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Updated: March 29, 2013 19:45 IST

Gender justice, interrupted

Ratna Kapur
Comment (16)   ·   print   ·   T  T  

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 may continue to be regarded per se as trafficked under the ‘sexual exploitation’ provisions. 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)

The article has been edited to incorporate the following correction:

In “Gender Justice,Interrupted” by Ratna Kapur (March 29, 2013), the sentence “Sex workers rights groups have criticised the new anti- trafficking provisions that treat every sex worker as trafficked,” in the published version should have read “Sex workers may continue to be regarded per se as trafficked under the 'sexual exploitation' provisions.”

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Death sentence would instill some fear in the criminal minds and may refrain them from committing heinous crimes. But sexism that is being pervaded at the workplace, the public arena, the media and the educational system if not eradicated will not empower the women and deprives her freedom. The law which does not address that may not be able to produce respect for women.

from:  usha deepthi
Posted on: Mar 29, 2013 at 23:12 IST

Wonderfully well thought-out article. Except no one that has the power to do something about it, will read it or even act upon it. What do we expect from people in the Parliament, who themselves are deeply entrenched in conservative notions of patriarchy,

The point of this Bill was to 'show' the public that the MPs are doing something. Do you think BJP & Lohiaist Parties will EVER let sexual freedom be a widely accepted thing in the Indian society? I dont intend to bash on just a few parties, but there is deep politics at play here. It does not matter if a 23-y-old is dead, what matters is that a Khap panchayat retains its powers to prosecute any couple they do not agree with. What matters is that father be allowed to condemn any male his daughter might be involved with, legally. What matters is that now hotel owners have a reason to charge couple double if they want to spend a night there. This law only regressed us further.

from:  Rajendra
Posted on: Mar 29, 2013 at 20:21 IST

Lot of crap. It is not practical to flood all the places with police to protect women. Empowerment of women can be done by asking all girls to get themselves trained in Karate, Kalaripayattu etc to help them protect themselves from the wolves. Also give guns to all females above the age of two as even toddlers are molested. Make free supply of pepper spray and other first aid protection. Give shrill whistle to every female to blow whenever a man approaches within five meters.

from:  Guptan Veemboor
Posted on: Mar 29, 2013 at 20:08 IST

The author has got a point. Making stringent laws and increasing
incarceration would increase fear for law but not empower women in
their fight for equality. Empowerment of women needs structural
reforms not law reforms. A good starting for structural reforms would
be incorporating 33% women representation in the parliament and state
legislative assemblies so that women representatives can raise their
voice and work for the equality of women. But the point is why would
politicians sitting in parliament accept such a reform???. Its a open
fact that male politicians are not much concerned about empowerment of
women. I wish that i could see 33% women representation in parliament
which would definitely lead towards empowerment of women.

from:  ranjithp
Posted on: Mar 29, 2013 at 17:41 IST

The cartoon is very good to the subject

from:  karthik
Posted on: Mar 29, 2013 at 16:04 IST

Prof. Kapur identifies the failings of the new laws perceptively and is
persuasive in calling for action.

Globally gender equality does not exist almost anywhere. But what is
intolerable in India, is violence against women. Women’s rights have
been specified and laws (largely) enacted ON PAPER, but an environment –
moral, social, legal – backed up by a change of attitudes in society and
enforcement agencies – to permit enjoyment of these rights in practice,
has yet to be created. New laws have strengthened criminal law, but
“the focus on deterrence does not eradicate sexism nor produce respect
for women”.

The excuse that prevention takes time, is just that – an excuse. It is a
travesty to blame female sexuality and ignore the fact that women are
the “victims” of these crimes. When will society act to eradicate
everyday sexism which starts in the womb, continues in the educational
system, the public arena, the media and at work, unfettered as ever?

from:  D Mahapatra
Posted on: Mar 29, 2013 at 15:45 IST

The author's views are respectable but she should have enlightened the
readers how else the problem can be resolved? Criticizing someone is one
thing and coming out with a solution is different.

from:  Umair
Posted on: Mar 29, 2013 at 15:29 IST

"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". This whole sentence is flawed. The Rights
and Consent mentioned together make a mockery of a 'womans prerogative'. It so
happens that a woman has the final call. Even in a marital bed a woman has the
option of saying 'No' . A stronger male partner if chooses to , could overpower the
female against her wishes any time at all. To presume 'consent' on the say so of the
male is legally unfair. The law requires 'informed consent' in all binding contracts .
So why set up this half measure that could jeopardise the females?,exposing them
rape and undesirable consequences.

from:  ahirwan
Posted on: Mar 29, 2013 at 14:56 IST

It is better to have something than nothing. The ghastly crime in Delhi had shaken the conscience of the nation and it was important to send out a message that the establishment is serious enough to curb sexual harassment of women.
This article presents a mature perspective. Yet we cannot deny that there was an urgent need to toughen up laws. Besides increasing punishment and expediting legal processes, steps to improve conviction rate also need to be taken.
However, the author is right in saying that true freedom for women lies in reducing the sense of patriarchy pervading the conscience of society. But, in a society where illiteracy and ignorance still prevails, it would take time for society to attain such enlightenment and maturity. Solution lies in increasing awareness among women about their rights and also educating men about the benefits of ensuring equal rights for women. There are many men who view women to be weak. This needs to be changed both legally and psychologically

from:  Mukut Ray
Posted on: Mar 29, 2013 at 14:25 IST

Its a very nice article which takes in to view not only local but
global developments. I agree with author's view but I have a question
on top of it. We all understand that comparing justice to death
remains a sham, but is not it the best response that can be given in
limited time ? When animal acts occur in the capital then how to deter
those very animals with anything else than the fear ? Anything else
effectively doable in finite time is welcome, but which ones are they
? Moreover, when a death sentence is considered ineffective than what
chances are that others will work considering they have to stand
against those 'animals' ? In light of all these I see the new Act as
effectively plugging a hole. Ofcourse other holes are waiting, which
should be targeted as well.

from:  Vinayak Sharma
Posted on: Mar 29, 2013 at 14:00 IST

It's easy to opine but difficult to give a solution.

The author does not give any solution to the problem, only trashes attempt to solution.

from:  Prashant
Posted on: Mar 29, 2013 at 13:26 IST

Author talks about problem and the incomplete solution the state has
given but not about the complete problem.

from:  Khushbu
Posted on: Mar 29, 2013 at 12:32 IST

a deeply insightful article showing a pragmatic way to assault
patriarchy in the society

from:  Laxank Purohit
Posted on: Mar 29, 2013 at 12:23 IST

Its all the mindset of the person who commits the rape.
But, as rightly said by Ratna Kapur, Women empowerment and giving equal rights for women can boost the strength of women where a fear arises in the mind of the person before involving committing a sexual assault/rape.Let the law be revamped to strengthen the rights of women at every stage.
Article 14 of Indian constituion has clearly mentioned stating Right to Equality for all.Apt curriculum should be introduced in high schools on sexual education where the the gender inequlity should be rooted from the minds of the children.Its the first and foremost responsibilty of parents to inculcate in the children a right respect for women.Let the Rama-Rajya of Gandhiji be attained at the forefront.Great work on amending the law by Justice Verma committe.

from:  Prasanna Kanakeri
Posted on: Mar 29, 2013 at 10:58 IST

Correct article. I think Justice Verma also mentioned the same, but there was a need to be seen as taking some "immediate action" and Justice Verma gave in to that need.
while respect is the main issue here, the role of fear cannot be underestimated. However, fear will not come from more punishment, but from more convicting in the court.
Education of policemen is the first step that should be taken. If the police alone starts understanding the rights of women, they will be looking at these cases more seriously, resulting in fear among criminals.
Secondly, all city areas should have webcams with night vision. Ofcourse cost is an issue, so do the cost benefit analysis and find out the optimum number. May be all bus stops can be covered for starters.

from:  Rohit Chauhan
Posted on: Mar 29, 2013 at 10:38 IST

[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.]

You mean globalization and neo-liberalism are advancing consciousness of gender equality? But... I thought globalization and neo-liberalism were supposed to be evil?

from:  Ashu
Posted on: Mar 29, 2013 at 10:18 IST
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