Why gender-neutral laws on sexual violence is a terrible idea

Last Updated: Fri, Feb 09, 2018 12:02 hrs
Indians gather at a vigil and protest against the gang-rape of a nun at a convent-school in Kolkata.

In a welcome move, the Supreme Court dismissed a PIL asking for laws on sexual violence to be made gender-neutral, even as their arguments were weak (using the word ‘imaginative’ in an uninformed way and ultimately passing the buck to the legislature).

Feminists have been arguing against this for some time now but the push for it has come from LGBT rights activists and, more recently, disability rights activists who not only show no sensitivity to the realities of women’s lives and their difficulties with gender-specific laws, difficulties that will only be compounded with the introduction of gender-neutral laws, but show no understanding of the implications on their own concerns.

The demand originated with what might be termed the men’s rights activists (MRAs) who have actually petitioned for changes on laws and policies on women and many of whom are lawyers (Rishi Malhotra, whose PIL asking for gender-neutral laws on sexual violence was dismissed, is a Supreme Court lawyer). This surely should give the LGBT and disability rights activists pause but there appears to be no reflexivity on the conjunction.

The grouses of the MRAs are long-standing and deeply misogynist. The scenario with gender-neutral laws in place is not hard to imagine. If MRAs have been mocking laws protecting women for decades now claiming bias, misuse and false cases, it will lead to a daily rash of counter-cases by men against women accusing them of domestic violence, rape, stalking and everything else, trivialising these hard-won laws out of existence.

But even if this were not to happen, there are enough conceptual reasons that make gender-neutral laws a bad idea. While there is no doubt that there is sexual violence against aravanis, gay men and heterosexual men, and there is no doubt that women are capable of sexual violence, there is no logical need to therefore make sexual violence laws that exist for women gender-neutral.

We have transgender laws (under which aravanis, hijras, jogappas are placed) in more and more states and at the national level (NALSA judgement) and sexual violence must be factored into those laws. Indeed, the law completely ignores the fact that aravanis are mostly involved in dangerous sex work and the violence narratives, when mentioned, are only subsumed under discrimination. There is also no mention of intra-hijra violence at all. Are all of these violences – the violence hijras face during sex work, the violence they face at the hands of the police, the public, the brutal murders to which they are frequently subjected and the violence they often wreak on each other – all subsumable under a gender-neutral set of sexual violence laws?

Gay men face violence but we are not even general subjects under the law so how can we leap into becoming sexual subjects and that too only subjects of sexual violence, whether at the perpetrating or receiving end? The state does not recognise gay men at all so what sort of entry into recognition is criminal legislation, just like our earlier entry along HIV/AIDS intervention? Is it only as disease and victimisers/victims of crime that we might be recognised?

Heterosexual men are constantly abused by other men. Stories of low-ranking men in the army going beserk spraying colleagues or superiors with bullets abound. Often, the untold story is that of sexual violence that provokes it. Kashmiri men are often sexually abused by the Indian army but does that mean that male rape and female rape are the same? This is not just a matter of scale. Are they the same even in conception and cultural status? Indeed, cinematic representations of male rape most often end in the man killing his rapists and unable to even speak about the crime. Sodomy is the ultimate insult to a man’s ego and men do not even talk about it.

Yes, women are capable of rape (especially under the expanded definitions of rape under the law) and do rape. Sometimes, they rape other women too. But, once again, is this the same as the rape of women by men? Once again, not just at the level of scale but also in terms of context, can one collapse women raping men or other women into the rape of women by men rampant in our culture?

Yes, there is widespread sexual violence against the disabled. There is a disability law being tabled, once again deeply flawed, which does not mention sexual violence at all. Sexual violence against the disabled, frequently in institutional contexts, whether the home or special homes, needs to be tabled separately within the law. Once again, the law does not even recognise the disabled as sexual subjects at all. The infamous Pune hysterectomies case (in which several intellectually disabled women were subjected to forced hysterectomies) shows that sexual violence against the disabled is of different kinds and requires separate laws.

Even within the women-specific laws, there is often the silencing of sexual violence as we see in the cases of sexual violence against Dalit and adivasi women that get erased in SC/ST Atrocity cases. We almost never hear of state armed forces’ and paramilitary forces’ sexual violence on tribal women, which activists like Soni Sori and Bela Bhatia constantly tell us about.

What we need is an open discourse on the various kinds of sexual violence and the codification of all of it in various domains of criminal law, specific to the laws relating to communities in which they occur or in a general sexual violence law as various, specific subsections.

Collapsing it all into a gender-neutral law not only erases the specificities of the violences, it is also deeply counterproductive in its potential unleashing of an MRA backlash that could destroy all the hard-won feminist legal battles for these laws.

While other kinds of violence, on subjects other than women, including by women as perpetrators, are important, they actually stand to be erased in the very moment of their articulation, in gender-neutral sexual violence laws.

More columns by Ashley Tellis:

The fabric of resistance: Dalit women's deaths and lives

The failed dream of Aruvi

Gauri Lankesh's life a battle against men trying to silence her

Pissing in the wind against the Notinmyname campaign

What Justice Karnan case reveals about the Judiciary

Ashley Tellis is a freelance academic and writer