Understanding Women Legal Worlds In Delhi Rape Trial Courts

Understanding Women Legal Worlds In Delhi Rape Trial Courts Speaker: Dr. Garg Date: 7 June 2024 Outline - Introduction - Conceptual tools: postcolonial feminism - Conceptual tools: legal pluralism - Crime, compromise and constrained agency - Love, longing and deception in Delhi's rape trials - Conclusion: What's so just about criminal justice? Introduction - Broader project on factors influencing rape prosecutions in India - Findings and arguments are based on a thematical analysis of primary data collected through trial court judgments (n=254), court observation, interviews (n=61) Conceptual Tools: Postcolonial Feminism - Takes an interest in engaging with how colonialism shaped gender and gender relations, particularly conjugal relations - Is interested in coloniality and context more broadly and not just race or nationality - Focus on gender but also on European colonialism interacting with other systems of inequality. - Postcolonial feminists tend to be critical or at least ambiguous about the state's potential to emancipate women. - Postcolonial feminists recognize the victimization of women, but also their role as agents, or even as oppressors. Conceptual Tools: Legal Pluralism - Legal pluralism invites us to consider the plurality of normative orderings in society and not just state laws - Conversely, legal centralism is the idea that state laws are a uniform, exclusive, hierarchical normative ordering - Legal pluralism provides a framework to develop a grounded understanding of how people engage with legal systems Crime, Compromise And Constrained Agency - In 151 out of the 254 judgments analyzed, the victim turned 'hostile' to the prosecution or became untraceable; 55 of these cases were deceptive sex cases (discussed later). - Turning 'hostile' is a juridical term to indicate that the victim testified in a way that materially contradicted her previous statements/complaint. - Given the legally pluralist context, the victim might be pressured to 'settle' the dispute outside court, or she might choose to do so, or both. - The victim's decision to enter into informal agreements might be influenced by relational, institutional or structural pressure. - Victim-support person NGO 4, woman • Sometimes it is very difficult for the family to keep going to the police station, to keep going to the court. And amid all this, money is power, and people use this power. People enter into compromises. At times, the victim might start having other problems and they might get distracted from the rape case. At times, parents might not support the victim. Cases we get from a lower economic strata face these issues that their financial condition is not good and they can't fulfil their needs and they might get distracted from the case [...] sometimes they settle the case in the middle and they are satisfied that they don't want more. - Lawyer L4, woman • So if the woman is for example a rape victim in a terrible communal riot hm? [...] Nobody will care for her and it is beyond a shadow of doubt she will be approached, she will be coerced, she will be threatened, she will be made to somehow retract from her original story. Now she is poor, she cannot dislocate to another place, she is dependent on the male relatives who surround her, who are quite happy being paid off for her silence right? And so she is forced to retract. [...] It happens routinely when the victim is poor and has no one to stand up for her besides herself and her story [...] At some point, will she just give up and say, 'Okay, never mind. I am not proceeding further.' - From the withdrawal of the victim's support to the prosecution, we cannot assume that the allegation was false. - Any settlement agreements entered into are extra-legal and unenforceable. Love, Longing And Deception In Delhi's Rape Trials - 84 out of 254 judgments were 'promise to marry cases'. - In 55 'promise to marry' judgments, the victim refused to support the prosecution through her testimony. - In 31 judgments, the victim and defendant were married to each other by the time the judgment was delivered. - These cases stem from a complex interplay of love and violence. Most of the violence goes unreported until the prospect of marriage disappears. - There are intrapersonal, relational or social reasons for why the victim is seeking reconciliation over retribution, especially given postcolonial context Conclusion: What's So Just About Criminal Justice? - Taken together, the two categories of cases raise sticky questions about victimisation and agency. - It is important to focus on the social and institutional influences that shape the victim's choices in these cases. Expecting different choices without contextual change is unrealistic.