[Reader-list] Characteristing Rape : Towards a feminism from no where

Sat Mar 15 12:41:11 IST 2008

Dear all on the list and outside,
            Is the question of character relevant to
rape? What has sexual history of a person to do with
sexual violence?
    A lot of blood and milk has been thrown over
sexual violence, sexual ethics, morality, theoretical
correctness, political incorrecteness and so much more
on this list. And from the reaction I receive I have
an apprehension that I'm grouped under the (
sexual)libertarian category and seem to have been an
arguer for all things un acceptable ( Habermas talks
about Bataille in this vein though thankfully Im not
that great). This is cheap and obvious but not true. I
furnish an example which has been published in English
and Bengali ( in a major news paper) both and has been
an uncomfortable milestone among feminists in Bengal
(the moment that article comes to question, they all
have some urgent work to do). I put it up on the list
now before a more difficult and sophisticated version
of this comes up in my upcoming book. Let me tell
all,with this, I and my likes are those who stand for
morality and  virtue-ethicality; we are the ones who
have searched for the immanent sacred in the so 
called profane. Our personalist feminism is thus a
feminism from no where but genuinely for equality,
goodness and freedom. And as a last manifesto, I put
this piece ( first drafted in the year 2001 I guess
and here as it is)in order to exemplify what I am
saying and that  those practitioners of feminism from
somehere have to now reckon with these arguments;
there is no escape.This piece loaded with apparent
legal reasoning is dedicated to my friend Lawrence
Liang and Ramanjeet Chima ( who will correct me if
they want to)and to those who want heavy postings from
me; not sweet nothings. 
--------------

 Law stands between politics and morality  Jurgen
Habermas , Law and Morality, The Tanner Lectures on
Human values , Harvard university, Oct1,2, 1986       

CHARACTER (ISING) RAPE, CONTEMPLATING AMENDMENT

What was noticeable in the  episode in which Anil
Biswas was shouted at and condemned by nearly
everybody -  when he had reported that there were
questions in the locality about the  lifestyle of an
alleged rape victim,  was the immense confidence with
which  the argument of  Biswas was put down. This
false  confidence derived from the Indian Evidence (
Amendment) Bill, 2002 becoming Indian Evidence
Amendment Act, 2003. The act  seeks to amend the
Indian Evidence Act, 1872, and provides for deletion
of clause 4 of section 155 by specifically providing
in Section 146  that in a prosecution for rape or
attempt to commit rape, it will not be permissible to
put questions in the cross examination of the
complainant as to her general immoral character. In
Section 155(4) this could have been used  previously
to impeach the credit of  the complainant as a
witness. Before that there was the 177th report of the
Law Commission of India and the National Commission
for Women who had unanimously recommended the deletion
of Section 155(4) of the Indian Evidence Act. The
recommendations were pushed forward keeping in view
instances -  where people have been acquitted  because
of the immoral character of the complainant or the
latter were  harassed in cross examination. So far so
good!
..                But this amendment is in a sense
redundant if we want to closely read   two other
Sections [151,152] of the  Indian Evidence Act (
I.E.A).  Section 151 states, The Court may forbid any
question or inquiries which it regards as indecent or
scandalous although such questions or inquiries may
have some bearing on the questions before the Court
unless they relate to fact in issue or to matters
necessary to be known in order to determine whether or
not the facts in issue 
; Section 152 states,  The
Court shall forbid any question which appears to it to
be intended to insult or annoy, or which, though
proper in itself, appears to the Court needlessly
offensive in form. The question is, despite this
immunity and the power of the trial judge to
intervene, the courts must have failed in their duties
to protect a rape complainant from being scandalized
while being questioned; through this amendment the
Indian legislature vis a- vis the Supreme Court
acknowledges this failure perhaps. No explanation has
been forwarded on this count from any quarters. In the
Rajya Sabha itself this question was raised by Shri S.
Shumugasundaram but he ended up having had to welcome
the Billsuch is the compulsion to be politically
correct. 
This is a technical and nearly a fatal objection to
the amendment - from within the I.E.A. But the
amendment arguers and makers, movers and shakers  have
other serious sociological reasons toowhich are
abundant in the media; abundant and cheap because any
critical argument against  is avoided or suppressed.
The reasons of the protagonists are1) immoral
character has nothing to do with the fact that one is
being raped. 2) morality of character is an
ethico-moral issue, not a legal one. 3) Immorality
should be left alone so that we are able to respect a
persons privacy.

2.Reading character in the I.E.A 

We must first try to prove that the question of ones
character is vital for a case of rape or sexual
assault. Now-everybody knows  that a 
poetessMadhumita Shukla has been murdered in U.P and
a lot has been written on it, the minister had to
resign. But  her preeminently  dangerous lifestylea
disposition to sleep with the politicians and
criminals of Gorakhpurhas nothing to do with her own
death?  To hobnob with  Amarmani Tripathithe infamous
minister who has had  nearly 38 cases against him for
murder, land grab  to rapehis moral character  has
nothing to do with Madhumitas death? It would be
scandalous to consider the  womens death separate
from the kind of lifestyle she was used to, the kind
of action norms she had set for herself  the kind of
character that she was.  Would it have been
irrelevant if her or the ministers character  had
featured in the trial  if she were raped- not
murdered? Not at all. And provided the woman had led a
sane life in accordance with acceptable moral
standards and still she were raped, then the character
of the alleged rapist would have featured in a vicious
way. This is missing in the I.E.A. Infact what was
actually wrong is the gender bias in the Section [
155(4) ] where the immoral character of the
complainant could be invoked by the defence lawyer to
impeach  only the complainants witness; the witness
is understandably a woman here. The moment we make it
gender neutral we assume the bias is corrected. But
instead of giving it a corrective, the amendment
makers have done away with the whole thing. (Character
here   signify serial and  stable dispositions of an
individual over of an individual over time i.e our
actions and behaviorial dispositions by which we come
to be known as reliable or a cheater,  romantic or 
someone always with sexual intent etc.) And this
weighing of dispositions of individuals is what makes
everyday life going; you know  a guy to be good, you
decide to  go to a date and return being raped ( for
this read the ever growing literature on date rape);
you know somebody is of questionable morals; so
decide not to go on a date or go at a time, at a place
where his morals will not get the go. Likewise, for
every person we just cannot afford to start from zero;
therefore when it is suggested that in a rape or in a
case of  sexual assault any question of character is
uncalled forthe obvious thing that comes to mind is, 
are we products of our past actions? Do  our pasts
have a lot to do with our present or all  our actions
are  arbitrary and accidental and  there is no  logic
to be found? The point is- claims on the pasteven our
pasts -- can be contested but cannot be done without.
And that we everyday invoke and use these character
traits to guide us in our actions is absolutely
relevant. And because crime has this life as the
backdrop, situations as well as characters,
dispositions as well as life style have to be
taken into account. What is actually wrong is the
gender bias in the Section where the immoral character
of the complainant could be invoked by the defence
lawyer to impeach her witness; the witness is
understandably a woman here. The moment we make it
gender neutral we assume the bias is corrected. The
immoral character clause should be applied on both the
complainant and the alleged perpetrator; for men --it
should be made more rigorously sogiven the
patriarchial nature of our society and men like
Amarmani Tripathy.
The way it is happening now strategically-- is well
illustrated  by one www.onlinedetective.com which will
give you all information u regard necessary to date,
marry, have sex or start a business: here it is- And
how do you really know that the guy you've started
dating isn't actually a convicted wife-beater with
several restraining orders on him, or that the new
employee you're about to hire really has all the
qualifications she says that she does? What if your
new neighbor that's suddenly started playing with your
kids after school is actually a convicted child
molester? You need to know these things in order to
protect yourself, your family, and your business. If
these are our inquiries in everyday life, it  is a
wonder that these are considered irrelevant in a
criminal case. 

 Here is an other  example with a legal niche: 
recently in West London an Indian businessman 
Amarjit Chouhan along with his family has been
murdered. British police has arrested two English men
 examining whose past records  the police has come
to the conclusion   that the two are  violent and
dangerous.  Now violent and dangerous  are apparently
morally negative traits of a person, but in the eyes
of the Law -  they having surveyed the behavioral
history of the  individualsare   historical decisions
with legal consequences  and not moral ones. Here
character does not stand for popular evaluative common
sense conceptions of good-bad, right- wrong etc,
because no incentives are there for being a morally
better person ( his crimes will still be tried)
instead there is a sense that an immoral behaviour is
more threat to societys security  than a moral one;
infact  there is a legal -blame worthiness in the
sense a repeated offence might ensure more stringent
punishment. If our recommendation to include the
character of the convict is accepted, in that case
reinvoking the case of Amarmani Tripathi, any past
conviction will also add a dimension  to this. A
repeated offence might ensure This is  clearly
explicated in I.E.A ( Section 54, Explanation 2) : A
previous conviction is relevant as evidence of bad
character. This statement proves again that character
in the I.E.A does not derive from moral  precepts as
the Law Commission et.al understand it but has special
techno-legal value. This is  clearly explicated in
I.E.A ( Section 54, Explanation 2) : A previous
conviction is relevant as evidence of bad character. 
Let us extend this  argument to Indian politics :
isnt this  the clause we are pressing through a bill
in a different form-for the knowledge of the pasts of
our political representatives to be delivered to the
people?or else why are we concerned about their past
convictions?even their moral history held in their
clean imagesin short their  characters? Because
we are invoking the moralization of politics ( that
politics should not violate  moral norms), - arent
we? We are moved by the current  demoralization of
politics, but at the same timeit is peculiar  we are
about to argue in favour of the de-moralization of Law
 -that law and morality should be separate ( which is
in reality a rational illusion of modernity)not
knowing that the demoralization of politics is only a
step further! To be more concretewhat has been
considered a relevant inquiry for a political
representative is irrelevant for an ordinary citizen?
This is awfully undemocratic and politically self
defeating. 

3.Immoral character, where then?                      

      The model of this debate was set when a British
judge- Lord Devlin in responding to the report of the
Committee on homosexual Offenses and Prostitution
called The Wolfendon report argued,  without shared
ideas on politics, morals, and ethics no society can
exist
..therefore with  recognized morality being
present , legislation against immorality is
indispensable to prevent the disintegration of
society.( check it as quote).  Criminal Law exists
for the protection of society, not as the 
Wolfenden
Report asserted, for the protection of the
individual. The Wolfenden report in turn had asserted
that  there must remain a realm of private morality
and immorality which is 
not the laws business. 
There is nothing wrong with private immorality;
immorality unless it harms others or else is public is
at par with the liberty of individuals. For example ,
I might be a homosexual -  while my communitylegal
community in which I live, sees homosexuality as
immorality; if I m engaged in homosexual acts in
privateoutside the purview of the public eyeperhaps
in the bedroom, the state will not intervene; but if I
pursue it as a particular kind of  lifestyle openly
and demand rights for the same the state needs to
intervene and negotiate. ( It is necessary to read the
references to character through reputation in the
I.E.A  by not separating them from their appropriate
contexts. It clearly states ( in Explanation-55) that
in Section 52, 53, 54 and 55, the word  character
includes both reputation and disposition; but except
as provided in Section 54, evidence may be given of 
only  a general reputation and general disposition and
not of particular acts by which reputation or
disposition was shown.) There are two or three
factors at stake here: while the Indian Evidence Act
speaks about bad reputation in general  --clearly
tells about reputation that hasnt grown out of
private immorality; if Ive been  privately and
secretly immoral how do I come to have a
(dis)reputation and be known as immoral? Further,
reputation has nothing to do with (moral) sexual acts
only; one can earn ill repute just because s/he is
cruel to the animals or a swindler or a black money
maker. A girl when walks with a half bare bosom (
agreeably -a private part) or a boy exhibits something
from his private inventoryit is said to be an event
of public immorality ( indecency) which violates group
or civic  morality; it is possible to go further and
argue that the girl or the boy outrages her/ his own
modesty when she does so. In this sense - that one
must be free to  lead any sort of life one wants to - 
stands for all and nothing: a married woman/ man if
does not respect marriage as a moral contract and
justifies fornication by her/his  actions cannot be
accepted on grounds of freedom or being privately
immoral and therefore to be tolerated. It is on the
question of character at times -- that a suit of
divorce is successfully filed and won even by
submitting the burden of proof, and no way it can be
argued that if a wife files a suit of divorce because
her husband has been  adulterous, she should be taught
that Law has nothing to do with morality and one can
be privately immoral and she should have  inquired
whether her hubby had taken enough caution to be
secretive. This is just ridiculous!
Secondly, that ones character is a private matter and
the Law should not interfere in matters private has
been disputed most by the feminists themselves. By
saying 
 personal is political they took so called private
matters for public legislation; the issue of marital
rape was brought to light by their incessant efforts.
If they were to be satisfied with the immorality that
can be safely practiced in private, they would not
have called forth for legislation on the consensual
validity of conjugal copulation that obviously does
not take place in public. 

4. Charactera moral question! Really?

          Their answer is something like this: Law
looses its legal character if it is lead by the
axioms of morality; it will see to the illegality of
the  event in question rather than the immorality of
the event. An immoral victim and a perpetrator with
a sound moral history should be considered equals
before the eyes of the Law. Legality and morality are
two different things. Justice has to do only with
legality and not morality.  
                                    Long back it was
Karl Marx who had told us most emphaticallyhow Law is
not just Law! Again it is the works of one of the
greatest philosophers of the 20th centuryJurgen
Habermaswhich has reminded us that it is through the
political legislature - which is the law making
bodythat morality and politics enter through the back
door perhaps,(remember the Shah Banu controversy); and
it is simply an illusion that law and morality, law
and politics, or law and society are internally
separate and separable. Further if Law apart from
having to have  compulsory legal validity ( i.e its
equally enforceable for all and  violation will entail
punishment) is to have normative or social 
validitythat is, if it is to be seen as just -  has
to negotiate - with the moral expectations of  a
population and seek consensus through argument. - or
otherwise how would Nazi laws, even retrospectively,
be questioned? If  law is to justify itself in the
eyes of all affected and gain social validity apart
from legal validity, then the Law is Law slogan  is
simply dangerous. The Nazi laws can be questioned only
on grounds of morality and politics.
And morality-- if not brought within the purview of
law will never get tested of its own validity in
terms of human rights or  gender sensitivity.  The
Supreme Court in a landmark judgement decided to
overrule a tribal custom where rape had been  a 
customary practice -  by saying that there cannot be
any customary practice which could override certain
basic human rights of individuals. Therefore various
moralitiesbelonging to the individual or  groupswill
never be tested if a rigorous demarcation is
maintained between law & morality. But these are all
arguments as to how law will mislead itself if it were
to avoid the question of character in a case of 
sexual assault or a  rape trialand through this
amendmentapparently-- it has taken that route;  what
remains to be known is the effect of this  amendment
on the citizen.

5. Amend Effect!!

    Let us see the consequences of this argument for
the citizen- individual:. 
 Once upon a time someone called Mendelville had
proposed the models of the bad citizen and the good
citizen. The model of the bad citizen entails  he
recognizes only legal obligations, so is always on the
lookout for a chance to violate it safely: the moment
he makes it sure that he will not be caught in the act
of breaking the law, he goes along. A good citizen
irrespective of the vigil of the law, being inspired
by moral obligationsdoes not violate prohibitions.
Therefore following this if I were to have only legal
obligations, I would not rape only when Im sure Ill
be caught in the act of violation; the moment I can
make it sure otherwise,  I would be up with my talent.
But it is sure we dont rape not because we have a
legal obligation, but also because a moral obligation
not to do so. A binary distinction between legality
and morality will produce more people with legal
obligations onlyand reinforce the model of the  bad
citizen--  and the consequence understandably is
dangerous.
 Therefore, such an amendment which seeks to delete
all questions regarding character or the moral history
of an individual, indirectly by its long hand,
discourages citizens to  adopt justified moral
behaviour at all. Take the recent drive by the Kolkata
police to arrest men folk who annoy and  harass
women standing by the roadside  waitng for buses,
through indecent proposals. A lot of men were arrested
but lately the police were not so pleased to find that
a lot of women folk do invite clients that way and for
them wise women are being proposed and harassed from
no where; the moment the police started picking some
of these women toothere was protest from quarters;
however it is the case in which the ordinary women
themselves condemn the actions of some women for whom
they are being propositioned and harassed. Such an
amendment which seeks to delete all questions
regarding character or the moral history of an
individual, indirectly by its long hand, discourages
citizens to  adopt justified moral behaviour at all.
The conclusion that can be  derived  is this: - the
woman who wears revealing clothes, tries to sleep her
way to the top-- with criminals and politicians and
gets assaulted, raped or murdered, and the woman who
does not do so and goes all along with communitys
positive morality-- but still is harassed, assaulted
or raped --- the law  shall be doing grave injustice
to the latter woman -  if it places both of  them on
the same plane by not distinguishing between the
differing behavioral dispositions of the two 
individuals. Then the second woman in particular is
prone  to do this kind of a  reasoning, well, if my
actions, dispositions, or reputation does not matter
and am placed equally with that woman, why should I at
all lead a moral life in a   community? So our point
is -  this amendment discredits those who tend to live
according to the justified or justiciable moral
standards of their communities and civic life, and
discourages future moral behaviour from citizens
because they will understand that that wont be
recognized. If my honesty is not credited at some
point of timeparticularly in times of crisis, why
should I at all  be honest? 

While this is one aspect, millions of women who have
been forced for various external reasons to become-
for example -prostitutes, would they be discriminated
against?  Here, the alleged rape of a prostitute
raises difficult questions and needs extensive
discussion and interpretation. If their character is
consideredwhich will be immoral according to certain
standards, then would raping them  be considered a
lesser crime? I can just attempt an answer here. Ive
proposed a matrix where the character test would be
made gender neutral. And there is also a hint that
character would be understood to stand for an
inventory of stable dispositions of an individual over
time emptied of its normative or moral judgemental
contents. Following that  the question of immorality
would have a descriptive reckoning. But if we want to
retain the force of morality for possibilitys or 
simplicitys sake, then invoking that --consider where
the convict says the complainant woman is a prostitute
and is therefore of established loose morals and is
therefore lying; they have had usual paid sex, there
was some brawl on the payment when the woman charged
extra money after sex and he had denied ( nowhere do
these people claim that raping the prostitutes has had
been their right -  as some wrongly contend). Now the
courtly  indictment for the other (male) side could
be- well, that the woman is of loose morals is okay,
but how  do you having been of strict morals  visited
her for sex? When it becomes obvious that both can be
constructed as immoral, the morality test is
neutralised and other considerations resume. But I
dont think this is the right answer because the right
answer at this point of time could not be imagined.
The problem is this: sex with an ordinary so called
social adult woman depends upon her consent; sex
with a prostitute depends on buying her consentso
its consent by contract but its actually an
invisible contract and an informal
agreementparticularly where prostitutes dont get the
protection of the law of contract. So the first thing
is, the sexuality of a non-prostitute woman is not at
all the same as that of the prostitute; the nature of
consent-giving is absolutely different; this first has
to be theorised adequately since it pulls us into
grave problems: while it is easier for a 
social woman to say I had not consented to having
sex with this man, the burden on a prostitute is
double: she has to prove two things at the same
timethat the alleged rapist is neither her customer
nor someone with whom she had wanted to have  sex
without payment; in other words, she had not
consented, as well as she had not sold her
consent.-i.e permitted. And given the absence of any
document as to the payment, how would the man prove
that he had indeed bought her consent by making an
agreed payment? It is nearly impossible. (There is  a
similar  danger from this side as well: what when a
prostitute has sex with her client on agreed payment
but demands more money, the man failing to give which,
she threatens to file a charge of rape; the
vulnerability is on both sides therefore. ) The
solution has been proposed on the lines of recognition
and legislation of prostitution but the protagonists
have not been able to satisfactorily answer the
objections recently raised in relation to the side
effects of such legislations by Sanlaap an N.G.O
working on this. So far as this debate continues and a
consensus is not arrived at, I think this can be
easily argued that their rape cannot be addressed
within the established parameters of rape because the
law in India atleast does not take into account the
vulnerability of the prostitutes and the difficult
questions it raises. The Indian Laws audience and
reciepient   supposedly are the gentle men and
women. Is there then the necessity of formulating a
separate  section to address the rape/ sexual assault 
of the prostitutes  given the complex nature of their
consent to having sex? Perhaps. But to start to
recognise the rape of the prostitutes, one cannot but
take into account their different life or living
style; their identity has to be established: and this
falls well in line with our main  proposal and Anil
Biswas is again correct.

Armed with this correctness  we could recommend  for
the time being-- the following --
1)	The amendment deleting section 155(4) should be
nullified by a newer amendment and stress should be
given on Section 151& 152  because they suffice to
restore discursive justice by confronting harassment
in the courtroom.
2)	155(4) should be revised to entail inquiry into the
character of both the complainant and the alleged
perpetrator of the sexual assault and provided the
perpetrator is male -  the inquiry  should be made
more stringent and more rigorously applied.
3)	In case of complainants with sexual identities like
the sex workerslegal protection should be doubled and
rape in her case has to be theorized differently from 
the general civilian women given the complex nature of
the formers sexual consent which can be bought. There
is no proviso in Indian rape laws as to their double
bind. The rape of a sex seller  to understand it
differentlya beginning has  to be made but that again
has to account for her different way of life or
living -style. In case of complainants with sexual
identities like the sex sellers or sex workers:
legal protection should be doubled and rape in her
case has to be theorized differently from  the rape of
general civilian women-- given the complex nature of
the formers sexual permission ( and not consent)-
which can be bought. This if   recognized by the law
of  contract (a contract between them and their
clients-- so the sex sellers can have legally rightful
claims in the case of violation ), and they be given 
social rightslike access to social security and other
welfare provisions, then well just begin to
understand  the rape of a sex worker; not before that
and not now.

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