U.S. go­ing back­wards in cases of the law and the cul­ture war

The Woolwich Observer - - COMMENT - GWYNNE DYER

THERE WAS BOUND TO be a back­lash to the ‘Me Too’ move­ment, and the strug­gle over the nom­i­na­tion of Judge Brett Ka­vanaugh to the U.S. Supreme Court is clearly part of that cul­ture war. ‘Me Too’ is go­ing to lose this bat­tle un­less there is some new and hor­ren­dous rev­e­la­tion of Ka­vanaugh’s past be­hav­iour in the next few days, and lots of peo­ple in the U.S. and else­where see this as ev­i­dence that the war it­self is be­ing lost.

That is not nec­es­sar­ily so even in the United States. It is cer­tainly not so in the wider world, where the supreme court of the world’s big­gest democ­racy, In­dia, has just fol­lowed up its land­mark de­ci­sion in early Septem­ber to de­crim­i­nal­ize ho­mo­sex­u­al­ity with an­other judge­ment de­crim­i­nal­iz­ing adul­tery.

Many peo­ple de­plore adul­tery, but as Pierre El­liott Trudeau fa­mously said half a cen­tury ago, “There’s no place for the state in the be­d­rooms of the na­tion . ... What’s done in pri­vate be­tween adults doesn’t con­cern the Crim­i­nal Code.” But adul­tery was still a crim­i­nal of­fence in In­dia un­til last week – and a very pe­cu­liar of­fence, be­cause only men could be con­victed of it.

The law dated from the time when Bri­tain ruled In­dia, and re­flected the Vic­to­rian be­lief that a mar­ried woman was her hus­band’s prop­erty. For an­other man to have sex with a man’s wife was there­fore a vi­o­la­tion of the hus­band’s prop­erty rights, and the vi­o­la­tor should be pun­ished by the law – whereas the woman was pre­sumed to be un­able to make her own de­ci­sions, and was there­fore not legally cul­pa­ble.

The (male) adul­terer was li­able to a prison sen­tence of up to five years. The law was rarely en­forced, but it was fre­quently in­voked by hus­bands in di­vorce pro­ceed­ings to smear the rep­u­ta­tions of their soonto-be-ex-wives.

The case was brought be­fore the courts by Joseph Shine, an Italy-based In­dian busi­ness­man who was dis­tressed by the sui­cide of a close friend who had fallen vic­tim to the an­tiadul­tery law. Shine just wanted the law to be en­forced equally against men and women, but the Supreme Court went a good deal far­ther than that.

The In­dian court’s judge­ment went straight to the heart of the mat­ter. “It is time to say that the hus­band is not the mas­ter,” said Chief Jus­tice Di­pak Misra. “Le­gal sub­or­di­na­tion of one sex over an­other is wrong in it­self.” Adul­tery, he ruled, will no longer be a crim­i­nal of­fence.

Last week the same court de­clared that In­dian tem­ples have no right to ex­clude women “of men­stru­at­ing age” on the spe­cious grounds that they are un­clean. “Re­li­gion can­not be the cover to deny women the right to wor­ship. To treat women as chil­dren of a lesser god is to blink at con­sti­tu­tional moral­ity,” said Chief Jus­tice Misra.

Now, it’s true that Misra was in a rush to get these cases set­tled be­fore he reached 65, the legally man­dated re­tire­ment age for judges. (He turned 65 on Tues­day.) It’s also true that there are those on the Supreme Court who do not agree with his lib­er­al­iza­tion of In­dia’s laws on sex­ual mat­ters and gen­der equal­ity. But there seems to be pop­u­lar sup­port among the ed­u­cated pub­lic for his re­forms, and the cases con­tinue.

Next up is the ex­ist­ing ex­cep­tion in In­dia’s law on sex­ual as­sault for cases in which the per­pe­tra­tor and the vic­tim are mar­ried. The lawyer lead­ing the case to make mar­i­tal rape il­le­gal put it clearly: a woman’s “sex­ual au­ton­omy is not for­feited at the mar­i­tal door.”

There are places where these le­gal prin­ci­ples are still not ac­cepted: many Mus­lim coun­tries re­ject them (in­clud­ing In­done­sia, where they are draft­ing laws to pro­hibit all sex out­side the in­sti­tu­tion of mar­riage), and many coun­tries in Africa. But nev­er­the­less the ex­am­ple is spread­ing.

In Kenya, the supreme court has agreed to hear ar­gu­ments for le­gal­iz­ing gay sex later this month on the grounds that the ex­ist­ing law ban­ning ho­mo­sex­ual

acts in Kenya is iden­ti­cal to the one struck down by the In­dian Supreme Court. Adul­tery has al­ready been de­crim­i­nal­ized in more than 60 coun­tries, and abor­tion is now le­gal in most.

There re­ally is a cul­ture war, rag­ing si­mul­ta­ne­ously across all the con­ti­nents. It is rarely fought with as much tribal fe­roc­ity as it is in the United States, but im­por­tant is­sues are at stake ev­ery­where. If Judge Ka­vanaugh joins the U.S. Supreme Court, for ex­am­ple, abor­tion could once again be­come il­le­gal in the United States.

But in cul­tural mat­ters progress of­ten takes the form of two steps for­ward, one step back. It may feel more like one step for­ward, two steps back in the United States at the mo­ment, but that is just a snap­shot of a mo­ment in time.

Trudeau once told me that his rea­son for en­ter­ing pol­i­tics was “to civ­i­lize the law,” and in most parts of the world that project is still mak­ing progress. It is very un­likely that the United States will turn out to be a per­ma­nent de­fec­tor from that en­ter­prise ei­ther.

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