What arguments in marital rape case reveal about insecurity of patriarchy

 

Rama Srinivasan writes: Powerful men have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.

In response to arguments made in favour of criminalising marital rape, a former top law enforcement officer has speculated that this petition, which he termed anti-civilisation, could bring about the destruction of family and children. Due to his past role as the ex-CBI director, Nageswara Rao must be taken seriously when he appears to support sexual acts that may not be outlawed but are, at least, morally questionable. One of the two judges hearing the case in Delhi High Court has admitted to being sceptical about the legal ramifications of criminalising marital rape but neither appear to question the moral imperatives. Rao represents one extreme view of this complicated relationship.

Another, more prevalent, impulse is the fear of false accusations. The source of this anxiety is linked to both rape cases and dowry harassment ones. This piece will address them individually. Only a fraction of sexual crimes is reported, especially because those that make it to courts appear to put the complainant on trial. This was again evident in recent high-profile cases including that of Tarun Tejpal’s and Franco Mulakkal. Even where the judges have been able to ascertain that an explicit “no” was expressed — as in the case of Mahmood Farooqui — the court has ruled for acquittal.

Litigation on sexual crimes draws from social and caste-based perceptions on what constitutes rape. These are, in turn, based on who is presumed to have access to women’s bodies. These norms are not laid out in explicit terms but courts as well as social groups skirt around them. When BJP’s Kuldeep Sengar was accused of rape in a case where the complainant’s father and, later on, her lawyer have both died under suspicious circumstances, his constituents joined together for a demonstration in solidarity — with the accused. Their simple contention was that their representative was innocent.

Similarly, despite a documented history of predatory behaviour, several journalists who were accused of sexual harassment at workplace have denied any wrongdoing. Their colleagues, friends and families, at times, lend support to these refutations. In many ways, the denial has less to do with accusations themselves but, rather, societal perceptions of right and wrong. Men from privileged backgrounds are assumed to have access to bodies of women from all social backgrounds but access of marginalised men, even in cases of courtships and love affairs, is rigorously policed. This discrepancy may be exposed as hypocrisy but it suggests something more deep-seated.

Fears of false accusations are based on an uneasy relationship between law and morality, where sexual acts criminalised under the criminal code and those explicitly permitted under law are still in the zone of moral ambiguity. Criminalisation of acts that are deemed socially acceptable in certain circles brings with it the feeling of persecution by those automatically perceived as bad faith actors.

The only cases where a conversation on false accusations does not skirt around unspoken social norms are those of courtships gone wrong, where women retrospectively file complaints of sexual assaults. A study conducted by Rukmini S in 2013 revealed that 40 per cent of such complaints were cases of consensual sex “criminalised by parents.” Men in such courtships are assumed to be guilty whether or not a conviction is possible.

The other source of anxiety here is the history of dowry harassment cases. My ethnographic interviews with lawyers in north India have often dwelled on the “problem” of false dowry cases. Gentle probing on this assumption revealed that the perception of fraud stems from the seemingly cynical timing — often after a marriage has irrevocably broken down — and presumed motivations of the complainant rather than the merits of the cases themselves. Dowry demands and exchanges are still prevalent in rural and urban areas, criminalised by law but, again, in the zone of moral ambiguity. They are taken seriously, if at all, when accompanied by cases of serious violence and harm.

Complaints of extortion and harassment by police officers aside, the claim of dowry harassment — most likely an authentic one — has become a necessary evil in some ways. Women seeking divorce have found that the inclusion of dowry harassment charges is often vital for the case since judges recommend mediation as a rule. The treatment of women within marriages is deemed an internal matter and to be negotiated within family settings. The fear of persecution via false cases stems from the lack of alignment between law and morality.

The petition against marital rape has been an opportunity for the Indian mainstream to witness the unravelling of some of these unspoken norms on sexual crimes and marital relations. Powerful men such as Rao have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.

Criminalisation of marital rape opens up another frontier for a battle between law, which is ideally based on dignity and respect for all, and morality in narrower circles, based on unequal power relations within families.

In my December 2020 piece for The Indian Express, I had asked: Who is afraid of Indian women? The article had pointed out that for people who view patriarchy — in reality, a social construct — as a natural order, the fear that the edifice will crumble at any moment is very real. Lack of control over women’s sexuality presents itself as a crisis that can lead to an unravelling of hierarchies that patriarchal agents are heavily invested in. This case against marital rape is perceived as a civilisational threat by some because it requires such agents to explicitly state these unspoken norms and end the situation of moral ambiguity.

Written by Rama Srinivasan 

Source: Indian Express, 9/02/22

Bulli Bai is latest example of harassment women face online

 

Meeran Chadha Borwankar writes: Prompt reporting of cases, well-trained investigators and prosecutors, fast and fair trial are essential to control cyber crimes against women.

The first email in the morning was from a young girl threatening to commit suicide. She had approached me earlier complaining about her former boyfriend, who, she alleged, had morphed her photos that she had shared with him on social media. I advised the lady officer heading the Pune Police Cyber Cell to register an FIR. But the officer investigating the case had to proceed on emergency leave. Since the boy had not been arrested, the young girl had threatened to kill herself. I was the Commissioner of Police, Pune and the story is of 2011. The sordid tale continues with the blatant abuse of cyber technology, especially targeting women of all ages, professions and communities.

As per the Telecom Regulatory Authority of India (TRAI) there were around 825 million internet users in India at the end of March 2021. Most of them are genuine ones with a minuscule number of rogue elements. But such rogue elements have the lethal capability to create havoc in the nation, its polity, economy and the personal and professional lives of citizens. They can also strain the fragile social fabric of the country as can be seen in the open-source app, Bulli Bai, hosted on the web platform GitHub for “auctioning Muslim women”. Similarly, in July last year, Sulli Deals had been created with profiles of around 80 Muslim women, describing them as “deals of the day”. Recent arrests by the police in the Bulli Bai case will, hopefully, disclose details behind the heinous crime.

While Bulli Bai and Sulli Deals made headlines and the Mumbai and Delhi police are working with the Computer Emergency Response Team, India (CERT-IN) to track down the criminals, there are many unreported cases of women facing cyber bullying, stalking, threats, and blackmail. Many times, police officers are approached by anxious parents, days before marriage, seeking help about fake profiles or morphed photographs of their daughters on the internet. Marriage being a very delicate affair in India, the slightest aspersion on the bride’s “character” can lead to cancellation of the ceremony. A formal police case is thus never lodged. The National Crime Records Bureau (NCRB) in “Crime in India 2020”, therefore, accounts for only 251 cases of defamation or morphing of women’s photos and 354 cases of their fake profiles under the Indian Penal Code, Information Technology Act and Indecent Representation of Women (Prohibition) Act.

The stark reality is that cyber blackmailing, stalking and bullying is a humongous issue, causing a lot of stress to women and their families. It is not confined to metros or peculiar to a particular caste or community. Small towns too have been badly afflicted. Reluctance to report is, however, common. NCRB statistics show that total cyber crimes in India during 2020 were 50,035, and those specifically against women were only 10,405. These statistics are but a fraction of the ground reality.

To find out the true magnitude of cyber crime, prompt reporting and registration are the only options. The reluctance to report/register the crimes is encouraging and emboldening cyber criminals. They are harnessing pictures of women from social media to promote online sex chats and pornography besides blackmailing and bullying the victims. They have become reckless “experts” in changing one image to another using morphing tools and also, in evading law enforcing agencies. There are many international gangs which successfully avoid detection as “servers” used by them are located outside India. International cooperation through formal treaties and informal channels has to be pursued. CERT-IN has been doing commendable work in this regard. However, registering a criminal case is the first crucial step as it sets the law into motion, leading to tracing, arresting and prosecuting the rogues even if they are located outside the country.

Another step could be to increase awareness about cyber safety and security so that youth, especially young girls and women, take proper precautions while surfing the virtual world. This cannot be left to the law enforcement agencies. Schools, colleges, universities and communities must take an active role in educating their wards about the rampant cyber abuse and safety measures/avenues available. We also need to involve social media platforms and encourage them to monitor and check abusive traffic and create more safeguards for users, especially women and children.

As for the police, we do need better infrastructure, more special cyber cells and police stations, regular training, and collaboration with cyber experts on a continuous basis. Strengthening the capability of forensic laboratories can lead to timely collection of evidence of cyber bullying, threatening, morphing and profiling. It is a highly technical job requiring sharp skills as the virtual world is constantly changing at an unimaginable speed. But many state labs do not have sufficient numbers of cyber experts to seize, preserve and store images of digital evidence essential for securing conviction in courts. The central government has given funds to states and Union territories under the Cyber Crime Prevention Against Women and Children (CCPWC) scheme to start “cyber forensic-cum-training laboratories”. Considering the gravity of the issue, states need to allocate similar resources for their forensic units.

Fast trial of cyber crimes would indeed help. As per the NCRB, during 2020, court trials were completed in only nine cases of cyber blackmailing and threatening with a 66.7 per cent conviction rate — 393 such cases are pending in courts. Similarly, 29 cases of cyber stalking and bullying of women and children were completed with a 27.6 per cent conviction rate — 1,508 cases are pending in courts. Trial has been completed in only two cases of fake profiling while 148 cases are pending. Systematic training of prosecutors and judicial officers in dealing with cyber crimes would definitely speed up trials.

Prompt reporting of cyber crime by citizens, technically proficient investigation by police adequately supported by forensics, and time-bound completion of court trials are essential for catching cyber offenders who are terrorising people, especially women, in the virtual as well as the real world.

Written by Meeran Chadha Borwankar

Source: Indian Express, 6/01/22

A misplaced idea of honour enables violence against women

 The prevailing gendered notions of honour remain at variance with the gender-just society that the Constitution seeks to establish. The constitutional principles of non-discrimination and equality are in tune with India’s international obligations as a party to the Convention on the Elimination of all Forms of Discrimination against Women.

Multiple efforts at preventing, eliminating and redressing violence against women (VAW) have had limited success. Securing violence-free homes, workplaces and other public spaces for women has been an onerous task, among other reasons, on account of it meandering through the realm of what people see as honour. We all have been witness to frenzied groups perpetrating VAW with the specific objective of dishonouring a particular community in ethnic or communal strife. Saving or restoring “family honour” tends to promote tolerance, acceptance, even justification for honour killings. Honour metamorphoses into a barrier to the elimination of VAW if it constitutes the foundational premise of such law. Even if it does not constitute the foundational premise, operationalisation of the law within such a culture of honour contradicts the purpose of law.

Internationally accepted understanding of VAW falls into a quagmire when juxtaposed with the socially and culturally determined notions of honour. Violence against women or gender-based violence is defined by the Committee on the Elimination of all Forms of Discrimination Against Women as “violence that is directed against a woman because she is a woman or that affects women disproportionately”. Gender-based violence violates women’s human rights and the infringement of human rights constitutes an affront to humanity. The inviolability of humanity stands eroded when expected to be judged through the prism of honour. First, the notion of honour is socially and culturally determined and is thus ever shifting. It is incapable of offering an unconditional basis for any conception of justice or righteousness.

Second, on account of being constructed within and through the existing social structure, the notions of honour or dishonour embody and reflect social hierarchy and prejudices. The notion of honour thus has a tendency to perpetuate hierarchy rather than usher in a transformation or deliver social justice. Finally, the ideology of gender attributes respect/honour to women not on the basis that they are human beings and thus worthy of respect, but on whether and to what extent their actions are in accordance with what is socially allowed for them, what is socially expected of them, and what is socially valued in them.

The prevailing gendered notions of honour remain at variance with the gender-just society that the Constitution seeks to establish. The constitutional principles of non-discrimination and equality are in tune with India’s international obligations as a party to the Convention on the Elimination of all Forms of Discrimination against Women. Despite this, it’s appalling to find legal norms pertaining to VAW or their operationalisation meandering the realm of honour, in complete contravention of international standards.

Many instances of the meandering of legal norms through the realm of honour relate to sexual offences. For instance, the exclusion of marital rape from the category of sexual offences raises the question of whether rape is an offence against the bodily integrity of a female or an affront to her honour. One of the presumptions on which one may exclude marital rape from the category of sexual offences is that the socially determined honour of the female remains unblemished. What adds to the malaise is the judicial meandering into the realm of honour. The recent remarks by a Supreme Court (SC) bench holding out the promise of “help” to a person accused of rape if he wanted to marry the girl, in this context, are worrying. Can the violation of bodily integrity be lawfully redressed through the social arrangement of marriage? Even where in its substance or its assumptions, the law seeks to usher in gender justice, as in rape by an unknown person, its interpretation and operationalisation in the gendered culture of honour makes it frail.

Everyone is constitutionally entitled to legal redress for violations of their rights and for that the SC still remains the last hope for the marginalised. And it must rely on law, not a misplaced sense of what constitutes honour, in providing justice.

Amita Punj is associate professor, National Law University, DelhiThe views expressed are personal

Source:HindustanTimes,8/03/21

Punitive responses to sexual violence need rethink, given perverse consequences

 

Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment.

On Human Rights Day 2020, the Maharashtra cabinet approved the Shakti Bill, enlarging the scope of harsher and mandatory sentences — including the death penalty — for non-homicidal rape, to purportedly deter sexual offences. The Bill also introduces a problematic standard of consent and allows decision-makers to presume consent from the conduct and circumstances surrounding the incident. Harsher sentences have had perverse consequences on the already low rates of rape convictions. Besides, the new standard of consent poses the serious risk of reinforcing myths, including regressive notions about “ideal” rape victim.

The Shakti Bill comes amid the recent legislative trend to invoke the death penalty for sexual offences, beginning with the introduction of the death penalty for child rape in 2018. In 2020, the Andhra Pradesh government passed the Disha Bill, pending presidential assent, that provides the death penalty for the rape of adult women.

The death penalty is the last phase of a criminal trial while rape survivors face serious obstacles much earlier, especially at the time of registration of the complaint. The most severe gaps in the justice delivery system are related to reporting a police complaint. The focus of the criminal justice system, therefore, needs to shift from sentencing and punishment to the stages of reporting, investigation and victim-support mechanisms. The bill does not address these concerns.

Second, harsh penalties often have the consequence of reducing the rate of conviction for the offence. For instance, a study by one of us published in the Indian Law Review based on rape judgments in Delhi shows a lower rate of conviction after the removal of judicial discretion in 2013. Introducing harsher penalties does not remove systemic prejudices from the minds of judges and the police, who might refuse to register complaints, or acquit offenders in cases they do not consider as “serious” enough to warrant a mandatory minimum.

Third, studies on child sexual abuse have shown that in the few cases of convictions, the minimum sentence was the norm and the award of the maximum punishment was an exception. Moreover, crime data from the National Crime Records Bureau shows that in 93.6 per cent of these cases, the perpetrators were known to the victims. Introducing capital punishment would deter complainants from registering complaints. The Shakti Bill ignores crucial empirical evidence on these cases.

The other anti-women assertion in the bill is the move away from the standard of affirmative consent in cases involving adult victims and offenders. Significant advocacy from the women’s movement led to the introduction of an affirmative standard of consent, rooted in unequivocal voluntary agreement by women through words, gestures or any form of verbal or non-verbal communication. In a sharp departure, the bill stipulates that valid consent can be presumed from the “conduct of the parties” and the “circumstances surrounding it”. Rape trials continue to be guided by misogynistic notions, expecting survivors to necessarily resist the act, suffer injuries and appear visibly distressed. The vaguely worded explanation in the bill holds dangerous possibilities of expecting survivors to respond only in a certain manner, thus creating the stereotype of an “ideal” victim. It also overlooks the fact that perpetrators are known to the survivors in nearly 94 per cent of rapes, which often do not involve any brutal violence.

The Shakti Bill, while serving the populist agenda of making the public believe that the state is doing “something”, does not achieve more than that. Tackling crimes against women and children requires broader social reforms, sustained governance efforts and strengthening investigative and reporting mechanisms, instead of merely enhancing punishment. Punitive responses to sexual violence need serious rethinking, given the multitude of perverse consequences and their negligible role in addressing the actual needs of rape survivors.

Written by Neetika Vishwanath , Preeti Pratishruti Dash

Source: Indian Express, 7/01/21

Digital space is serving as the scene of sex crime. We need to frame a response

 

The dissemination of nude photos and videos of a victim engaging in a sexual act deserves to be defined as a continued sexual violation for what is once put in the digital space can rarely be wholly retracted.

With only three days to go for the wedding, the bride-to-be received a call from her fiancé. Nothing could have prepared her for what he had to say. Hundreds of links had suddenly appeared on Instagram, Twitter and Facebook flashing extremely obscene pictures of the woman. Thus began a terrible nightmare for the hapless woman, her sole solace, the extraordinary strength of character and commitment of the groom-to-be.

A losing battle against this flood of obscenity began immediately. The photos and videos had been mass downloaded and were being shared by hundreds of accounts solely in the business of supplying pornographic content on social media websites. Paid folders promised “a good time” — from Rs 30 for five photos to Rs 200 for seven photos and two videos. Associates of the accused began contacting the victim for sexual favours and to extort money to “delete” the pictures in their possession. The victim plunged into a dark depression. Emotionally drained from a lonely fight of four months, the couple finally approached the police.

It was a classic case of revenge porn — an invasion of sexual privacy and a form of online harassment where the perpetrator, usually a disgruntled ex-partner, posts intimate photos, often to shame the subject. The consequences for victims can be extreme, encompassing honour killings, breakdown of relationships, destruction of reputation and career, and immense emotional trauma. Two high profile suicides last year involving Korean pop star, Goo Hara, and a student at the University of London, Damilya Jossipalenya, both victims of revenge porn, are cases in point

While the police may succeed in collecting evidence and prosecuting the perpetrators of such crimes, it can do little to clean up the mess left behind on the internet, the root cause of the victim’s suffering. Reporting of such non-consensual content by victims to the concerned social media platforms is often of no avail. The scale of the problem can be gauged from the half-a-million reports of revenge porn received per month by Facebook alone. All social media companies operate Law Enforcement Agency (LEA) portals where police authorities make requests for IP addresses of errant accounts and the removal of obscene content. However, often the portals are a mere formality, with the requests from investigative agencies remaining unacknowledged and unaddressed. While Facebook has in place a reasonably responsive legal support system, Twitter, Instagram and Whatsapp are virtually bereft of one. This is a frustrating stonewalling of the police and thousands of desperate victims. A country which offers one of the largest subscriber bases in the world deserves better legal support.

Given that the digital space is increasingly serving as the scene of unprecedented sex crimes, there is a dire need for an impactful solution. At present, cases of revenge porn are typically booked under the Information Technology Act or relevant sections of the Indian Penal Code (IPC) like 509, 499, 292 and 354C. There is merit in clearly classifying revenge porn as a sex offence in the IPC. The dissemination of nude photos and videos of a victim engaging in a sexual act deserves to be defined as a continued sexual violation for what is once put in the digital space can rarely be wholly retracted. With such classification, the offence will move to the category of serious offences and encourage the reporting of such crimes by victims who may otherwise choose to suffer alone under the presumption that cyber abuse is endemic to contemporary digital life.

The more important intervention is demanding accountability and responsiveness from social media giants for law enforcement and investigation purposes. Several countries have begun negotiating tough laws on the issue, including a time-bound removal of social media content declared illegal, fines as high as 50 million euros on tech companies, and even imprisonment of their executives in extreme cases of non-compliance of requests made by law enforcement authorities.

With the world’s largest population of young people, vulnerable to new mutations of deeply scarring sex crimes, the criticality of the PIL filed in India’s Supreme Court to establish an efficient mechanism to remove sexually-graphic abusive content and to seek accountability from social media platforms cannot be overemphasised.

This article first appeared in the print edition on October 8, 2020 under the title ‘Call social media to account’. The writer is an IPS officer serving as DCP, Crimes against Women & Children in Noida, Uttar Pradesh.

Source: Indian Express, 8/10/20

The fear of conviction deters sexual violence

In our experience of working with thousands of survivors of sexual abuse over the last decade in Madhya Pradesh, we have realised that the only way to prevent a crime of sexual violence against children or women is through faster convictions.

On February 11, 2019, a local court in Sikar, Rajasthan sentenced a 28-year-old man to life imprisonment for raping a four-year-old girl. This was among the most expedited convictions in a Protection of Children from Sexual Offences (POCSO) case where the accused was held guilty within 12 days of filing the First Information Report (FIR).

In my experience of working with survivors of sexual abuse in Madhya Pradesh (MP), I realised that the only way to prevent sexual violence against children and women is through swift convictions and by ensuring that the maximum number of sexual offenders get punished.

Sexual violence against women and children remains one of the most pervasive human rights violations. In 2016, the number of reported cases of crimes against women in MP was 26,604; for children, the number stood at 13,746. Most victims do not report cases of abuse due to fear and a general lack of trust in authorities.

The solution is rooted in the psychological concept of “deterring demand”. The Massachusetts Treatment Centre Rapist Typology, one of the most robust typological systems, uses motivation as a dimension to describe different types of sexual offenders, such as: opportunistic, angry, sexually non-sadistic, sexually sadistic and vindictive, among others. A deeper look into these motivations suggests that a majority of offenders have the intelligence to differentiate between right and wrong. Experts believe that while multiple programmes and interventions can be designed to assist the victim and prosecute the offender, the victims remain mentally scarred throughout their lives. But can deterrence prevent the crime before it’s committed? Deterrence, a theory in behavioural psychology, talks about preventing or controlling actions or behaviour through fear of punishment or retribution. Taking from this theory, we believe that a higher probability of conviction, severity of punishment and public condemnation can actually help deter crimes of this kind.

My experience in MP also showed that capital punishment can lead to underreporting of such cases. It was observed that the fear of death sentences pressures victims to drop their cases. A recent survey by the Rashtriya Garima Abhiyan reveals that out of 150 children and women victims of sexual violence, 95% did not report it to authorities — despite the fact that the reporting rate has gone up in past few years. In cases of community-based prostitution, the community itself pressures the victims to drop the case as offenders — who sometimes are relatives of the child victims — could get the death penalty under the POCSO Act. We learnt that the only way out of this is through fast convictions as it was proved that news about fast convictions and a higher rate of them have proved to deter offenders.

Some of the basics need to considered are: Training of the police officers to file the correct charge sheet, mentioning the POCSO Act in the FIR; sensitising the legal fraternity to ensure faster convictions; supporting survivors through legal aid; better funding and setting up of more POCSO courts to decrease the case-pendency rate across all states.

Ashif Shaikh is convener of Rashatriya Garima Abhiyan and has led campaigns for eradication of the practice of manual scavenging, and empowerment of the Dalits, especially Dalit-Muslims and women

Source: Hindustan Times, 21/02/2019

No is a complete sentence

But sexual predators don’t get it. Because they draw on deep reservoirs of misogyny.

Facing up to what true equality looks like between two genders disturbs the equilibrium of the most enlightened of men. From the time a son begins to absorb the nature of relationships in his home, he learns that in most cases the father is the boss, even if he does a bit of the housework. The father’s voice is usually louder, people listen to instructions and orders from him more willingly, “do it or I will tell your father when he comes home”, is a threat often used by the mother, and boys don’t usually shout bossily at their fathers to find their socks or feed them when they are hungry. Nothing wrong in that, if it is a clearly accepted separation of powers and duties, but have we stopped to ask how “accepted” it is by the woman, or is it simply a situation that has been “understood”? The transition from boss to decision-maker to demanding submission is not a difficult one.

In the public field, it is widely understood that racists have a deeply entrenched contempt, if not hatred, of a particular race because of feelings of superiority and the knowledge that they possess the power to oppress them. Slavery, bonded labour, human trafficking, even prostitution, from the man’s point of view, are all areas in which a man has full power and control over the victim who is helpless and, therefore, bound to be submissive to survive.

The undermining of women stems from the same innate feeling of physical superiority and prowess that older societies easily acknowledged when men went out to hunt and kill, while the women looked after the hearth and home. Protection accorded by men to women obviously seeped into their collective psyches. This earlier consciousness has not yet been fully erased in this age of intelligence, technology, computers and labour-saving machines. Preference for non-violence and peace are the catchwords of an enlightened society. It is in this kind of society that women aspire to stand on their own feet, work as equals and be economically self- reliant, even while aspiring to have families of their own, looking aesthetically pleasing in their own eyes, and, retaining the special female qualities of gentleness and grace.

The tension between the existing world view of men and the promised land seen by women results in faultlines like those emerging out of the #MeToo movement. If one looks closely at the earlier presumptions of men and their responses to the new woman, one detects a common characteristic reaction. In the earlier scenario, men presumed they could be predators as it was their natural right, and entitlement, to demand and get what they wanted from a woman. Sex of course, but also washed clothes, hot meals, healthy sons and submissiveness. What happens when a man is faced with the new woman who believes she has a choice in the matter? He does not say sorry and back off, but uses force instead, because that is what has ultimately made him superior. His mind shuts itself off to the possibility of rejection.

Whether film directors, professors, corporate bosses or editors in all forms of media — all these men are in fields that are now attracting aspiring women who are smart, well-turned out and self-confident, and have certainly not planned to be submissive. When a man with predatorial instincts confronts someone like this, he often turns to undermining her in other ways because he cannot yet understand, as Jane Fonda, in a new Netflix documentary, Feminists: What were they thinking?, says, “‘No’ is a complete sentence”. The man has not yet learned that a woman can really feel and be equal to him, and that if she is not willing to give in to him in his sexual demands that does not mean she is worthless.

Interestingly, politics is not such an easy field for predators because it is usually confident, feisty and articulate women who venture into the political arena. There aren’t many cubby holes or instances of drunken partying. But here is where men with predatorial tendencies find ways of undermining the woman they know they cannot prey upon. During distribution of tickets, women are, generally, always considered “weak” candidates or put up as proxies for men. Men in most “equal” areas, even outside politics, expect women to look attractive and provide the tea at meetings. She is thus constantly reminded of her role as a housekeeper and as someone who must, as in the visual media, look attractive to the male eye. If she challenges a man publicly or even privately, she can be called “horseface” in front of the whole world as Donald Trump did of the stunningly beautiful Stormy Daniels.

If a man knows he cannot get his way with a woman because she feels “empowered”, he will isolate, ignore and undermine her by calling her anything from being a “favourite” (wink-wink), to the mistress-companion-girlfriend of someone in power, rather than acknowledge her capabilities. At social occasions, these predators will talk flippantly for a few moments, and with obvious lack of interest, with intelligent, serious women — if they are bound to, for courtesy’s sake, before moving off for more important conversations with men. All these subtle forms of woman-hating because they cannot accept them as intellectual equals or make them submit to physical advances cannot be termed as anything but closet misogyny.

Source: Indian Express, 29/10/2018

‘2 of 5 women don’t report sexual assault’

Perpetrators Known In Most Cases: Study

One in four of those reporting non-marital sexual violence are adolescents in the 15-19 age group, pointing to higher vulnerability of minors who are also less likely to report such instances to police as compared to adult women, a study on the lack of disclosure of such crimes has found. Overall, two in five female survivors do not inform anyone of sexual violence suffered. The findings on the lack of disclosure are part of an analysis of the national family health survey – 4 (2015-16) that show of 4.4 lakh adolescent girls who were victims of sexual violence in the year preceding the survey, 35% neither sought help or told anyone. Only 0.1% girls reported the violence to police. The data analysis for the 15-49 year age group shows that 14 lakh women experienced sexual violence from someone outside their marriage. Here too, 42% neither sought help nor told anyone. Only 1.9% reported the violence to police. The analysis on non-marital sexual violence in India is led by Dr Anita Raj, director of the Centre for Gender Equity and Health, University of California, in collaboration with the Mumbai-based International Institute for Population Sciences. The study concludes nonmarital sexual violence is a “pervasive concern” affecting far greater number of women and adolescent girls than reported cases suggest. “More than 2 in 5 never tell anyone of this abuse. Adolescent girls 15-19 years are disproportionately affected and even less likely to report the crime to police. Most assailants of this violence are known to their victims, as partners, family members or friends. Stranger-perpetrated sexual violence against women and adolescents is less common,” the analysis found. The study suggest only 5% adolescents reported the perpetrator to be a stranger. The study suggests that since in most cases the perpetrator is a known person, prevention strategies need to focus on “potential perpetrators”. It is emphasised that mobility restrictions on girls out of fear of strangers will not work as a preventive measure. The study recommends reduction in stigmatisation and improved police response can facilitate victims’ disclosure. “This prevalence was calculated for the population of all women aged 15-49 years, and by age category,” Dr Raj said.

Source: Times of India, 11/10/2018

The setting up of the sex offenders registry is timely

The sex offenders’ list will help in enabling justice and monitoring an offender’s future behaviour but the State must ensure that there is no overreach and misuse.

India on Thursday joined eight other countries that maintain a registry of sex offenders. The registry, which will be maintained by the National Crime Records Bureau (NCRB), will include names, address, photographs and fingerprints details of convicted sexual offenders.

In the United States, the sex offender registry is available to the public, whereas in India, and countries such as the United Kingdom, Australia, Canada, Ireland, New Zealand, South Africa, and Trinidad & Tobago, the registry is available only to law enforcement agencies. The Indian registry is expected to list 4.4 lakh cases but the state police have been asked to update data from 2005 onwards. The government has promised that the database will not compromise any individual’s privacy. The database will have details of offenders convicted under charges of rape, gang rape, POCSO and harassing women.

The opening of the registry is timely because crimes such as rape, voyeurism, stalking and aggravated sexual assault are on the rise. The latest National Crime Records Bureau data shows there has been a 12% rise in rapes between 2015 and 2016, and that the majority of offenders are known to the victim. In a situation like this, the sex offenders’ list can definitely help the investigation and monitoring process as well as work as a deterrent.

However, there are some issues that need to be tackled before the registry starts its work.

First, what will be the process of categorising offenders? For example, can the recent rape of a minor in Kathua, Jammu and Kashmir, be termed more heinous than the rape that has been reported at a school in Dehradun, or vice versa?

Second, while in a digital age it is reasonable to expect the use of technology in crime detection and investigation, despite a promise to not to compromise the privacy of any individual, there will be legitimate concerns about the misuse of data. This concern has been tackled partly by allowing access to the registry only to law enforcement agencies.

Third, there is a possibility that this registry may tarnish a person’s life forever even if he is reformed after serving his legal sentence.

While the sex offenders’ list could help in enabling justice and monitoring an offender’s behaviour, the State must ensure that there is no overreach and misuse of the list. The government has also launched another portal to record complaints from citizens on objectionable content related to child pornography and other sexually explicit material.

Source: Hindustan Times, 20/09/2018

Violence that’s not gender-neutral

There is a real danger that the Protection of Women from Domestic Violence Act could, in fact, be used against women and minors.

The recent judgment of the Supreme Court in Harsora v. Harsora on the Protection of Women from Domestic Violence Act, 2005 (PWDVA) is of great concern as it deletes the words ‘adult male’ in Section 2(q) of the Act.

The PWDVA is a gender-specific law enacted to protect women against domestic violence at the hands of men. The core provision in this law is that complainants can only be women. The law also restricts under Section 2(q) that complaints can only be filed against adult males, or their relatives, who could be women. But it cannot be filed solely against the relatives of the husband. Section 2(q) states: “‘Respondent’ means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

In this judgment, the constitutionality of Section 2(q) was challenged. The court, while referring to domestic violence, held that “it is clear that such violence is gender neutral. It is also clear that physical abuse, verbal abuse, emotional abuse and economic abuse can all be by women against other women. Even sexual abuse may, in a given fact circumstance, be by one woman on another. Section 3, therefore… seeks to outlaw domestic violence of any kind against a woman, and is gender neutral.”

Reality of domestic violence

With utmost respect to the Supreme Court, it is absolutely incorrect to state that domestic violence is gender-neutral. It is not. The world over, a vast majority of domestic violence is experienced by women at the hands of men. It is not a random event of violence but is a consequence and a cause of women’s inequality and is linked to the discrimination and devaluing of women. As per the National Crime Records Bureau, reported cases of domestic violence in India went up from 50,703 in 2003 to 1,18,866 in 2013. These are all cases of domestic violence against men. The U.K. Violent Crime and Sexual Offences study of 2011-2012 reported that 80 per cent of offenders in domestic or sexual violence were male.

In 1983, Section 498A was introduced in the Indian Penal Code (IPC) and for the first time made domestic violence to married women a criminal offence. Section 498A is only against the husband and husband’s relatives because it recognised the gendered nature of the crime. When the PWDVA was drafted, the question as to whether the definition of ‘respondent’ should be restricted to men or should be gender-neutral was heavily debated and finally Section 2(q) was drafted to keep it consistent with Section 498A.

The judgment does not consider this history and background of domestic violence legislation. It goes on to declare that even the word ‘adult’ in Section 2(q) should be deleted, because a 16- or 17-year-old can also cause domestic violence. The court reasons that in the context of the object of the PWDVA, there is a “microscopic difference between male and female, adult and non-adult” and hence these words should be deleted.

Thrust on formal equality

The entire thrust of the Supreme Court’s decision is ironically on the principle of equality because it restricts the reach of a beneficial statute meant to protect women against all forms of domestic violence whether by men or by women, adult or minors. Our Constitution, however, has interpreted equality to mean substantive equality which, as elaborated by Oxford University professor Sandra Fredman, has four dimensions: redressing disadvantage; countering stigma, prejudice, humiliation and violence; transforming social and institutional structures; and facilitating political participation and social inclusion. Therefore, formal equality of treating all persons equally as ‘respondents’ is not sufficient and we need to look at the disadvantage and violence faced by women at the hands of men. The same principle of equality also mandates in Article 15(3) of the Constitution that special provisions can be made for women and children and the PWDVA was enacted as a special provision for their protection. It does not need to be gender-neutral.

While the judgment relies on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, where there is no restriction on the respondent being male, it surprisingly fails to observe the criminal offences of sexual harassment, stalking, voyeurism and rape under the IPC which are all gender-specific and against men. This does not mean that men may not be victims of violence, but when women are victims of domestic violence, evidence shows that such violence is largely perpetrated by men.

With this judgment, there is a real danger that the PWDVA would be used against women and minors and not against the real perpetrators of domestic violence. It could lead to a further dilution of the PWDVA and also dilute other women-centric laws. In her 2015 Report, the UN Special Rapporteur on Violence against Women, Rashida Manjoo, pointed out that the shift in domestic violence laws from gender-specificity to gender-neutrality is regressive as it disregards the need for special measures that acknowledge that women are disproportionately impacted by violence. The Supreme Court’s decision will have serious repercussions on the lives of women in India.

Jayna Kothari is Executive Director, Centre for Law and Policy Research, Bengaluru.

Keywords: Protection of Women from Domestic Violence Act, Domestics violence, sexual harassment

Source: The Hindu, 17-11-2016

The laws against harassment are there, if only all women knew about them

The Trump gropathon saga saw women coming out almost every day with horrific stories of the presidential candidate’s predatory behaviour. Closer home we had the Pachauri episode, in which the climate change czar allegedly harassed a young colleague at the workplace. The victim here had evidence in the form of emails to prove her allegations though an almighty fight was put up by the offender including insisting that his emails were hacked.

The good news is that the Indian law on this issue is surprisingly comprehensive and I think it is just that many women don’t know enough about the provisions designed to protect them. Every organised sector is meant to have an internal committee to decide on matters of sexual harassment at the workplace. Few including government departments take this seriously. The inquiry into a complaint from a woman is meant to be completed in 90 days, according to the Sexual Harassment at the Workplace Act, 2013. This is rarely done except in a few workplaces which take this issue seriously.

The harassment is not confined to the workplace and here again the law is on the side of women in no uncertain terms. The ridiculous and demeaning practice of eve-teasing, glorified by our films, assumes threatening proportions on the roads. In films, the hero will follow a girl, jostle her in public places and pop up in unexpected places to embarrass her, and finally she gives in to his dubious charms. You will be glad to know that singing lewd songs to women in public spaces constitutes sexual harassment with a three-month jail term. That ought to silence budding roadside songsters but how many women know of this law. Women I know as well as myself have faced countless incidents of harassment in buses and other forms of public transport. I once actually filed a case against a man who harassed me relentlessly in a train to Kerala while I was in college. Of course, such sweeping laws were not in place at that time. I found no support among the women in the compartment or the police on account of the fact that the harasser was the nephew of the then chief minister of the state. The attitude of the public also is that these are harmless little indiscretions which don’t amount to violence and hence why should women make such a fuss about their private spaces being violated?

Demanding sexual favours, a form of harassment that takes place mostly at the workplace, could get the offender up to three years in jail. Stalking, of course, can get him three to five years. This is a serious problem in India, where many men almost feel entitled to a woman’s compliance if he happens to fancy her. In one case, the stalker followed the victim all the way to another city where he killed her. The police tend not to take complaints about stalking very seriously and in several cases the victims who approached the police were met with indifference.

Capturing images of a woman without her consent is voyeurism and punishable under IPC Section 354, which can get the accused up to seven years in jail. Making sexually coloured remarks against a woman too is punishable with up to three years. The same goes for using sexually inappropriate language in the presence of a woman. This has been a problem in many workplaces and the woman who objects is seen as a prude or hypersensitive. Yet, in India most men do not even seem to realise that their language or “locker room” banter as Donald Trump would have it is offensive and demeaning to women.

But the real problem lies with the majority of women in India who work in the unorganised sector. If they are farm workers, they have no particular law to protect them at their workplace, apart from the general laws. Since they are daily wagers, there is little chance that they will report untoward behaviour from landlords. In the small units which employ less than eight people again, the harassment law does not apply, leaving women wide open to all manners of abuse. So, we have excellent anti-harassment laws if only all women knew about them and it applied evenly to every one of them.

Source: Hindustan Times, 22-10-2016

Tackling sexual harassment at the workplace

In over a hundred towns across the seven states that we work, we run teacher learning centres (TLC). These are run-in rooms stocked neatly with books, educational kits and other material that is relevant for teachers. The rooms are clean and well-lit places, nice for groups of teachers to sit and chat. TLCS are run by our teams, in collaboration with local teachers, and that is what makes them work.

Locating a site for a TLC is not easy. Since TLC is often used after work hours, in the evening and on Sundays, its ease of access to the teachers (for example, being near the vegetable market) is an important factor. The room needs to be about 500 sq. ft, which is hard to find in small towns. There are other considerations for choosing a site. One of them is the treatment of women in such public spaces, including their safety.

This is not about the danger of possible assault, which also has to be always guarded against, but the pernicious lingering looks and presences, like a constant background threat of sexual harassment. Seemingly impossible to call out, but all too real to the woman. And always a slip away from overt sexual harassment. The streets and malls of Bengaluru and Delhi are no different in this regard.

With over 25% of our more than 1,200 employees being women, as are a large proportion of the teachers who come to TLCS, this is the most important consideration in the choice and operation of TLCS. Our attempt is to minimize the risk of this by the choice of location, for example, TLC must be in a busy area or a populated residential area, and it must not be away from the main street. Some operating methods also help, for example, a TLC team should have one man along with a woman. And if the woman is alone on any particular evening, she should lock up before dark.

Since a woman is known to be permanently located at TLC, it is a sort of focal point for this threat, needing extra care. However, women face these risks in our society everywhere. And so an attempt to minimize these risks influoften ences all our operating considerations, for example, how to travel, when to travel, where to travel, where to stay.

Unlike the background threat, it is quite clear how overt sexual harassment can be tackled. It has to be confronted head on, and the law enables this. Such overt sexual harassment within the organization can be dealt with swiftly and decisively, so long as there is genuine intent for, and not mere lip service to, the safety of women.

The same law enables actions in cases of sexual harassment across organizations. We have faced such situations a few times, and most of the time the other organization has responded. To the surprise of many of us, the swiftest response has often come from governments, when the perpetrator has been their employee.

While it’s never easy or simple to tackle, these situations of overt harassment are certainly clearer. And if the organization acts consistently, it helps with a more basic matter: It empowers and enables women to speak up.

Even in an organization like ours, where, by the very nature of the work, the women who join are gutsy and confident, it has taken sustained effort to develop a culture of speaking up, and we have to keep at it. Tolerance and silent suffering of sexual predation of all kinds is so deeply ingrained through our culture across the country, that women don’t even imagine that they can speak up; many of them are astonished when asked to do so. The culture of silence is pervasive.

In the worst cases, organizations are complicit in these culturally ingrained silences. But even organizations which have zero tolerance for such predatory behaviour fall short, unless they emphatically and actively support women to speak up.

So how can the background threat of sexual harassment be tackled? Let me just share what we have learnt from our experience and that of others, without suggesting that this is some kind of a formula. First, it is about best efforts to minimize the risk of this happening. Second, is to support women in recognizing it as something that must not be tolerated, and then to enable them to speak about it. Third, is to confront it head on if it happens.

This is much like what one would do in cases of overt sexual harassment. How to confront it head on is never clear, but it’s clear that it must be confronted. This approach may seem like overzealous paternalism to some, but the extent and perversity of this background threat is such that most women find it empowering and comforting.

The majority of men are not sexual predators, but a corrosive, significant minority are. While it is not the complete solution, they have to be confronted everywhere. And organizations have a central role to play.

Even organizations such as ours, which are driven by a social cause, are no different. We are not naturally cleansed of this malady within, nor does it make our external environment different. But some of us tend to live with an illusion of difference.

Anurag Behar is chief executive officer of the Azim Premji Foundation and leads sustainability initiatives for Wipro Ltd. He writes every fortnight on issues of ecology and education.

Source: Mintepaper, 29-09-2016