Male perception of women and female sexuality as the property of men is one reason for violence against women. The law is mute. ‘Shame’ keeps many women from speaking up for their rights.
Kali is the Goddess of Retributive Justice. If you interview women who go to Kali with their problems and ask them why they do not find redress in a court of law, they look bewildered. The goddess would understand their problems, but a court of law…
Adrienne Rich, the well-known feminist poet writes:
Throughout partriarchal mythology, dream symbolism, theology, language, two ideas flow side by side: one that the female body is impure, corrupt, the site of discharges, bleedings, dangerous to masculinity, a source of moral and physical contamination, “the devil’s way”. On the other hand, as mother, the woman is beneficent, sacred, pure, asexual, nourishing, and the physical potential for motherhood — that same body with its bleedings and mysteries — is her single destiny and justification in life. In order to maintain two such notions, each in its contradictory purity, the masculine imagination has had to divide women, to see us, and force us to see ourselves, as polarised into good and evil, fertile and barren, pure or impure.
The law is no exception. This is particularly evident in the approach of law to violence against women. The chaste virgin or mother has to be protected…the impure, independent woman has to be shamed. This dichotomy of perception will help us understand many of the law’s attitudes and many of the reasons why the law has failed to give redress to women who are victims of violence.
Women are singled out for violent treatment for a variety of reasons. First, because of her sexuality and gender, she is subject to rape, female circumcision or genital mutilation, female infanticide, and sex-related crimes. These are fundamentally connected to . a society’s construction of female sexuality and its role in social hierarchy. Second, a woman is subject to violence because of her relationship to a man, domestic violence, dowry deaths, sari, crimes of honour, etc. These are animated by a society’s concept of woman as the property and dependant of a male protector, first her father and then her husband. Thirdly, violence is directed against women because of the social group to which they belong. In times of war, riots, class and caste violence, women are victims of violence and rape because to rape a woman is to humiliate her community. Again, this is linked to male perceptions of female sexuality and the woman as the property of another man. To attack her is to betray your enemy’s vulnerability.
Now what does the law do about these categories of violence against women? The answer is precious little. One of the main reasons is the private-public distinction which pervades all aspects of the law. “A man’s home is his castle” — this slogan must have been written by a male lawyer, for the law treads very carefully in private homes. “The sanctity of the family,” another slogan, is a very real obstacle in the case of women and violence. The basic assumption behind this approach is that what happens in the home is a private affair and the law should only intervene if it becomes a public nuisance — such as when a woman screams hysterically through the night when her husband is beating her up, depriving her neighbours of sleep.
The purpose of this paper is to raise issues about the gaps in the law and its inadequacy to deal with many problems because of the nature of the legal assumptions and the structure of the judicial system. Rape is an area where various countries’ laws have actually tried to intervene. But what happens when a rape case actually comes to court?
First, there is the general rule of the thumb — no injury, no rape. The woman who is being raped must show utmost resistance to the point of risking her life. Normally, unless the woman has clawed and maimed her assailant, she had better not bring her case to court.
Secondly, there is the “hierarchy of rape”. If you are a girl under 18 who was a virgin and was raped by a man from a lower class or a minority race or caste group then you can be sure he will be convicted. But if you are an independent, lower class woman, middle-aged, raped by an acquaintance, then it is better that you nurse your wounds at home. If, in any case, you have had past sexual experience and this has been with anyone except your husband, then of course the lawyer, the judge and the jury will be made to believe that you asked for it.
Rape is an area of the law where the state attempts to be interventionist but in actuality fails to give redress. Social and legal attitudes are the main reason for this failure — the shame attached to the crime prevents reporting, legal attitudes with regard to consent and resistance prevent conviction. There has been much research into this aspect and Susan Brownmiller in her book Against Our Will, a historical study of rape, attempts to give some answers.
Her argument is that marriage and family as an institution rest not only on the need for human bonding, the positive aspect, but also the fear of rape. Female fear of rape makes her seek a male protector. One only needs to be a young woman walking alone along the streets of a South Asian metropolis to know instinctively what she means. And the law has historically reflected this. Brownmiller studies in detail ancient Babylonian Law, the Code of Hammaurabi, right up to Blackstone, and she comes to the conclusion that rape entered the law books through the back door as a property crime of man against man.
Having explored an area where the law has dared to interevene, only to fail, let us go into another area where law enforcement is particularly timid: domestic violence.
Police, law enforcement authorities and the courts do not like to enforce the law of assault in cases of domestic violence. Cases chronicled in the United States show how when police officers come to the home to take the husband away, the wife often switches sides when she realises that her male protector is about to be charged in the courts. For reasons of economics, dependence and children, wives are reluctant to go the full length of the adversarial process which judicial systems envisage.
In that sense, the Anglo-American system of justice appears to be particularly unsuited for crimes of domestic violence. The reluctance of police officers to enter the domestic arena, the reluctance of wives to enter the adversarial process and see their husbands sentenced, all complicate the legal and judicial proceedings.
In addition to the crimes of rape and domestic violence, which are common to all cultures, there are crimes of violence against women which are culture-specific. In Sri Lanka, we have been spared many of the horrors of North Indian Hindu cultures, such as Rajput saris and dowry deaths. Since many marriages among both Sinhalese and Tamils remain kinship-based, the extreme violence of North India has not occurred in Sri Lanka. In addition, the Buddhist influence on Sinhalese society may have mitigated against culture-specific types of violence. In any event, the question remains, how does the state respond without being accused of ethnic chauvinism and without flaming ethnic passions? When culture and ethnicity become tied up with violence against women, the problems become truly difficult.
For example, when Roop Kanwar committed sati in Rajasthan in 1987, the Women’s Movement called a national rally of 25,000 women to protest. The next week, the Rajputs pulled out 500,000 to support sati and branded the Women’s Movement as part of the cultural imperialism of the “Hindi Belt”. Luckily, the lawmakers in Rajasthan and the Centre decided to outlaw sati for reasons beyond the immediate concerns of the Rajputs.
Besides violence against women which is culture specific, South Asia is increasingly becoming an area for generalised violence of all kinds, especially ethnic, caste and class violence. In this context, whether they be riots or ethnic wars, women are often the first victims. The Bangladesh War served as a well-chronicled case-study of the extremities of this kind of violence. Various reports confirm that the number of Bangladeshi women raped during the war was 200,000 at the lowest estimate and 400,000 at the highest. Suicide rates among these victims were very high.
Bangladesh might have been an extreme case, but it is well-chronicled. However, throughout South Asia, there have been smaller wars, riots, settlement killings, minor insurgencies, etc. And the toll of violence against women as well as men is so high that it challenges the basic concepts of the right to life and dignity.
In times of war, the laws are silent. There can be no legal recourse, except after the fact. Increasingly, women are beginning to feel that they cannot wait till men, either on behalf of the state or some violent non-state actor, acquire a sense of ethics and there is often spontaneous action against such incidents.
Finally, we come to shame. Anthropologists have in recent times separated societies into litigious societies and shame-oriented societies. Litigious societies are those in which rights are forcibly vindicated in the courts or in the political process. Shame-oriented societies have a parallel code to the legal system which conditions responses in certain areas of social life.
There is no doubt that in the arena of women and violence, shame is an important component. It prevents women from disclosing the truth and therefore, prevents vindication of their rights under any legal system, no matter how progressive it may be in content and form. How does one tackle shame, for it runs deep in societies such as ours?
Shame will always stand in the way of progress, and unless the community and the family become support bases, it is unlikely that it will disappear from our social life. A woman who is raped, violated or maimed brings shame upon herself and her family. Many in our traditional societies believe that the rape victim did not have the spiritual power to ward off the evil. Because woman is seen as a spiritual centre, violence in the family is an aspect of her failure to gain divine blessings. So the silence. As Yasmin Gooneratne recounts in a poem:
Betrayed by life into a loveless chamber
O may my twitching hands that touch
and pleasure nothing,
my shaken gaze
leaping from emptiness to emptiness
and my body, shrivelling quietly besides
the aching cavern
where my soul stood,
never reveal that there has taken place
an act of violence.
Coomaraswamy is with the International Centre for Ethnic Studies in Colombo. This article formed part of a paper presented by her last March at a seminar on women and violence. Text Courtesy: Law & Society Trust Review.