Feminism: Legal Perspective

Introduction:

Feminism is the advocacy of women’s rights on the ground of the equality of the genders. It is a complex movement which at the core that believes that women should have equal social, political, and economic rights as men. All feminists share the ideology that women are oppressed or disadvantaged as compared to men and that their subjugation is unjustified. In criminal law, legal understandings of rape and battering, as well as the law of homicide and self-defense, has changed due to feminism.

Feminist writers highlighted that stereotypes about women contaminated criminal understandings and averted ample law enforcement. They emphasized, for example, that prosecutors frequently failed to “believe” females because of these stereotypes. A short dress, an unclear past, or an intimate relationship had been all motives to assume that the victim had consented, provoked the incident, or falsified it for manipulative reasons. The feminist inquiry into law concentrates on the examination of the underlying assumptions of laws and patriarchal influences along with the scrutiny of legal concepts, rules, doctrines, and processes concerning women’s experiences.

Law of Rape crime

National Crime Records Bureau data reported 1 rape every 15 minutes in India in 2018 with every fourth rape victim in India being a minor while more than 50 percent of them fell in the age category of 18 to 30 years.^[1] The approach of feminism to rape is that it is a form of control and the justice system should address the victimization of the victim when testifying. Feminists have been working for decades towards raising awareness and changing the perspective of rape with their main goal to eliminate sexual violence.

The Criminal Law (Amendment) Act, 2013, also known as the Anti-Rape Act, came into force on 3rd February 2013, following the outrage of the whole of India behind the brutal gang rape and subsequent death of a physiotherapy intern that took place in New Delhi on the night of 16th December 2012. The 2013 Act defines rape under section 375 of IPC, giving it a wider ambit by including oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra, or anus. It also made stalking and voyeurism specific offenses under section 354D and section 354C respectively. Punishment of rape is set at 7 years minimun extending to life imprisonment. Death penalty has been prescribed for cases where the rape concludes with the death of the victim, or the victim entering into a vegetative state. Under the newly amended sections, punishment for gang rape is at least 20 years.

The Act also includes, in the definition of consent, that the absence of resistance doesn’t imply consent, keeping in view the degradation of victims while interpreting ‘consent’. However, the act failed to criminalize marital rape, posing the argument that criminalizing marital rape would spoil the institution of marriage, and permit women to concoct claims of rape, considering that rape within marriage was ‘difficult to prove’. The treatment espoused by these self-proclaimed saviors of marriage is divorce or prosecution for cruelty, but not for rape. Although, such ‘justifications’ overlook the very specific harms prompted via the crime of rape, which violates a woman’s bodily integrity and sexual autonomy by forcing her to submit to unwanted intercourse.

Pornography and Violence

Women bear the brunt of porn’s ill effects. Mainstream pornography consists of acts of direct violence against women where narratives show women being treated as objects meant to be ‘violated’. It serves to naturalize and normalize such violence which has a very real impact on the lives of women and girls. Pubescent boys who consume pornography are more prone to violence, aggression, and sexual coercion developing the tendency to seek power over and dominate women. Conversely, young girls are more susceptible to tolerate emotional, physical, and sexual abuse. Article 67, Information Technology Act 2000, clarifies Online pornography as a criminal offense. Its amendment in 2008 criminalized surfing, downloading, and publishing of child pornography. Despite efforts of the Indian government to ban porn, India ranked 3rd in the world for porn consumption in 2018.^[2]

While another statistic released by the National Commission for Women (NCW) India in early April 2020 reports a 100% increase in complaints related to violence against women after the nationwide lockdown was imposed in March 2020 due to the Coronavirus pandemic. Between March 25 and May 31 more domestic violence complaints have been recorded than between March and May in the previous 10 years. The Protection of Women from Domestic Violence Act, 2005, protects wife or female live-in partner from violence by the husband or male live-in partner or his relatives and extends its protection to women, who are sisters, widows or mothers. However, since it is confined only to protect women against cruelty by her husband or his relatives, it is unable to address this devastating problem in its entirety.

Battered Woman Syndrome and Self Defense

The ‘Battered Woman Syndrome’ is a psychological theory that explains why some abused women choose to end the lives of their abusive partners instead of simply leaving them. The batterer harms the woman in an uncontrollable rage and later repents his acts, apologizing profusely and promising to not repeat his actions. However, this vicious circle keeps the women in a loop rendering her feeling helpless and alone in the situation as her belief in legal recourses dwindle. She feels the death of her abuser is the final and clear solution to end the continuous violence with no other hope of escape. Also, the deeply ingrained traditional socialization processes make the battered women feel pressured to sustain the relationship and hide the abuse.

A battered woman perceives danger during sporadic intervals of peace between episodes of abuse because she is in a continual state of fear and anxiety. This period of peaceful intermission is her only chance to defend herself against a larger and stronger man. She might decide to strike then, resorting to deadly force when she is trapped in potentially deadly violence.

This satisfies the first two essentials of self-defense i.e, the belief that the defendant was in imminent danger of unlawful bodily harm and the use of a reasonable amount of force to counter the threatened danger. Her economic and social background must be considered when analyzing the essentials of no opportunity to retreat safely. This brings to light the gendered bias of the defense as its construction is based on the aggressive, spontaneous, and masculine force of a man, which is incompatible with battered women defendants.

Relevant Cases

Vishakha v. State of Rajasthan^[3]

Female social workers filed a writ petition in the Supreme Court of India under the name ‘Vishakha’ in the aftermath of a brutal gangrape of their fellow social worker. The apex court was called upon to frame guidelines for preventing Sexual Harassment at Workplace. The Hon’ble court did come up with The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. In the judgment, it laid down that it is the duty of the employer or other responsible persons in workplaces or other institutions to prevent the happening of such an event and to furnish the employees with an effective mechanism for the process of resolving & trying of such indecent acts of sexual harassment.

Vinita Sharma v. Rakesh Sharma^[4]

A plea was filed by two sisters who claimed rights in the property of their father, being denied the same on the grounds of being born before the 2005 amendment of the Hindu Succession Act. The Supreme Court held that daughters will have equal coparcenary rights in Hindu undivided family properties. The court also held that the 2005 amendment will have a retrospective effect, which granted equal rights to daughters to inherit ancestral property.

Indian young lawyers Association vs. State of Kerala or Sabrimala temple^[5]

Sabrimala temple in Kerala did not allow the women and girls of menstruating age (10-50 years) to enter into the temple. A plea was filed by the Indian young lawyer’s association in the supreme court to ensure the entry of female devotees in the Lord Ayyappa temple at Sabarimala temple. The Apex court held that the females of all age groups should be permitted to enter the temple. The court ruled that such a practice violates the right of women to enter the temple and practice the Hindu religion freely.

Conclusion

Protection of women has been always been a vital organ of the constitution but the problem as stated in the interpretation. With time, the ambit is getting bigger and the offenses are being highlighted with more sincerity. Despite the feminist movement and various laws in place, women in India are still victims of domestic and sexual assault. This is usually tied back to the concept of honor where, despite the progressive outlook towards women, women are still forced into being submissive and remain silently suffer the abuse.

Women are still expected to conform to social norms and have limited freedom compared to men. From a judicial perspective, it is indispensable to focus on procedural equality and feminist writing of judgments. Focusing on violence and defending the rights of women will make a significant contribution to challenge the traditional stereotypes that delegitimize the experiences of women. This will help ‘ungender’ the Indian Penal Code and empower the voices of females who are systematically excluded.

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References:

^[1] DelhiJanuary 11, R. N., January 16, 2020UPDATED:, & Ist, 2020 18:55. (n.d.). NCRB data 2018: 1 rape reported every 15 minutes in India. India Today. https://www.indiatoday.in/india/story/ncrb-2018-woman-reports-rape-every-15-minutes-in-india-1635924-2020-01-11

^[2]India ranks 3rd in terms of Pornhub Traffic in 2018 – spoindia. (n.d.).https://spoindia.org/india-ranks-3rd-in-terms-of-pornhub-traffic-in-2018

^[3] Simran. (n.d.). Case Analysis- Vishaka and others v/s State of Rajasthan. Www.Legalserviceindia.Com. http://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html

^[4] Jain, A. (n.d.). Vineeta Sharma v. Rakesh Sharma: Clearing the last hurdle towards gender equality in Hindu property law. Bar and Bench – Indian Legal News. https://www.barandbench.com/columns/vineeta-sharma-v-rakesh-sharma-gender-equality-hindu-property-law#:~:text=A%20summary%20of%20Vineeta%20Sharma%20v.%20Rakesh%20Sharma%2C

^[5] Balaji, A. (2019, March 24). Indian Young Lawyers Association & Ors. vs The State of Kerala & Ors. Law Times Journal. https://lawtimesjournal.in/indian-young-lawyers-association-ors-vs-the-state-of-kerala-ors