[LST] Gender justice, interrupted - The Hindu

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Opinion » Lead

Published: March 29, 2013 00:39 IST | Updated: March 29, 2013 00:39 IST
Gender justice, interrupted

Ratna Kapur

Death or longer prison terms for rape under a new law will not empower
women; what they need is the safety to walk on the streets free from
the fear of sexual violence

The adoption of the Criminal Law Amendment Act 2013 by the Indian
Parliament is a moment to be neither celebrated nor mourned. It is a
moment to pause and reflect over what exactly has been achieved ever
since the Delhi gang rape and murder of the 23-year-old student, and
what has been lost. The Act converges with the recent global
spotlighting of violence against women, including the adoption of a
declaration on the elimination and prevention of violence against
women and girls at the recently concluded U.N. Commission on the
Status of Women in New York. Both these interventions highlight how
the safety and security of women and girls around the world remains an
elusive goal.

Two formulas

The specific question that arises is just exactly how state and
non-state actors achieve this goal. There are at least two dominant
formulas that have emerged in this arena over the decades. The first
is a rights agenda, where the rights of women and others oppressed by
sexual violence are specifically recognised and then a legal and
policy agenda for protecting these rights formulated. The rights to
equality, bodily integrity and sexual autonomy, freedom of speech,
including sexual speech, and safe mobility, would be amongst those
rights to be foregrounded and secured. The Verma committee, mandated
with the task of recommending legal reforms to ensure women's safety,
in part adopted this approach. The right to consensual adult sexual
relations was the key area to be protected from discrimination and
infringement through the adoption of a broad array of legal, policy,
and educational initiatives.

The second approach is to foreground the state's role in ensuring the
safety of its citizens by strengthening its security apparatus,
including border controls, intensifying the sexual surveillance of
citizens, disciplining the sexual behaviour of individuals and
regulating and monitoring sexual conduct through law enforcement
agencies. While autocratic states already pursue this route, there is
a worrying trend of liberal democracies also adopting such an
approach, including India. The move towards equating justice with the
imposition of the death penalty or stringent prison sentences
constitutes the lynchpin of this approach.

At least two factors have facilitated this approach towards security.
Ever since the global war on terror, states have been accorded a
justification for curbing human rights in the interests of the
security of the nation and its citizens. Rendition, water boarding,
incarceration without due process, have all been justified on this
ground. A second factor is that non-governmental organisations,
including those women's groups with a zealous focus on the issue of
sexual violence against women, have not paid sufficient attention to
the promotion of women's sexual rights, except for some forays into
the area of reproductive rights. This focus on violence against women
has been warmly welcomed by dominant players in the international
legal arena. Global violence against women has been recognised as a
human rights violation; rape has been incorporated as a war crime in
the Rome Statute; and sexual violence in conflict and post-conflict
has been specifically addressed by Security Council resolutions. While
the focus on violence is important, the mechanism through which it has
been addressed has not necessarily been empowering for women. These
interventions have not destabilised the dominant understanding of
women as victims and female sexuality as passive; nor have they
toppled the gender stereotypes that inform all of these initiatives.

The constant justification for a focus on the criminal law to address
violence against women has been that prevention will take time.
However, criminal law initiatives that further entrench a sexually
sanitised regime fail to distinguish between sexual speech and
unwelcome remarks, and target all sexual behaviour that does not
conform to a sexually conservative script as reprehensible, make the
battle to centre rights all that much harder. The new law in India
retains the language and provisions dealing with the "outraging of the
modesty" and chastity of a woman and then simply expands the range of
activities that threaten or blemish this antiquated understanding of
female sexuality. This approach cannot be a recipe for empowerment nor
foster progressive change in thinking on matters of sex and sexuality.

Perhaps the most significant and pervasive issue left unaddressed by
the new law is the everyday sexism that pervades the workplace, the
public arena, the media and the educational system. No amount of
censorship of sexual images can address the problem of sexism, the
performance of which was on full display in the Indian Parliament
during the debates on the new law. While sexual harassment, including
unwelcome sexually coloured remarks, is criminalised, a focus on
deterrence does not eradicate sexism nor produce respect for women. It
merely empowers the state and the criminal law.

Unchallenged stereotypes

Leaving sexism and gender stereotypes unchallenged is likely to have a
boomerang effect. The new laws will be used to go after individuals
and communities who transgress or challenge established norms, or are
already sexually stigmatised, marginalised, and viewed with suspicion.
Sex workers rights groups have criticised the new anti- trafficking
provisions that treat every sex worker as trafficked. Merely extending
the tentacles of the criminal law into their everyday lives without
affording them rights with which to fight the violence and the
exploitation they experience will force these women into more
clandestine and exploitative situations and, ironically, increase
their vulnerability to being trafficked. Similarly, gay men might be
left with little protection from the sexual violence they experience
as they have not been accorded the right to consensual sexual
relationships. In fact, the new sexual regime will leave them more
vulnerable to allegations of criminality, perversion and continued
stigma. Muslim men might continue to be targeted as being more
rapacious and lascivious especially in the States ruled by the Hindu
Right. Female migrants will be targeted as trafficked victims and
continue to be incarcerated in the name of protection; and young
people will continue to have "pre-marital" sex, clandestinely, and
often under unsafe conditions, now that the age of statutory rape has
been retained at 18.

The exclusion of marital rape from the purview of the new law
reinforces the sexual prerogative of husbands, leaving some women
wondering why they should get married if it means they would enjoy
fewer rights. And the fundamental question remains whether this
expanded legal edifice will be able to stop the kind of attack that
occurred on the Delhi bus last December.

The reactions to the U.N. Declaration and debates on the new criminal
law in India furnish telling insights on the extraordinary levels of
resistance to the very idea of the right to sexual autonomy and gender
justice on the part of dominant groups, and the subsequent scramble to
reinforce the rights of an already overprotected male elite. In New
York this was evident in the debate on the declaration. The Muslim
Brotherhood claimed that the declaration would lead to a "complete
disintegration of society" and decried the possibilities of allowing
women to prosecute husbands for rape or sexual harassment. Others such
as the Vatican were concerned over references to access to emergency
abortion, and sexually transmitted diseases.

In India, the new law represents a trend in South Asia to equate
justice with the death penalty and stringent imprisonment terms. Yet
empowerment for women cannot lie in merely attaching a death sentence
on to the crime of rape, or increasing the mandatory minimum sentences
for rape. How will these measures act as deterrents when indeed such
changes will see the already low conviction rate for rape plummet even
further? Empowerment rests in the ability of women, sexual minorities,
and religious minorities to be able to walk on the streets free from
the fear of sexual violence, sexual harassment and rape.

The young women and men born in the crucible of globalisation and
neo-liberal economic reforms are unlikely to be discouraged from
demanding a gender-friendly and egalitarian workspace. And there is
still a possibility that the new law in India will be challenged in
the Supreme Court for violating women's right to equality as well as
excluding sexual minorities from its protection. The protests after
the Delhi rape were demanding justice in the form of more freedom not
autocracy, respect not fear, and a more egalitarian society, not a
reaffirmation of the established gender and sexual hierarchies of
power. The old order has definitely been shaken, and its values based
on exclusion and prejudice have undoubtedly passed their expiry date.

(Ratna Kapur is Global Professor of Law, Jindal Global Law School)

Keywords: Rape, sexual violence, sexual assault, marital rape, Verma committee

Printable version | Mar 29, 2013 1:53:13 PM |
http://www.thehindu.com/opinion/lead/gender-justice-interrupted/article4559007.ece
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