On July 15, 2020, the Hindustan Times reported that a former Kerala priest and rape convict Robin Vadakkumchery had moved to Court in a bid seeking permission to marry the survivor. The initial reaction any sane person can have to this is rageful disgust, for obvious reasons, followed by shocked disbelief, and then, the seeping in of painful reality that makes one realize that how we as a part of civil society treat our rape survivors. The barbaric idea that a convicted rapist, not merely accused, would even think that such a proposal would redeem him of his violence is enough to make one question or gauge the moral obligations that civil society, as a community, owes to its survivors especially minors.
In case you have missed the news, a former Christian priest in north Kerala who is serving a life term for raping and impregnating a minor girl who was 15 at the time, moved the Kerala High Court sometime in early July with a plea to allow him to marry the survivor who is now an adult. And it is with seething grief that I write this – at the time of the incident being first reported, the father of the victim girl had apparently, owned up to the crime. However, it was only during investigations that it was revealed that it was owing to forced pressure from the local Church authorities that he had to “confess” to a crime that he did not commit.
The grotesqueness of this ridiculous move can be summarized into two to three pertinent questions that warrant further conversations.
One, should the Courts even be entertaining such pleas?
Two, what has been the Church’s response to this; or where does the Church stand on the issue of sexual exploitation of minors?
Three, in the ever-evolving framework of legal jurisprudence, should there not be a change in precedent whereby instances of rape are legitimized by marriage?
Let’s break it down, question by question.
Unfortunately, there is a history in the Indian legal system of entertaining such petitions time and again. In 2002, the Delhi High Court quashed the rape case against one Manoj Kumar after the victim submitted an affidavit saying that she was willing to marry him. In 2005, the accused in the Shanti Mukund Hospital case offered to marry his 23-year-old victim after not only brutally raping her but also gouging out her eyes, citing that no one would want to marry the victim due to “social stigma.” And while this audacious proposal was turned down by the victim, what is more, absurd is the fact that the concerned Delhi High Court even entertained such an application. While turning down the offer, the young nurse told journalists “I will not marry him. I cannot marry him. He should be given the severest punishment. He should be hanged so that such a horrendous act is not repeated.”
In 2014, a Delhi court granted interim bail to a man, accused of raping a 15-year-old, within seven days of his arrest on the grounds that the survivor’s family agreed to get their daughter married to him. The accused married the rape survivor and on the next date of the bail hearing, the Delhi court changed the interim bail to regular bail as the accused and the survivor were married. In 2015, the Madras High Court granted bail to a man, convicted of raping a minor girl, so that he can settle the case by “mediating” with the victim who gave birth to a child after the sexual assault. The judgment, which recorded the bail plea from the man imprisoned for sexually assaulting the minor, who bore a child out of the union, stated that it was a “fit case for attempting compromise between the parties.” Again in 2015, a woman in Odisha married her alleged rapist as she reportedly had “no other option”. A joint petition by the accused and the survivor was filed, following which the judge ordered prison officials to organize the wedding. Subsequently, the rape accused was released on bail.
One cannot bargain his way out of a rape charge. But that is exactly what is being allowed to happen when a rapist is acquitted or released on bail just because he is willing to marry the victim. In 2015, a Bench headed by Justice Deepak Mishra stated that in a case of rape or attempt to rape, the conception of compromise, under no circumstances, can be thought of. The bench further emphasized that Indian Courts are to remain away from this subterfuge to adopt a soft approach to the case. But is it enough to merely pass directives or observations? The apex court must be more than just a mute spectator. There is a system of superintendence in our judiciary which gives high courts power of judicial revision over a lower court’s judgment— this must come into play to haul up these courts and judges who are pronouncing such judgments. There needs to be accountability.
According to Delhi-based human rights lawyer Vrinda Grover, the problem lies not in the law (Section 375 of the IPC), which is clear that rape is not a compoundable offense and has no provisions for compromise, but with the judiciary and the courts who are pronouncing these judgments. No law encourages the waiver of punishment if a rapist offers to marry his victims. But such is the stigma attached to rape in India, that marriage to the rapist is looked upon by some as the perfect solution. And included in that, are members of the judiciary who are pronouncing such judgments. There is of course the basic problem that lies in the patriarchal mindset prevailing in our society, particularly that of the judges who normalize instances of rape equivalent to that of a woman losing her virginity or her ‘social standing’. In reality, rape is a violent crime committed on a woman’s body and her dignity. It is about being brutally assaulted and what a victim needs, besides rehabilitation, is justice. And marriage to one’s abuser/attacker is NOT justice.
Moving on the second question on what the Church’s response to this has been or where does the Church stand on the issue of sexual exploitation of minor children. Let us consider the position which this priest abused. Being a member of the Christian community, I am well aware of the stance we often have towards having an attitude of reverence towards priests. We are taught at a young age that priests are the representatives of God; they are our community leaders.
At the time of the commission of his crime, Robin Vadakkumchery was not just a priest but also a manager of the educational institution where the survivor would go to school. Consider the power dynamics. On one hand, you have a minor girl from an impoverished background and probably taught to believe in reverence of religious leaders, as most of us are. On the other hand, you have a man who is a religious leader, a person having an authoritative position in the management of a school while having a fiduciary relationship with the victim. There are reports of the convicted priest claiming that the incident was a consensual one but when we consider all these parameters along with the fact that as per the Indian legislature, consent of a minor for sexual intercourse is invalid – was the victim really in a position to give her consent, free from manipulation, coercion, and force?
Furthermore, the rape survivor, a higher secondary student, gave birth to a baby in the church-run Christu Raja Hospital in Koothuparambha of Kannur district.
Yet none of the authorities of either the school or the hospital deemed the pregnancy of a minor, as important enough to report to any authority? Are our religious institutions, their leaders, and members that oblivious to the reality of instances of child sexual exploitation and the laws that govern this country that penalize sexual offenses against children? Or worse, are they complicit in heinous crimes such as these?
In 2015, the Catholic Bishop’s Conference of India (CBCI) formulated the CBCI Child Protection Policy and Procedure. However, much of the said policy is shrouded in secrecy as the document was circulated only to Bishops and major superiors. The two groups were given strict instructions not to share its content with others lest it’s publication leads to a deluge of complaints and it fell into the hands of those who may not use it with discretion.
One simply cannot overlook or obliterate the fact that the rape convict, in this case, abused his position as a priest when he sexually exploited the minor victim. When asked about Vadakkumchery’s latest plea to marry the survivor, a spokesman of the Mananthawady Diocese, to which the priest belonged to, refused any comment saying Robin Vadakkumchery was no longer a member of the clergy.
The problem with this is that it is superficially a punitive measure. His removal from the clergy is simply a form of punishment for his actions. What needs to be done is to lay greater emphasis on preventive measures such as awareness of the laws, the promulgation of stringent child protection policies, and solidarity with survivors of sexual exploitation. The Church has a far greater responsibility than taking mere punitive measures. There need to be concrete steps taken by the Church and the Diocese that will support the mainstream rehabilitation of such victims of sexual exploitation with proper and adequate standards of care. There has to be a mechanism of accountability on the members of the Church, school, and hospital who were either aware of or involved in the impregnation of a minor girl but did nothing to report it.
This brings me to some unanswered sub-questions in this section – Where is the outrage by our community members? Why are not more religious leaders within the Christian community talking about this incident? Why is there not a collective call for action, because empathy is not enough. Empathy that requires action is what is needed.
Lastly, why is there a misplaced notion that instances of rape are legitimized by marriage? Are we saying that rape cannot take place within marriage? Is it not time to accept that the concept of consent forms the basis of conversations on sexual intercourse? Let me state it explicitly that there is no concept such as non-consensual sexual intercourse. Sex without any form of consent IS rape. Moreover, are women always to be identified by marriage – is that the “be it all, the means and the end” for us women folk?
Instances such as these are a sharp reminder that although we are living in 2020, the same patriarchal notions of being granted an identity through marriage is still a very problematic societal phenomenon. And this is being perpetuated through generations after generations of little girls who turn into women stuck in abusive marriages, fearing the loss of their identity if they walk out. Women who are afraid to report abuse. In 2016, when Union Minister Maneka Gandhi said that even if there was a law against marital rape, women won’t report it, Ms. Gandhi may not have been off the mark. Though she missed the complete picture that in the absence of a law, there is no data available for cases of marital rape.
The existing paradigm sends a wrong message to those within the system sexually assaulting little children and young women that systematic abuse is something that you can get away with by using the tactic of marriage. It gives the impression that abusers within systematic structures of religious institutions can get away with impunity.
Everything about this incident is gruesome, horrifying, and simply unacceptable. We live with the belief that when we send our younger ones to school or a Church, they will be safe. But instead, reality reminds us that unless impunity of people in authoritative positions is rescinded, our children are not safe. If there is no collective outrage to this, then we make it appropriate for our children to accept abuse.
And they deserve better. We need to do better by them, we need to stop failing them. Not just for us, but for the generations to come.
By Joanna Shireen
Joanna is an Advocate of the High Court at Calcutta. She is also a Legal Consultant for Human Rights issues. At present, she provides her expertise in litigation matters arising out of human trafficking cases and represents victims of commercial sexual assault at various Courts and legal forums across West Bengal.