Wednesday, August 06, 2014

Some recent books on rape law reform

Looting And Rape In Wartime: Law And Change In International Relations. By Tuba Inal, University of Pennsylvania Press, 2013, 280 Pages, $75. (hereafter referred to as Looting)

Redefining Rape: Sexual violence in the era of Suffrage and Segregation, By Estelle B. Freedman, Harvard University Press, 2013, Pages 387. (referred to as Redefining)

Up Against A Wall: Rape Reform and the Failure of Success. By Rose Corrigan, New York University Press, 2013. (Up Against)

Public Secrets of Law: Rape Trials in India. By Pratiksha baxi, OUP, 2014, Rs.1150. (Public Secrets)

This is a fascinating collection of books on the effectiveness of legal interventions to punish the perpetrators of rape in history and in contemporary times.  Of these, one has a global focus, two are confined to the U.S., with one dealing with history, and the other with the present, and the last one, revealing hitherto unknown aspects of rape jurisprudence in India, through ethnographic study of rape trials.  Reading these books together, one is sure to come across similarities in issues in public discourse on anti-rape law reform, whether in the U.S. or in India, differences in the social contexts notwithstanding.

In Looting, the author explores when and why states prohibited two closely associated practices in war – namely, pillage and rape.  The author teaches international relations at Izmir University, Turkey.  Given that women had historically been considered the property of men, why did the international laws that regulated pillage of property not include pillage of women – that is, why did the regulations against rape develop almost a hundred years later than the ones against pillage?  Although rape and loot continued to go hand in hand for centuries, why were both eventually prohibited and why was one prohibited before the other? These are the questions she answers in the book.

Throughout history, it is almost impossible to find a war where rape did not happen.  Like pillage, rape too came to be regarded as deviant and undesirable and eventually was prohibited.
In England, if rape victims said they were raped and described the ordeal, they would be considered unrespectable.  Since rape was a crime only when committed against a respectable woman, it became virtually impossible to prosecute and convict rapists.

Domestic rape cases in the late 18th and 19th centuries show that people did not even want to talk about rape in the context of the new prudery of the time. When it came to beliefs about preventability, however, rape was drastically different from pillage.  Historically, rape was considered a crime of passion that got out of control.   This was also the prevailing sentiment in the 19th century (as well as most of the 19th century). Rape was seen solely as a sexual act, rather than an aggressive and violent manifestation of sexuality.  Rapists were thought to have character disorders that made it impossible for them to control their impulses.

The attitude toward rape in war is particularly revealing in terms of demonstrating  the idea of inevitability.  What some scholars called a “sexual deprivation theory” of military rape seems to have been persuasive in the minds of the military and the statesman, as well as the general public, throughout much of history.   According to this theory, because military personnel do not have many sexual opportunities, they satisfy their sexual impulses through rape.   Rape was thus seen as an unpleasant yet inevitable  byproduct of war. 

Hague Conventions of 1899 and 1907 established the prohibition regime against pillage.   Since the Hague Conventions do not mention rape, it is not possible to derive any formal obligation, let alone a binding one, for states to prevent rape in war. 

The Geneva Conventions and the Additional Protocols continued not to prohibit rape.  While the first international legal document to mention rape as an unacceptable practice in war was the Geneva conventions, there are still some problems about the degree of obligations the Conventions impose on states to prevent rape in war.  Provisions are protective, but not prohibitive. It is more a recommendation and guideline to avoid, not a legal obligation to prevent.

Article 8 of the Rome Statute of the ICC (1998) defining war crimes explicitly mentions rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence as grave breaches of the Geneva Conventions.    The Rome Statute is also different from the Geneva Conventions in that state parties are responsible not only for the investigation and prosecution of grave breaches, but for all crimes under the jurisdiction of the ICC.  States are obligated to prevent the crimes mentioned in the Statute and prosecute the violators or hand them in for prosecution to the ICC.  Additionally, the ICC as a court with  “binding third party decisions”, has jurisdiction over all the crimes mentioned in the Rome Statute, meaning it also has the highest degree of delegation.  Therefore, with high degrees of obligation, precision, and delegation, the Rome Statute created a strong prohibition regime against rape in war. 

The fact that rape was thought to be inevitable because of the biological nature of men and women made it virtually impossible, in the eyes of the states, to prevent it, especially in war.  Therefore, not wanting to commit to a prohibition that was bound to be violated by their armed forces, states made sure that they would not be accused of the violation of international laws.  Writing a clear prohibition against rape into international law, when there was a high probability that some of your soldiers will inevitably rape anyway, did not seem attractive to states.

Redefining is an informative book on the evolution of anti-rape laws in the United States.  The author is Edgar E.Robinson Professor in U.S. History at Stanford University.  The book starts with an introduction on the political history of rape, and ends with a chapter on the enduring politics of rape.   The history of rape in the U.S. is a history of discrimination and prejudice.  In 1576, English law set the age of consent at 10 years.  (The age of consent was raised to 14 and more in many U.S. states in the 20th century. Source: the chapter on Raising the Age of consent).

In the South, a white man convicted of raping an underage girl could be sentenced to five to 20 years in prison, while a black man could be castrated or executed.  Chapter 12 on the Anti-Lynching Movement mentions a startling fact: In early 1890s, over 100 blacks were murdered annually for raping white women, whereas white rapists were not visited with similar reprisals.  The anti-lynching movement became popular only in the 20th century.

The author observes that a global movement has convinced the ICC to prosecute sexual and gender violence as war crimes and has called attention to the role of rape in the trafficking of women as involuntary sex workers.  Saying that gender norms cannot be eliminated by fiat or transformed overnight, the author finds several contemporary responses to sexual violence containing disheartening continuities with the past: under-reporting of rape, racial profiling of perpetrators, silencing of sexually abused children, and the victim blaming that attributes assaults to women’s clothing or to their past sexual histories.  The author concludes that contestations over the meaning of sexual violence will continue as long as social inequalities, particularly those based on gender and race, characterize American life.

While the author’s conclusion suggests helplessness,  other countries have found legal solutions for the wider context of unequal power relations, and gender inequality, poverty and vulnerability.  The South African Sexual Offences Act 2007 is not only gender neutral, but recognizes that an imbalance of power between the parties operate to vitiate the consent, so that the victim submits rather than consents.  The legal regime is designed to enable the courts to find coercion in circumstances of rape where there was an intimate relationship, the unequal dynamics of which prevented the complainant from saying no. (See Rethinking Rape Law: International and Comparative Perspectives edited by Clare Mc Glynn and Vanessa E Munro, Routledge, 2010, p.260)

Up Against  is a book about the evolution of Rape Crisis Centres (RCCs) and the fundamental failure of rape law reforms in the U.S.  The author is Assistant Professor of Law and Politics at Drexel University, U.S. and was a direct service provider in the fields of sexual and domestic violence for more than a decade. The book tells a story about the limits of legal mobilisation and questions assumptions about the role of law in struggles for social change. 

The anti-rape movement was a product of the struggle for women’s liberation, which itself had roots in the civil rights and New Left groups of the 1960s.  The critical perspectives of these movements and activists’ personal experiences with state-sanctioned repressive force led many feminist activists to be deeply distrustful of the state, both as a concept and in its concrete manifestations of government institutions and actors.  Despite their distrust, feminists involved with anti-rape activities saw law reform as a necessary tool to seek social justice and cultural change.

The book asks why are some reforms embraced by policymakers while others are resisted? Why  do rape victims have so few rights –either on the books or in practice? How do reforms both challenge and reinforce cultural perceptions of sexual violence? And how do feminists simultaneously recognize the unavoidable role of the state in confronting acts of violence and the state’s complicity in systemic violence against many of its own citizens?

The book finds that the anti-rape movement suffers not from an excess of law; rather, it has been politically and intellectually exsanguinated by the absence of creative legal strategies that could complement other forms of advocacy in addressing problems faced by rape victims and the agencies that serve their needs.  Throughout the book, she tells the story of a social movement that quickly and thoroughly abandoned legal strategies as a tool for transformative change even as it remained enmeshed with legal language, problems, and institutions.

The book explains the difficulty of seeking policies that promote the dignity, equality and right to justice of raped individuals while simultaneously criticizing the impulse of state actors to seek the most punitive, least socially transformative response to sexual victimization, and includes studies which invigorate this difficulty.

The author does not argue that the state cannot or should not intervene in sexual violence.  But she also does not in any way assume that legal entities are prepared or willing to act forcefully and fairly to protect the rights of victims or to renounce sterotypes about sexual assault that result in the unjust suspicion and incarceration of individuals and communities believed to be more likely to commit sex crimes by virtue of their race, ethnicity, or economic status.

The book quotes advocates as saying that they had good laws on the books; the problem was the failure of any mechanisms to hold systems accountable for following those laws.  The book suggests that the willingness to explore broader array of tactics –rather than more legal regulation and intervention- may be a more productive means to hold medical and legal partners to their legal and ethical obligations to rape victims.  The tactics identified in the book include developing new allies, pursuing information regulation rather than legal mandates, and strengthening RCCs as organizations.

Public Secrets is authored by one of our contributors, Pratiksha Baxi, who teaches sociology of law at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.   As I read the book, my attention was quickly drawn to Tukaram v State of Maharashtra (1979)  2 SCC 143) which will surely find a place in the list of worst Judgments delivered by our Supreme Court.   I am surprised to learn that the outcome of the trial in Rao Harnarain v. the State (1958) Cri LJ 564 cited by Bombay High Court which convicted the accused in the Mathura rape case, (who were acquitted by the Supreme Court) is not known.  The book has a separate section on the details of the case, which are shocking.  The High Court relied on this case to distinguish passive submission from consent, which was not accepted by the Supreme Court.

In this review, I am tempted to cite some more revelations from Pratiksha’s book, to woo readers.

* Section 155 (4) of the Indian Evidence Act dealing with past sexual history was deleted through an amendment in 2003. Yet,   I am surprised that there has been no serious challenge to compliance to this deleted provision by stake-holders. (An earlier version of this sentence carried a factual error, which has been subsequently corrected - see comments section - VV)

*While the trial of the case involving the rape of the German tourist in Rajasthan was fast-tracked, another case involving the rape of Bhanwari Devi and her appeal remains buried in the Rajasthan High Court. Another fast tracking of a rape case resulted in acquittal in the appeal stage because the accused was not provided legal help.

*Although the Supreme Court  has held the two-finger test as unconstitutional, it was not banned.

*Compromise in rape cases is illegal. How could the Supreme Court use Article 142(1) route to legitimize it? On February 22, 2011, a Supreme Court Bench comprising Justices M.Katju and Gyan Sudha Mishra mitigated the sentence of three men accused of gangrape 14 years earlier under Section 376(2)(g) IPC.  (Baldev Singh v.State of Punjab, MANU/SC/0148/2011). As Justice Katju continues to attract the media attention for other reasons, I am surprised how this nugget went unnoticed.

Although the book is limited in its focus on the 1983 amendments to the anti-rape legal provisions, the reader is left wondering what are the author’s views on the adequacy of the 2013 amendments.  One does get the hint that the author is against the raising of the age of consent to 18 years while the marital rape provision applying to only girls below 15. 

Readers may find the latest review of the book in The Hindu illuminating.

For those intrigued by the cover, the explanation is available in the Acknowledgments:  The photograph of the carving of the image of justice etched in the pillars of the Bombay High Court at a time when it was inaugurated, was taken by Justice Gautam Patel of the High Court. 

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