Gen­der jus­tice, in­ter­rupted

The Pak Banker - - OPINION -

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.

The spe­cific ques­tion that arises is just ex­actly how state and non­state 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.

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 rights groups have crit­i­cised the new an­titraf­fick­ing pro­vi­sions that treat ev­ery sex worker as traf­ficked. 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.

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