In what was a significant year for feminism, we are carrying forward certain conversations from the year gone by on to 2018. Soon after Harvey Weinstein was called out over his repeated harassment of women and the public naming and shaming of Indian academics for sexual harassment, there was the #MeToo movement which brought to light the depth of the sexual harassment problem faced by women. All this has lead us to some ever-uncomfortable questions about consent.
Uncomfortable, because many believe that peeling into layers of consent leads us down a slippery slope where consensual sexual encounters can, in retrospect, be viewed as moments of coercion. The US is debating whether or not Aziz Ansari’s public shaming highlights yet another instance of the limited agency of women in a consensual sexual relationship or whether his being called out was indeed in bad taste. After all, the burden of masculinity is as exploitative for men as notions of docility, fragility, acceptance, stoicism are to women.
In a recent piece in the New Yorker titled ‘Cat person’, the author narrates a story of a sexual encounter which was consensual but had moments of coercion. The article went viral for all the right reasons, more specifically for narrating a sexual encounter from the ‘female gaze’, something which has remained missing from literature and pop culture.
The piece opened up an entire spectrum of consent and coercion to show that even in consensual partnerships, women can experience a lack of agency over specific actions. The culturally accepted norm of the resisting damsel and the wanting male has not only had a paralysing effect on women, but fear of causing a man displeasure disallows them to come to terms with their own emotional withdrawal of consent even as they physically concede to the sexual act.
The burden of masculinity or the social acceptability of certain behaviour, however, can no longer serve as excuses for inability to gauge the consent of women even as we remain sceptical of the way in which the Ansari expose unfolded.
Even in long-term intimate partnerships, there needs to be a conveyance of consent at multiple points. The refusal to read verbal or gestural cues of denial is, of course, not a ‘criminal’ offence that may qualify as rape or sexual harassment, but it is worth considering that by not questioning stereotypical behaviours are we conceding to the argument that a ‘feeble no could be a yes?’.
Marriage, a double-edged sword
The idea of ‘deemed consent’ is most pronounced in the marital rape exemption, a clause that masquerades as the ‘saviour of marriages’ in criminal law in India. This is despite the fact that outside of marriage, we have hailed strong laws against rape, non-consensual sex and sexual harassment.
In the course of research for the Justice Verma Commission, 2013, it was found that the majority of suggestions that had reached the committee had even sought capital punishment against rape. However, in a marriage, the same crime is recognised almost as the husband’s right.
There are a range of arguments that have been put forth against criminalisation of marital rape. Flavia Agnes has argued that by criminalising marital rape, we place sexual violence on a pedestal of sorts as though it is somehow worse than other forms of domestic violence thereby feeding into the stereotype that sexual violence accompanies a social stigma and therefore needs to have a harsher punishment.
However, such an argument begs the question: why should the category of married women suffice with more generalised laws under domestic violence than those accessed by their unmarried counterparts?
Others argue that the law would be potentially misused. This is often stated to support an irrational categorisation of rape victims with complete ignorance about the fact that women have a significantly higher chance of being raped by their own husbands. Further, laws on ‘fraud’ and ‘defamation’ are most frequently misused, but precipitate no outrage.
The third argument is the internalised ‘role-play’ of a newly-married couple of the coy and withering bride and the macho husband who must lift the bridal veil. This plot of the ‘first night’ has been repeatedly used in Bollywood, film after film, leading us to the expectation that the natural course of events on the night after the wedding would lead to intercourse, something which is necessarily initiated by the man.
As a society, we presume that no unmarried people are, or should be, indulging in consensual sexual intercourse and therefore there is a greater chance of rape even within intimate partnerships. We presume that unmarried women would and should ‘resist’ and married women would and should acquiesce. Our refusal to be able to morally accept live-in, or unmarried partnerships on the one hand, and an obsession with marriage on the other, contributes also to greater anxieties about divorce. We have, till date, been unable to introduce ‘irretrievable’ marriage as grounds for divorce, because a marriage – however exploitative – is considered better than a life as an unmarried person.
Homophobia, fear of inter-community marriages, wariness with live-in relationships all contribute towards making us blind to consent within a heterosexual marriage – the only form of cohabitation for adults considered respectable and acceptable.
Perhaps this is why anal sex remains a criminal offence, but marital rape hides behind the edifice of a ‘pure union’ for procreation and not pleasure. Indian laws go out of their way to entrench the idea of deemed consent by maintaining provisions of ‘restitution of conjugal rights’. While restitution of conjugal rights can also be a tool for to couples who are being forcibly denied their right to cohabit by their parents, in the absence of recognition of marital rape, the provision leaves women vulnerable.
It is important therefore to link global conversations about consent with marital rape exception in India is because marriage and family become the most hospitable arenas for arguments of ‘right to privacy’, or against ‘criminalisation’ which serve to blur out the central question – that of consent. The line between consent and coercion is not always defined by violence that could invite criminal consequences, but is defined more by discomfort or unwillingness of one of the two involved parties of either sex or gender, married or unmarried. By upholding the marital rape exception, the law in effect, commits the logical fallacy of holding a distinction (between married and unmarried women) without difference.
The writer has a PhD in legal history from University of Cambridge. She has worked with the Justice Verma Committee in 2012-2013 and currently works as a consultant to the 21st Law Commission of India.