(Oishik Sircar is a human rights lawyer and researcher. He works on issues of gender, sexuality, refugee & migration studies, and cultures of human rights. His present work focuses on marginality and access to justice. He lectures at the Women’s Studies Centre, University of Pune, Research Centre for Women’s Studies, SNDT University, Mumbai and the Tata Institute of Social Sciences, Mumbai.)

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Women’s lives are ‘unsafe’ in India. And this statement does not require corroboration given the almost-everyday reports of sexual assault. All this, despite the pretty successful engagement of the women’s movement with law reform, which has resulted in some ‘progressive’ judgments on issues of custodial rape, sexual harassment etc. Not just in India, but elsewhere too, the feminist campaigns against sexual violence have indeed led to getting issues like marital rape, child sexual abuse and incestuous abuse out in the ‘public’ realm. It has led to debates on issues of sexual violence that have traditionally been relegated to the ‘private’ sphere, and has also ensured state accountability for acts that violate women’s bodily integrity.

Yet, marital rape is still not an offence in India; rape is constructed narrowly to include only peno-vaginal penetration, all cases of sexual violence lead to questioning the ‘victim’s’ moral character, feminists and the ‘right-wing’ end up being strange bedfellows when it comes to issues like ‘indecent representation of women’ in popular media. So, do we blame the women’s movement for not being able to deliver their much-promised dream of women’s sexual autonomy?

We have just concluded marking another International Women’s Day on March 8 with public demonstrations and campaigns to articulate a ‘zero tolerance’ policy on gender-based sexual violence. While we need to applaud and celebrate the kind of space campaigns like these have created to confront violence against women up-front, there is also a need to interrogate feminism’s singular focus on sexual ‘violence’. Feminist interventions have led to the ‘shifting of blame’ from the ‘victim’ to the society and state at large, calling for state intervention in cases of violence perpetrated by non-state actors. A very significant achievement indeed; but, has it really dislodged the conservative sexual morality on which a woman’s identity is constructed? The blame is shifted from the violated woman only to turn her into the ‘innocent victim,’ innocence signified by being chaste, pure and sexually passive. Any deviance from these standards of innocence will not afford her protection of the law reform brought about by sustained campaigns by the women’s movement.

Feminism’s understanding of gender oppression is an outcome of the challenge it has posed to questions of biological determinism, considering the female sex naturally weak, dependent and inferior because of their sexual and reproductive difference with men. This misogynist argument has been further strengthened by the theories of ‘penis envy’ and ‘libido principle’ propounded by Sigmund Freud and other psychoanalysts. Women’s sexuality was constructed as one that needs to be controlled and regulated to ensure that the institutions of ‘marriage’ and ‘family’ remain safe for the progenical devolution of man’s property and seed.

Yet, in the process of challenging biological determinism, feminism has only ended up engaging with issues of safeguarding women’s sexual self from ‘male lust’ and not in an articulation of female sexual desire. That had to be kept at bay till the time when it is safe enough to express female sexuality without the threat of ‘man’s aggression’. This process has essentialized both women’s identities as passive victims in need of protection and men’s natural behavior as barbaric, lustful and sexually depraved, ready to pounce on women at their very sight.

Sexual passivity on women’s part has then been looked at as necessary to ensure that male lust is kept under control. Like the Shiv Sena mouthpiece Saamna’s argument suggested (in response to Mumbai’s Marine Drive rape case) that it is women’s responsibility to dress and carry themselves properly. Also similar is the imposition of dress codes in institutes and offices, to ensure that women don’t dress ‘provocatively’, and ‘welcome’ harassment.

This ‘right-wing’ position is not very different from the law reforms sought through feminist demands. In rape cases, if the ‘victim’ receives a judgment in her favour, the reasoning of the court is based on her chastity or assumed ignorance of sex. The feminist victories in the legal arena have been symbolic achievements, but it has failed to challenge or displace the dominant sexual ideology that considers sex as something from which ‘good women’ are to be protected. So, you have the sex worker and the bar dancer being treated either as a victim in need of ‘rescue’ and ‘rehabilitation’ or a criminal to be punished and incarcerated, specifically because of the sexual nature of the work in which she engages.

As feminist lawyer Ratna Kapur, also the Director of the Centre for Feminist legal Research in Delhi states, “The focus on sexual violence and sexual negativity invites remedies and responses from states that have little to do with promoting women’s rights. Feminist engagements with law in India have progressed with the belief that more rights equal more empowerment, which isn’t always true.” She goes on to point out,

We constantly talk in terms of the wrongs committed against women - the atrocities, the violence, the sexual abuse, the rapes, the harassment, and the harms. We do not simultaneously talk about endowing women with the rights with which to fight these harms. Instead, the response to these kinds of harms from state and non-state actors are often patronizing and invariably protectionist. (36)

In her most recent book ‘Erotic Justice’, Kapur also does an excellent analysis of the problematic outcome of the sexual harassment law in India. The law was the result of a public interest litigation filed by a women’s group called Vishakha in 1997, which made the Supreme Court issue guidelines regarding what constitutes sexual harassment. The judgment constructs sexual harassment as anything that “outrages the modesty of a woman” and is “unwelcome”. According to Kapur,

The framing of a harassment case within the modesty discourse fails to address the wrong as a form of discrimination and violation of women’s rights to equality. The IPC does not define what constitutes ‘outraging’ a woman’s ‘modesty’. In the case of Rupan Deol Bajaj, the court interpreted ‘modesty’ to mean ‘womanly propriety of behavior; scrupulous chastity of thought, speech and conduct’. (36)

Kapur further notes that the component of ‘unwelcome’ in the definition means that the complainant’s sexual past, mode of dress and conduct and conformity to cultural prescriptions may be introduced as relevant evidence in determining whether the conduct was ‘unwelcome’. She cautions: “dress, behavior, cultural conformity, and even profession may thus be used to demonstrate that the accused was incited to the conduct, and may be sufficient evidence to disqualify a claim of sexual harassment” (36). Waitresses, bar-room dancers, and other performers are all vulnerable to such claims. The definition seems to provide scope for reproducing and reinforcing dominant assumptions about sex, women’s sexuality and sexual practices, as well as reinforcing the sexual segregation of jobs.

Women’s rights activist Flavia Agnes has also been talking and writing about how the women’s movement has proceeded on a faulty strategy while addressing issues concerning sexual violence. “The issues addressed only the superficial symptoms and not the basic questions of power imbalance between men and women… The solutions were sought within the existing patriarchal framework and did not transcend into a feminist analysis of the issue… They seldom questioned the conservative notions of women’s chastity, virginity, servility and the concept of the good and the bad woman in society… The rape campaign subscribed to the traditional notion of rape as the ultimate violation of a woman and a state worse than death” (2), opines Agnes.

The experience of the women’s movement’s singular focus on violence is a classic case of, in the words of Alice Miller, an American academic-activist: “where women make demands and ladies get protection” (17). So you have legal responses to feminist demands that protect women and what they stand for (culture, nation etc.), rather than protecting their rights. It has been a process, which has placed women’s sexual safety and sexual freedom in opposition to each other.

Feminist interventions, though unintentionally, still perpetuate the ‘good woman’/’bad woman’ dichotomy. There are the bar-dancers protesting with placards saying, ‘we are not prostitutes’, an open articulation that they are sexually less tainted than sex workers are and thus deserve protection. An articulation which attempts to claim legitimacy through creating hierarchies of sexual behaviour, or invisibilising the ‘sexual’ to make things look ‘good’ and ‘respectable’. Amber Hollibaug, American feminist and once a nightclub dancer herself observes, “I have always been more ashamed of having been a dancer in nightclubs when I’ve talked about it in feminist circles…” (403). Thus, it is important to ask then, is feminism becoming a coercive method for making women meet the construct of the ‘good woman’ to be able to join the rights claiming movement?

It is stocktaking time for feminism. With its engagement with sexual violence, women today live with sexual fear as a second skin. Feminism should definitely not weaken its critique of the dangers of sexual violence. Rather, there is a need to expand the analysis of sexual pleasure, and draw on women’s energy to create a movement that speaks as powerfully in favour of sexual pleasure, as it does against sexual danger. Feminism must demand that women’s pleasure and need for sexual exploration not be pitted against their need to safety. As renowned anthropologist Carole Vance mentions in her seminal essay “Pleasure and Danger”

Feminism cannot operate solely on fear. It is not enough to move women away from danger and oppression; it is necessary to move women toward… pleasure, agency, self-definition. Feminism must increase women’s pleasure and joy, not just decrease our misery. To persist amid frustrations and obstacles, feminism must reach deeply into women’s pleasure and draw on this energy. (27)

It is time we ask, why questions of women’s agency always have to exist in articulating the right to say ‘no’ to sex… can we talk of agency as powerfully when it comes to the right to say ‘yes’ to sex as well?

Works Cited

Agnes, Flavia, State, Gender and the Rhetoric of Law Reform, Mumbai: Research Centre for Women’s Studies, SNDT Women’s University (1995)

Hollibaugh, Amber, Desire for the future: radical hope in passion and pleasure, in Carole S. Vance (ed.) Pleasure and Danger. Exploring Female Sexuality, London: Routledge (1984).

Kapur, Ratna, Erotic Justice: Law and the New Politics of Post-colonialism, New Delhi: Permanent Black (2005)

Miller, Alice M., Sexuality, Violence against Women and Human Rights: Women Make Demands and Ladies Get Protection, Health and Human Rights 7:(2) (2004).

Vance, Carole S., Pleasure and Danger: Toward a Politics of Sexuality, in Pleasure and Danger: Exploring Female Sexuality Carole S. Vance (ed.) Routledge & Kegan Paul (1984) pgs. 1-27


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