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Opinion
MARGINALIA
Rape as Metaphor: Learnings on the road to justice
By Pamela Philipose
Let’s go back to a not-so-long-ago time when the law in its majesty perceived rape as just another petty crime. A time when it was the raped woman who was largely judged the guilty party. A time when no attempt was made to protect the rape survivor’s identity despite the stigma she suffered; when it was easy to claim the woman had “consented” to a forced sexual act because there were no bruises on her body; when it was presumed that a woman must have consented given her past sexual history. A time when rapes by policemen were not considered extraordinary; when it was not a crime for a man to rape a woman he was separated from; when the rape of a transgender person was not considered so. A time when the penetration of a woman’s body with objects like rods and bottles was not deemed as rape, and when acid throwing, voyeurism, stalking, and stripping were viewed merely as attempts to “outrage the modesty” of a woman.

The changes plotted could not have come about without decades of hard work, thought, deliberation and mobilisation by women, the majority of who remain nameless and faceless. The crime of rape has been one of the biggest drivers of women’s activism in India. Think of some of those who brought us on to the streets, provoked us to question, prodded us to seek justice. They had names like Mathura, Rameeza Bi, Maya Tyagi, Aruna, Priyadarshini, Bilkis Bano, Manorama, Scarlett… and innumerable others, some of whom bore no name. Their experiences tested notions of rights and freedoms; challenged easy assumptions about justice, about love, about sexuality, about marriage; questioned the wisdom of those who sit in judgment over us in our courts and legislate on our behalf in our assemblies. Most of all, it forced us to understand the links between our bodies, our selves and society.

So let us look at the many ways the crime of rape changed our world view. The most basic principle driven home was that rape was a violation of a woman’s human rights. This was what prompted four law professors to publicly protest the Supreme Court verdict of 1979 on the Mathura rape case (Tukaram versus the State of Maharashtra), where two policemen raped a 14-year-old girl within the precincts of a police station and India’s highest court pronounced them innocent. The professors wrote in response: “Your Lordship, this is an extraordinary decision sacrificing human rights of women…” One observation in the apex court’s verdict, redolent with patriarchal presumption, held that the “alleged intercourse was a peaceful affair” because the girl bore no bruises on her body. In response to this, the professors had retorted that ‘submission’ cannot be deemed as ‘consent’.

That case and others that followed it established for the first time that rape is not a private issue but a matter of public interest and women’s organisations were granted the locus standi to move a court in a rape trial. Over a period of time many norms were established, including the recognition that the raped person’s past sexual history should have no bearing on judicial verdicts; that peno-vaginal penetration is not the only way a person can be raped; that demeaning and hostile investigation and cross examination are unacceptable.

This brought us to the central issue of a woman’s right to her body and bodily integrity. Strange as it may sound, Indian women do not enjoy that unfettered right even today. Men can rape their wives and have immunity from prosecution on the basis of their status as husbands. Their ‘right to rape’ has been upheld by the courts and several of our parliamentarians recently argued that treating marital rape as a sexual offence would go against the “traditional family system in India”. But should a spousal relationship based on violence and disrespect be considered part of the “traditional family system in India” and, if so, what does it say about those so-called “traditions”? The crime of rape, in fact, persuaded the women of the country to take a more critical look at the institution of marriage. Dowry deaths and domestic violence, once veiled by the curtains of domesticity, now came into view in all their ugliness.

We also learnt as we went along that it is not the raped woman who has been ‘dishonoured’ by the rape but larger society that allowed it to occur. It is not the woman who has been shamed, but a criminal justice system and political establishment that cannot guarantee justice for her. We learnt to understand the difference between being a ‘victim’ of rape, or allowing oneself to be destroyed by the crime; and being a ‘survivor’ of rape, and finding the mental and physical resources to recover, seek justice, lead a normal life. It’s not about being a ‘zinda laash’, or the living dead, as one Member of Parliament put it, but about remaining ‘zinda’ – alive – in all senses of the term.

Another important realisation that emerged in this journey of understanding was that rape can also be used as a weapon of subjugation and to cause terror in conflict zones or situations of communal frenzy. It also brought the awareness that such crimes are not random occurrences but part of a continuum of crimes against women in a patriarchal order. During a recent parliamentary debate, a male MP asked, “Who amongst us has not stalked?” He saw ‘stalking’ as a normal process of socialisation. But in fact stalkers are known to ruthlessly invade the privacy of a woman, even set upon her with acid, blades, guns. The man who raped and murdered Priyadarshini Mattoo in a Delhi neighbourhood in 1996 had stalked her relentlessly.

Stalking, then, is no harmless and romantic courtship ritual, just as rape itself is not an expression of love or lust but an exercise of power. Yet, we have had innumerable court verdicts that have referred to such attacks as expressions of lust, desire, even love. Take this purple passage from a Supreme Court verdict (Phul Singh vs State, 1980): “A philanderer of 22, overpowered by sex stress in excess, hoisted himself into his cousin’s house next door and in broad daylight overpowered this temptingly lovely prosecutrix of 24, Pushpa, raped her in hurried heat and made an urgent exit having fulfilled his erotic sortie.”

The utter fallibility of the guardians of the criminal justice system has been a major learning on this road to justice. While the women’s movement had demanded changes in the law and a more enlightened police and judiciary, it was also understood that laws too can be instruments of repression and control.

The unprecedented mobilisation that followed the Delhi gang rape of December 16, 2012, pushed the political establishment to pass the Criminal Law Amendment Act 2013 with some urgency. Certain aspects of the new law have been welcomed – especially the broadening of the ambit of crimes to include acid attacks, voyeurism, disrobing and stalking. That refusal by police to file FIRs would invite punishment is also an important addition.

But even as we recognise this, the words of caution from late legal doyen and feminist, Lotika Sarkar, need to be recalled. She urged women to shed their “excessive dependence on legislation”. As one of the signatories to that letter protesting the Supreme Court verdict on the Mathura rape case three decades earlier, Sarkar knew well the limitation of laws to bring about intrinsic social change and end the deeply embedded misogyny of Indian society. If that is to happen, respect for women – which by extension includes transgenders/transsexuals - and their right to bodily integrity, is a non-negotiable and the women’s movement would need to work towards that end. This long journey for justice must go on.

—(Women's Feature Service)


News Updated at : Sunday, April 14, 2013
 
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