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That consent is simply a ‘yes’ or ‘no’ is quite easy to understand. However, it is not that easy in India. Here’s looking back at history of why consent is so hard to understand
Let’s admit, consent can be a difficult concept. In my personal exploration of what consent really means, I found it to be not quite black and white.
For example, the Aziz Ansari account. The woman (overcome on meeting the celebrity comedian) felt obligated and coerced. While according to Ansari, he sincerely felt the act to be consensual. But India’s problem with consent runs deeper and dangerous, at a much more basic level.
In a December 2019 video making rounds on Facebook from The Print India by journalist Shahbaz Ansar, several Delhi men are asked about rape and why rapes happen. Anyone on the internet who has had access to men (and even women) speaking their mind on rape in India can tell what they would potentially hear on the video before hitting play.
“If women cover their bodies, they will not arouse men. Women need to be in closed quarters, under supervision in order to prevent rape. They should be respected as goddesses however they are same ones who can (and should) be raped if behaving inappropriately. That is what our (the Indian) culture and heritage is all about.”
During the post medieval and late colonial patriarchy, there was a great push for control on a woman’s sexuality. Values and scriptures were used to serve the purpose of patrilineal purity and the assignment of that control to men solidified.
These scriptures say that women and their sexual behaviour needs to be controlled by men, and that it is ‘the’ right thing to do that is what salvation and sanctity is derived from. In addition, when needed, use of force on deviant women was scripted to be rightful. That not only were women supposed to not be in control of their desires and needed to be therefore carefully guarded, they could also be not aware of such desires and therefore needed to be ‘awakened’. Below is how this sums up:
When it comes to women’s safety, we have all three of these happening in India today. We owe the last one to late colonial- post independence history of gender in India.
Two additional views that voiced in the Delhi video are rapes didn’t happen before, and that rape is consensual. The former is voiced often by politicians law makers and many people in India (including my parents) are firm believers.
However, the fact that occurrence of sexual assault and rapes are significantly on the rise and are attributable to external factors is not quite backed by data. Globalisation in India is largely noted to have happened in the 90’s following the initiation of the economic liberalisation plan by then finance minister Dr. Manmohan Singh. Following the statistics of crimes against women through late nineties into present day, a steady increase is indeed seen.
The delta and jump ratios do not demonstrate clear correlation.
Previous laws were often inadequate for accurate classification. Therefore, noting of gender-based violence (for example, before 2013 penal code modification with sections 326A and B, acid attack could only be tracked as violence and therefore, impossible to correctly account for.)
As for the second point that rape is consensual is a natural consequence misinformation and lack of education on intimate relationships. The Quint video graph from 2018 that went viral on social media (following the notorious ten rape in ten days in Haryana) shows this explicitly.
In the video, men and women, across the age spectrum, share that consent is not needed to be verbal and is interpreted, that rape, after a point, has to be consensual. The Haryana video shows boys and girls describing how a smile, silence, or even avoidance of eye contact, is interpreted as consent.
Missing any visible marks on the body is considered as a telltale sign of consensual intercourse. The gang rape of a sixteen-year-old tribal girl in Mathura in a police station triggered the anti-rape campaign of the eighties is worth remembering. Acquittal, among other assumptions, was based on the absence of visible marks on her body.
The matter of coercion into consent and passive submission out fear not equating to willing intercourse was recognised by an intermediate court. But the Supreme Court itself re-acquitted the accused.
The role of Bollywood in this through eroticisation of assault (stalking equated to passionate love!) and delegitimisation of dissent (uske naa mein haan hai”) is vital as the next and final tier: reinforcement and validation of misinformation.
Seventies, eighties, and the nineties are teeming with mainstream movies made in India depicting persuasive men ‘winning’ the love of the ‘fair maiden’ through criminal acts (de-criminalised in the name of love.) And on another, obligatory rape and sexual violence by villains as means of eroticising the audience.
Furthermore, such acts without fail marked the end of the woman’s life (virtually and literally). They valued a woman’s existence entirely to her sexual ‘purity’ and her ‘preserving of male honour’ through the same. Let’s start with the major kinds.
Stalking, persistent harassment. College harassment and eve-teasing of women. Full-blown assaults.
There is a brilliant article that I had come across a few years back while researching the movie Bahubali. It has a sequence of the hero forcing himself on, and slowly undressing the heroine who has outright rejected his advances and fought him to be left alone.
The article, titled ‘The Rape of Avantika’ summarises perfectly this category of de-criminalised sexual assault. That the hero forces himself on his love interest and emerges victorious in love is shown as a necessity and mark of strength.
Bollywood is filled with such storylines where the base idea from the category 1 has been taken one step further. It legitimises rape and de-legitimises the woman’s voiced opinion with one single act of the her giving up and in eventually.
Obviously, all the above categories are criminal, and awareness today is significantly higher towards that fact. However, the damage done through decades of such depiction has deep effects on the sub-conscious of the society.
It can’t be easily undone for although rape scenes have declined from movies with the rise of porn the views to the Bollywood rape and assault videos online continue to hold strong.
In addition, current Bollywood has moved on to speckling objectification instead of naming it or putting it as part of the plot. Slaps on butts in songs to shots, cleavage, and slapstick comedies of men lusting over women are quite common. And with that, Bollywood continues minimisation of the importance of consent. In addition, it shows assault as a fun and desirable matter.
As the second pillar, India’s legal system largely models sex within marriage as a right, not choice.
‘Since marriage in India is perceived as a sacred union, marital rape cannot be brought within the purview of the law on rape.’ – Haribhai Chaudhary, Indian Minister for State of Home Affairs, 2015
As Flavia Agnes summarises in one of her articles on this matter, “Hindu marriages ceased to be sacramental more than half a century ago and Muslim marriages were always contractual in nature.” Two current legal provisions that grant men impunity on rape and forced sex within a marriage: exemption granted to husbands under section 375 of IPC (exception 2: sexual intercourse or sexual acts committed by a man with his wife, wife not being under fifteen years of age, is not rape) and the provision to restitute conjugal rights.
Section 376B of IPC does criminalise the act of sexual intercourse without consent of a husband with his wife who is living separately. However, what essentially nullifies this protection is the fact that Section 9 of the Hindu Marriage Act grants the right to either spouse to file a petition in a matrimonial court to restitute conjugal rights if abandoned by a spouse after solemnisation of marriage.
It is worthwhile to note that although in India such provisions remain valid under Hindu, Special, and Muslim Marriage acts, it has been done away with in 1970 in the United Kingdom. For legal disputes around this matter, including debate on the benefit and intention of this law multiple articles can be found.
But more useful for analysing India’s grasp of the concept of consent, I would ask you to check the comments on a Times of India article reporting on a woman who filed a case to block her estranged husband’s filing of the restitution of conjugal rights on her. Below are two examples (reflective of many other such) of what most men believe!
“Prenup’s should be made mandatory by law to secure men from greedy women who get divorce after few years of arranged marriage, get entitled for alimony and go live with their boyfriends without a matrimonial bond, and husband has to pay her alimony for his life – Commenter 1, Times of India”
“Does sexual autonomy imply she can sleep with anyone she feels like. Gets divorce and alimony. And repeat the process with another man. It will be very good business model! Prostitution is at least honest! – Commenter 2, Times of India.”
The elephant in the room here is the fact that even if it is true that the woman’s motivation in this (or similar actions) come from a place of no particular grievance and is just a matter of not wanting to engage in a physical, or otherwise spousal, relationship with her husband – it is still her wish.
The aggrieved spouse can file a legal suit to refuse alimony, nullification of marriage, or even damages. But there is a deep issue when a spouse (male in most cases) feels entitled enough to consider state aided coercion a just mean to sex.
To address the second commenter’s question: does sexual autonomy imply she can sleep with anyone she feels like? Yes. That is a lesser problem than him sleeping with someone who doesn’t feel like sleeping with him. The problem is, most men feel that sex is something that is owed to them, and if they are ‘virtuous’, it is their ‘right’ in a marriage.
In addition, many men don’t realise (or don’t care about the fact) that pleasuring a woman might be more difficult than the pleasure they are getting out of the act of sexual intercourse. Therefore, they can’t acknowledge that a woman might have sexual urges that remain unsatisfied with the current partner.
There are only two options to choose from for these men when a woman is seeking out another sexual partner, other means of fulfilling her urges, or is expressing needs that are unsatisfied: either take it personally or blame it on her ‘character.’ No-one thinks of her right to any pleasure.
The 2019 movie Veere Di Wedding, for example, very genuinely depicts a woman’s husband seeking divorce from her for her mere act of using a sex toy, for he considers it equivalent to adultery. In the kindergarten of mutual-ity in Indian society, when it comes to sex, this is too far advanced a concept to grasp!
The other point made on marital rape by these supporters who say it’s not a crime (also expressed in comments on social media but a bit more muted than the entitlement ones) is on implementation and possible mis-use for victimising men.
The abuse stories of 498A are often quoted on this. But it is important to recognise the preposterousness in the demands of de-criminalisation of a criminal act on the grounds of ‘difficulty of implementation or prosecution’.
Let’s move out the vantage point from gendered consent and subjugation to the broader matter of personal space. The internet has no shortage of articles on the matter of personal space being a problem in India (and for Indians). From Quora threads on why Indians stare or push, to cultural handbooks on how invasion of privacy with personal questions are not offensive, to scholarly and semi-scholarly articles dissecting culture vs. necessity.
The crowding experienced in daily life in India does necessitate operating in close contact which is argued to be undermining the value and habit of privacy and space (literal and figurative) over a period. But there are two points to consider.
First, it provides opportunities of violation. Whether it’s urban or rural India, from public transportation, walking the streets, residing in close quarters, to having to take desperate measures for relieving oneself (women who use open defecation are twice as likely to face non-partner sexual violence compared to women with a household toilet), too many instances of being exposed and surrounded happen to both men and women.
Second, this necessitated living in very close quarters plays into development of tolerance for lack of physical space. Even when space is available, women and men push themselves into these gaps and try to make a point of upping one over the next person waiting. It is necessitated at times but cultivated always, and the tolerance for lack of physical space easily extrapolates into tolerance of misdemeanours.
Now, instances of the opposite nature are also aplenty and are worth mentioning, but what is important to note is the connection between development of tolerance for violation of personal space, increased opportunities of violating, and getting away with such violations furthering the minimised need of seeking consent. This makes a non-consensual touching the path of least resistance.
Before we summarise, it is important to analyse the cases where lack of consent is not obvious.
For this, understanding of the pillars of consent is necessary.
First, consent should be enthusiastic
It is often, especially for Indian women, a hard bridge to cross, and the prime ground for perpetuation of misinformation.
Women are trained to repress their sexuality and are shown to be ‘desirable only if coy’ through popular media. Both real and cultivated reservations come into play for a woman to be able to express it if she really is into the act.
Therefore, this is also the most important one. It is needful to enforce that if enthusiastic consent doesn’t exist yet, it is necessary for the man to hold back from the act.
Second, consent needs to be continuous
A ‘yes’ can change to ‘no’ to any point, even during the act. And a onetime sexual interaction doesn’t amount to lifelong permission. This is a matter which is again used more as an excuse than a tool.
Many men I talked to failed to recognise that even though they had kissed the girl one time, or she had engaged in intercourse once, they didn’t – through the mere enactment of the act – hold a lifelong card of consent. “Well, she has been ok with sex I know. So, I didn’t trust her when she said she didn’t want to do it anymore with me. She was simply just mad.”
The thing is, it is time for men to stop interpreting the non-verbal cues of a yes when she says no. They need to concentrate on the non-verbal cues of a no when she is saying nothing.
Third, consent can’t be ‘interpreted’ or coerced
The romanticised celebration of persuasion by Bollywood needs to be de-celebrated and this where social movements like #MeToo play a role. For example, the Christmas song ‘Baby it’s cold outside’ was criticised post #MeToo for the coercion which is happening in the song.
In 2019, the song was re-made with new lyrics. The man deliberately voices his hearing of, and appreciation of, the not-so-strong discontent expressed by the woman as she insists on going. He says that it’s ok if she wants to leave, and he will love her anyway.
Lastly, consent needs to be informed
Both partners need to be fully cognisant and aware of not only what they are getting into, but also of the consequences of engaging in the act.
In summing up, three concrete reasons emerge for India largely ignoring or misunderstanding consent. Historical and continued mis-information and lack of information, lack of personal space and tolerance for invasion into privacy, and legalisation of entitlement.
Although connected and interdependent, an action plan targeted to each of these need to be designed for the path forward.
Picture credits: YouTube
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Manages supply chain teams in Intel Corp. Blogger, writer and poet. Founder and Director Her
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