Rinsing

I raised a lot of questions about a particular law in the last post, as an example of how the law does treat women as inferior to men. The law relating to rape assumes that everything apart from penis-vagina penetration is ‘unnatural’. It assumes that marriage is blanket consent to sexual intercourse. It assumes that consent to sexual intercourse can be given at the age of sixteen. It assumes that men cannot be raped. It assumes that the word of a rape victim is worth less than that of a rapist (or did, till quite recently). Because of these assumptions, child abuse is treated on par with rape. A married woman cannot prosecute her husband for rape. Men can never claim to have been raped. Because of them, only a small percentage of rapes that actually occur, even get reported, let alone prosecuted.

These assumptions reflect social mores that existed when the law was framed (and the social mores that exist even today), and those social mores are based on a gender imbalance of power. They reflect the norms of a patriarchal structure, in which men’s control over women, the idea that women’s ‘chastity’ reflected on the patriarch’s ‘honour’, are unquestioned. And by reflecting these norms and giving them sanction, the laws give them the support of State power, and reinforce the power structures of patriarchy.

Of course, I’ve only talked about one area of law, but this pattern of reinforcing patriarchal norms permeates all law. “Personal Laws” – those that govern marriage, divorce, succession, adoption and so on – aim primarily to codify social and religious practices, and it is only recently that the manner in which these social and religious practices discriminate against women have even become a matter of debate, let alone being addressed. Commercial laws are seen as neutral because they deal with commerce – and it is assumed that commerce is blind to gender. But we all know that is not true – even what we believe is ‘commercial activity’ is based on the acceptance of traditional gender roles. For instance, a person driving a car for another is engaged in commercial activity, but a person taking care of another’s child is usually not (a businessperson is entitled to claim a tax deduction for a driver’s salary, but the nanny’s salary is a ‘personal expense’ and not deductible). Labour laws, which are supposed to encourage women to join the formal labour market, again base themselves on traditional gender roles. Maternity leave is compulsory, paternity leave is not; childcare must be provided by any employer who employs more than a certain number of women.

All law is based on the assumption of a society in which people play roles that are assigned to them on the basis of their gender – a family where father is the head, mother stays at home and takes care of the house, and the children go to school – the family in a social studies textbook of not very long ago. It is not only based on those assumptions, it actively excludes people who don’t fit into this pattern, perpetuating power imbalances that ought not to exist.

It is in response to this structural patriarchy that the women’s movement responds, when it calls for changes in the law. Feminist calls for law reform are thus aimed at dismantling this hierarchical power structure. Let me caveat – feminism is not one school of thought, but many. So the solution to the problem of dismantling gender is not one, but manifold.

In any case, one thing is definitely not true – that feminism seeks to replace the existing power imbalance with another, in which women are on top. While it is true that feminism began with the women’s movement, and is focused on women’s empowerment, the idea that it threatens men is one that originates in the unimaginative mind; the mind that refuses to look beyond bipolar shifts of power, as if power is a scarce resource, over which men and women fight. This is the mind that constructs the feminist bogeywoman who comes to snatch power and rights from men, to leave them disempowered and impotent.

The opening of imagination to the possibility that redressing gender imbalances, overthrowing traditional gender roles, frees all people to exploit their potential to the full, is what I will explore in the next post.

Dyeing

In the last post, I wrote of recognition. Since I’m a lawyer, it isn’t surprising that the form of recognition I seek to address is legal recognition – does the law treat women as individuals, no less worthy than men, no less entitled to the protection and resources of the State? The answer, sadly, is that it doesn’t.

We could, of course, ask why that is so: delve into history, into sociology, into economics or political science. We could find reasons. But I happen to be of the view that no reason can justify the treatment of women as less than human, and so I won’t get into these numerous ‘reasons’. I won’t however, ask you to depend on my judgement that the law treats women as less than human – I propose to give you examples, and then, look at what we can do to change things.

Let’s start with one of the most contentious issues: rape law. The statute governing rape in India is very limited: sexual intercourse by a man with a woman without her consent is rape, except where the woman is his wife. Also, if the woman is less than sixteen years of age (or fourteen id they’re married), it is rape even if she consents. Penetration is sufficient to constitute sexual intercourse, as long as it is penetration of the vagina by the penis.

Thus, the crime of rape is limited to non-consensual sexual intercourse outside of marriage. Why not within marriage? Does marriage constitute all-encompassing consent to sex? Can a woman never say no to sex with her husband? Well, she can, but if he assaults her and forces her to have sex, it isn’t a crime. She has no redress under the law of rape. So the law treats marriage as a blanket consent to sex on part of the woman – isn’t that interesting?

Hmm. Non-consensual sexual intercourse, did you say? Why is it specified that it is non-consensual? Where there’s a non-sexual assault, the law treats it as a crime, without reference to consent on part of the victim. So, in a non-sexual assault, the law assumes either that no victim would actually consent to violence against their person, or that even if they did consent, it doesn’t matter, because the act of assault is punishable nonetheless. Why is this assumption not true of sexual assault? Is it because the law assumes that sexual intercourse between a man and a woman is inherently violent to the woman, and so consent or the lack thereof makes the difference between criminal and non-criminal sex? Isn’t that a silly assumption? Even if it were true, why should consent make a difference – if women are hurt, shouldn’t the law punish the person who hurt them?

Because the crime of rape is defined as sexual intercourse without consent, a person who alleges rape is required to prove that there was sexual intercourse and that it was without consent. How does one prove a lack of consent? Where it is the word of one person against another, in cases that don’t relate to sexual consent, the law looks to the surrounding circumstances for indications that one or the other is lying. In the case of rape, however, because rape is a crime, the previous ‘bad character’ of the accused is deemed to be irrelevant. The previous bad character of the victim is not specifically made irrelevant, and therefore, can influence the decision. This means that in a situation where you have to decide whether the accused is lying or the victim, only the victim’s character can be questioned in court. After many years of struggle, this law hasn’t really changed; the woman’s word is still worth less than the man’s.

Finally*, why is it that rape is only men forcing sexual intercourse on women? Can a woman sexually assault a man? Can’t a man sexually assault a man? Why is child abuse rape only if the victim is female? Isn’t it sexual assault, or forced or non-consensual sex of any kind, that ought to be criminalised? Doesn’t child abuse need treatment separate from non-consensual sex between adults? Why do we have to criminalise any form of consensual sex?

So, the law of rape is all fucked up. Does this mean all law is similarly skewed? That has to wait for the rest of the posts, so until then.

*Not because there isn’t more to say, but because this post is long already

Weaving

So, what’s common? What is it that weaves feminism together? There are many answers, but the one I like best is that it is a concern for women and a desire to see them recognised as complete human beings.

Perhaps because of feminism’s roots in the movement for women’s rights, the last part of that statement is important to me. Recognition. Recognition in the law, but not only there. Recognition in the minds of all people – men or women – that women are fully autonomous human beings. That they are entitled to all the things that men are entitled to. A presence in public spaces and fora, for instance.

And I’ll take that further in the next post – which, I promise, will not take as long to come up as this one.

Spinning*

I wrote this a while ago, and now I have to write something similar. In different circumstances, of course: those of you who’ve seen the commentspace on the previous post already know why.

You see, there’s a comment there that appears to be inspired by a fear of laws that the writer believes are biased towards women, and therefore (he reasons) put him and his freedoms at risk. The Domestic Violence Act is clearly referred to, and since the discussion started in a different context, there’s also a reference to sexual harassment, though not any specific law relating to it. There’s also some venom spewed at the feminists who are responsible for such laws. This post (and a couple to follow) is not intended to defend feminism; I don’t think the ‘attack’ is worth it. But the comment is based on some common misconceptions, and gives me a chance to air my views on them, once again.

Feminism, like all other ‘isms’ (and correct me if I’m wrong here), is an immensely complicated school of thought. The history of the feminist movement that is popularly related is one that places its roots firmly in the West, in the demand for equal rights and opportunities. In this telling of feminist history, the first wave of feminism was liberal feminism, which claimed equality for women in terms of their legal rights. Starting with a call for the education of women, and a claim for their right to formal political participation (the suffragette movement), liberal feminism emphasised (and still does) women’s claim to equality of formal legal rights and opportunity.

With the spread of radical thought (Marxism, for instance), feminist discourse tended to see gender as a structure of oppression, and press for a dismantling of that structure. The questioning of social gender roles was one aspect of this radical feminism; another was to bring to the fore how gender worked as an oppressive force not merely in the public sphere (which, in liberal theory, was the sphere in which the state, and laws, operated) but also in ‘private’, in social structures such as the family. Hence the opposition to the division of public from private. Parallel, perhaps, is the development of ‘cultural feminism’ or ‘difference feminism’, emphasising that women were equal but different from men; that formal legal equality would not suffice because it did not account for these differences. The origin of the differences may be biological or social, but the fact of their existence demands their recognition. “Equal treatment”, then, does not mean “same treatment”.

Feminism had/s much in common with other schools of thought that studied social oppression, and the complexity of social structures demands a critique that is much more nuanced than this post can give. What I want to emphasise, however is that there are many schools of thought that come within the feminist umbrella. More importantly, these are not independent, but interdependent schools of thought.

I think I shall leave “What, then, unites these schools?” to the next post.

*This post is trying to turn this blog into my FemJur class, save it, someone!

Victim Arrested

The last line of this makes no sense to me.

It’s absolutely wonderful that women are beating up their harassers, even if the reporter says “he allegedly raped…on the pretext of giving job to her husband” (what is a rape on a pretext?). And even if the reporter is at pains to make himself clear that the harassment is alleged, but writes as if the beating up is all proven fact, the fact that it’s being reported at all is cause for joy.

But place aside the reporters reportage and look at what the police have done* -

…including the victim labourer, who was criminally assaulted by Birajdar have also been arrested under various sections of IPC, police added.

*No, I have no objection to the police adding, only to them arresting victims.