Talking Rape, Thinking Violence: Why Society Must Take Responsibility

Ashank Desai Centre for Policy Studies, IIT Bombay > Talking policy > Talking Rape, Thinking Violence: Why Society Must Take Responsibility

DISCLAIMER: The information and views set out in this article are those of the author(s); and do not necessarily reflect the views of the Centre for Policy Studies or the Indian Institute of Technology Bombay.

By Kalindi Kokal

The recent rape and murder in Hyderabad has brought back waves of memories of the gruesome gang-rape in Delhi in 2012. Given the torture, the fact that they were gang rapes, their location in big cities, and the profile of the assaulted woman, the public outrage following the Hyderabad incident carries echoes of the 2012-13 protest. Calls for the rapists to be hanged and stricter laws against rape to make cities safer for women have crowded the headlines of newspapers, television debates and op-ed pieces. 

India is one of the 53 countries in the world that continues to impose the death penalty. 59 sections across 18 central legislations allow for death penalty as a punishment (National Law University Delhi 2016). Amongst all the crimes that entail a punishment of ‘hanging until death’, a casual reading of popular media[1] reveals that it is for the crimes of rape and terrorism that the death penalty seems to have garnered maximum support from the masses in India (Press Trust of India 2019c; 2019b). However, the judicial system in India proceeds slowly and hopes that time will calm public sentiments, allowing it the scope to provide ‘reasonable’ and proportionate consequences for the concerned offences. But in the case of rape, as can be seen, public outrage has not reduced, and lobbying for punishments harder than the death penalty are evident even from the floors of our Parliament (Press Trust of India 2019a). 

What is reflected in these calls for ‘eye-for-eye’ punishments and the call for stricter legislation (despite its evident failure to deter crimes of this nature) is the unwillingness of Indian societies to introspect and take responsibility for such occurrences.   

Stricter Laws: Imaginations of Efficiency

Stricter legislation entails increased surveillance, thus, more power to the state (Merry 2001; Koskela 2002). Maintaining law and order is only one of the functions of the state. Surveillance will allow the state access to information, the potential use (and misuse) of which depends most importantly on the political agendas, amongst others, of the government in power. Data from studies on convicts shows patterns of how certain sections of society tend to be convicted more often than others and conviction is only one form of discrimination (National Law University Delhi 2016; Sen 2016). Prohibitions and discretionary access to basic services could be others (Joshi 2011; Bhol 2017; Mohanty and Dwivedi 2019). 

State Law as a Deterrent

Faith in state law as a deterrent to criminal behaviour is almost hypnotic when it concerns crime against women. State Law has several functions, one of which is to set the standard of acceptable and expected behaviour in the society it seeks to regulate. Laws are necessarily underscored by value systems (Chiba 1989) and therefore when state law seeks to set a standard of behaviour and a level of tolerance for a society, it actually attempts to subscribe to and inculcate within societies a certain set of values. 

However, the lives of people are governed by several types of legal orders, some of which are postulated by everyday experiences (Kokal 2019). Since people’s behaviour responds to more than one legal order at any given point of time[2], state law must always engage, confront and conflate with other legal orders possibly underscored by opposing values. The dynamic likely to result from such an engagement makes unhesitant faith in the power of state law to control, regulate and transform society, partial sightedness. 

Rape and State Law

There are two questions that arise when one thinks about prevention of rape by state law. The first one is a practical question and the second one more philosophical. 

The practical question: Is our state law and order system equipped to prevent the crime of rape? 

Drawing from preliminary fieldwork in one of Mumbai’s busiest police stations[3], I observed a minimum of two complaints a day where women complained of harassment – over phones, Facebook, phone calls and visits – by men in their neighbourhood or workplace who they knew and didn’t know. Often the accused, when possible, were called and given a sounding which took the forms of simple oral warnings, but also threats of imprisonment, several hours of detention in the police station and sometimes the use of force. 

According to police officers, such warnings usually succeeded in intimidating the offender so as to ensure that he wouldn’t repeat his actions towards the concerned woman. However, such procedures depend on two things: that the woman must approach the police and then that the police must be able to nab the alleged offender. The latter, amongst other things, crucially depends on the availability of staff at the police station.  

The legal procedure in such cases mostly involves the filing of an NC[4], a copy of which is provided to the woman. The alleged offender, before being let off by the police, is made to sign on the copy of the NC with the police station and also state in writing something to the effect that he has understood his mistake and would not repeat it. 

To what extent such procedures actually result in securing the safety of the woman remains to be studied. Even in the few weeks of preliminary examination, it was observed that complainants returned to the police station on the grounds that the offender has not ceased to harass them. This clearly indicates that controlling the aggravation of such harassment is beyond the practical control of the police because of legal procedures and everyday protocols of policing[5]. 

The Philosophical Question: Can Punishment Deter Rape?

Social science literature shows that rape is about power. It is about how societies socialise men and women (Das 1996). Therefore, curbing crimes of sexual assault and harassment means tackling mindsets and confronting forms of social order that are grounded on inequality and an imagination of a world that does not exist. Legislations in India set a standard of how the society it governs ought to be. The systems that implement law must navigate the gap between what a society ‘ought’ to be and what a society ‘is’ (Eckert 2009). 

Taking police machinery as an example, there are different protocols based on everyday experience that determine when the police take cognizance of an offense as a ‘crime’. My own fieldwork experience reveals that this often happens after the incident has taken place. “How can we change the way people think?” said a police sub inspector in Mumbai to me, when I asked him if instilling a fear of the police would work to prevent crimes of sexual assault and violence. 

Violence of any form results from power imbalances in society. While the dynamics of power will never disappear, it is important that societies begin to learn how to tackle and handle these dynamics. Mental health, education and efficient infrastructural support to secure social justice are all pillars towards building safer and productive societies. 

But it is not enough to rest one’s faith in the state, with its multiple agendas, to ensure this. Individuals, institutions and communities need to step up to the role as well. State law does not exist in a vacuum, but rather requires the society in order to function and be meaningful. Value bridging is an organic process that is bound to take time and incur risks for those who engage in it. 

Post Script: This piece was written before the police encounter that is reported to have killed all four accused in the Hyderabad rape case. The author argues that such incidents of ‘jungle justice’ will continue to be legitimised by a state that is pressurised to perform but remains ill-equipped to do so.

Notes:

[1]: Here popular media is meant to include opinions reported in newspapers and reflected on social media platforms such as Facebook and Twitter.

[2]: Legal pluralism conceives that there are different types of laws that govern society. Not only the state, but also religion, everyday practices, and transnational arrangements are all sources of laws.

[3]: This fieldwork is being carried out as part of a post-doctoral project developing an ethnography of the everyday working of police stations.

[4]: An ‘NC’ is the registration of a non-cognizable offence. In non-cognizable offences, arrests and investigations cannot be conducted by the police without the permission of a court. Technically NCs have a legal implication only after a case with respect to the dispute is filed in court.

[5]: Everyday protocols of policing are commonly referred to as ‘practical policing’ at the level of the police station. These protocols differ in every police station and are dependent on the police officer’s discretion of the gravity of crime, knowledge of the offender and his or her experience of policing in the jurisdiction. Protocols usually concern whether or not to register a complaint, what type of complaint to register, the sections to be applied and so forth.

References:

Bhol, Aditya. (2017, April 18). Horizontal and Vertical Inequalities Explaining Disparities in Access to Urban Sanitation. Working Papers: Centre for Policy Research. https://cprindia.org/research/papers/horizontal-and-vertical-inequalities-explaining-disparities-access-urban-sanitation.

Chiba, Masaji. (1989). Legal Pluralism: Toward a General Theory through Japanese Legal Culture. Tokyo, Japan: Tokai University Press

Das, Veena. (1996, Sept). Sexual Violence, Discursive Formations and the State. Economic and Political Weekly 31 (35/37): 2411–23.

Eckert, Julia Maria. (2009). ‘The Virtuous and the Wicked’: Anthropological Perspectives on the Police in Mumbai. PhD diss., Martin Luther University

Joshi, Deepa. (2011, April 30). Caste, Gender and the Rhetoric of Reform in India’s Drinking Water Sector. Economic and Political Weekly 46 (18): 8.

Kokal, Kalindi. 2019. State Law, Dispute Processing And Legal Pluralism: Unspoken Dialogues From Rural India. New York, USA: Routledge. https://doi.org/10.4324/9780429460074.

Koskela, Hille. (2002). Video Surveillance, Gender, and the Safety of Public Urban Space: ‘Peeping Tom’ Goes High Tech? Urban Geography 23 (3): 257–78. 

Merry, Sally Engle. (2001, March). Spatial Governmentality and the New Urban Social Order: Controlling Gender Violence Through Law. American Anthropologist 103 (1): 16–29.

Mohanty, Ranjita, and Dwivedi, Anju. (2019, Oct 12). Culture and Sanitation in Small Towns: An Ethnographic Study of Angul and Dhenkanal in Odisha. Economic and Political Weekly 54 (41): 51–57.

National Law University Delhi. 2016. Death Penalty India Report Summary. 

Press Trust of India. (2019a). Outrage over Rape Cases: Death Penalty, Lynching, Castration of Rapists Demanded in Parliament  Retrieved 5 Dec 2019, from Times of India: https://timesofindia.indiatimes.com/india/death-penalty-lynching-castration-of-rapists-demanded-in-rajya-sabha/articleshow/72328826.cms.

———. (2019b). If a Rapist Is Shot Dead on the Street, Rape Cases Will Come down: Nirbhaya’s Grandfather. Retrieved 5 Dec 2019, from The Print: https://theprint.in/india/if-a-rapist-is-shot-dead-on-the-street-rape-cases-will-come-down-nirbhayas-grandfather/329400/.

———. (2019c). “Hand over Rapists to People, Justice Will Be Done: Nirbhaya’s Grandfather.” Retrieved 5 Dec 2019, from India Today: https://www.indiatoday.in/india/story/hand-over-rapists-to-people-justice-will-be-done-nirbhaya-s-grandfather-1624578-2019-12-03.

Sen, Jahnavi. (2016, May 6). Three-Quarters of Death Row Prisoners Are from Lower Castes or Religious Minorities. Retrieved 5 Dec 2019, from The Wire: https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-religious-minorities.

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1 Response
  1. Anonymous

    While we must agree on the content of the argument/s, related to efficiently handling the menace, the only way this can be done is to instil fear in the minds of not only those who commit such acts of crime but in the minds of the families and societies as well to whom these people may belong. The correction has to happen from the day the boy is born and this can be easier if there is fear of the consequences. Wether the encounter was real or false is irrelevant. It will instil into some minds a small iota of fear and may possibly result in one less rape. Jungle justice is probably the only solution to such collective crimes.

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