Marry-your-rapist primer for CJI

Chief Justice of India SA Bobde. File pic

On International Women's Day today, March 8, many will wonder whether gender justice can be secured in India, where its Chief Justice recently asked an accused in a rape case: "Will you marry her [the survivor]? If you want to marry [her] we can help you." Chief Justice SA Bobde offered to play the match-maker even though India, unlike several countries - Bahrain, Iraq, the Philippines, for instance - does not have a law absolving the rapist if he marries the survivor. In fact, the worldwide trend is to repeal what is contemptuously described as "marry-your-rapist" laws.

The only country to have gone in the opposite direction is Turkey, which had abolished its "marry-your-rapist" law in 2005. However, in 2016, the ruling Justice and Development Party, which President Recep Tayyip Erdogan had established, brought in a bill granting amnesty to those convicted of sexually assaulting minors without using force or threat, and were now willing to marry them. The plan was abandoned because of the fury it provoked in Turkey. In January 2020, Erdogan again tried to revive that law, only to retreat yet again.

Erdogan's party says the abrogated law should be revived because child marriage is rampant in Turkey. Men marrying women below 18 years old are guilty of statutory rape - and, therefore, require protection from imprisonment. This argument is countered by feminists, who fear the government's measure will encourage child abuse and violence against women, which have sharply risen because of Turkey's progressivism backsliding under Erdogan's stewardship. They say rapists will seek to evade the legal dragnet by offering to marry the survivors whose families might agree only to avoid being stigmatised in Turkey's socio-cultural milieu that emphasises female chastity.

It is hard to decipher why Bobde asked the accused, Mohit Subhash Chavan, whether he was willing to marry the girl whom he had repeatedly raped when she was 16 years old. She is an adult now. It is claimed Bobde did so because "judicial records" contained an undertaking from Chavan that he would marry her after she turned 18. Bobde did not know Chavan had already married another person. For the moment, imagine Chavan had been single and agreed to marry the survivor? Would Bobde have granted anticipatory bail to Chavan as had been his plea?

Bobde should know that the devastating consequences of "marry-your-rapist" laws have often been the trigger for their abolition in several countries. In 2012, in Morocco, 16-year-old Amina Filali was raped at knife-point by a man 10 years older to her. Amina's father agreed to marry her to the rapist, reportedly under pressure from a state prosecutor, leading to the charge against him being dropped. After her marriage, Amina consumed rat poison and died. The outrage over her death prompted Morocco to repeal its "marry-your-rapist" law in 2014.

In the same year, Basma Mohamad Latifa was raped in south Lebanon by a man twice her age. The family did not report the crime to the police, in exchange for the rapist marrying Latifa. Three years later, the rapist-husband shot her dead. The New York Times reported billboards appearing in Beirut, displaying a bloodied and torn wedding gown with the caption, "A white dress doesn't cover up rape." Lebanon repealed the "marry-your-rapist" law in 2017, as did Jordan and Tunisia in the same year. Palestine followed suit in 2018.

Article 544 of Italy's Criminal Code, too, allowed a charge of rape against the accused to be dropped if the survivor married him. In December 1965, Fillipo Melodia abducted Franca Viola, a 17-year-old living in a small Sicilian town, who had rebuffed his advances. She was driven to a farmhouse where Melodia raped her for a week. After Viola returned home, she told her father she would not let the rapist take recourse to Article 544, become her husband and escape punishment. Melodia was tried and sentenced to 11 years of imprisonment. Viola became a national feminist icon. Released in 1976, Melodia was shot dead mafia-style two years later. A grandmother now, Viola said in a rare interview, "I only did what…any girl would do today." Article 544 was annulled in 1981.

Until 2007, a rapist in Costa Rica had to only express his intent to marry the survivor, regardless of whether she accepted the offer, to evade trial. In 1997, 17-year-old Maria Ellena was gang-raped in Lima, Peru. Her father and brother tracked down the assailants, one of whom offered to marry her. Ellena wanted to press charges against the rapists, but was pressured by her family into accepting the marriage proposal. Three months after the wedding, the husband-rapist deserted her. Peru removed the marriage exemption for rapists in 1997. Four Latin American countries still have "marry-your-rapist" laws, down from 15 in 1997.

The bloody history behind the abolition of the "marry-your-rapist" law makes Bobde's query sound callously flippant and reactionary - and prompted 4,000 activists to write a public letter asking him to step down. His query inadvertently unites Turkey and India, both ruled by populist leaders - Erdogan and Narendra Modi - who wish to rediscover for their countries their imagined glory of the past, which was a living hell for women.

The writer is a senior journalist. Send your feedback to mailbag@mid-day.com. The views expressed in this column are the individual's and don't represent those of the paper.