Men, Women and Other People: Understanding Sexualities #Sundayreading


breaking1

From left to right  ( Nine members of the research team ) – Hasina Khan , Kranti  ,  Shruti, Shalini Mahajan, Smriti Nevatia , Raj, Sabla , Meenu pandey, and Chayanika shah

Kamayani Bali Mahabal, Women Feature Service 

The concept of gender needs to be transformed. That was the central thrust of a recent study entitled, ‘Breaking The Binary’, released by the queer feminist collective, Labia, at an event organised in Mumbai’s well–known SNDT University.

Questioning the male–female binary, the study concluded that there can be no uniformity within these identities. Even when people use the same term like ‘man’, ‘woman’, ’transgender’ to define themselves, their lived realities may differ greatly. Such categories, therefore, should necessarily be less rigid because when the boundaries between them get blurred, individuals are enabled to exert greater agency and choice in moving across them. According to the study, gender needs to be consensual; it needs to get transformed from a hierarchical discrete, binary system to a porous, multiple–gender one.

‘Breaking The Binary’ was based on 50 life history narratives that explored the circumstances and situations of queer PAGFB (Persons Assigned Gender Female at Birth), who were made to, or were expected to, conform to existing social norms pertaining to gender and sexuality.

The research team for the study comprised 11 members, with Chayanika, Raj, Shalini and Smriti from Labia anchoring the work. Explained Chayanika, “Through this study, we looked at the experiences of our subjects within their natal families and while at school. We charted their journeys through intimate relationships and we attempted to understand what happened to them in public spaces, how they were treated by various state agencies, what were their sources of support and refuge when they came under the threat of violence or faced discrimination.”

The people interviewed came from a wide cross–section of society in terms of location, age, caste, class, and religion. These variations were critical, according to Chayanika, as the intention was to reach those living at the intersections of many marginalised identities. But achieving this was difficult, even impossible. As she put it, “The silence and invisibility around individuals who continually transgress gender norms meant that we were able to approach only those individuals who have some contact with queer groups.”

The 50 respondents were spread across north, east, west and south India – living in cities such as Bangalore, Mumbai, Kolkata, Chennai, Delhi, Pune and Thrissur. The representation of individuals living in rural areas was low, but two persons – one from rural Maharashtra and the other from rural Jharkhand – were interviewed, and 11 of the respondents had grown up in rural settings. Of the 50 individuals who participated in the study, 30 were from the dominant castes, 11 people were from the Scheduled Castes/Scheduled Tribes/Special Backward Classes, three were from Other Backward Classes (OBC) and six identified themselves as Others.

‘Woman’ as a biological category was one of the subjects that figured in the interviews. Persons whose biological sex did not correspond with their psychological sex, were branded as gender “variants”, even though women do not constitute a homogenous category and could belong to many different categories – including a category as unfamiliar as ‘working class lesbian’ or ‘dalit lesbian’.

According to Raj, a member of Labia, “We found that being from an upper class background was no guarantee of privilege. There was a 20–year–old from a business family. Because of family dynamics, she was unable to get the education she had wanted and was forced to support herself by earning small sums of money playing cricket. Another respondent, identified as upper class, was also deprived of a meaningful education.” Clearly, a privileged, upper class background does not protect queer persons, especially if they happen to challenge gender and/or sexuality norms.

The study identified three levels of violence the respondents had faced. The first is at the individual level, where harmful acts are perpetrated against people and property. This can range from taunts to forced marriage and even murder. The second is at the institutional level, where damaging consequences are perpetrated by social institutions with the idea of obstructing the spontaneous expression of human potential – as, for example, when an office denies promotion to an employee on account of sexual orientation. The third is at the structural – cultural – level as, for instance, when religious or political beliefs rule that homosexuality is immoral or illegal.

A woman’s sexual orientation can, among other things, determine her access to resources as well as her social status, according to the study. Women suffer severe material loss when their families desert them and many experience emotional and psychological trauma in their struggle against discrimination and ostracism. Mis–recognition and non–recognition can become a very perverse form of violence as it seeks to naturalise the power enjoyed by dominant groups over non–dominant ones.

For instance, families, friends and teachers could refuse to recognise the need of lesbians to be acknowledged as they are and treated with dignity, leading them to experience a severe loss of self–esteem. This constitutes a form of violence imposed by the majority on a minority. As Shalini, one of study team members, put it, “Every society has its own notion of what is normal and what is assumed to be normal. Going beyond that construct could invite violence on the individual. Many of the respondents felt that the gay rights movement was crucial precisely because people cannot hide behind identities that are not their own. Therefore, just as women defied patriarchy through the women’s rights movement, queer persons defy heteronormativity through the queer rights movement.”

This study, the first of its kind, has helped shed light on how queer persons have addressed the challenges of life and how they continue to search, negotiate, and challenge multiple boundaries. It has attempted to answer some important questions. Where, for instance, are the points at which gender binaries rupture? How are the normative gender lines being reinforced? What situations help to create varied gender identities? Most important of all, the study has helped to capture the experiences of Persons Assigned Gender Female at Birth and their negotiations with families, friends, communities, social structures, as well as the health and legal systems.

The team hopes to take the study forward to highlight areas of concern and conceptualise effective interventions. As one of the team members put it, “We are aiming to convey its insights to the more general category of people, at least those who are interested in taking proactive steps in addressing violence against any human being in any form and also for those who would like to understand the root causes of homophobia. We also want to take it to educational and governmental institutions, so that they can also help usher in change.”

The study was released not just in Mumbai, but in Kolkata, Delhi, Bangalore, Thrissur and Chennai as well. A Hindi translation of it is also on the cards. (WFS)

 

#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

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