Rape isn’t rape

There are relics of colonial rule which we as a country seem desperately to want to cling to. The criminalisation of homosexuality is a perverse case in point, with the highest court in the land seemingly holding one fuck-awful section of the IPC a century and a half old above constitutional rights to freedom, dignity, privacy, life. The party which will presumably rule this country for the next five years has said it will continue this mockery of human dignity.

We’ve just been given another glimpse of what may be to come. A Delhi court has ruled that a man cannot rape his wife, lack of consent and the use of force be damned:

“The girl was more than 21-years-old at the time. Thus the girl and accused being legally-wedded husband and wife and the girl being a major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the youth,” Additional Sessions Judge Virender Bhat said while absolving the youth of the charge of rape.

I know none of the particulars of the case, and the NDTV article does nothing at all to make anything clear (the woman met her husband in December 2013, but the marriage was solemnised in March 2013?). But what the judge said in his ruling will harm more than just this poor woman. This ruling will become another in the list of cases where nothing was found wrong with marital rape.

The judge is, strictly, correct. According to what is the law today, a man cannot legally rape his wife if she is an adult. (But, you say, how can a woman even be married if she isn’t an adult? The law until 2010 said that age limit was 15. Raising the age to 18 was the ‘compromise’ Indian lawmakers struck.)

Isn’t it time we fixed this stupid law? Sexual violence against women is staggeringly common(fn1). And a significant majority of the instances of sexual violence are committed by acquaintances. I don’t know what fraction is marital rape, but surely the only acceptable number is zero. (fn2)

I can’t imagine what the woman must have gone through. And she’s among the lucky ones who can get a case registered and take it to court. For every one of her, there are many others who either can’t or don’t report sexual violence against them, or aren’t even taken seriously enough to be given a hearing. (fn3) Or, if they are, they’re put through mind-numbing ordeals.

HT: Srikanth, who pointed me to the court ruling and hopes the Supreme Court will do something about this.

---

Footnotes:

1) One in three women will face some sort of sexual assault in her lifetime. That number is just depressing.

2) Two-thirds of rapes are committed by people who aren’t strangers to the victims. The page at the link also says 28% of rapes are by an intimate.

3) 60% of sexual assaults aren’t reported. 97% of the accused will never serve jail time. India’s conviction rate (for cases that are actually reported) is 24%.

The abuse of a raped woman

When I wrote about Mulayam Singh Yadav and his ‘boys will be boys’ speech, I was trying to make the point that while Mulayam Yadav is an ignorant asshole, his views on sexual violence are representative of our culture of victim-blaming; that how the country’s law-enforcement and medical establishment treats victims of rape is symptomatic of this culture.

This misogyny is also inherent in the way we legally define rape. Indian law defines sexual violence in terms of whether the “modesty” of a woman has been “outraged”. Why every woman must be “modest” is something nobody writing the law seems to have bothered to ask. The worst manifestation of this lunacy was the two-finger test to determine whether a woman reporting that she’s been raped is ‘habituated to sex’. I say was; it was standard procedure until about a month ago; I have no doubt that there are doctors who haven’t got the memo. [Emphasis added.]

I suppose I shouldn’t be surprised that what I said I feared might happen is now happening to a woman in Kolkata. She is now the victim of an establishment that not only fails to provide adequate care or support, but on the contrary seems to be accusing her of making it up (the joint police commissioner of Kolkata has apparently held press conferences where he has said he finds the victims statements inconsistent). She has also been at the mercy of a doctor who clearly didn’t get the memo about what not to do during a medical examination of a victim of sexual abuse:

[…] the doctor asked the victim a few questions and took a vaginal swab which he gave to the police for forensic examination. However, the detailed protocols as mandated by the MoHFW guidelines (page 23-36) were not followed. Some key specimen (like pubic hair samples) were not collected/looker for and some outdated and irrelevant information (relating to the hymen, elasticity of vagina, admissibility of fingers etc.) was noted on the ‘report’ – clearly flouting the March 19 guidelines, which make us believe that the doctor who performed the preliminary examination is not aware of the MoHFW guidelines and protocols.

[…]
Besides, no steps were taken for the victim’s medical care, and health concerns. No urine test or testing for HIV was done and no psychosocial care was offered. When she requested the doctor to take samples/pictures of fingerprints of the culprit that might still be there on specific places of her body she was curtly told that the doctor knows what he is supposed to do. The doctor did not even use the correct and detailed form to record details of the medical examination. (page 62, MoHFW guidelines). It appeared that the hospital does not have a copy of either the new guidelines or the correct form.

That there are doctors who haven’t kept up with the law isn’t surprising. That this is happening in Kolkata’s second biggest government hospital is. That the doctor is either so much of an ass or so cynical that he can barely go through the motions even when faced with a woman who has been raped is both surprising and shocking.

I dare not imagine what the situation is in small towns and villages.

Here she is, a politically aware, intelligent and brave young woman who was lucky to have so much immediate support from her student comrades and women’s organizations. Even she has to experience so many hurdles and so much of stigma and maligning attempts, just during the immediate aftermath of her traumatic experience. Justice remains elusive as ever. Her father wants justice for his daughter, but is extremely skeptical about the prospect of justice, going by the prevailing standards and conviction rates. One can imagine what women of lesser privilege and in places where even basic medico-legal infrastructure are missing, go through. Justice is a lottery.

From Kavitha, who pointed me to the Kafila article.

Some thoughts on living in India and Sri Lanka

I started writing again on the blog about a month ago, after a hiatus of almost a year. Many things happened while I was away, not the least interesting of which was my voyage to the middle of the Bay of Bengal and my trip through Sri Lanka. Sri Lanka is a wonderful country in many ways, and the week or so I spent there was thoroughly enjoyable. I wrote the following while I was in Sri Lanka, circa December 15, 2013, and sent it to a few people I thought might be interested. I haven’t attempted to edit the essay from then.

---

 

I guess most of you know about this, but the supreme court of India judgement on section 377 was handed down a few days ago. The supreme court reversed the stance of the Delhi high court that 377 has to be struck down because what happens in private between consenting adults cannot be punishable. Sri Lanka is very similar to India when it comes to how it deals with homosexuality. There is no gay-marriage, no civil unions. And, says wikipedia, there is a Sri Lankan law (like 377 a relic from the colonial age) that prohibits “grossly indecent” behaviour, something that’s conveniently left undefined (again, just like 377’s language of “against nature”).

What you may not know about the case is that nobody has ever been convicted under either the Sri Lankan law or the Indian law that make homosexuality punishable… Which is what makes the supreme court’s decision that much more frustrating. The court is seemingly saying that no matter how obviously unconstitutional a law in the (seriously outdated) book is, they will not strike it down, asking instead that Parliament pass a law amending section 377.

Jurisprudence comes in a spectrum, I guess, and there’s a case to be made against judicial activism (to wit: it interferes with the separation of powers). But judicial activism isn’t what we’re talking about here. Unless the supreme court of India professes to believing that every section of the IPC written in 1860 is magically compatible with the Indian constitution (i.e. that the Indian constitution is somehow magically backward-compatible with every section of the IPC), some parts of the IPC are going to be unconstitutional and it’s somebody’s job to clean up the mess. Shouldn’t it be the courts–the interpreters of the constitution–that do the striking down of decrepit laws when such laws are brought to their notice? Not that the supreme court is consistent in the matter of whether judicial activism is good or bad, by the way. In the 2G spectrum case, the court not only annulled what the government had done, but basically wrote procedure for an arm of the executive (saying public auction is the way to go, or else).

The mention of Sri Lanka comes from this: I’ve been in Colombo for less than three days now (a day and a half before I left for the ship, and today since the afternoon after I got back). I’d heard very good things about Sri Lanka before I came here. I also knew that Sri Lanka outranks India and the rest of the South Asia region by far when it comes to human development, even though Sri Lanka only has two-thirds the per-capita GDP of India.

The HDI shows on the streets of Colombo, I don’t think I’m being (very) obtuse in saying.

I went out drinking with friends from the ship tonight. Bars in Colombo are open until 12:30, clubs until 2:30am. There were no signs of the crowd thinning when we left the bar at close to midnight. The woman in the group says she didn’t feel a creepy stare because she was drinking or smoking or out past a ‘respectable’ time, I guess because she was by no means the only woman around. We went around midnight to a pier next to the bar. We again saw men and women of assorted ages at the pier, and no cops asking them why they were there. I took a bus (several of which run even past midnight) to my hostel from the bar. The cops were in their posts on the highway the bus takes checking for drunk driving, a vastly better use of police manpower than accosting people on the beach. I’ve also noticed that cars on Colombo’s streets stop for pedestrians instead of threatening to run them down (and everybody obeys traffic signals, which to somebody from Hyderabad means more than you think).

In summation, then, two points. First the obvious preach to the choir:

Colombo isn’t a cesspool of vice for allowing it’s bars to be open past 11. Or for allowing its women the freedom to do what they want. Or for making its policemen do what they’re meant to do.

Secondly, all this has still not meant that Sri Lanka’s “section 377” is struck down. a) The gift of colonialism just keeps on giving. b) Popular opinion can change this in a hurry, one hopes, given how quickly progress has happened in the US recently. (Obvious caveat: the US was dealing with gay marriage rights, not gay existence rights.)

PS: The highest contribution to India’s HDI is from health, apparently. Which to anybody who knows what government healthcare in India looks like would be funny if it weren’t tragic. Our education index is well below our already pitiful overall HDI; Sri Lanka’s education index is on par with its overall HDI.