Alternate Dispute Resolution in Rape cases – UPSC Ethics

Should Mediation, a form of Alternative Dispute Resolution (ADR), be allowed in rape cases by the courts? Justify. (200 Words)

While Mediation, as a form of Alternative Dispute Resolution (ADR) has many advantages like simple procedure, cost effective, reduce escalation of conflict and save times but it can’t be used in heinous offences like rape cases.
Due to following reasons Mediation should not be used in rape cases:
  1. Rape involves the coercion and power dominance. So mediation can’t be solution as it can ensure a fair solution only between two equal parties.
  2. Mediation promotes reconciliation and compromises , but promoting compromise in rape cases is denial of justice to the victim.
  3. When rape cases adopt mediation, if often encourage settlement by monetary compensation to victim, but monetary compensation can’t absolve accused of such a heinous crime not victim get due justice by compensation.
  4. Due to social pressure and patriarchal norms in society, mediation often encourages marriage between accused and victim. This is gross injustice to victim as she need to tolerate her exploiter for whole duration of life.
  5. Court trial is basic right of survivor. The court proceeding are fair and legitimate while hearing in mediation often reduced to character assassination of survivor and she need to face hostile audience without fair procedure.
  6. Dispute involves 2 or more aggrieved parties who claim that their rights have beenĀ  violated and issue can be settled through negotiation like property dispute between the brothers in a family. However in case of rape, there is one aggrieved party against the other who had committed this offence. Here rights and dignity of one individual is at stake not both the parties. Moreover, rape is a criminal offence as per the law unlike the disputes which are civil in nature.
  7. Criminal activities affects the society at large, unlike the civil cases where private rights of the individuals are at stake.
  8. Consent for mediation may be taken by coercion
  9. There may be chances of repetition of the same crime by the offender because harsh punishment is not inflicted on him and he is absolved from his all liabilities.
[arguments in support:
  1. After the increment in the age of consent following Nirbhaya case (from 16 to 18) there have been spur in these cases also day by day our cultural norms are changing and society in becoming more open . Now teens are more sexually active (e.g. kiss of love) here are bound to be such cases e.g. live in relationship, teen pregnancies, consensual relationship etc. Legally you can call them rape but technically they are not.
  2. Court on its part is not trying to shun from their responsibility by Transferring these case to ADR but Trying to mete out a more just solution to this issue. since law will consider all sexual relation between Young teens a rape with all liability of crime on male counterpart that can land a young male for even life imprisonment for something he is not solely responsible .]
Justice J.S Verma Committee report that came out in the light of Delhi rape incident had strengthened the case by locating rape in the context of gender justice, ADRs would clearly be retreating from this path. Courts should appoint special bench for quicker resolve of such type of cases rather opting for ADRs for speedy trail.



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