage. In it, a man was convicted of forcing a woman to have a miscarriage, by use of a drug, without her consent, and was sentenced to seven years’ jail time.
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Getty Images‘There is a prejudice that plays itself out in judgments,’ says lawyer Vrinda Grover.
During appeal, the woman told the court she had since agreed to what Mr. Mathur called a compromise marriage. As a result, a Supreme Court bench of Mr. Mathur and Altamas Kabir (currently the court’s chief justice) reduced the man’s sentence to time served, about 10 months. Mr. Kabir declined to be interviewed through his secretary. The husband and wife couldn’t be reached for comment.
Mr. Mathur, in the Journal interview, also questioned the extent to which judges should rely on an alleged victim’s testimony. “A grown-up girl who is married or used to sexual intercourse, she can accuse anybody,” he said. “It is very easy for her to say, ‘Yes, this person raped me.’”
The question of a woman’s believability is at the heart of one appeal currently pending in Delhi’s High Court. In the case, a woman alleges she was raped by a friend when she visited his house for lunch.
A lower court ruled that she was lying, citing among other things the fact that she could have scratched the man’s genitals, but didn’t. “Ordinarily, where forcibly sexual intercourse is committed upon a grown up girl there would be…some injuries on the person of accused particularly, if she has long nails,” the 2011 judgment said. The lack of such injuries “indicates that the alleged intercourse was a peaceful affair.”
The trial judge didn’t respond to requests for comment delivered through his clerk. The defense lawyer said his client maintains his innocence.
Indian society can be conservative in its views of male-female relationships. These views found expression in the weeks after December’s gang-rape of a young woman on a New Delhi bus after a night at the movies—an attack that horrified India and the world.
In one instance, a prominent spiritual figure, Asaram Bapu, told his disciples that the victim could have avoided trouble if she had “chanted a prayer, taken one of her attackers by the hand, and called him ‘brother,’” according to a recording of the lecture. He also said, “If stronger laws are made, women will ensnare men with false cases.”
A spokeswoman for the guru confirmed the remarks were Mr. Bapu’s.
Separately, a local lawmaker in Rajasthan state, Banwari Lal Singhal, wrote to a government official saying that one solution to sexual violence is to not wear skirts at schools. Boys use cellphones to “click photos of girls while they wait for the school bus,” he said to the Journal at the time. “This increases social crime.”
In a recent interview, Mr. Singhal said his proposal was intended only for his district. He said another reason for girls to wear trousers or Indian garb, besides preventing sex crimes, is to protect against the desert climate.
In March, in Parliamentary debate over a bill strengthening sexual-violence laws, several legislators suggested that the government was going too far. The law, which ultimately passed, creates new crime categories including stalking.
“You’re saying girls shouldn’t be followed,” said Sharad Yadav, a legislator from Bihar state, according to a Parliament transcript. “Who among us has not followed girls? When you want to talk to a woman she won’t at first, you have to put in a lot of effort.”
Mr. Yadav didn’t respond to a request for comment.
Associated PressThe Indian Supreme Court’s chief justice, Altamas Kabir, has hailed some protesters.
Other lawmakers, however, took an opposing view. “What has happened to us?” said Pinaki Misra of Orissa state, the transcript shows. “There has to be a collective introspection that this country has to undertake.”
Indians pondering the roots of sexism debate many possible influences, from the machismo of swaths of northern India, to mythology, to caste. Caste-rights groups, in fact, say that some violence against women is a backlash against a modern blurring of caste lines. In particular they cite “honor killings,” in which young women and men are killed for forming relationships across caste lines. Mr. Yadav, in the March debate in Parliament, called for shelters for such couples, noting the immense harassment they face.
In a court of law, it can sometimes count against a woman if she has male friends. “There is a prejudice that plays itself out in judgments—if you are friendly with somebody, you are agreeing to making yourself available,” said lawyer Vrinda Grover.
Problems can also arise if a woman is perceived as disobedient to her family. In January the Supreme Court overturned a state-court acquittal of more than 30 men accused of raping a teenager and holding her as a sex slave. The lower court had acquitted based partly on testimony that the girl had once lied to her parents about having given money to a friend that was meant for her school expenses.
The lie suggested she was a “deviant,” the court ruled. The judge also wrote that the young woman appeared to be planning a trip with a male friend, “without any specific plan for marriage and family life with him.”
In an interview broadcast on Indian television earlier this year, one of the justices on the two-person bench, R. Basant, said he stood by the court’s assessment of deviance and its judgment. “She was used for child prostitution,” he said in that interview. “Child prostitution is not rape. It’s immoral.”
Mr. Basant, who now practices as a lawyer, declined to comment. The other judge is deceased.
Some judges are calling for greater awareness about crimes against women. In January, Mr. Kabir, the Supreme Court chief justice, hailed the protesters who took to the streets after December’s bus rape.
Bhagwati Prasad, the chief justice of Jharkhand state until retiring from the bench in 2011, said that judges, like anyone, are influenced by their social conditioning. “You have to forget everything” that happens outside the courtroom, Mr. Prasad said.
He said a court would likely consider it relevant in a sexual-assault case if the woman had prior sexual experience. Still, even in these cases, if the woman doesn’t alter her account under questioning, the court will believe her, he said. “Conviction is only secured when the girl sticks to her statement that, ‘Yes, I have been forced,’” he said.
Mr. Prasad also said that he was aware of cases in which he believed women were the aggressors against men. “I would not say that rape is only committed by boys,” he said. Asked for an example of such a case, Mr. Prasad offered a tale from Hindu mythology of a woman who tries to seduce her stepson.
Some textbooks until recently fostered the idea that it isn’t physically possible for some women to be raped. A 2005 edition of “Medical Jurisprudence and Toxicology,” used in court for guidance on evaluating medical evidence, stated: “In normal circumstances, it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will.”
It also stated that women of different social strata should be expected to offer different degrees of resistance to rape. “It is obvious that a woman belonging to a labouring class, who is accustomed to hard and rough work,” would be able to fight off an assailant, it said. But a middle-class woman “might soon faint or be rendered powerless from fright or exhaustion.”
This edition was used until 2011, when these passages were revised. The book now says it is “wrong to stereotype” in instances of rape. It also specifies that “rape is a crime and not a medical diagnosis.”
Earlier: A Rape Case That Shocked the World
The 2011 edition, however, still refers to young women as “nubile virgins.” And in cases where assault victims are believed to be virgins, the book recommends a controversial vaginal exam, known as the “two-finger test,” that purports to show whether intercourse was physically possible.
LexisNexis India, which acquired the book’s Indian publisher in 2008, said it will completely overhaul the 2014 edition. “We realize how important this book is for the trial process,” said Abha Thapalyal Gandhi of LexisNexis India. The next edition will have “comprehensive changes” to reflect “gender justice approaches and new medical research.”
The book’s author died in 1954. K. Kannan, a retired justice and one of two editors for the 2011 edition, said, “I should have gone even more aggressively” in reworking the text. “We need to be sensitive,” he said.
Mr. Kannan said he is completely against the two-finger test. “Rape is not a medical thing,” he said. “It is not for doctors to be saying.”
Ved Kumari, a professor in Delhi University’s law school, suggested that adding more female judges, as some have advocated, won’t on its own address the bias issue. She described one female judge confiding in her that she had been “harsher to women litigants because I expected a higher level of adjustment from them compared with the men.” The judge comes from a traditional family, Ms. Kumari said, whereas a woman she has been required to make “a lot of sacrifices” herself.
Ms. Kumari, who also has served as chairwoman of the Delhi Judicial Academy, which provides training to serving judges, blames part of the problem on Indian legal education. Rape laws weren’t taught at Delhi University’s law school when she became a professor more than 25 years ago, she said. She and other colleagues pushed for their inclusion in the mid-1990s, she said. She recalled one male professor who declined to teach that portion of the class, so she did it herself.
The law school’s dean, Ashwani Kumar Bansal, who was a law professor at that time, called the episode a minor one. “Indian morés, ethos, were different” then, he said.
Things started changing in the late 1990s, when a small survey of Indian judges found that 48% of respondents said it was justifiable for a husband to occasionally slap his wife. After that, a group of nonprofit groups launched gender-sensitivity training for judges. The judges would meet with abuse victims and role-play the part of a victim’s parent.
It is difficult for judges to acknowledge that they carry “social baggage” and prejudices, said Samaresh Banerjea, a retired judge from Kolkata High Court. He went through the gender-sensitivity program a few years ago and said it altered his outlook.
Something “clicked in my mind,” he said. “To learn many things, you have to unlearn many things.”
Write to Tripti Lahiri at tripti.lahiri@wsj.com and Amol Sharma atamol.sharma@wsj.com
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