#India- Against Castration for Rapists #Vaw #Justice


JANUARY 15, 2013

Guest post by HIMIKA BHATTACHARYA AND DEEPTI MISRI, kafila.org 

some-protestors-have-been-calling-for-rapists-to-be-castrated

The public preoccupation with both the death penalty and castration as punishment for rape continued last week, with the Pakistani activist Asma Jahangir reportedly suggesting that the rapists of the Delhi rape case be either punished with castration or else face the death penalty.[1]The consistent demand for punitive castration in India may be somewhat boosted by the Indian media reporting the following developments – last week, the South Korean court ordered Asia’s first chemical castration[2]; the Malaysian bar is pushing for castration[3] as a punishment for repeat sex offenders; and that such punishment has reportedly been long used in other countries[4]such as Germany, Denmark, and some states in the U.S.

The most recent demands for castration can broadly be divided into two categories: popular and legal. Here we wish to problematize both, the legal and popular demands for castration by drawing out the reductive understanding of rape implicit in this demand; and by tracing the problematic notion of emasculation-as-justice driving this demand. We call for a suspension of the demand for castration on three broad grounds, listed here and discussed in greater detail below:

-          The logic of castration as legal punishment locates the threat of rape squarely in the male body (specifically male genitalia), reinforcing the heteronormative paradigm of peno-vaginal penetration that feminists have been trying for decades to dislodge from Indian rape law.

-          Such a punishment obscures the role of institutions in enabling and preserving rape. It also delinks sexual assault from structures of caste, class, sexuality and disability, which shape sexual violence.

-          The popular demand for castration relies on a logic of emasculation (napunsak banana) that actually re-centers “good,” protectionist masculinity as the way to creating a safer environment in our communities.

In legal circles, chemical castration has sometimes been presented as a more effective alternative to prison sentencing[5]. Rather than surgically and irreversibly removing the penis or the testes, chemical castration entails administering anti-androgen drugs that suppress testosterone production. In the popular imagination however, this mode of punishment undeniably evokes the gratification of “cutting off the problem at the source” by administering a well-deserved emasculation to the rapist. For example, on the website Punjabi Portal, one user wrote: “Nai fansi nai honi chahidi but rape Karen wale de part nu cut ke usnu napunsak bana dena chahida … Taki oh rape taan ki viah Karen de Kabil v na rahe” (Rapists shouldn’t be hung, but their part should be cut and they should be emasculated … so that they are unable to rape and unworthy to “marry”). [6]On Twitter, another user wrote: “delhi gang rapers ko napunsak bana diya jaye” (emasculate the Delhi gang rapists) [7]; yet another Twitter user said: “Guys in India arenapunsak to the power infinity..Capable of pulling a stunt like Delhi bus gang rape case or acid attack”.[8]The Facebook page “Hang in Public..Delhi Gangrape Culprits”[9] with 531 “likes” bears on its wall numerous fantasies of torture and castration.Elsewhere, it is the Delhi police who are berated for being napunsak[10] for failing to protect women from rape, and for targeting protesters. This language of napunsakta, which at once calls for the emasculation of the hyper-masculine rapist and berates the Delhi police for not being manly enough, exemplifies the ways in which,as Iris Marion Young notes, “dominative masculinity … constitutes protective masculinity[11] as its other” and so legitimizes the control of women in the name of protection.But as Kavita Krishnan noted in her now viral speech[12]: “This machismo is not any solution to the problem of violence against women — it is the root of the problem itself.”

What does the demand for castration presume about the nature of rape, and what possibilities does it offer as a legal response to rape?To begin with, the demand for castration locates rape as a crime of sex. In this view,rape is something men do to women, with their penises,because of an excess of testosterone in their bodies. It is ironic that this impetus towards castration has gained momentum in the aftermath of a brutal rape conducted not only with penises, but with iron rods.Are we really persuaded that a more controlled libido would have prevented those six men from committing their brutal act of disciplinary violence against the young woman who died in Delhi last week? Do we believe that it would have prevented the rape of the minor Dalit girl who committed suicide after she was lured[13]—by a woman—to her rape by two caste Hindus in Punjab? Would it have prevented the infamous mass rape of an entire village of Kashmiri women in Kunan Poshpora by the Indian army in 1991—and if so, are we willing to convict and impose castration on the army personnel involved in those rapes? When Thangjam Manorama was picked up by security forces in Manipur, sexually tortured and shot in the genitals after being charged with being a militant, was it the raging testosterone of the soldiers that led to her rape? Or are we willing to consider that in all these instances, the derision and apathy of the police; the impunity granted to soldiers under the Armed Forces Special Powers Act in Manipur and Kashmir; and the abysmally low conviction rate around rape across India may have played a greater part in these scenarios?

The enormously reductive understanding of rape as a penis-driven crime fixes responsibility on individuals and prioritizes biological motivations, while obscuring the social, cultural and political structuresthat enable rape. Additionally, it completely overrides the work of activists across different constituencies (women’s rights, queer rights, child rights, dalit rights, disability rights) to expand the definition of rape beyond the peno-vaginal paradigm in the law. As Flavia Agnes notes, “Vaginal penetration is only one of the many ways in which women are chastised and humiliated [particularly in episodes of caste and communal violence such as Partition, the Gujarat carnage, and Khairlanji]. Acid attacks, slashing of the face, stripping and parading, dragging women to the ground and kicking them on their abdomen, etc. are some of the other violent ways in which women are shown their place in public.”We would agree with Agnes that “while we are addressing issues of sexual assaults [we must] stop awarding a special status for peno-vaginal penetration as compared to other types of violations.”The peno-vaginal understanding of rape also overlooks the frequent role of women in enabling rape, as well as the vulnerability of men or transgender people: for instance in Khairlanji, where women dragged out Priyanka and Surekha Bhotmange[14]by their hair, beat and stripped them before leaving them to be raped by men; or in Kashmir, where scores of men have been sexually tortured in custody by security forces; or indeed all over India, where gay men and transgender[15] people are routinely subject to rape.What use would the castration fix be in such scenarios, animated by power and hate rather than lust? This takes us back to the key question that activists in India have been actively working through, especially during the re-drafting of the sexual assault bill over the last few years: what constitutes sexual assault?

In conclusion, we want to extend some recent insights from feminist arguments against the death penalty, which apply to the demand for castration as well. One notable point across these critiques is that calls for more stringent punishments blithely presume an efficacious functioning of the legal machinery. Flavia Agnes warns that “around one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes …With the clamour for death penalty [and, we would add, castration], how will we deal with such cases?”[16] Given the notoriously paternalist mentality prevailing among the Indian police force[17], in such instances the law becomes a mechanism for the caste-bound sexual regulation of young women and men by their families. Furthermore, as Kavita Krishnan so eloquently argued, the death penalty is no solution for low conviction rates, but a spectacular deflection from the real problem of police inaction. Similarly we might ask whether the legal fix of castration would do anything at all in terms of improving the conviction rate for rape in a scenario where the police regularly refuse[18] to register cases of rape[19] to begin with!

The mass protests possibly indicate a growing public awareness that rape is not merely a crime between individuals, but a crime for which the institutions of government and socials structures are equally if not more responsible. Despite the major gaps that have compromised the protests on Raisina Hill, they have publicly moved rape beyond the narrow frame of “women’s issues”[20]and implicated the government. However, this frenzy for a quick solution for rape by seeking revenge over justice[21]also obscures the structural problems highlighted by Dalit[22]and disability rights feminists.[23]For example, as Anu Ramdas rightly reminds us, the “rightful but selective[24]national exclamation of horror against this urban gang rape furthers the normalization of rapes and gang rapes of dalit and adivasi women,” which have rarely elicited such outrage, and which certainly would not be helped by the castration fix. Before we decide the terms of punishment and legal reform, we would like to ask what kinds of bodies we seek to protect, whose safety we hold dear, who we criminalize and why.

 


Congress not for chemical castration #goodnews #vaw #justice


PTI, The Hindu , Jan 5, 2012

The Congress on Saturday submitted its suggestions on stringent laws for crimes against women to Justice J.S. Verma Committee even as it disfavoured chemical castration of rapists.

Party general secretary Janardan Dwivedi said the suggestions were given to the panel set up in the wake of the gang-rape incident in Delhi that led to outrage across the country.

While details of the suggestions given to the committee were not immediately known, the party has been favouring imprisonment up to 30 years for rapists and setting up of fast-track courts as also redefining the juvenile act by reducing the age limit.

Leaders like Renuka Chaudhary had sought chemical castration of rapists but the party has made it clear that no such suggestion has been made by party chief Sonia Gandhi.

Ms. Gandhi recently held a meeting with top leaders as also experts for consultations over the issue. The suggestions were given a day after the party top brass, including Prime Minister Manmohan Singh and Gandhi, held deliberations.

The Verma Committee was set up on December 23 with a mandate to review the present statute so as to provide for speedier justice and enhanced punishment in cases of aggravated sexual assault. The Committee has to submit its report in 30 days.

#Rape- Castration is not the right legal response #Vaw #Torture


ANUP SURENDRANATH, The indu

The view that it will deter rape is misplaced and based on a narrow, sexual intercourse-definition of the crime

There is a fascinating urban legend that Apple’s logo is dedicated to Alan Turing, who committed suicide by biting into a cyanide injected apple. A few years after he was instrumental in breaking the German Enigma code in World War II, Alan Turing was convicted in 1952 for homosexual acts in England. He agreed to the administration of female hormones when faced with incarceration. Apart from the abhorrent aim of such a measure, the scientific claim that hormone injections could alter sexuality proved to be dubious. The intuitive appeal chemical castration has as a method of drastically reducing the incidence of rape, I argue, is largely misplaced because it misunderstands the nature of rape as a crime. Rape is not about sex. Rape is about power, violence, intimidation and humiliation. Attempts to reduce the incidence of rape by controlling the sexual urge of men are bound to be ineffective because they invoke a very shallow and inadequate understanding of rape.

‘More effective’ punishment

Much before the current demand for chemical castration as a legal response to rape, Additional Sessions Judge Kamini Lau, while sentencing Dinesh Yadav in May 2011 for raping his 15-year old step-daughter for four years, called for a debate on castration as an alternative to incarceration in rape cases. Sentencing Dinesh Yadav to the minimum possible punishment of 10 years for such a crime under Section 375(2) of the Indian Penal Code, Judge Lau indicated that castration, surgical or chemical, would perhaps be a far more effective method to prevent rape. While contemplating the legal and ethical aspects of such a measure, it is important that we understand the precise terms of the suggestion, its potential to reduce the incidence of rape and its potential for abuse.

Clarity on the meaning of some of the terms might be useful at this juncture. Surgical castration does not mean removal of the penis, but is instead the irreversible surgical removal of the testosterone producing testes. Chemical castration involves injecting anti-androgen drugs that suppress the production of testosterone as long as the drugs are administered.

Modern legal systems have flirted with biological control of sexual functions for a long time for a variety of reasons. Forced sterilisation of criminals and intellectually disabled people through legislation to protect the purity of the gene pool was seen as an acceptable response to the eugenics movement in Europe and the United States in the early 1900s. The United States Supreme Court inBuck v. Bell (1927), upheld the constitutionality of the 1924 Virginia statute that authorised the forced sterilisation of intellectually disabled people (‘mentally retarded’ was the term in the statute). Vehemently endorsing the eugenic aims of the statute, Justice Oliver Wendell Holmes Jr. permitted the forcible sterilisation of an 18-year old woman, with an alleged mental age of nine years and a family history of intellectual disability, with the infamous words that ‘three generations of imbeciles were enough’. Though Buck v. Bell has never been explicitly over-ruled, the U.S. Supreme Court’s decision in Skinner v. Oklahoma (1942) and the events in Nazi Germany considerably dented the popularity of forced sterilisations as part of the eugenics agenda. Forced sterilisations in the best interest of the intellectually disabled continued in the United States till the early 1980s and it was in the mid-1990s that the debates around chemical castration as a response to rape surfaced as a result of legislation in certain American States.

Once we get past the historical baggage of the term ‘castration,’ the strongest argument in favour of chemical castration is that it is a non-invasive, reversible method of nullifying the production of testosterone and thereby controlling extreme sexual urge. The use of Depo-Provera in many American States subsequent to chemical castration legislation does indicate that it reduces the risk of recidivism. However, such an approach limits the understanding of rape to the framework of sex. Irrespective of the differences in their positions on rape, influential feminists like Susan Brownmiller, Catharine MacKinnon, Andrea Dworkin, Ann Cahill, etc., agree that rape is not about the manifestation of extreme sexual urge. Violence, power, aggression and humiliation are central to understanding rape, and sex is only a mechanism used to achieve those aims.

Addressing the sexual element of rape does not address the violence and humiliation that rape is intended to inflict. Responding to a question on whether chemical castration for child molesters works, Catharine MacKinnon in an interview with Diane Rosenfeld (March 2000) captured the issue at hand by saying that “they just use bottles”. Castration as a response to rape furthers the myth that rape is about the uncontrollable sexual urge of men.

The limited role that sex has to play in understanding rape is further borne out by the fact that not all sex offenders are the same. In essence, an understanding that requires us to look at rapists merely as individuals engaging in deviant sexual behaviour is inaccurate. Rapists fall into different categories including those who deny the commission of the crime or the criminal nature of the act; blame the crime on factors like stress, alcohol, drugs or other non-sexual factors; rape for reasons related to anger, shaming, violence, etc; rape for reasons connected to sexual arousal and specific sexual fantasies, etc. Administering anti-androgens to rapists outside the last category will not be an effective response to check the incidence of rape. Mapping the long standing demand in India to reform the definition of rape (beyond penile-vaginal penetration) to include object/finger-vaginal/anal penetration on to the different categories of sexual offenders shows that a sexual intercourse-based understanding of rape is extremely narrow.

Gender violence

Even the most ardent supporters of chemical castration recognise that administration of anti-androgens without relevant therapies defeats the point of the entire exercise. Given the significant side-effects of chemical castration, a law that would require indefinite administration of anti-androgens for sex offenders is likely to be unconstitutional. Even if the argument is that governments must invest in chemical castration even if it means a minuscule effect on the incidence of rape, it would require State governments to put in place a rigorous system of providing therapy for it to be a constitutional option. Given the condition of state health care services in India, there are very good reasons to be sceptical about the feasibility of providing such therapy.

It is difficult not to succumb to the intuitive appeal of chemical castration as a response to rape. But it is an intuitive appeal that fades away on intense scrutiny. Intuition can be a great asset in politics of all sorts, but it is best avoided while contemplating a law requiring huge public investment, whose potential for abuse is immense and the benefits of which are, at best, uncertain.

Any meaningful attempt to protect women against rape must engage with gendered notions of power entrenched in our families, our marriages, our workplaces, our educational institutions, our religions, our laws, our political parties and, perhaps, worst of all, in our minds. There are many violent manifestations of these entrenched patterns of power in our society and while rape is certainly one of them, it would be a great disservice to empowerment of women in this country to not attach the same kind of urgency and significance to gender violence beyond rape.

(Anup Surendranath is an Assistant Professor of Law, National Law University, Delhi, and doctoral candidate at the Faculty of Law, University of Oxford.)