It is because rape is considered a crime against honor of the woman and her family that rape survivors are not getting the justice they deserve. How?
Recently, the Human Rights Watch had come out with findings which state that rape victims in India continue to face many obstacles when trying to obtain justice. This continues to be the case ever since the horrific Nirbhaya case in 2012 following which several amendments were made with the aim of ensuring quick and strong justice against rapists.
The major obstacles cited by the agency are: police are not swift at recording these crimes when reported by women. This is especially the case when victims are from economically or socially vulnerable classes and lack the money and power to influence the right legal action.
There continues to be hesitation in reporting crimes because of the humiliation and degrading language victims face during questioning by police and the courts. The Human Rights Watch study further mentions that the police, in many cases, seek to form a compromise between the victim and the oppressor instead of filing a complaint typically when the oppressor belongs to a more powerful family.
The lack of a witness protection program in India (I did not know there was no witness protection program in India!) also exacerbates this situation since witnesses do not come forward for fear of retribution.
Finally, the study also cites victim shaming and blaming as a major obstacle preventing justice from happening.
I believe that there exists a much more basic obstacle that prevents justice – the traditional patriarchal systems and beliefs continue to influence our thoughts and actions. Traditional systems do not treat women as an individual with control of her mind and body. Women are viewed as objects, possessed originally by her father or in the event of his death, her brother and after her marriage, her husband. It is their duty to safeguard this possession from losing her virginity or chastity – whether she wishes to do so or not. There is no concept of her consent in this context.
So rape is then a tool of power abuse and revenge against the honor of the men who possess the woman. It is in this place that it gains importance as an assault to honor and not as sexual violence. When the female ‘object’ has passed into the husband’s hands, he can then force her to have sex with him as and when he wishes. There is no honor lost by the man or woman in marital sex as per patriarchal norms and hence, no rape. Hence marital rape is not recognized as rape.
The justice being denied to rape victims needs to be viewed against this context.
To be treated as a legitimate rape victim by society – the female victim needs to be perceived as a docile virgin. She must be perceived as having had no part in provoking the rape whether through her eyes, her smile, the way she speaks, her mode of conduct or the persons and places that she chooses to be in at any given time. Not only this, her family males must also be scrutinized to see if they did all that was possible to prevent their object from falling into the wrong hands.
All of these then must first be scrutinized before her rapist is subject to any scrutiny at all. This accounts then for the assaults to dignity and the shaming and blaming that all victims are forced to endure. The terms of ‘habituated to sex’ and the shameful ‘two-finger’ test are all attempts to ensure that the victim is indeed worth saving and that she and her family did possess ‘honor’ before the crime occurred against them.
So while all other assault victims do not have to prove that they did all that was possible to prevent the crime from occurring, the rape victim must prove this while also proving that the crime did take place and that it was the rapist who did it. Can you imagine something happening like this with a robbery in a bank? How would it be if the police in a robbery case first ensured that the bank had done all it could to prevent the robbery before attempting to investigate take action against the identified accused?
So my contention is that we don’t need the death penalty for rapists to ensure rapes become less common. What we need is to
Ensuring these things will mean that rape is viewed as a physical and mental assault. It can be reported without fear of dishonor. So then rape victims can be assured that their crimes will be treated as other crimes are, investigated and punished based on a burden of proof on the crime alone and not on their own individual characters.
We need to learn to recognize rape by itself as an assault but not a dishonor to the victim. Why is rape recognized as dishonor? Not because patriarchy wants to protect women from physical or emotional abuse. If it wanted to do that, marital rape would be recognized as rape too. It’s because patriarchy places a premium on the dubious so-called virtues of virginity and chastity. And because patriarchy believes a woman does not own her own body. Her body belongs to her father or brother or husband. So it is a matter of social stigma and dishonor not just to the woman herself but to her family itself when she is identified as a rape victim.
So then you have people talking about ‘zinda laash’. No matter that the victim lives or not, she has become a non-entity because the whole world now knows that she has been sexually violated. Questions about the woman being ‘sexually habituated’ or subjected to the ‘two-finger’ test are also in this context. That’s because patriarchy is not concerned about the crime against the woman (it’s not viewed as a crime at all!). The crime that traditional systems want to punish is not the assault against the woman, but the assault to misplaced honor and modesty. So if there’s no honor to be lost (as is the case in the rape of a sex worker) or in the case of marital rape, there’s no crime to be punished.
If women started to own their bodies more, could have sexual freedom without worrying about society’s judgment, rape would automatically begin to be recognized as an assault – similar to other horrific crimes of physical and emotional torture. Once this was done, we would move from judging the victim’s honor as being a barometer of the crime’s severity and actually look at the crime’s severity and the criminal himself.
Image source: a still from the movie MOM
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