This is a revised version of an article that appeared in Seminar January 2014.
The past year is bookended by two extraordinary moments, both of them inspired by the courage and determination of young women who refused to take sexual violence as routine.
December 2012 – a young paramedic fought till her last breath for justice.
November 2013 – a law intern exposed the sexual assault she faced from a retired Judge and a Tehelka journalist taught Tarun Tejpal a long deferred lesson – No Means No.
The massive mobilization of public opinion around these incidents has reopened the question of ‘agency’ in familiar and unfamiliar ways.
Feminists have long asserted women’s agency in contexts of sexual violence by attempting to desexualize rape – in law and in everyday life. Taken out of patriarchal discourses of honour, rape is merely an act of violence that violates bodily integrity. This delicate balance between two opposing notions – on the one hand, that sexual violence has a distinctive character, it is more humiliating, more paralyzing than physically less harmful actions; and on the other, that sexual violence is merely another kind of physical violence – this is the razor’s edge occupied by feminist understandings of rape.
Poised in this breathtakingly liminal space, we find ourselves faced with articulations on agency from patriarchal and misogynist positions, while simultaneously engaging in an internal debate with other feminist voices.
Consider two kinds of positions that emerged in the aftermath of the charge of sexual assault made by the Tehelka journalist against its founder-editor Tarun Tejpal.
One, the increasingly confidently, even arrogantly, expressed view by some men, that sexuality and desire are natural and powerful instincts, that to repress them is to spell the death of creativity. That even innocent encounters now ran the risk of being labeled as harassment, that terrified men could now legitimately hesitate to employ women at all.
The other, from the opposite end of the spectrum, held that the complainant ought to have gone to the police and invoked the criminal law on rape; rather than seeing the act as she did, within the frame of sexual harassment at the workplace, and addressing her employer. The sharp criticism made by many feminists (and also supremely confident television anchors) followed leaked emails from the complainant to the Tehelka management, which detailed the exact nature of the violations. The criticism was directed at feminists who publicly took the stand that the complainant should have the room to decide whether and when to invoke the law.
This piece is written from that razor’s edge, addressing each of these positions, one celebrating heterosexual male agency and the other, the law.
Agency and the Lecher
Mehrotra, in what may be the most obnoxiously masculinist pronouncement in the entire sorry media spectacle, asks plaintively – “if a man offers to ‘go down’ on a woman – is he offering a submissive sexual favour or demanding one?…The bedroom has been criminalised.”
In this way, Mehrotra states with extreme clarity two main tenets of the perverse worldview of the entitled male. One – I will choose where to have sex, and wherever I have sex is my bedroom. If that space be a public elevator, so be it.
Two – It is my prerogative to offer a sexual favour or ask for one, to offer to be submissive or to be dominant. It is immaterial what the woman thinks of it, whether I repulse her, frighten her, leave her stone cold with boredom.
This is the framework within which most sexual violence and sexual harassment by acquaintances takes place, a heterosexual male framework which dissolves all distinctions between sex, desire and violence. Charu Nivedita in his piece, urges that Tarun Tejpal as a novelist be placed among ‘masters like Fyodor Dostoyevsky’. The purpose of this extraordinary recommendation it turns out, is to permit Tejpal into the hallowed ranks of eminent men who have had sex without the consent of the women involved, or with women so powerless that their consent was irrelevant – he lists Pablo Neruda, Karl Marx, Roman Polanski. Pablo Neruda’s own lyrical account is offered, of his rape of a Sri Lankan woman whose job was to carry his excrement away every morning. The other instances are Marx’s supposed child by his ‘maidservant’ and Roman Polanski’s sexual adventures with a thirteen year old girl. These are geniuses, is Charu Nivedita’s argument, should anybody really care what they did with their servants and their women?
The Marx instance is out of place here, for Helen Demuth was not his ‘maidservant’, but his housekeeper; the family’s friend and political ally, who later worked with Engels to execute Marx’s literary estate. There is no reason to believe that the relationship, if there was one, was not consensual. But that apart, two queries. First – what if we do not share his assessment of Tejpal’s genius? Are all men permitted these peccadilloes or only giants like Neruda and Polanski? And if we believe Tejpal to be an embarrassingly bad writer, can we legitimately bay for his blood?
Two – unlike with Neruda, in the case of Polanski and Tejpal the women involved have not faded into history, but have been inconveniently loud and demanding of justice. What are we to say to such women? Remind them of their assailants’ genius?
The most powerful response to such arguments is posed by Vikram Doctor from the margins – imagine a world in which men found the objects of their attraction to be ‘empowered, able and ready to react negatively to unwanted advances’. This isn’t a fantasy, says Doctor, but simple reality for gay men. ‘Gay men work and constantly interact with other men who they can’t assume would reciprocate if they made an advance’.
It’s a lesson straight men can learn from gay men – do not assume your own attractiveness to be irresistible. (A scenario that ideologues of male entitlement such as Mehrotra might like to consider is being forcibly detained – by a man – in an enclosed space, and insistently, ‘submissively’, being ‘offered’ oral sex.)
Agency and the Feminist
This kind of Hugh Hefnerian exaltation of heterosexual male desire (and only heterosexual male desire) by male self-styled intellectuals rankles all the more when one considers the dense and textured terrain that feminists have for long inhabited on the question of sexuality, desire and agency. There have been agonizing, complicated debates on these questions. The focus shifted from sexuality as violence in the 1980s, to sexuality as transgressive desire in the 1990s, and back again. We have debated whether pornography is necessarily violence against women, and rejected censorship for a variety of reasons. These reasons include the recognition that the discourse of ‘obscenity’ participates in right-wing policing of sexual desire and gives wide and arbitrary powers to the state. That the pro-censorship position focuses exclusively on the Author of images and words, ignoring the Reader who receives these in a multiplicity of ways, sometimes subverting the intention of the Author.
We argued that rather than banning ‘obscenity’ and ‘pornography’, we need to ensure the proliferation of feminist discourses of sexual pleasure and desire. But now, in the first decades of the new century we find ourselves rethinking the operations of power in the proliferation of pornography that is misogynist and violent; wondering about the implications of easy and inexpensive availability of such porn; and struggle to understand the layers of violence involved when a woman is not only beaten, but made to watch porn on mobile phones even as she is being raped, as happened in one of the gang rapes in 2013.
We woke up belatedly to the need to understand and deconstruct masculinity, to recognize that there are dominant and subordinate masculinities, and to ask what the relationship is between masculinities, patriarchies and femininities. We began to recognize that sex is not simply biological, that genders are many and fluid.
Through all of this, a related set of questions continue to trouble us regarding the role of the state and the law in dealing with sexual identities and sexual violence. Over the decades from the Open Letter on the infamous Mathura judgement by the Supreme Court (1979), innumerable draft legislations on sexual assault were prepared by different sections of the women’s movement, none of which were taken seriously by the legislature. These drafts, arising from intense discussion within the movement, tried to redress the utterly patriarchal law on rape at the time that recognized only penile penetration of the vagina as rape, while other forms of penetration came under ‘outraging a woman’s modesty’, a considerably lesser crime. (In one case of a three year old being penetrated by a finger, judges debated whether a small child could be held to have modesty at all.)
These debates since the 1980s have not been restricted to seminar rooms, nor did they originate there exclusively. In a recognizable dialectic between theory, practice and everyday life, the transformative collective power of challenges to patriarchy, misogyny and heteronormativity have percolated to ground level common sense. The decades since the 1980s have been marked by a range of interventions. Workshops in rural areas, mass political struggles on varied issues, discussions in urban classrooms – all of these have been the medium of circulation of such ideas, carried by activists, students and teachers, writers, parents and children of all genders.
The electrifying and massive protests that galvanized the country after the December 16th gang-rape and murder in 2012, both in big cities and in small towns, were a dramatic manifestation of this ground level transformation of common sense. Slogans and statements, (and not only in English), revealed feminist understandings about the autonomy and mobility of women. The young women on the street were militant and unafraid, there were as many men as women expressing their anger, and in their class composition the protesters seemed to range from lower middle class to middle class – they were by no means ‘upper class’ or elite.
This moment yielded two historical documents – a visionary report and a strange mishmash of a piece of legislation.
The Justice Verma Committee (JVC) Report of January 2013 was widely recognized as a paradigm shift in understanding sexual violence, reflecting the inputs of the women’s movement and queer movement among others.
The Criminal Law (Amendment) Act 2013 that followed, is an absurd anomalous thing, marked by an arrogant blindness towards the entire charged debate that preceded it, and deliberately ignoring the JVC Report
The JVC Report and the Criminal Law (Amendment) Act 2013
The JVC Report recommended recognition in law of marital rape and permitting the prosecution of members of the security forces accused of sexual assault and rape. The determination of ‘consent’ to any sexual act, it held, was not to be affected by the previous sexual experience of the victim or the relationship between the victim and the accused.
The definition of rape was to be changed. The crime of rape was retained as a separate offence but was expanded to include any non-consensual penetration of a sexual nature. The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault, the sexual nature of an act to be determined on the basis of the circumstances. New offences were to be recognized, such as verbal sexual assault, stalking and acid attack.
Most importantly, the JVC recommended gender-neutrality of the victim, but not of the perpetrator 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.
The Criminal Law Amendment Act 2013 is entirely different. It does not recognize marital rape, protects members of security forces from prosecution for sexual assault, and introduces the death penalty for rape, which was rejected by the JVC. It does accept the expanded definition of rape, but retains sex specific perpetrator (male) and victim (female). The Ordinance it replaced had swung to the other extreme – it had established the gender neutrality of the perpetrator, which, in a misogynist society with high levels of violence against women, would only further make women the target of the law rather than offering them protection. However, going back to seeing victims as only female is also problematic, for the new law thus refuses to recognize sexual assault on men and transgender people, and is deeply troubling from a queer feminist perspective.
Apart from all of this, the relevant issue for us here that 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. As Pratiksha Baxi pointed out in her critique of the Ordinance, a critique still valid for the Law that replaced it, clubbing 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.
Rethinking Rape in the Law
However, this is entirely in conflict with the feminist idea behind expanding the definition of sexual assault, which is meaningless unless accompanied, many feminists believe, by two other simultaneous amendments. These are
a)the removal of the word ‘rape’ from the legal lexicon, replacing it with ‘criminal sexual conduct’ of varying degrees; and second,
b) a graded sentencing structure.
Take for instance the legislation of the state of Michigan in the USA, which recognizes four degrees of Criminal Sexual Conduct. Each degree covers a range of sexual assaults, differentiated according to the amount of coercion used, whether or not penetration has taken place, the extent of physical injury inflicted and the age and incapacitation of the victim. The sentencing for each degree varies according to the severity of the assault. A first degree crime is a felony and can lead to a life sentence; a fourth degree crime is a misdemeanor and could result in two years in jail.
This offers an incentive for defendants to plead guilty to a charge of criminal sexual conduct of a lower degree, knowing that they could get a less severe sentence than if they pleaded not guilty and their claim was not upheld. Judges too, might be more willing to convict of a crime called ‘criminal sexual conduct in the third degree’ than to convict for ‘rape’.
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 – after all, even the December 16th rapists pleaded not guilty. So does Tejpal. And once the Not Guilty plea gets going, it is inevitably accompanied by large-scale character assassination of the complainant – a phenomenon we see in both the December 16th trial and in the run-up to the Tejpal trial.
Moreover, the word ‘rape’ is extremely fraught and often does not match victims’ own assessment of what they have undergone. As the Tehelka journalist said in a statement to the media:
Perhaps the hardest part of this unrelentingly painful experience has been my struggle with taxonomy. I don’t know if I am ready to see myself as a “rape victim”, or for my colleagues, friends, supporters and critics to see me thus. It is not the victim that categorizes crimes: it is the law…In this case, the law is clear: what Mr. Tejpal did to me falls within the legal definition of rape.
The new laws on sexual violence – what do they give us?
My argument then, is that the new laws on rape and sexual harassment effectively compromises two spaces. One that was opened up by the Vishakha guidelines, to recognize sexual harassment at the workplace as a civil offence, and two, the space for complainants to decide their course of action in their own time.
When she was assaulted by Tejpal during an official function, the complainant saw it as sexual harassment at the workplace, and started the process of pushing Tehelka management to institute a committee according to Supreme Court guidelines. Tejpal, under pressure from her relentless attacks on his version of events, conceded and confessed to most of what she charged him with. A scenario was emerging in which the complainant was gradually driving Tejpal and the Managing Editor of Tehelka, Shoma Chaudhuri, into a public acknowledgement, a properly constituted enquiry and appropriate punishment. Up to this point, the complainant had some degree of control over how far and where to take her campaign.
But in the hollow din and blinding lights of the media circus that had erupted after the emails leaked, increasingly the question began to be asked from left and right – if this act is rape according to the new law, why is she not going to the police? Why are the feminists speaking publicly on the issue, not pushing for police action? And sure enough, the Goa police soon took suo moto action, with an alacrity not normally shown by Indian police in such matters, and after that, the complainant had no control over the progress of the issue at all. The rapidity of the progress of this case of course, is not matched in other instances. In general, once the police take over, complainants must resign themselves to the endlessly prolonged processes entailed, as opposed to the relatively quicker procedures of internal sexual harassment committees.
In the new law, what would previously have been understood by even feminists as ‘sexual assault’, is now ‘rape’. But more crucially, this new law makes it mandatory for doctors to report to the police, knowledge of a criminal sexual act, and failure to report is punishable by a prison sentence. This means that once a woman who has been sexually assaulted goes to a doctor, she has no more control over whether and when to take it to the police. The question arises, then, when women approach local organisations to report rape or sexual harassment, and seek some recourse without going to the police, do the organizations become liable if they respect the woman’s wishes? This possibility has made many feminists extremely uneasy.
However, among other sections of feminists, there is a general assumption of the need for such a requirement, which in my opinion reflects an unreflective statism that sees as legitimate, only legal action as a form of justice for the complainant. Reflecting this understanding, the National Commission of Women (who cannot – I hasten to clarify – be accused of being feminists) summoned the Tehelka journalist’s friends to explain why they did not betray her trust in them and report her confidences to the police immediately.
The assumption that the only legitimate recourse for a complainant is to invoke the law is in my opinion, a betrayal of the feminist ethic of respecting the agency of the victims and survivors of sexual assault. Of course, in cases of rape during caste and communal violence and state repression, we would understand the ‘agency’ of raped women very differently, recognizing the power of the overarching structures of violence involved, and large-scale intimidation. Surely this kind of fine-tuned and contextual understanding is precisely in keeping with feminist ethics?
In short, the Criminal Law (Amendment) Act 2013 is more stringent regarding sexual violence, fails to recognize sexual violence against men and transgender people, and it may result in fewer convictions in the future, as has been the experience world-wide, with laws that are more ‘stringent’ in terms of punishment and less sensitive to context and power relations. Despite the evidence against Tejpal available in his own words, we have, after all, no idea what will happen once the matter reaches the courts. Trials for ‘Rape’ tend to have their own immutable scripts.
Equally disturbingly, the new law on Sexual Harassment that came into force from December 9, 2013, in which sexual harassment is still treated as a civil offence, may have to be brought into harmony with the Criminal Law Amendment Act 2013, as many of the situations previously described as ‘sexual harassment’ have now become forms of sexual violence under the latter. This would make many acts of sexual harassment at the workplace too, criminal offences. In such a scenario, women (and men) would be more reluctant to complain. If every complaint mandatorily involves the law, it would essentially mean running the gauntlet of the all too familiar procedures of police investigations and court procedures.
More significantly, the crucial legal distinction between a civil and criminal offence is that in the former, probability is enough to uphold the complaint; while the latter requires proof beyond a reasonable doubt. In cases of sexual harassment, the latter may be impossible to provide.
Making sexual violence ‘public’
What is it that we want, as feminists, in cases of sexual harassment and violence? Public acknowledgement of the act, the violator’s punishment, a sense of closure and justice for the complainant. All of this to be carried out in close accordance with the complainant’s wishes, so that s/he can control, to the extent possible, the pace of the process and the lengths to which s/he wants to take it.
But what constitutes ‘making public’?
One can ‘make public’ in two ways. One, by bringing into public discussion matters that derive their power from secrecy. This process can destabilize established notions of right and wrong, just and unjust, acceptable and non-acceptable behavior. The other way of ‘making public’ is through making something subject to legislative and state action.
It seems to me that feminist politics has often conflated the two – ‘making public’ is seen to be effective only when legislative action is taken. This recourse rarely achieves the purpose of transforming social practices inimical to women, while the former may achieve more in terms of revolutionizing common sense. For instance, a university student demanded and got from her department, the public humiliation of her supervisor who molested her – he had to tender a written and oral apology to her before the entire gathered department, and was of course, removed as her supervisor. She did not want it taken to the sexual harassment committee, and her wishes were respected. In what way is she worse off than a student who did take such a matter to the sexual harassment committee of the same university, the report of which is being suppressed by the administration, while ‘confidentiality’ ensures he cannot be publicly named and identified? And how worse off is she from the woman caught in the travails of the law only to find her rapist acquitted because she was not a virgin?
In other words, proponents of the law as the only legitimate recourse, usually counter-pose a best case scenario under the law to a worst case scenario under other ways of trying to get justice. But of course, we need to weigh comparable scenarios.
As Vrinda Grover, indefatigable human rights lawyer, put it:
[T]he criminal prosecution route is not superior to or more valid or more legitimate, than other ways of seeking accountability. Breaking the silence…is the biggest challenge to impunity… I engage with law making processes and law reform so that law may enable women to have greater control over their lives…Not for law to overtake my life… Where intimidation, coercion, or power dissuades them from prosecuting the accused, I see it as our role to weigh in on her side and create access for her. There are however women who find other forms of closure and resolution.
I suggest that a feminist practice of justice should be ready to play off eclectically, various systems of regulation against one another depending on the situation – laws against rules, rules against laws, judicial orders against government. Sometimes, perhaps, none of these. In some contexts with strong public cultures of accountability, a small democratic community (like a department in a university) might be able to intervene more effectively than more distant rules or laws. Above all, we should work towards empowering complainants to work out the best way of dealing with situations of sexual harassment/assault.
If the existing laws restrict the agency of the complainant, we need to change them.
Two final questions
Do we need to rethink the function of ‘confidentiality’? Often it is the perpetrators of sexual violence who benefit from confidentiality. In the case of Tarun Tejpal for example, had the email exchanges not been leaked, there would have been the usual obfuscations around consent and what exactly transpired. There still are those obfuscations, but at least the other narrative is also available in the public domain. Should it not be the complainant’s prerogative to decide on confidentiality?
Most importantly, why, why why, is rape and sexual assault in India dealt with by successive amendments to a 155 year old colonial law? Its longevity is celebrated by some, of course. The Chief Justice of the Supreme Court of the United Kingdom, Lord Nicholas Addison Phillips said at a function held in India to commemorate 150 years of the Indian Penal Code:
It is amazing that Indian Penal Code has survived 150 years, and credit for this goes to Lord Macaulay, who must have closely studied Indian society while drafting it.
Yes indeed, Macaulay has long been recognized for his sensitive and nuanced understanding of Indian society. As have the Brown Sahibs who succeeded him.
Instead of continuously tinkering with the existing outdated, two century old criminal law on rape, we need freshly drafted legislation reflecting widest possible consultations among the citizenry, especially different sections of the women’s movement, that reflects contemporary understandings on what constitutes sexual violence.
And while that process is on, the most urgent requirement is the immediate repeal of Section 377 that criminalizes consensual sex between people of the same sex.
I am indebted to Pratiksha Baxi and Vrinda Grover for indispensable discussions on the features of the new laws. However, the views expressed here are my own, and should not be seen to implicate them in any way.
 Palash Krishna Mehrotra ‘Men under a state of seige’ India Today December 1, 2013; Charu Nivedita ‘The writer and the alchemy of desire’ Asian Age November 27, 2013