Women

The Gap Between the Feminist Understanding of Sexual Violence and the Law

Despite feminist consensus on pervasive misogyny, patriarchy and sexual violence, we see very diverging views on how this is to be fought.

What do we understand when we identify ourselves as feminist?

The Wire’s Histories of Feminisms project is an attempt to emphasise that there is no linear or one way of understanding and experiencing feminism. Through a series of articles, The Wire draws your attention to some of the different narratives and debates that, over the decades, have come to define feminism. For instance, we recall the first generation of feminists in Kerala, the first women lawyers who surmounted formidable challenges to claim their rightful place in the legal system. We shine a light on women authors who pushed the boundaries of feminism in literature, bring before you the perspectives and experiences of feminist Dalit and Muslim women. We talk about how protagonists of many radical movements and uprisings in public memory are usually male.

Side by side, we bring you important debates around 19th-century cultural nationalism and gender reform, the discussions around sexual violence, the law and the MeToo movement.

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This is the first article in a two-part analysis of sexuality, violence and the law.

Sexuality is an incontestable part of any feminist agenda, but debates around it within feminist circles are complex.

‘Sexuality’ invokes identity, intimacy, desire, violence – one or the other element of this swirl of emotive ingredients, at different moments in feminist history, stands out more sharply than the others. Indian feminism in the 1980s made sexuality visible in the form of heterosexual violence on women, seeking and attaining legal remedies of different kinds. Through the 1990s and into the first years of this century feminists, while still concerned with sexual violence, increasingly recast sexuality as desire transgressing the bounds of heteronormativity.

But since the 2012 Delhi gang rape, the focus back is on sexuality as violence. This two-part article will map feminist terrain around the interface of sexual violence with the law.

Despite feminist consensus on pervasive misogyny, patriarchy and sexual violence, we see very diverging views on how this is to be fought; whether women should be seen as sexual agents or as victims; whether sexuality should be mystified as something more real than other elements of one’s life; when gender should be prioritised and when other identities such as caste or community; and whether ‘women’ are the subject of feminist politics or the queer body. Such disagreements go back over decades and are constitutive of Indian feminism.

In the 1980s, the campaigns of the women’s movement led to legal reform and enactment of new laws, the most significant of which was the Criminal Law Amendment Act 1983, which shifted the onus of proof to the accused in custodial rape. This amendment was precipitated by widespread feminist protests around the acquittal by the Supreme Court of the police rapists of Mathura, a young tribal woman. These successes, however, raised a new set of questions about the partial and patriarchal implementation of the new laws, and more stringent punishment leading to fewer convictions.

However, this democratic feminist pressure on successive governments is merely one strand of prevalent debates. After all, there is social consensus that rape is a heinous crime – for patriarchy, because rape is a crime against family honour; for feminists, because it is a crime against a woman’s autonomy and bodily integrity. These different understandings of rape lead to diametrically opposed strategies of prevention and punishment.

Until 2013, Section 375 of the Indian Penal Code recognised only penis penetration of the vagina as rape. Penetration by objects or by a finger did not constitute rape and carried a smaller punishment.

The rationale behind this distinction was patriarchal – penis penetration may lead to pregnancies and threatens patrilineal property rights. But even consensual anal penetration by the penis carried the same severity of punishment as ‘rape’, for both provisions intended to protect legitimate procreative sexuality: pre-2013 Section 375 protected patrilineal descent and property systems, while Section 377 (repealed in 2018) punished the possibility of escaping compulsory heterosexuality altogether.

Also read: At Dignity March, Survivors Fight Stigma of Sexual Assault

A study by Rukmini S. of the 600 complaints of rape in Delhi’s six district courts in 2013 found that the largest category of cases were of parents of daughters filing charges of abduction and rape in cases of consenting adult couples (often inter-caste or inter-religion) eloping or marrying against their parents’ wishes. The patriarchal use of rape law in India to protect legitimate procreative heterosexuality is evident here.

Another patriarchal aspect of rape laws in India even after 2013 is that consensual sex given ‘on the false promise of marriage’ constitutes rape. While convictions have sometimes been secured on this ground, judges have more often ruled against the complainant. The underlying assumption of this provision is that a ‘good’ woman would consent to sex outside marriage only on the promise of it. Whether it is conviction or acquittal that results, the invocation of this provision is patriarchal and sexist.

The Moment of 2013

The electrifying protests across India that galvanised the country after the gang rape and murder in Delhi of a young physiotherapy student in December 2012, were a dramatic manifestation of the ground-level transformation of common sense since the 1980s. This moment yielded three documents: a visionary report, an amendment to the IPC and a new law on sexual harassment at the workplace.

First, the January 2013 report of the government-appointed Justice Verma Committee (JVC) was a paradigm shift in understanding sexual violence. The report resulted from widespread consultations with the public at large and reflected the inputs of the women’s movement and the queer movement, among others. It recommended

  • the criminalisation of marital rape (currently an exception to Section 375),
  • new provisions permitting the prosecution of members of the security forces accused of sexual assault and rape,
  • a change in the definition of rape, with rape being retained as a separate offence, while expanding it to include any non-consensual penetration of a sexual nature,
  • non-penetrative forms of sexual contact were to be regarded as ‘sexual assault’, with the sexual nature of an act to be determined contextually,
  • new offences were to be recognised, such as verbal sexual assault and acid attack,
  • gender neutrality of the victim, but not of the perpetrator, who would be assumed to be male except in cases of custodial rape or rape in the context of a clear power-differentiated situation. That is, women in authority or with custody over others could be accused of sexual assault/rape, and
  • rape in communal violence as an aggravated offence.

Rape in caste violence was left to the Prevention of Atrocities Act. A significant report prepared by All India Dalit Mahila Adhikar Manch addresses the widespread rape of Dalit women, as does the report on Haryana by Women Against Sexual Violence and State Repression. There have also been demands for a separate law on sexual assaults during communal violence.

Also read: Reimagining How We Talk About Rape and Rapists

Can and should sexual violence sanctioned by the caste system and by Hindutva politics, be treated as special instances in the law on sexual violence? What are the possible gains and losses of such a strategy? Conversations continue on this.

The Criminal Law Amendment Act 2013 is entirely different from the JVC report. It

  • does not recognise marital rape in ongoing marriages,
  • protects members of the security forces from prosecution for sexual assault,
  • introduces a statutory minimum punishment of seven years as well as the death penalty for rape,
  • does not accept gender neutrality either for victim (assumed to be female) or perpetrator (assumed to be male),
  • expands the definition of rape but without gradations in punishment, and
  • raises the age of consent  from 16 to 18.

Let us consider each of these in turn.

Marital rape

Marital rape is criminalised in all cases of separation, whether informal or under judicial order. The sentence has been increased substantially, with a mandatory minimum of two years, extendable to seven years.

While many feminists were disappointed that marital rape within a continuing marriage was not criminalised by the new law, others raised grave doubts about criminalisation, which strengthens the arms of the state but provides women no additional protection.

The latter point out that sexual violence within marriage is already covered by Section 498A of the IPC and the Domestic Violence Act (2005), which recognise sexual violence within the scope of domestic violence, for seeking civil remedies. More importantly, they hold that marital rape can be addressed only by directly confronting the heteropatriarchal institution of marriage itself.

Marital rape should be grounds for divorce rather than a crime carrying a greater punishment than routine non-sexual physical and mental abuse within marriage. The mystification of sexual violence as a special, more devastating kind of violence is contested.

Rape by state security forces

Rape is not only about individual or private acts of misogynist violence. Feminists have long been concerned with sexual violence as a weapon of war and as part of a wider repertoire of race, communal and caste violence. Large parts of the country are under effective army rule, most Northeastern states and Kashmir being covered by the Armed Forces Special Powers Act. It is well documented by fact-finding reports that sexual violence against women activists and against relatives of men suspected to be militants have been carried out by members of the Indian state’s armed forces.

Also read: Haryana, No Country for Women, Old or Young

In the tribal regions of central India under Maoists influence, state forces have used, among other means, rape of tribal women to discipline local populations suspected to be Maoist sympathisers. These too have been investigated by democratic rights groups and feminists. To Indian feminists, therefore, the recognition of rape as a political weapon is inescapable. However, the 2013 amendment continues to reject the idea that such cases should be tried under domestic criminal law.

Statutory minimum punishment and death penalty

The reason why feminist legal activists insisted on a minimum punishment was misuse of discretion by judges. Judges often reduced sentences citing grounds such as the rapist’s ‘good family’, his high educational qualifications or the woman’s past sexual conduct. Discretion in rape sentencing tended to be influenced by the patriarchal understanding that rape is primarily an offence against the family.

The seven-year minimum punishment, alongside the expanded definition of rape in the new law, is problematic. Feminists did not envisage such a long prison term as minimum punishment, both from the point of view of justice as well as because harsher punishments result in a higher rate of acquittals.

As for the death penalty, feminists in India oppose it in principle, recognising the right to life and refusing to give the state the power to take life in the name of women’s safety. Rape cultures must be addressed, feminists insist, in more painstaking and structurally transformative ways. Such a draconian punishment for rape also reinforces the patriarchal idea that rape is a fate worse than death. Moreover, in India, studies have shown that the death penalty is disproportionately faced by men (and some women) of marginalised communities and castes.

Gender neutrality

The debate on gender neutrality arises because on the one hand, feminists assume woman to be the subject of feminist politics, while on the other, queer-inflected feminism opens up the question of subjectivity in destabilising ways.

From the first position, feminist practice recognises patriarchy as an ordering system that systemically disempowers women; from the second, questions arise about how ‘men’ and ‘women’ are produced, thus opening up potentially multi-gendered subjects of feminist politics.

Queer feminist activists had proposed gender neutrality with regard to the victim, so that rapes of men, boys, transgender people and hijras can be taken into account. Although the perpetrator is generally male, in cases of custodial rape or rape in the context of a clear power situation, the perpetrator may be female, so gender neutrality was also proposed for the perpetrator in such contexts.

Also read: ‘I Am a Girl, But I Was Sold Off Like Cattle’

Gender neutrality for all perpetrators is not acceptable to most feminists for they legitimately feel  that women who file complaints of rape could have counter-complaints filed against them by the rapists, or that women would be accused of rape in violent patriarchal family situations.

The 2013 law, unaffected by these debates, retains sex-specific perpetrators (male) and victims (female), thus refusing to recognise sexual assault on men and transgender people

Expanded definition of rape

The expanded definition of rape in the new law is not accompanied by any gradation of different offences in terms of severity of violence or the nature of violence. Joining together different forms of sexual assault as rape in the same sentencing structure essentially means that every offence in that list from ‘touching the vagina, penis, anus or breast of a person without consent’ to forcible penetration, can potentially be awarded the maximum sentence.

Under a system in which you are either guilty or not guilty of a crime called rape, with a high penalty, the prospects of conviction are so low that most defendants plead not guilty. And the ‘not guilty’ plea is inevitably accompanied by large-scale character assassination of the complainant.

Most importantly, the word ‘rape’ is extremely fraught and often does not match victims’ own assessment of what they have undergone, as a result of which they may take time to recognise their own violation.

Many feminists believe that the expansion of the definition of sexual assault should be accompanied by two other amendments:

  • the removal of the word ‘rape’ from the legal lexicon, replacing it with ‘criminal sexual conduct’ of varying degrees, and
  • a graded sentencing structure, with the sentencing for each degree varying according to the severity of the assault.

The Protection of Children from Sexual Offences Act (POCSO 2012), which deals with child sexual abuse, also expands what constitutes sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, thus collapsing of all forms of sexual violence into one kind of crime.

Also read: Talking About #MeToo – a List of Definitions

These new laws on sexual assault thus expand the definition of the crime, but give no thought to graded sentencing.

Raising of age of consent

Feminists criticise raising of the age of consent to 18 by POCSO Act (2012) and the amended rape law of 2013 for its criminalising of juvenile sexuality, reflecting patriarchal values and the premium on strictly marital sex.

Evidently, the law is incapable of reflecting the fluid and contextual feminist understanding of sexuality and violence, balanced as it is on the tightrope of sexual agency alongside the ever present possibility of victimhood. The law alone, thus, cannot bring about feminist justice. The final part of this essay will address this question more closely through the issue of sexual harassment.

Nivedita Menon is a professor at Jawaharlal Nehru University, New Delhi.