#India- Facts and Myths – Criminal Law Amendment Bill, 2013 #Vaw #Justice #mustshare


FACTS AND MYTHS

THE CRIMINAL LAW (AMENDMENT) BILL, 2013,

PROPOSED BY THE GOVERNMENT

March 16, 2013

 

FACTS AND MYTHS

THE CRIMINAL LAW (AMENDMENT) BILL, 2013,

PROPOSED BY THE GOVERNMENT

March 16, 2013

 

The Justice Verma Committee (JVC) report was a landmark statement, applauded by all citizens, welcomed by all Political Parties. JVC was significant because it showed a mirror to the Constitution of India, and reflected its wise and just guarantees of women’s equality. Today the women and youth of India are looking with hope and expectation towards Parliament, and towards all Political Parties. We urge all Members of Parliament to pass a law upholding the spirit and letter of the Justice Verma Committee; to pass a law that makes a step forward in our collective struggle to end sexual violence in India.

 

 

Myth 1: The Criminal Law (Amendment) Bill 2013 is against men.

 

Fact: The new anti-sexual violence Bill is NOT against men. For our fathers, brothers, husbands, partners, neighbours and colleagues are men too. Are these Men in our lives not committed to seeking an end to the constant threat of sexual violence lurking around every corner? Yes, men must, and men do support this Bill. For this bill is against criminals. It is against the scourge of sexual violence, and seeks to prevent and protect our society from heinous sexual crimes like rape, molestation, disrobing and parading women or stalking.

 

We know that men too can be vulnerable to sexual attacks by criminal men. And we welcome the Bill’s recognition that both men and women can be victims of acid attack and provides protection to all ‘persons’ for these offences. But we further ask you, our Parliamentarians, to recognize that men must also be protected against the crime of rape and custodial rape committed by other men, and to change the definition of victim in section 375 and section 376 (2) to ‘person’ and not restrict victimhood in these instances to women alone. Men and women are and must remain partners in this battle against sexual violence. And all ‘persons’ deserve protection of the law against rape.

 

 

Myth 2: If the age of consent for sexual act is lowered to 16 years, this will encourage child marriage, prostitution and trafficking.

 

Fact: The age of consent for sexual relations in India has stood at 16 years for the last 30 years, since 1983. The age was increased without adequate public discussion in the Protection of Children from Sexual Offences Act, May 2012, 9 months ago, and later, in the hasty Criminal Law (Amendment) Ordinance of Feb 4th 2013. The JVC report recommends that it be retained at 16 years as it always has been in the IPC, to prevent criminalization of young persons for consensual sex. Women’s groups are merely asking for it to be retained at 16 years, rather than increase it unthinkingly to 18 years.

 

Retaining age of consent at 16 years does not mean social or moral endorsement or encouragement of teenage sexual activity. The law is not asking young people to do this or that. This is merely an acknowledgement that if two young people consensually decide to engage in sexual contact, we might want to teach them and educate them but we do not want to treat them instantly as criminals, or consign them to custody. For that is what ‘age of consent’ means – it means that a boy who has sexual contact with someone below the age of consent is committing statutory rape. If that age is now raised to 18, it means that boys of 16-18 years, or slightly older, will be held guilty of committing statutory rape if they have consensual sex with another person who is also between 16-18 years. In such cases, the judge will have no discretion under law and will be forced to place such boys in protection home (if under 18 years) or in jails (18 or above).

 

Indian society does not wish to treat as criminals and rapists young men and women who might engage in consensual sexual acts. For we must recognize that ‘criminalizing as RAPE’, the consensual acts of young adults, will make most vulnerable our young men, particularly those from marginalized communities. Third party complaints of statutory rape against young boys will force the Courts to condemn them to prison (if over 18) or protection homes for juveniles (if under 18) for committing no crime other than consensual sexual contact.

 

We must retain the age at 16 because raising the age to 18 years does not provide additional protection to young women against rape or sexual assault. It only serves to increase societal control over the lives and decisions of young persons, both young men and women. To protect their fundamental rights including the right to choice and sexual autonomy and agency, the law must keep 16 years as the age of consent for sexual acts.

 

Why should the age of marriage be 18 years and consent for sexual acts be retained at 16 years?

 

The age of marriage must be retained at 18 years. Marriage is a serious commitment and entails many long-term responsibilities of life, and it is appropriate to keep the age of marriage at 18 years. But there is no merit or useful purpose served by keeping one uniform legal age for every act of a human being. Studies, surveys and research conducted across India, including in rural India, all indicate that young people are engaging in consensual sexual activity between the ages of 16-18 years. The anxiety and legitimate concerns of parents on this count is real and valid. However, the answer to that lies outside the law – in education in schools and within families, and communication between the parents, teachers and young persons.

 

Retaining the age of consent at 16 years is only to ensure that when teenagers engage in consensual sexual activity, it does not lead to young boys being punished and imprisoned. Retaining age of consent for sexual contact at 16 years does not have any bearing or adverse impact on the efforts to prevent child marriage, to which we all stand committed.

 

In any case, marriage of persons under 18 years is legal and valid under the law. Consequently, sex between spouses, one or both of who may be between 16-18 years is not criminalized. Raising the age of consent to 18 years, treats consensual sex between married persons, one or both of whom may be between 16-18 years, differentially from sex between unmarried persons of the same age group. Tainting an unmarried boy of under or above 18 years with the stigma of criminality for consensual sex is unduly harsh and discriminatory, when compared with the legal status of a married boy of the same age.

 

Will the age of consent at 16 years lead to more trafficking and forced prostitution of women and children?

 

It must be emphasized that key to the definition of RAPE is the absence of consent of the woman. Each case where there is such absence of consent must be treated as a crime and punished.

 

In the case of trafficking and forced prostitution this issue of ‘consent’ whether at 16 or 18 is totally irrelevant. In cases of trafficking or forced prostitution, the consent of the girl or woman at any age is neither free nor voluntary; it is coerced and hence in the eyes of law does not amount to consent. The issue of age is irrelevant in all cases of trafficking and forced prostitution. As pointed out in the Justice Verma Committee Report, the police and other powerful forces are complicit in the crime of trafficking and forcing women and children into exploitative work. The 2013 Bill has special provisions to deal with Trafficking and we must ensure that these are rigorously enforced by the police.

 

Myth 3: The offences of Voyeurism and Stalking will trap innocent men.

 

Fact: The offence of Voyeurism as defined in Sec. 354C IPC, is very specific and pointed in scope and has no possibility of misuse or abuse. In villages, towns and cities, we know that the poor do not enjoy the luxury of a private bathroom in their homes. This makes the young girls and women particularly vulnerable to sexual abuse even as they perform routine activities of bathing, attending to the call of nature in fields and open public places. They are always fearful of men who may use this occasion to watch them or take pictures of them as they perform these private activities. The offence of Voyeurism will punish a man who watches or records a woman while she is in any private act where her private body parts may be exposed. This offence seeks to uphold the dignity of women and makes the violation of their fundamental right to privacy a crime.

 

Stalking: The crime of stalking takes a serious toll on the life of women. Gripped by fear and anxiety due to being repeatedly followed by a man, girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalker. The rape and murder of the young law student Priyadarshini Mattoo, is a grim reminder that if the stalker is not stopped, he can rape and kill. Stalkers are also known to throw acid on their victims, as a way to take revenge. By making stalking a crime, the law can actually prevent rape and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime will fill an important lacuna in the present law.  Only in situations where a man repeatedly follows a woman, either physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognised as such.

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PRESS RELEASE- Gender Just, Gender Sensitive and NOT Gender Neutral Rape Laws #Vaw #Justice


Parliamentary Committee ignores Verma Committee

 

The report of the Parliamentary Standing Committee on the 2012 Criminal Law (Amendment) Bill as well as the 2013 Criminal Law (Amendment) Ordinance not only violates the letter and spirit of the Justice Verma Committee (JVC) recommendations but endangers and deepens women’s vulnerability in this country.

Representatives of women’s groups, democratic and human rights groups and activists are alarmed about the following major lacunae in current legislative protection to women, upheld by the Standing Committee report:

 

The Accused Must Be Male: One pernicious provision of the Ordinance 2013, upheld by the Committee report is blanket gender neutrality of the perpetrator of sexual harassment, assault and rape. Put simply: unlike in existing law where the accused is male, the Committee recommendations if enacted into a proposed new Bill, will make it possible for women to be charged with these offences. This is wholly unacceptable.

  • The Reality of Rape: It is an act of violence that must be seen in the context of deeply entrenched power inequalities between men and woman in our society.  Gender neutral provisions only strengthen those already powerful, silencing the real victims. The police and legal system are part of this inequity and bias against women, evident in the huge impunity for rape in our country. Recommending that these laws be gender neutral makes mockery of this reality.
  • The Chilling Effect: Apart from situations where women hold positions of statutory authority (like police officers, etc), in all other situations,  making the accused gender neutral means that complaints by women can be met with  counter-complaints to get them to withdraw. Given the current odds against women securing justice, the gender neutrality of accused in sexual violence laws, will have a deep chilling effect on women’s ability to even file complaints.
  • Men, not boys: There is no basis to the argument that gender neutral laws allow young boys to be protected from abuse, because all young boys and girls are fully protected by gender neutral laws in the Protection of Children from Sexual Offences Act 2012.

 

Age Of Consent Must Remain 16: The Standing Committee report endorses the 2013 Ordinance, by raising the age of consent from 16 to 18, thus criminalizing the consent of young persons and exposing them to unjust imprisonment by forcing judges to take action merely on third party complaints, including khap panchayats. At the very least, any proposed new law should allow for a Young Person’s Defence, where consent of young persons between 16-18 years is taken into account if there is no more than 4 years age difference between two consenting parties.

 

Rape Within Marriage Must Be Recognized As An Offence: Marital status must not have any bearing on the right of a woman to say no! The law must recognize when sexual assault and rape occur within marriage. Also, current IPC provisions recognizing rape in the context of judicial separation must be replaced by simple separation, given that most separated couples do not get judicial decrees, but simply start living apart. Without this change the law makers are only sending a signal that even while living apart from her husband, a woman can be raped by him without any recourse to justice.

We are also deeply concerned by the Standing Committee’s silence on ending impunity for sexual assault by security forces. The existing statutory immunity for armed forces ‘acting in the line of duty’ surely cannot apply to sexual assault committed on women. No sanction should be required to proceed with prosecution of such personnel in sexual assault cases.

As the 2013 Criminal Law (Amendment) Ordinance and the report of the Parliamentary Standing Committee enter into Parliament for debate, we urge ALL PARTIES aligned with women’s rights to ensure that laws made in the wake of the brutal Delhi gang rape case do not leave women even more vulnerable than they already are.

Date: 6th March 2013, signed by:

– Kalpana Mehta, Madhya Pradesh Mahila Manch, Indore

– Vrinda Grover, lawyer, New Delhi

– Farah Naqvi, women’s rights activist, New Delhi

– Kavita Krishnan, Secretary, AIPWA

– Madhu Mehra, Partners for Law in Development, New Delhi

– Chayanika Shah & Sandhya Gokhale, Forum Against Oppression of Women, Bombay

– Deepti Sharma, Saheli, New Delhi

– Kamayani Bali Mahabal,  Kractivist

– Nandini Rao, New Delhi

– Albeena Shakil

– Lesbians and Bisexuals in Action, Bombay- Lawyers Collective, New Delhi

– Kalpana Vishwanath & Suneeta Dhar, Jagori, New Delhi

– Gautam Bhan, New Delhi

– AALI, Lucknow

– Nirantar, New Delhi

– Karuna Nundy, Advocate, Supreme Court of India

– Seema Misra, Lawyer, New Delhi

– Ayesha Kidwai, GSCASH, JNU

– Prita Rani Jha, Peace and Equality Cell

– Women Against Sexual Violence and State Repression

 

#India- The Criminal Law Ordinance on Sexual Assault – Cut, Paste and Shock #Vaw #womenrights


 #India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw  #Justice #mustread

FEBRUARY 5, 2013

Guest post by PRATIKSHA BAXI 

Once the Criminal Law Ordinance 2013 was uploaded, circulated and read many times, an overwhelming desire to mark the ordinance to all one’s students as an example on how not to frame laws has grown. Yet, explain one must, why the current law on sexual assault is so bizarre, even if we do not bring in the so-called controversial elements and keep to the text of the ordinance.

The Criminal Law Ordinance 2013 begins with the definition of sexual assault as a gender-neutral offence. It does not make an exception to state that women do not rape men in everyday contexts under s. 375. Since such an exception is not added, and the ordinance specifies that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault’, we are faced with a confounding and deeply misogynist legal consequence. Wives, we are told cannot prosecute husbands for sexually assaulting them. But since sexual assault is gender neutral without any exceptions and the marital rape exemption is not extended to husbands, now husbands can accuse wives of sexual assault but wives can never prosecute husbands for sexual assault!

To retain the marital rape exemption strikes at the heart of women’s bodily autonomy and integrity. However, to limit the exemption to wives, and allow husbands the legal remedy to file criminal complaints against their wives on the ground of sexual assault is absolutely absurd, if not totally misogynist.

The Justice Verma Committee (JVC) report had come up with a clear formulation of rape and sexual assault. Rape in everyday contexts was not gender-neutral viz., perpetrators. It specified perpetrators of rape as men, and identified victims as gender plural (any person irrespective of gender or sexual orientation). In the instance of sexual assault, gangrape and aggravated rape [under s. 376 (1) & (2)], were constructed as gender-neutral offencesviz, perpetrators and victims. Furthermore, the marital rape exemption was deleted and it was recommended that marriage should neither be the basis for presuming consent nor should any third person than wife be allowed to lodge such a complaint (to address the misuse issue). In everyday contexts, especially in intimate relationships and marriages, this definition is sensitive to the power dynamics between men and women; while recognising that in prisons, police stations, custodial homes, hospitals, in fiduciary relationships and gang rape women may be perpetrators. It is critical to understand why this definition is important breakthrough in the debates on gender neutrality so far. This definition not only recognises the bodily autonomy of women but also recognises the bodily integrity of men (irrespective of sexual orientation or gendered identity) and transgendered persons. It does not split the victims into distinct categories based on identity and therefore avoids the medicalization of sexual identity. Given the heated debates on gender neutrality, the JVC managed to define rape as a crime of patriarchy, which is not limited to women as victims, although women have predominantly the target of sexual violence.

Some may argue that this definition still leaves out certain forms of violence, which find place in intimacy of a same sex relationship, or essentializes women. But remember, the JVC does not recommend the deletion of s. 377 IPC, nor do other forms of criminalisation of same sex relationships find redress. For instance, Modi (2011) describes lesbianism as tribadism and says “lesbian women can be so morbidly jealous of such woman with who they are inverted in love, that they are sometimes incited to commit even murder” (Modi 2011:684). These are statements of prejudice, which construct lesbians as a “criminal type”. And these find no redress.

The Criminal Law Ordinance 2013also juxtaposes gender neutrality with the retention of s. 377 IPC. To retain unnatural sexual offences in the IPC means to blur the distinction between consent and lack of consent, to validate the damning judicial discourse on sodomy and validate heterosexist bias against sexual minorities. Not to include the repeal of s. 377 in the ordinance, just because the JVC does not do so, and even though the 172nd Law Commission recommended such a deletion in 2000 is a scandal. It is unintelligible since s. 377 IPC characterises sexual assault as unnatural sex and does not allow any person to consent to “unnatural” sex. If the prime concern is with expanding the definition of consent; and ensuring bodily autonomy or providing protection from sexual assault to all persons, naming the experience of sexual violence as unnatural sex, or calling consensual sex, unnatural is illogical, if not ideologically violent.

Further, sexual assault is defined without any gradation of different offences, in terms of severity of violence or the nature of violence. Section 375 (a-c) defines as sexual assault as the penetration of bodily parts or other objects into bodily orifices without consent. Section 375 (d) holds that a person commits sexual assault if s/he ‘applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person’ without consent. Section 375 (e) holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent, it amounts to sexual assault[note that the cut and paste job, evident from the word “he” to designate the perpetrator]. These are all forms of sexual assault “except where such penetration or touching is carried out for proper hygienic or medical purposes”.

The use of the word hygienic is totally mysterious, and dangerous—since it allows a crafty defence lawyer to convert the experience of sexual assault into a sanitized lesson in hygiene. Further, to allow penetration for medical purposes and not even minimally mention that a doctor must take the informed consent of the person prior to penetrating or touching is violative of elementary medical ethics. Nor does the ordinance delete the two-finger test. Therefore what it does is, it permits the insertion of two fingers in the survivor’s anus or vagina for medical purposes without seeking the consent of the survivor, which even Modi’s first volume on medical jurisprudence and toxicology would not advocate. The JVC recommends the prohibition on the two-finger test and introduces a whole new chapter on what kind of medical protocol should be introduced to deal with rape survivors sensitively. Rather than moving towards a therapeutic jurisprudence, the ordinance re-inscribes the two-finger as a medical procedure, disregarding what Modi says in the early days of colonial medicine, that a doctor should never insert two fingers in the vagina without consent lest he be accused of sexual assault!

To unravel the costs of cut and paste jurisprudence, we must note that the consequences of clubbing together different forms of sexual assault in the same sentencing structure. Hypothetically speaking, if a person is convicted of an offence under section 375 (e) which holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent twice, then such a person could be sentenced to life (natural life) or even death. Assuming such an accused is tried by a “hanging” judge, you have a situation where there is no gradation made between different kinds of sexual assault in relation to severity and nature, viz., sentencing. What is to prevent more severe punishment to a hijra, found to be a repeat offender, given the colonial legacy of charactering certain kinds of bodies as “criminal types”? There are no provisions to provide fair treatment to, and prevent stereotyping of sexual minorities or women in the sentencing structure.

The only instance where such gradation viz., sentencing is maintained is in relation to marital rape. Hence, section 376B IPC holds that ‘whoever commits sexual assault on his own wife, … shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine’. The ordinance is clearly protection of husbands, even those husbands who rape their ex-wives. This is also evident in the section,describing repeat offenders, which clearly excludes husbands.

Section 376E holds ‘whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section 376 C or section 376 D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death’. So the ordinance is clear that whoever else may get life imprisonment till s/he dies in prison or is hanged by the state, a husband should never be jailed for life or hanged. But the irony is, if a man accuses his wife of sexual assault, and if she is found to be a repeat offender by a court, she is liable to life or death penalty. One may argue that this is far fetched for why would a woman live with a man who has accused her of sexual assault but technically what this ordinance does, it makes wives vulnerable to sexual assault charges by their husbands and exposes them to prison sentences, if not death.

The cut and paste job gets even more bizarre for the JVC recommendations are added to s. 354 IPC rather than displacing the colonial law on outraging modesty. Section 354 (a) describes sexual harassment (gender neutral offence), section 354 (b) describes any person forcibly disrobing a woman, section 354 (c) describes voyeurism (victim is woman here) and section 354 (d) describes stalking (gender neutral). And section 509 IPC, which should be made redundant is retained.

It does not make sense to retain the idea that something amounts to violence only when the modesty of women is outraged, and not the bodily integrity of all women, irrespective of modesty. This is the point behind deleting the past sexual history clause and fighting against the characterisation of survivors as habitués: please do not judge women by whether or not they are modest. What we wear, who we sleep with, where we go, what work we do—is not relevant to proving sexual assault.

And then mistakes of an exhausted and overwrought JVC find their way into the ordinance, yet another cut and paste jurisprudential disaster. In s. 370, which describes trafficking, we are told that:

“The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

The JVC possibly forgot to add the words “exploitation of” prostitution, while mistakenly dictating the UN protocol 2000, going against the UN Protocol signed in 2011. The trafficking clause, due to exhausted dictating, criminalises all forms of sex work, including in trafficking voluntary and consenting sex workers who are now unionised and been fighting for right to live with dignity. This provision has been enacted in the name of fighting sexual assault—and is totally unacceptable. Perhaps the JVC should issue an erratum—and re-publish its 650 pages after careful proof reading!

What may one say about the absences—those are too many to list! We wanted radical jurisprudence, to emerge from our protests and unending hard work (and unlike others, we don’t need anyone to applaud us). Instead, what we got is amortifying cut and paste jurisprudential disaster. We cannot sleep tonight, wonder how the Ministry of Law finds sleep tonight!

Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University

#India-The Official Emergency Continues – The Ordinance on Sexual Assault #Vaw


FEBRUARY 3, 2013

Guest post by PRATIKSHA BAXI,

The reform of rape law, which was not a priority for more than two decades, seems more like a 20-20 match now. The spectacle of judicial reform has all the elements of cinematic imagination built into it—violence, voyeurism, repression, tears, scandal, redemption and betrayal. We are all consumers and participants of this judicial spectacle. We veer between manic hope and dark despair as we are left conjecturing how this theatre of judicial reform will enact equality and dignity for survivors of sexual assault. The latest twist in the tale is the introduction of an ordinance, following the Justice Verma Committee (JVC) report.

We are told that the government decided to formulate an ordinance to address sexual violence as an emergency. Strangely enough the text of the ordinance has been kept a secret, other than the press release ostensibly released by the government, hence we can only comment on the series of statements made to the media. It is claimed that the JVC report informed this ordinance, which collates the “uncontroversial” elements in the JVC and the Criminal Law Amendment Bill2012. The ordinance will become the law perhaps on Monday if the President signs it. Until the parliament meets, the ordinance will define sexual assault.

The government accepted the JVC’s demand that their recommendations should be incorporated immediately as an ordinance. In fact Justice Verma on Times Now said that the non-controversial aspects of their recommendations should be immediately passed as an ordinance. To quote Justice Verma, “but there are many things which we have said which have been talked of for sometime and there are no two opinions. Now where is the difficulty in promulgating an ordinance to implement them straight away because that is not something which need to await a debate in the Parliament”.

The self-construction of the JVC as a manifesto of the peoples’ movements against sexual violence, including the women’s movement and the positioning of the members of the JVC as “heroic” for having finished the report in 29 days should have signalled to us that an ordinance would be scripted as the outcome of this committee. So why are we surprised that there is an ordinance? And why critique the ordinance? Is it not reasonable that some of the elements of a progressive legislation should be enacted now such as the provisions on acid attack, stalking, voyeurism, and trafficking until a more comprehensive law can be crafted in the parliament? Why should an acid survivor not benefit from this new law—presuming that the state will spend enough money publicising the ordinance to every thana and hospital for three weeks? 

One could argue that the opposition is not to recognising that sexual violence is an emergency that women experience everyday rather the important question is what is recognised as an emergency, and when.

  1. In the ordinance, the retention of the marital rape exemption is not seen as an official declaration of permanent sexual emergency for married women.
  2. The rape of women by security agencies, a state of permanent sexual emergency, continues to need sanction for prosecution from the government.
  3. Those politicians charged with rape will continue to wield power to uphold states of sexual emergency for women.
  4. Those who are in positions of power and authority to stop mass sexual violence suspend law to allow unimaginable and targetted sexual and reproductive violence are not seen as criminally authoring and authorising states of sexual emergencies.
  5. The ordinance does not recognise the states of emergencies declared against young people who choose to marry against social norms of caste, community and religion.
  6. The ordinance does not recognise that each medical examination of a rape survivor is experienced as a re-rape; and that this is an emergency.
  7. The routinized violence on dalit women, such as stripping and parading especially of those who are punished for transgressing caste hierarchies is not seen as a state of emergency.

The ordinance ascribes blame to women for creating states of sexual emergencies when it proposes a gender-neutral sexual assault law implying that women, like men, sexually assault adult persons, including men in everyday contexts! It appears that the ordinance does not create an exception to make manifest that women do not rape men. Rather dishonestly the ordinance blames women for the sins of men—by positioning them as perpetrators of sexual assault of men in everyday contexts. This creates the possibility of further criminalising women’s lives. There is proof of such criminalisation under existing laws, which are gender specific viz, perpetrators.

According to the Delhi government statistics on the profile of female prisoners in the Tihar Jailthere is increase … in rape cases by 2.47%

During 2011, as per NCRB statistics 766 women were arrested under s. 376 (rape) IPC, 1698 women arrested on the grounds of molestation (s. 354 IPC) and 193 women on grounds of sexual harassment (under s. 509 IPC). In 2011, 43 women inmates died, amongst whom eight women committed suicide in jail. Does the government have any explanation for why the police arrested more than 700 women under s. 376 IPC?

When women’s groups oppose gender neutrality viz., including women as perpetrators, one predominant concern has been the manner in which the police misuse the law to criminalise women who transgress patriarchal norms. The JVC recognised this concern in amending theCriminal Law Amendment Bill, 2012.

However, the cabinet seems to have refused to take into account the growing statistics of arrests of women under s. 376 IPC. Nor do they seem to think that men will misuse this provision against women: because in legal discourse only women seem to misuse patriarchal laws against men!

It is evident that ordinance does not revise male laws from the point of view of survivors of sexual assault. Take the example of marital rape. For whom is marital rape controversial? Surely it is not controversial for women who experience sexual violence in marriage. But the men who draft laws smell the fear of those men who cannot be bothered whether their wives want to have sex with them. Surely husbands must be given legal impunity if they sexually assault their wives, argues Abhishek Manu Singhvi, since wives will levy false cases against their husbands, and courts will be flooded with wives accusing husbands of rape. In other words, women who are married are treated as if they are pathological liars, and by implication are positioned as a “criminal type” intent on breaking up marriages on false accusations ranging from rape, domestic violence and dowry related harassment.

This argument is obviously ideological rather than sociological. It cannot be argued by anyone that women are less invested in marriage than men, given that patriarchy ensures that status and respectability of a woman in society derives from the fact of marriage. Women nurture their families, far more than men, be it their affinal or natal families. They look after the young and the old. They are dependent on their families economically, socially and politically. Women are told constantly to “adjust” to violent husbands perhaps since such men cannot be courageous to risk true love by surrendering their violent power.

Women have too much to lose if they levy false accusations of sexual assault against their husbands. Even mothers who file charges against husbands who rape their daughter are hounded in our courts, police stations and families for being bad wives, breaking up the family and threatening social order.

Further, there is no social or governmental support for women who would like to reject marriage. Single women, who are divorced, never married, or do not want to be married to men, are targeted by everyone in manifold ways. The mildest form of discrimination single women face is pity, or derision at not having their own family. The assumption that single women are “available” for male sexual experimentation, the lack of safety and the heightened vulnerability without the “protection” of a man, are all elements of enforced heterosexuality.

The government is petrified that the very suggestion that wives are autonomous will unravel the phallocentric foundations of marriage—based as it is on violence or its threat. Wanting to cling on to the monopoly to rape their wives, these men who make our laws betray a strong attachment to colonial law. This is not surprising since women’s bodies in enforced heterosexuality are colonised by the desires of husbands who enjoy rape. If those who script laws had been accepting of different models of masculinities, and understanding of pluralities of sexual experiences crafted by the experience of the joy of autonomy, they would not have expressed such panicked fear. They would have also deleted s. 377 IPC by way of an ordinance but then heterosexist men despise queer sexuality the most.

The cabinet does not need to conduct a national survey to realise that rape is a preferred mode of violence in marriage. They know that most often heterosexist men do not bother to be solicitous of the desires of their wives or pleasure them. Such heterosexist men do not wish to acknowledge that there are alternate ways of scripting sexual relationships, which are alive with autonomy, laughter and sexual creativity—precisely because of mutual respect and admiration. If the men in positions of power had experienced such relationships, they would not feel threatened by legislating against the sexual colonisation of women’s bodies by their husbands. The law distorts what marriage should mean for both men and women–freedom from violence, expression of love, sexual companionship, and a journey in profound friendship. Love obviously threatens social, legal and political orders far more radically than violent ways of extinguishing a woman’s life.

The ordinance declares the continuance of those sexual emergencies in everyday and extraordinary context, which are central to patriarchal power. The spectacle of judicial reform is enacted to detract attention from such permanent states of emergency. Perhaps the Cabinet should clarify what it means by emergency in the first place, since it seems the ordinance, in its current form, embraces the idea of domesticating and even celebrating some forms of permanent sexual emergencies, over others. Nor does it take legislative labour to do away with the medicalization of consent via the two-finger test or insist on registration of FIRs irrespective of jurisdiction. This could have been done by executive or judicial decree. Unfortunately, the JVC is also complicit in the making of this spectacle of judicial reform by insisting on the model of 20/20 law reform, and demanding governmental recognition of its heroic labours, without truly understanding the deep structure of sovereign power, which has a necrophilic need for permanent states of sexual emergencies. No wonder the JVC is upset and we can only hope that their suffering makes a radical difference.

Pratiksha Baxi teaches at the Centre for the study of law and governance at JNU and can be contacted at Pratiksha Baxi pratiksha.baxi@gmail.com

 

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