Rape is an inexcusable crime. It is not an offence that can be negotiated away. Unfortunately, there have been several instances through the years where the courts have tried to mediate and find 'solutions' including marriage of the victim to the rapist, or compensation to the victim, in lieu of imprisonment.Criminal law regards rape as a serious offence and does not allow for compounding, i.e. withdrawal of the case by the victim. The Madras High Court, by its decision yesterday, has again recommended alternate dispute resolution in a case of rape. The decision of Justice Devadoss appears to endorse negotiation, or mediation in case of rape. In his judgment, he states that the true victim of the crime is actually the child that the victim gave birth to. Therefore, the court has suggested that through alternate dispute resolution, the accused and the victim find an amicable solution which would then be used to mitigate the sentence of imprisonment. For this reason, the Court had released the accused on bail. Read: Madras HC shocker: Judge directs convicted rapist of a minor to 'mediate' and 'settle' caseIt is true that ADR has been gaining momentum, not only in other countries, but also in India. The Courts have been pushing the agenda of ADR and encourage litigants to settle disputes rather than engage in protracted litigation that would be amenable to further appeals. ADR has been understood as a way to lessen the congestion of the courts and the overburdened judiciary.However, ADR is only suitable for civil cases where essential rights of individuals are not at stake. It is dangerous to compare a property transaction, or debt recovery transaction where the parties may agree to resolve their dispute amicably, with criminal offences particularly sexual offences. Serious offences such as rape are not amenable to plea bargaining, or compounding.Whilst so, referring this case to mediation sets a dangerous and undesirable precedent. It must be remembered that crimes against women were, until recently, regarded as taboo topics, never to be discussed in public or even dealt with seriously. Looking at them through the lens of shame rather than rights had resulted in serious underreporting and also witnesses (including survivor of crime herself) turning hostile resulting in acquittals.It has been a long uphill battle to raise awareness and sensitise the public as to the seriousness and scale of violence against women. Given this history, it is regressive to endorse ADR in case of rape as it appears to trivialize the underlying offence. Read: Dear Madras HC Judge: The survivor does not even want to see her rapist's faceThe victim in this case was 15 years old when she was raped. The accused has claimed that this was not a violent crime, and that it was consensual intercourse. Minors under the age of 16 are regarded as incapable of giving consent, and according to the IPC, in addition to non-consensual rape, sexual intercourse with an underage girl is also rape.After the Nirbhaya incident, the law has been changed and the age of consent has been increased to 18 years. Increasing the age of consent, whilst a populist move, makes consensual relationships between teenagers a crime. Due to changes in cultural norms and mores, teenagers are increasingly sexually active. It is thus quite counter-intuitive to increase the age of consent. The result of this change in the law is that an 18 year old boy who is in a voluntary, intimate relationship with a 17 year old girl would be equated to a violent sexual offender. The law does not distinguish between the two cases.The decision of the Madras High Court brings to light the dilemma that legal practitioners and judges face whilst dealing with age of consent issues. The decision of the High Court was regarding the unamended IPC where the age of consent was 16 years old. In light of the recent amendment that increases the same to 18, one can anticipate further instances where the Courts seek the refuge of ADR, or other such mechanisms, in their bid to be humane and deliver individualized justice.However, the systemic impact of such decisions cannot be underestimated. Endorsing ADR in case of rape undermines the seriousness of the offence and opens out opportunities for those accused to buy their way out, or worse, marry their way out of jail.