VAW as an FoE Issue

Through the course of this year, I've had a number of conversations about VAW and FoE. About being anti-VAW but pro-FoE, and about how the two might interact. ...The conversations have resulted in my becoming increasingly convinced that the two simply do not compete, although to reach that conclusion, I’ve had to define my understanding of VAW in what could be considered to be narrow terms:

VAW includes any form of violence against one or more specific women; it does not include abuse against the idea of women. In other words, VAW includes targeted abuse but not, for example, non-targeted misogynist rants.

The reason I’ve had to separate the two forms of abuse – viz. targeted and non-targeted abuse – in my mind is simply because I see no other way to differentiate

claims that targeted abuse (such as verbal street harassment) is a form of free speech from the principle, easier (if not essential) to accept, that free speech includes the right to say what is unacceptable even if that involves proclaiming the truly nonsensical from every street corner (provided, arguably, that one’s proclamations are legal).

When it comes to free speech, I am entirely unconvinced that there is a coherent or convincing argument to be made to the effect that being abusive constitutes an exercise of the right to free speech – if there is such an argument in existence, it isn’t one I’ve come across. However, although it makes me uncomfortable, I do think that there is a free speech right to make sexist or misogynist statements although I don’t believe that right extends to making such statements without being challenged ...by others who are lucky enough to have a voice.

Having a voice is not the norm; ‘voice is a mark of privilege’, and the lack of voice not only adversely affects one’s credibility as Rebecca Solnit has pointed out but, it could reasonably be argued, also exposes one to greater abuse and discrimination. Which has led me to become increasingly convinced – even if it isn’t accepted wisdom – that VAW and free speech are inextricably linked issues with its being possible for the former to be subsumed within the latter. I’ve spoken along these lines earlier; ‘the essence of abuse, as I understand it, is to diminish the voice of another, and although the employment of different types of abuse or VAW can (and do) produce drastically different sets of consequences, the bottom line is that various forms of abuse all achieve the same end: diminishing the voice of the person(s) abused.’

Seen from this point of view, I’m not certain how VAW could, in essence, be anything other than a free speech issue.

VAW and the 'Call Cops' Theory

(Unproofed, unedited)
Incidentally, the use of the word 'victim' is deliberate.

The episode — let's call it that — began with assault and ended with an inability to access immediate healthcare, not because of the unavailability of healthcare but because a hospital didn’t want to provide healthcare without having the police involved. (And their desire for police involvement, incidentally, had nothing to do with the victim's interests or the desire to address crime against women in general; it had everything to do with ensuring they weren’t left ‘without a leg to stand on’ if the victim died.)

And that’s what is so problematic about enthusiasm to involve the police in instances of abuse regardless of the victim’s consent. The theory of VAW being an offence against the state and that the state must necessarily must take action has the potential to have horrifying real world consequences for victims, not least because state support for victims is non-existent for all practical purposes. Not to mention that the theory, in the wrong hands, could unarguably become a tool of abuse itself it did in the case of the hospital's willingness to provide treatment becoming linked to the victim's willingness to involve the police.

Even where the practical application of the theory is not overtly abusive, and it is employed with the best of intentions, it is still usually abusive in itself. The essence of abuse, after all, is to diminish the voice of another, and, although the employment of different types of abuse can produce drastically different sets of consequences, the bottom line is that emotional manipulation, rape, assault, or (as in this case) simply ignoring what the other person has to say all achieve the same end: diminishing that other person’s voice.

There are times where it is essential (or acceptable) to ignore another person’s voice. Possibly, when they refuse healthcare (although it’s worth noting that DNR requests are generally honoured). Facetiously, when keeping a five-year-old from having a litre of ice cream; questions of respecting an individual’s agency are particularly difficult to contend with when it comes to abuse. Too much respect for it could easily become the facilitation of the original abuse (especially where the abuse is ongoing), too little could become the appropriation of another person’s agency, a form of abuse in itself.

And, no. Regardless of state responsibility to address crime, there is no basis for saying or assuming or implying that the state has the right to possibly endanger persons who have been abused by taking unilateral action on their behalf, especially where it fails to provide support and safety for those victims of abuse whom it may co-opt into its plans to fight crime. Taking unilateral action where that action has the possibility of negative consequences for a victim whether it be the loss of a home or societal ostracism or something else along those lines is unacceptable, and these are often potential negative consequences which women have to deal with.

In addition to which, the legal process is quite simply painful to navigate. That it may be possible to (successfully) conduct a case without the participation of a victim is a possibility that is largely theoretical if the victim is alive. And if alive, there is almost no possibility, if in fact there is any at all, that a case will not impact the victim’s life — should it fail, there is a good chance that she will be branded a liar in the public eye, which of course will have its own set of consequences. And whether or not it fails, the likelihood of the process causing some form of retraumatisation is reasonably high.

It isn’t clear how, given the risks for victims, it is possible to argue that the state must take action in all cases even where the victim does not consent. It is even less clear how it is possible to argue that victims should be made to file police complaints; surely, there is nothing which legitimises forcing (or attempting to force) victims to do anything.

And, bearing in mind that none of us make any choice in a vacuum, while it is entirely possible that a victim’s choice may be influenced by persons pressurising her not to involve the police, it would seem indefensible to make oneself into an additional source of abuse by pressurising the victim to involve the police. If there are persons pressuring a victim to do anything, and one is aware of them, it would seem that the most sensible thing to do would be to act against those persons as opposed to acting against the victim.

If the state has a responsibility to initiate legal action against perpetrators of abuse in all cases, it also has a duty (along with society) to protect victims of abuse. Both society and state have failed in that duty — particularly society, to my mind, with its often seemingly endless vilification of women who have been abused, and its deep-rooted misogyny and patriarchy of which the ‘protection’ of (some) women (deemed good) is only an extension. (When was the last time you heard a clarion call to file cases on behalf of abused women who act in socially unacceptable ways; teenagers who are raped on dates, prostitutes who are raped by supposed clients, just for example?)

The discourse of ‘protection’ is quite different from a discourse of ‘rights’. ‘Protection’ is liable to subvert women’s agency and autonomy; it invariably assumes perpetrators of abuse from whom women must be protected and requires someone stronger than such perpetrators (i.e. the state) to act in the best interests of women, assuming a conservative paternal role itself and often circumscribing the freedom of women in the process. Unlike a rights discourse, it does not focus on women’s right not to be abused in the first place, and neither does it necessarily support women in their choice of how to deal with abuse should it occur.

And, unsurprisingly, the possibility of having no option but to involve the police can lead women not to report abuse at all to anyone, including friends and doctors, possibly depriving them of both psychological and medical support. Legal redress, in such circumstances, of course, becomes irrelevant.

If the aim is to fight violence against women as a whole (as opposed to controlling abused women), it would appear to make more sense to beef up state mechanisms both to address abuse and to support those who have been abused than to force victims to involve the cops. It appears inconceivable that there exist vast numbers of abused women who actively would not want their abusers to be made accountable if the abusers could be held accountable without negative consequences for the women themselves. And there appear to be no grounds whatsoever to believe that if systems were better, more victims would not choose to use legal means to counter abuse they have faced.

'Anti-Rape' Apps

I find the manner in which 'anti-rape' apps are being promoted bizarre. I don’t think that apps which allow women (or anyone else, really) to contact persons in case of an emergency are a bad idea at all. I do wish those marketing them were a little more realistic about what the apps are capable of achieving; it’s hard to believe that they’re anything along the lines of 'the best anti-rape weapons' around. Not when a stranger is the least likely person a woman is likely to be raped by. Not when the apps do nothing whatsoever to actually prevent rape.

Also, I find it telling that these apps don’t seem to connect directly to the police — they assume a woman has her own network to reach out and ‘protect’ her. Which, of course, may not always be the case.

It seems difficult to see how these apps help beyond alerting one's circle that there's a potential problem. Perhaps, once an alert is sent, they could also begin automatically recording whatever is going on to create a record?

On the abused Goddesses campaign

(First, unedited, unproofed draft, which will likely be edited later.)

A campaign against domestic violence using images of battered Hindu Goddesses has been subject to a reasonable amount of criticism, although, to my mind, much of the criticism against it appears to be some form of religious conservatism masquerading as feminism. Whilst that, of course, isn’t to say that the campaign is entirely unproblematic, it could be considered to indicate that some of the criticism is neither helpful nor unproblematic in itself.


If one were to look at the religious and free speech issues surrounding the campaign, without focussing on the campaign itself:

The question of whether deities should at all be used in a campaign against domestic violence is debatable. An argument could be made that it’s worth focussing on real women alive on Earth today, and not on celestial beings (i.e. Gods or Goddesses or even figures from mythology). Then again, it’s worth considering that women from Hindu myth — wives in particular — are often held up as examples of the ideal to real women today whether it’s the Sati-Savitri trope or the wonders of Sita. Admittedly, these don’t appear to be the Goddesses who feature in the campaign, although the fact that celestial women are so often invoked in real life could lead one to make the argument that it’s worth considering who these celestial women were, and what their lives were like (with the term ‘celestial women’ being used for brevity and to differentiate from ‘real women’.)

And that, of course, is what scholar after scholar, and novelist after novelist has done, albeit without imagery akin to the campaign. Feminist retellings of Hindu myth have been written often enough, and questions have also been raised about the writing of the great epics; the silence of the usually-eloquent Draupadi as she was handed over to five husbands, the tests of chastity which the ‘blameless’ Sita was put through by her husband. And if one were to look at Hindu myth, it isn’t hard to argue that the Gods, especially in their human form, sometimes made for truly terrible husbands whatever else their virtues may have been, and that even in their ‘true form’ they are often entrenched in patriarchal power structures which could, in themselves, arguably be considered to be abusive.

This leads to the primarily religious question of: ’Who gets to define what Hindu deities are like?’ Hinduism has always been remarkably ‘decentralised’, so to speak without there being any ‘central authority’. There is very little doubt that the Hindu right does not have the authority to dictate what Hinduism is or should be — after all, every time the Hindu right attempts to do so (particularly when it condemns art featuring nude Hindu Goddesses), there are no end to cries from the left to the effect that the Hindu right does not have a monopoly on defining the acceptable portrayal of deities, obviously invoking the importance of free speech and saying, “But this is how I see deities, or could see them.” It would, therefore, be difficult to construct a convincing argument that the left or that feminists or, really, anyone else has the exclusive right to define Hindu deities and their portrayal (for anyone but themselves).

Yet, one of the main arguments against the use of pictures of battered Goddesses is, “But our Goddesses are strong, wise and dignified, (and are not abused).” This, of course, leads to two issues. Firstly: What on Earth gives any commentator the right to talk about ‘our’ Goddesses? Hinduism is not, and has never been in living memory, a monolith. There are vast differences in how celestial women are perceived, and an argument that there is just one way in which deities either can or should be perceived is as unacceptable when it comes from the Hindu right as it is when it comes from possible (or supposed) feminists. And as for the second claim of Goddesses not having been abused, the issue of course is: Why does that narrative supersede all others? And, indeed, why should it? Whether or not Goddesses or, for that matter, any celestial woman has been abused depends, one could reasonably argue, on the version of Hindu text or belief one chooses to reference.

That being said, what is unarguable is that many celestial women are strong and dignified and wise. The problem lies with linking the strength, dignity and wisdom of celestial women to abuse and going on to proclaim that having these qualities, they were not abused. The implication, here, is that those who are strong, dignified and wise are not abused; this, however, is an implication which is entirely unsupported by any data relating to domestic violence. Strong women may be abused; some studies indicate that abuse shoots up with a woman’s education. In fact, abuse is one of the few things which cuts across every socio-cultural-religious, economic and class line in society. To indicate that women — celestial or real — who have wisdom and strength are not abused is not only factually inaccurate but also extraordinarily insulting to women who have been abused especially since the converse is that women who are abused do not have strength or wisdom (or in this narrative, dignity, which is generally considered to accrue to all human beings).

Image courtesy buzzfeed

Leaving general issues aside, if one were to look specifically at the campaign:

One of the criticisms against it is that it sets up the ‘mother-sister’ or other relationship to argue against the commission of violence; an argument which is popular in India: Why should a woman have to be a relative of some form for a man to avoid being violent towards her? Although when speaking of violence against women in general, this is an extremely pertinent question, it loses much of its relevance when applied to domestic violence. Given that domestic violence is committed against relatives and women with whom one is in a domestic relationship, it isn’t entirely clear why focussing on women who are ‘related’ when apparently speaking specifically about domestic violence is wrong.

That said, it is worth considering that the ‘mother-sister’ relationship or even a marital relationship doesn’t go far enough when it comes to addressing domestic violence, which in India is generally perceived in terms of violence within a woman’s marital home, ignoring violence within both natal homes and within intimate partnerships (not to mention being almost completely oblivious to the possibility of domestic violence against men).

Another criticism against the campaign is that it is exclusionary, as someone pointed out. As a person who believes in a formless God despite being Hindu, this didn’t automatically occur to me; to me, pictures of celestial women are cultural Indian images which, in the case of the campaign, simply evoked one of the greatest Indian artists. However, considered from the perspective that the images are, in fact, religious images, and that the campaign appears to intend to speak for all women, (once again, as was pointed out to me), it isn’t easy to argue that it is an inclusive campaign, if not anything else.

Further, the campaign seems to focus on physical violence to the exclusion of other forms of abuse, and even there, the bruises shown on the pictures of Goddesses are anything but realistic. As has been noted, ‘the pretty bruises do not quite capture the shattering of bones’. This criticism is one it is hard to argue against, unless one asks why the bruises should be realistic. One answer to that question is that artsy portrayals of abuse minimise it, and may enure us to abuse by making it seem to be not as bad as it is. Also, it could be argued that minimising abuse is very disrespectful to those who have been abused, and, consequently, abuse shouldn’t be minimised.

Apart from that, there are also internal issues within the campaign: it seems confused (and is confusing) for one relating to whether it’s portraying the abuse of Goddesses as a possible future or an actual fact, it seems to attempt to curb domestic violence by inducing either shame or guilt (which is a strategy which may not actually work), its target audience isn’t entirely clear, there appear to be no clear solutions suggested, and it barely seems to scratch the surface when it comes to domestic violence itself despite the hype its generated (amongst other issues). Many of these issues, to my mind, though, are issues which go to the motive of those who have issued and created the ads in the campaign, and as such, are issues which only they can clarify.

To me, the campaign appears to attempt to target religious hypocrisy in India, and to that extent, I support it although I don’t think that the campaign is, in itself, entirely unproblematic.

What I've Learnt from Violence

On facing abuse

This post is personal in nature, it focuses on domestic violence although it is not limited to domestic violence, and it describes what I've learnt of violence (mainly in relation to myself with reference to my class). It is by no means intended to speak for every woman, neither am I anywhere near certain that I've got it right. I've used the term 'abusive situation' as opposed to 'abusive relationship' simply because public discourse (in India) relating to domestic violence is largely limited to domestic violence perpetrated against wives by husbands and in-laws, almost completely ignoring other forms of domestic violence (including that perpetrated by natal families).

I've also written of episodes of domestic violence earlier (here) in a post which isn't an accurate depiction of events.

I

I woke up from dream feeling happier than I had for a long time. I’d dreamt of a rape. Not mine. A rapist who was caught — I shot a gun at the wall behind him; I don’t know what I was doing there. Part of the wall disintegrated and shards went flying (like in The Matrix). The rapist transformed into a lizard, transported to gaol in a Styrofoam mug. In pieces. The rapist-lizard was in pieces, that is, but alive. The man from law enforcement in charge of the mug put it under the transportation jeep’s seat; the lizard escaped. And, after that, police files of the investigation began to go missing.

I woke up at that point, feeling happy. I’d shot in the general direction of the rapist. And a wall broke.


II

I believe that violence travels through generations, with each generation becoming trained to accept some degree of abuse (both domestic and otherwise) — when there are (or appear to be) no options available, abuse becomes the norm. I know that I don’t believe in the possibility of living life entirely free of abuse; I never have done so except over the last year or so, and I have no expectation of not having to deal with abuse in the years to come. The odds are simply not in my favour considering crime rates and anecdotal evidence.

Popular myth says that women who do not belong to ‘the lower classes’ escape abuse. In all probability, the myth achieves nothing apart from making it that much harder for testimonies of abuse (which do not fit into acceptable stereotype) to be considered credible. Abuse (especially within domestic and intimate relationships) amongst the so-called upper classes is rarely spoken of. The only people who have a voice are the privileged, and (unless it is perpetrated by someone of a ‘lower class’), for the most part, the privileged do not speak of abuse faced by their own — some are, of course, perpetrators of abuse themselves. Others largely choose to ignore that they know anyone who is abusive. The standard response to hearing of abuse within one’s own circle has always often been, ‘That’s not the man I know.’ And, of course, if no one acknowledges knowing anyone who is abusive within their own circle, the abuse itself becomes invisible.

III

Abusive relationships do not generally begin as abusive relationships. And sometimes, once abuse begins, it simply doesn’t follow patterns which resemble the generally accepted ‘cycle of violence’ (that roughly goes from a honeymoon period to a tension-building stage followed by an abusive episode and back again). Amongst the wealthy, in particular, the honeymoon period may simply be absent, the violence entirely unrelenting. The words ‘amongst the wealthy’ are misleading though; they should be ‘amongst the seemingly wealthy’ — within an abusive situation, the existence of money can be meaningless as far as a woman subjected to abuse is concerned; the image of her being wealthy can easily be ludicrous in comparison to the possible reality of her having access to no money at all, which is not to say that a lack of access to money is inevitable or that money is all that matters. (Even if a woman subjected to abuse does have access to money, considerations such as the lack of a support structure, custody issues, societal pressures and religious beliefs, among many other factors, can tie a woman to an abusive situation just as surely as the possibility of bankruptcy.)

I know that in abusive situations, I have never once seen a cycle involving a honeymoon period. And that, despite persistently feeling unsafe, I have never made the attempt to leave an abusive situation quite simply because it never occurred to me that leaving was an option even though there have been times when, by any ‘objective’ standard, I’ve had the resources to be able do so. And I probably would have if I hadn’t lost myself.

That’s something which isn’t often clear to people who are not in an abusive situation: it isn’t entirely about abusive episodes alone, relentless or not. It can also be about having your identity chipped away at till you no longer know who you are, till you can see nothing good in yourself (assuming you can see yourself at all), and till your entire being is consumed with nothing beyond doing whatever it takes not to ‘provoke’ (so it seems to you) more abuse — which, as it turns out, is invariably impossible because the bar is always set higher and higher, setting you up to fail, eroding a little bit more of yourself each time you ‘invite’ more abuse by failing. It may seem as though the only person who can make you feel better is the abuser, and you could easily become more and more desperate for validation from, ironically, the one person who’s left you in pieces and who is supremely unlikely to ever give you any validation. Except that you may not see that, and the thought leaving may not occur to you. It may not even occur to you to define abuse as abuse at the time.

This is obviously not the only reason why women remain in abusive situations; there are other stories too, and the list of obstacles women face when it comes to leaving abusive situations is seemingly endless.

IV

What I’ve learnt though is asking ‘Why didn’t she leave?’ is one of the most unproductive questions it is possible to ask, not to mention one of the most intrusive. The fact of the matter is that women who are abused do not generally choose to be in or stay in abusive situations because they have any particular desire to do so or be abused. If there are questions which need to be asked, they are questions which address why an abuser was abusive, how an abuser can be stopped from being abusive, and what society (and State) could do to attempt to keep from failing to provide women who have been abused the infrastructure and support required to be able to safely exit abusive situations.

Abuse is not a relationship problem; it is a legal offence if not a crime. To place the onus entirely on a woman who has been abused to leave an abusive situation is ridiculous. If not anything else, in the case of abusive relationships, the time when a woman leaves and immediately after is likely to be the most unsafe time for her. And leaving aside considerations of physical safety and societal support, even if one has the best of intentions, and is attempting to respect the autonomy of a woman who has been subjected to abuse (by suggesting that she handle it and by leaving the choice of whether or not to leave to her), as Autumn Whitefield-Madrano has explained, unless that respect is coupled with an understanding of abuse it 'can too easily lapse into a hands-off approach'.

The degree of autonomy and capability which women in abusive situations have is questionable, to say the least. And, although women may be obliged to participate in abuse against themselves by their abusers, contrary to popular belief, women do not teach abusive men how to treat them. As has been argued: ‘To say that we are treated the way we teach others to treat us [makes women responsible for male violence against themselves, and] is to speak from a dominant point of view, dismissing the reality of females completely, not to mention the reality of all dominated races & classes’.

V

Autonomy, sadly, doesn’t magically reappear in full force upon no longer being in an abusive situation. It isn’t necessarily about just about the ‘big’ things; it’s also about the ‘small’ stuff. Getting up in the morning and deciding whether to fry an egg or boil it could seem like a daunting decision to have to make — when your sense of self is eroded, having to make even the most insignificant decisions can potentially feel like having to face a series of insurmountable obstacles.

Being in an abusive situation feels a little like being imprisoned. You take each day as it comes, and focus on surviving that day without considering anything but the present. It’s only later, when you’re no longer in an abusive situation, that it’s possible to truly make sense of the past, to connect seemingly independent events so as to view the past as a coherent whole (in all its wretchedness) — something it may have been impossible to do whilst still in an abusive situation simply because of having had to focus on getting through each day independently. And, for exactly the same reason, constructing a vision of the future could seem every bit as difficult as making sense of the past.

It may feel as though there is no future when one is in an abusive situation; there may just be the present. Once one is no longer in an abusive situation, accepting the past and integrating one’s knowledge of it with what one imagines of the future isn’t easy. It’s a long, often arduous, journey which (even if one is lucky enough to have support) is not made any easier by the seeming omnipresence of triggers that have the potential to remind one of abuse.

Knowing that there may not have been much you could have done to change the course of events in the past detracts from the 'kindergarten spirituality' (to borrow a term Mark Doty used in Heaven's Coast in another context) which enables all of us to believe that each one of us alone charts the course of our own life. And knowing that violence has an awful tendency to travel through generations is anything but reassuring.

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nb: The line of thought which says that abused persons should file cases against their abusers often completely ignores both the dynamics of abusive relationships and ground realities. If not anything else, invoking and 'working' the legal system requires more attentiveness than most of us have on our best days; to expect an abused person to be able to leverage the legal system to address abuse is optimistic (to say the least).

Marital Rape and Sexual Assault Law

It would appear at first glance, that the premise underlying the Sexual Assault Ordinance is what may be the most complete expression of patriarchy imaginable: the ownership of some women by certain men. This basic premise seems to be evidenced over and over in the text of the Ordinance through what is made a criminal offence and what it not, and a theme which seems to run through the substantive amendments to the Indian Penal Code is that men who would historically have been considered to own or have various rights to specific women would not be held to be criminally liable for sexually assaulting those women. The Indian Penal Code, as Madhu Mehra has said, "continues to be steadfast to its patriarchal moorings."

The most glaring example of this is, of course, the non-criminalisation of marital rape of women with two exceptions: where the wife is under sixteen years of age or where the wife is ‘living separately under a decree of separation or under any custom or usage’ — this not a spectacular change from the law in force prior to the coming into effect of the Ordinance. What is a spectacular change from current law is that it may be possible to interpret the Ordinance (as Pratiksha Baxi has done) to prosecute a wife for having raped her husband, even though the wife would not be able to similarly prosecute her husband under the Ordinance. This is because, under the Ordinance, sexual assault itself is gender-neutral, and there is no exception to it when it comes to a wife engaging in sexual activity with her husband.

The argument made to defend the non-criminalisation of marital rape of women may be considered from three angles; three sub-arguments, if you will, all leading to the same result: that marital rape of women should not be treated as a crime. The first is roughly that women need to be cared for by their husbands (even if the husbands happen to be rapists) and, therefore, imprisoning rapist-husbands is undesirable. The second is that women would lie and misuse a law which criminalised marital rape of women in order to settle unrelated scores with their husbands or to blackmail them. And the third is that there is a difference between ‘forcible sex with wife’ and ‘rape’.

The first sub-argument against the criminalisation of marital rape of women presumes to determine for a woman — all married women, actually — what is best for them, and that determination leads to the conclusion that it is in the best interests of a wife (and, possibly, her children) not to have a husband who has raped her be imprisoned. After all, it would lead to the end of the marriage (for it's said, in this context, no marriage could survive a prison term), and could lead to economic hardship if the husband were the sole breadwinner. There is, of course, no room in this worldview to consider the possibility that a wife may have no desire to be married to a rapist, or that a husband-rapist may, in fact, not be a breadwinner.

Those arguing against the criminalisation of marital rape of women citing this reason seem to point rather aggressively to the Domestic Violence Act stating that a woman can leave a marriage if she is raped (which is apparently somehow different from a marriage breaking down because of a rapist-husband being imprisoned, and ignores the fact that marital rape of women, while it may constitute cruelty, is not explicitly listed as a ground for divorce in personal laws). Nonetheless, opponents of the criminalisation of marital rape of women point out that the Domestic Violence Act recognises marital rape of women completely ignoring the facts that the Domestic Violence Act does not criminalise marital rape of women, and that recognition is not criminalisation. And, with the best interests of the woman ostensibly in mind, they claim that the use of the provisions of the Domestic Violence Act will not result in causing economic hardship to a wife and the children she may have.

While the Domestic Violence Act may (arguably) be beneficial to some women, and while its provisions may be preferable to some women in comparison to the possibility of invoking the provisions of a criminal law against husbands who have raped them, the choice of proceedings (if at all any) should, ultimately, be a decision for the individual woman to make, not for others to make for her by simply choosing not to enact provisions criminalising marital rape of women.

There is absolutely no reason (with reference to the law) why the recognition of marital rape of women as a legal wrong should be confined to either civil law or to criminal law. There are a number of legal wrongs which make available to those injured both civil and criminal remedies; these wrongs include defamation, the infringement of intellectual property rights and the invasion of privacy. In none of these cases is it mandatory for an injured person to pursue both civil and criminal remedies simultaneously (or for that matter, any remedy at all), and there is no conceivable reason for simultaneous pursuance to be required in cases of marital rape (if at all marital rape of women were ever to be made a criminal offence in India). As such, claims that the non-criminalisation of marital rape is for a woman’s own good must necessarily fail; all that the non-criminalisation of marital rape of women does is limit the legal remedies available to a woman who has been raped by her husband. And should she have neither reason nor desire to take recourse to the provisions of the Domestic Violence Act, — she could, after all, for example, be independently wealthy and have no reason to want to continue being married to a rapist — she could well be left with no remedy which specifically addresses her having been raped in the absence of a law criminalising marital rape of women.

The second sub-argument against the criminalisation of marital rape of women rests on the presumption that women lie, and will abuse a provision which criminalises marital rape of women. These claims of possible abuse of a law which criminalises marital rape of women are invariably expressed in conjunction with claims about the allegedly widespread misuse of Section 498A of the IPC which deals with a woman being subjected to cruelty by her husband or his relatives.

Those against S 498A, IPC appear to: (a) say that the Supreme Court held 498A is legal terrorism although what the Supreme Court actually said is that by misuse of s 498A, 'a new legal terrorism can be unleashed', not that 498A itself is legal terrorism; and (b) claim that the non-conviction rates in 498A cases indicate that most cases are false, ignoring the fact that the lack of a conviction (in any case) doesn't automatically always mean that a case was filed with absolutely no basis. And then, those against S 498A tend to back on the rhetoric of misuse — depending on who speaks, misuse is usually pegged between ‘95%’ and 'all'. This, regardless of the fact that the claim of 498A being nothing but ‘a tool to torture husbands’ is not even supported by a misinterpretation of conviction rates.

In fact, if one were to analyse NCRB stats, it would be extremely difficult (if not impossible) to draw inferences about the exact percentage of the misuse of S 498A of the from the stats alone, particularly given that the stats don’t clearly differentiate between mistakes of fact and law, or between those who have been acquitted and discharged. While there is little doubt that there is some amount of misuse of S 498A, as with the case of all laws, it is unclear why this particular law alone is singled out for supposedly necessary repeal. Of course, that doesn’t deter those screaming about the possible misuse of a provision which would criminalise marital rape of women from continuing to scream. Neither does it stop them from talking about general unfairness should the marital rape of a wife alone be criminalised, although, of course, there is never mention about possible misuse by husbands should they too have the ability to claim having been raped by their wives with reference to the provisions of a penal law. (And, in fact, it may be argued that under the Ordinance, husbands do have the ability to have their wives prosecuted for marital rape.)

And then, of course, the third sub-argument against the criminalisation of marital rape of women is that marriage somehow ‘evens out’ or negates rape, and that it is not possible to commit rape within a marriage. Those spouting this particular argument generally do so in conjunction with questions about how marital rape of women is to be proved, along with with rather unflattering statements about ‘feminazis’ and unprovable claims to the effect that ‘the only people who want marital rape to be criminalised are unmarried people who know nothing’. Never mind that laws are being changed (or have been) the world over to recognise marital rape, and to derecognise advance sexual consent granted by a wife upon marriage. Never mind also that those who drafted the Verma Committee Report suggesting that marital rape of women be criminalised are not all unmarried, (and neither are they all women, for that matter). Never mind that those arguing along these lines never quite seem to get around to explaining what the difference between ‘rape’ and ‘forcible sex with wife’ is. Never mind that most instances of rape, including marital rape, do not occur in public spaces complete with witnesses for 'proof'. And never mind that, consequently, the determination of whether or not marital rape has occurred should not be particularly problematic in comparison to the determination of whether or not non-marital rape has occurred.

All three arguments used to defend the non-criminalisation of marital rape of women — and, indeed, to urge for it — appear at first glance to be rather different in tone, tenor, and point of view. However, what is hard to escape is that they rely on stereotypes. The first argument assumes that women are weak and need their husbands not to be imprisoned, the second that women are dishonest, and the third that women are the property of their husbands who have a right to engage in sex with them without reference to their desires. At the (rather low) risk of straying into the realm of hyperbole, it’s extremely difficult to ignore that these arguments against the criminalisation of marital rape of women seem to converge into the image of wives being weak and dishonest chattels of their husbands — a stereotype which, of course, several centuries of patriarchy have familiarised us with. Unfortunately, it is also a stereotype which India’s 2013 Sexual Assault Ordinance appears to make no attempt to recast.

(Note: Some text in this post referring to the second sub-argument has been adapted from an update to The Use and Misuse of 'Dowry' Laws. The arguments themselves are arguments which I've heard or which have been presented to me over the last fortnight. The references to Pratiksha Baxi's article and Madhu Mehra's article were added to this post on February 5, 2013.) 

Also see: What Indian Criminal Law Says of Marital Rape

Legal Impediments to Speaking Out about Abuse

Note: The publication of testimonies of abuse (including VAW) considered here are testimonies which contain details of the abuse identifying persons and places; not anonymised  accounts of abuse.

Unfortunately, the possible legal implications of publishing testimonies of those who have been abused have the potential to result in proposals to engage in such publication being reconsidered, if not completely abandoned. This is detrimental to any effort towards transparency, and the recognition of abuse, which is the first step towards combating it.

Due to this, if there’s anything it is imperative for a society (that claims to be working towards becoming abuse-free) to ensure its members enjoy, it is the right to free speech. In India, the right is enshrined in the Constitution as a fundamental right. The right may, however, be subject to reasonable restrictions according to Article 19 of the Constitution. And subject to such restrictions it certainly is.

There are, in India, at least thirty statutes which contain provisions that impact free speech either directly or through subordinate legislation. Not all of these laws, even though they do have free-speech implications, have an impact on the publication of testimonies of abuse. Those which do have an impact though include both civil laws and criminal laws. And they can be used as incredibly powerful silencing tools.

For a person who has been abused to choose to speak out in the face of the possibility of civil proceedings being initiated can be an incredibly difficult decision, especially given that potential legal fees alone could be intimidating. And for a person who has been abused to choose to speak out in the face of the possibility of facing criminal charges is often unthinkable. Unsurprisingly, the result is that persons who have been abused may choose not to speak out at all.

And while it’s certainly true that restrictions to free speech apply uniformly across the board, to both those who have been abused and to those who abuse, it is possible that those who are abused are disproportionately impacted by the restrictions. This is simply because those who abuse are usually better placed than those who are abused, and are far more likely to have the tools to defend themselves if at all legal proceedings are initiated, which is, in itself, unlikely, since those abused often do not have the resources to invoke the protection of the law. As such, it may be possible to argue that uniformity in the applicability of restrictions to free speech to both those who abuse and those who are abused is comparable to uniformity in restrictions prohibiting both the poor and the rich from begging on the streets and stealing bread, to plagiarise Anatole France.

The Constitution certainly contains to right to equality in Article 14 but the right is not unqualified — much as the right to free speech is not unqualified. The Article states: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,’ and the judiciary has interpreted it such that ‘it is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well-established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of 'equal protection clause' enshrined by Article 14 of the Constitution’.

It would be hard to deny that those who have been abused are quite simply not in the same class as those who perpetrate abuse. Consequently, it may not be entirely impossible to argue that victims of abuse should be granted more latitude than would normally be granted when it comes to matters of free speech in order to them to speak of their experiences without fear of legal ramifications. That said, the other side of the coin is that were such latitude to be granted by the law it would also have to come with checks and balances to ensure that the latitude was not abused to wreak havoc in the lives of the innocent. The easiest way to ensure that those ‘falsely accused’ were able to obtain protection from defamation would, of course, be by according to them the right to seek redressal in a court of law. Doing so would, however, bring one back to square one, with the victims of abuse — both real and false — being potentially subjected to an array of legal proceedings for having spoken out, since, of course, there would be no credible manner to separate false testimonies from true ones at the outset itself.

What is, sadly, therefore inescapable is that not only are victims of abuse impeded from speaking out about their experiences but that there appears to be no simple way in which the status quo could be changed with regard to the current legal framework. What we need, in all likelihood, is for laws governing content to be completely restructured across the board with far more emphasis being placed on the right to free speech.

Also see: Copyright and Censorship