Jurisprudence is the theory of the relation between the lives of citizens and the law of the land. The ideal jurisprudence for India’s women would be one that treats our actual lived experiences of violation on par with men’s, while interpreting the laws and deciding culpability. Obviously this is yet to happen. The long vegetative existence of Aruna Shanbaug and Nirbhaya, both victims of most brutal rape, and the trials conducted thereafter, reveal that in the eyes of our civil society and law, the male view on the issue of crimes against women still remains the sole objective standard in police stations and courts of law.
Even after the recent amendments in law, when deliberating over issues of sexual access to women and their consent, the courts appear to be guided often by accepted family and kinship rules and traditional sexual mores laid down over centuries by men. So even under the law the final articulation of what is deemed a violent encounter and invasion of an unwilling female victim’s body by a man (whether inside or outside the home), will keep women’s epistemy out and confirm the cultural sanctions that make such crimes possible. The violated victim’s life circumstances and her experience of the actual sexual encounter may vary vastly from the male version being debated, but more often than not it will go unrecorded and remain invisible in the case diaries written by policemen sharing their cultural values with the civil society.
Repeated humiliations
In the case of Aruna Shanbaug’s rape by a ward boy (who strangled her with a dog chain before raping her anally and leaving her brain dead), the matter was first deliberated upon internally by males in authority, who were wary of the nature of the crime stigmatising the institution. It was finally reported to the police as a brutal physical attack and theft of jewellery by the accused and argued in the courts of law along those lines alone. Since according to the then prevalent version of the rape laws, forced anal sex did not qualify as rape, the perp was finally awarded sentences based on the charges of attack and theft filed by the hospital. Having served the term, he was for long untraceable, and we are told will remain free because he cannot be tried twice for the same crime. And besides, as one of Marlowe’s characters said, the wench is dead.
Aruna, abandoned by her family and fiancé, spent the remaining 42 years of her life in a hospital room in deep coma. Pinky Virani, a feisty journalist who recorded her sordid story and meaningless vegetative life in detail, petitioned the court for allowing her painful life to be terminated on compassionate grounds. The request was turned down. Nirbhaya was supported by her family but died shortly after being assaulted and the jury is still out on a juvenile rapist from the gang that assaulted her.
It is true no law gives a right to males to rape females. No law gives the right to males to rape their wives or daughters or daughters-in-law either. But gang rapes and incest happen and despite a noticeable increase in all such cases, the state has yet to have a law that can systematically intervene or spell out clear terms for barring a proven perpetrator’s authority and access to females. One can say there is no law to silence the victims. It is not necessary, since attackers have already taken care to silence them physically or by repeated verbal threats. Even after a few women and girls survive to tell the tale, many are first silenced by their own families, fearful of a bad name. At the thanas, where the local police will first blame the victim taking her as one with a questionable character, they are again deprived of the right to assert their version as being the true one. And if they cross this hurdle, many can be rendered speechless in courts that push her to use an unspeakable vocabulary and describe what was done to her while the audiences titter again and again.
After such repeated humiliations how can a woman assert her right to be heard on par with the rapist?
You get the picture.
Prejudice at home
The family remains the first and biggest bulwark against an impartial hearing of crimes against women. And home is where most sexual crimes are committed by men who are mostly known to the victims. Even after the family chooses to support the victim and seek out help, sexist quips from political and religious leaders begin to be hurled at her. They stigmatise and question the victim’s character and lifestyle without ever having met her, and imply that it is not the men but young women’s increased social visibility and mobility and their promiscuous lives that are to be blamed. Taken together in the context of other laws pertaining to sexual misconduct (including the obscenity and abortion laws), these retrograde views blaming the victims of rape, sex trafficking and domestic violence, one realises how little about sexual crimes against women is defined and adjudicated, using the victims’ own experience and her rights as a human being.
It is time those endless debates, beloved of prime time TV shows between conservatives and liberals, artists and philistines, virgins and whores, forces of oppression and liberation, rage and tolerance, are superseded once and for all by a political abolistionist debate: are women equal as human beings or not? It is only then that one can expect work to begin on the crafting of a feminist theory of state.
This article first appeared on Mrinal Pande's blog Mrinal Baithak.
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Even after the recent amendments in law, when deliberating over issues of sexual access to women and their consent, the courts appear to be guided often by accepted family and kinship rules and traditional sexual mores laid down over centuries by men. So even under the law the final articulation of what is deemed a violent encounter and invasion of an unwilling female victim’s body by a man (whether inside or outside the home), will keep women’s epistemy out and confirm the cultural sanctions that make such crimes possible. The violated victim’s life circumstances and her experience of the actual sexual encounter may vary vastly from the male version being debated, but more often than not it will go unrecorded and remain invisible in the case diaries written by policemen sharing their cultural values with the civil society.
Repeated humiliations
In the case of Aruna Shanbaug’s rape by a ward boy (who strangled her with a dog chain before raping her anally and leaving her brain dead), the matter was first deliberated upon internally by males in authority, who were wary of the nature of the crime stigmatising the institution. It was finally reported to the police as a brutal physical attack and theft of jewellery by the accused and argued in the courts of law along those lines alone. Since according to the then prevalent version of the rape laws, forced anal sex did not qualify as rape, the perp was finally awarded sentences based on the charges of attack and theft filed by the hospital. Having served the term, he was for long untraceable, and we are told will remain free because he cannot be tried twice for the same crime. And besides, as one of Marlowe’s characters said, the wench is dead.
Aruna, abandoned by her family and fiancé, spent the remaining 42 years of her life in a hospital room in deep coma. Pinky Virani, a feisty journalist who recorded her sordid story and meaningless vegetative life in detail, petitioned the court for allowing her painful life to be terminated on compassionate grounds. The request was turned down. Nirbhaya was supported by her family but died shortly after being assaulted and the jury is still out on a juvenile rapist from the gang that assaulted her.
It is true no law gives a right to males to rape females. No law gives the right to males to rape their wives or daughters or daughters-in-law either. But gang rapes and incest happen and despite a noticeable increase in all such cases, the state has yet to have a law that can systematically intervene or spell out clear terms for barring a proven perpetrator’s authority and access to females. One can say there is no law to silence the victims. It is not necessary, since attackers have already taken care to silence them physically or by repeated verbal threats. Even after a few women and girls survive to tell the tale, many are first silenced by their own families, fearful of a bad name. At the thanas, where the local police will first blame the victim taking her as one with a questionable character, they are again deprived of the right to assert their version as being the true one. And if they cross this hurdle, many can be rendered speechless in courts that push her to use an unspeakable vocabulary and describe what was done to her while the audiences titter again and again.
After such repeated humiliations how can a woman assert her right to be heard on par with the rapist?
You get the picture.
Prejudice at home
The family remains the first and biggest bulwark against an impartial hearing of crimes against women. And home is where most sexual crimes are committed by men who are mostly known to the victims. Even after the family chooses to support the victim and seek out help, sexist quips from political and religious leaders begin to be hurled at her. They stigmatise and question the victim’s character and lifestyle without ever having met her, and imply that it is not the men but young women’s increased social visibility and mobility and their promiscuous lives that are to be blamed. Taken together in the context of other laws pertaining to sexual misconduct (including the obscenity and abortion laws), these retrograde views blaming the victims of rape, sex trafficking and domestic violence, one realises how little about sexual crimes against women is defined and adjudicated, using the victims’ own experience and her rights as a human being.
It is time those endless debates, beloved of prime time TV shows between conservatives and liberals, artists and philistines, virgins and whores, forces of oppression and liberation, rage and tolerance, are superseded once and for all by a political abolistionist debate: are women equal as human beings or not? It is only then that one can expect work to begin on the crafting of a feminist theory of state.
This article first appeared on Mrinal Pande's blog Mrinal Baithak.
