Indian government to stregthen marital rape laws

After a bit of flip-flop, the ruling BJP government has agreed to strengthen the laws criminalising marital rape. In this post, we will examine the legal and social aspects behind this controversy in brief.

Recently, there has been a lot of controversy regarding marital rape in India. The feminist and liberal groups have been demanding that it should be criminalised. The conservatives have been arguing it should not be criminalised.

Some people may get the impression that in India, husbands are allowed to rape their wives. But, it is untrue. The Section 498A of the Indian Penal Code can be used to prosecute marital rape. The Section 498A is typically used to try dowry harassment cases. But it is actually there protect women from “cruelty” from their husbands or his relatives. Here, the broadly-defined “cruelty” may refer to mental or physical cruelty. This, thus, includes marital rape.  Under this law, the maximum penalty is 3 years imprisonment and fine.

Another law, Protection of Women from Domestic Violence Act, 2005, explicitly criminalises “physical abuse, sexual abuse, verbal and emotional abuse and economic abuse” of women. The judge under this law can even evict the man from the shared marital property (which usually means his own house). This law has a maximum penalty of 1 year imprisonment for violating court’s orders and fine. You may have noticed that both these laws protect women only and are not gender neutral. Both of these laws are frequently misused by educated women to threaten their husbands. However, many real victims of marital rape are simply not aware of these laws.

The current cause of controversy is around a particular clause of the rape law, Section 375 of the Indian Penal Code. The Section 375 is the Indian law that defines rape. It has a maximum penalty of life and a minimum penalty of 7 years. But, it has an exception clause, that a husband cannot be tried under this law, as long as the wife is not a child bride under the age of 16. The feminist and liberal groups are demanding that this clause be removed and marital rape be brought at par with general rape. Some of them think that without this, women who are victims of marital rape, will otherwise have no legal recourse. This is untrue as I have already mentioned two laws addressing marital rape above. Thus,  the actual debate is not whether we should criminalise marital rape, but whether marital rape should be punished under the same law as stranger rape.

This exception clause dates back to the British era. In 1889, a 10-year-old girl called Phulmoni Dasi died after her adult husband had intercourse with her. The British set the minimum age of consent to 12. Thus, as long as a bride was above 12, it was not considered rape by the British.  The age of consent was later raised to 16. (Now, it is 18.)

In 2000, the Law Commission had not recommended criminalising marital rape. However, after the 2012 Delhi gang rape, this became a big issue of debate. The Justice Verma Committee in its report had recommended deleting the exception clause. (The Committee had also recommended making male rape illegal, but it was shot down by feminists.) The UPA government passed a stronger law against rape, however decided to leave marital rape laws untouched.

After the BJP government was elected in May 2014, these was little hope of rekindling the debate, as BJP draws a lot of supporters from conservative Hindus. Traditional Hindus view marriage as sacred and don’t like any laws changing its definition. In October 2014, the National Family Health Survey (NFHS) reported that 6,590 women in 100,000 were “forced them to have sexual intercourse against their will.” This is a frequently stated statistics on marital rape. (The women’s questionnaire used in the survey looked like this, see question no. 1107).

(I find it amusing that they call themselves the National Family Heath Survey, because they primarily interview women between the age of 15-49. In the 4th NFHS, 625,014 women were surveyed and only 93,065 men. The men’s questionnaire was loaded with questions like “When is a husband justified in hitting or beating his wife in?” or “What do you think a husband should do if a woman refuses to have sex with him?” So, you can forget about getting any data about male victims of  rape or domestic violence from them.)

In April 2015, BJP Minister of State for Home, Haribhai Parathibhai Chaudhary told the upper house Rajya Sabha that, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament.” This statement led to a lot of angry blog posts, tweets and opinion pieces.

In late April 2015, Preetika Rana writing for the Wall Street Journal trained her guns right at the ruling party with the article “Modi Government’s Reasons for Why Marital Rape is Not a Crime.” In May 2015, Hindustan Times published the article “When no is not an option: Marital rape denies right over her body” by Poulomi Banerjee which cited an UNFPA survey that “nearly one in five women interviewed spoke of having faced sexual violence from a partner in an intimate relationship”. (I couldn’t find the details of the methodology used in that survey.) In June 2015, an opinion piece titled “When even rape is legal” by one Kanika Sharma and Aashish Gupta appeared in The Hindu, which cited the above NFHS data.

In April 2016, Minister for Women Maneka Gandhi said the government was seriously considering criminalising marital rape. This is an interesting move, since in India, men cannot be raped by definition, and the MPs of this very government have blocked a bill to decriminalise same-sex acts, another British-era relic.

I would very be interested in how this law would be designed, as it would have to pander to both the feminist groups and BJP’s right-wing Hindu vote bank. It would probably give a lot of legal firepower to women, as many laws in recent years have (like the dowry laws, domestic laws and workplace harassment laws). These laws are usually designed to be too strict on men and lead to a lot of misuse by sly women. They usually don’t benefit the actual victims, as they are usually too uneducated to know about them. In many cases, the perpetrator is also equally uneducated, for the knowledge of the law to serve as a deterrent. In the end, most of these laws primarily end up as means of legal terrorism against educated men by educated women. There is now a strong need that such laws should be designed such as to prevent their misuse.

I will keep you updated on any news about this marital rape issue.

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Jian Ghomeshi’s acquittal and the Twitter outrage

Recently, a Canadian radio personality Jian Ghomeshi was acquitted of sexual assault charges. Following the news, women (and some men) on Twitter accused the Canadian legal system of being anti-women and some even abused Ghomeshi’s lawyer, Marie Henein. In this post, I will explore the incidents in detail.

In October 2014, Jian Ghomeshi was fired from his job at CBC, where he used to host a show called Q. He had been with CBC for 12 years. The reason for his firing was that Toronto Star had been working on a story based on the allegations from three of his ex-girlfriends, that he had been violent with them without their consent. Some of the allegations dated back to 2002. After Ghomeshi was fired, the story was published. Ghomeshi maintained that although he liked rough sex, he had always done it after getting consent. He claimed that these were lies being spread by his jilted ex-girlfriends. By late October 2014, Toronto Star was claiming that at least 8 women had contacted it saying that they had been sexually abused by Ghomeshi. By 6 November 2014, magazines were digging up stories from his college days in the 1990s and claiming that “there had been foreshadowing for years in the circles in which Ghomeshi moved”. Of the 8 cases (15 according to some), three women came forward and filed complaints with the police.

The trial began in February 2016. Ghomesh was represented by noted defence lawyer, Marie Henein. The first woman said she met Ghomeshi at a Christmas party in 2002. She and Ghomeshi were kissing on a couch in his house, when suddenly he pulled her hair, pulled her to her knees, and then punched her on the head repeatedly. Ghomeshi’s layer, Henein, pointed out that the woman had sent a flirty email to Ghomeshi with a bikini picture, after the sexual assault had allegedly taken place. The email correspondence went up to a year after the supposed crime. The woman had previously testified that she had no contact with Ghomeshi after the sexual assault.

The second woman was a TV star, Lucy-Anne DeCoutere. She was the only woman who allowed her identify revealed to the press. She claimed that in July 2003, when she went to Ghomeshi’s house, he slapped her without warning and choked her until she couldn’t breathe. Marie Henein told the court of the flirty emails sent mere hours after the incident to Ghomesh. Henein also pointed out that DeCoutere had maintained contact with Ghomeshi for years after the incident, which included hand-written notes. DeCoutre said that the relationship was platonic and she did not like having negative feelings towards anyone. In 2005, she sent a picture of her fellating a beer bottle to Ghomeshi.

The third woman claimed that Ghomeshi had put his teeth on her and squeezed her neck which they were kissing on a park in 2003. In this case also, Heinen pointed that she had exchanged text messages with Ghomeshi following the incident. Marie Heinen’s smart dissection of the accussers’ statement inevitably brought the focus on her. Everything from her family background, former clients, her style of dressing and her law firm was discussed in the media. A female writer wrote an entire article about her high heels. Meanwhile, the prosecutor’s case, which was obviously full of holes, was falling apart.

On 24 March 2016, the judge declared Ghomeshi to be not guilty. The judge said that prosecutor had completely relied on the witnesses’ testimonies and had no other evidence, “There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no ‘smoking gun’.” The judge also pointed to the inconsistencies in the testimonies. I seemed to me that even if the incidents had happened, women did not consider them a crime or serious enough to be reported at that time. But later, they changed their minds.

After the verdict, Ghomeshi’s sister Jila gave a statement, “We are relieved but not surprised by the court decision today. It can only be surprising to those who rushed to judgement before the trial had started and before a single word of evidence had been heard.”
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A group of activists arrived chanting “We believe survivors”. A topless activist with “Women declare Ghomeshi guilty” written on her body was arrested by the police.

Another case from a single complaint will go to trial in June 2016. Ghomeshi may or may not be held guilty in that one.

As soon as the news of the verdict was released, many Canadian women (and some men) on the Twitter were outraged. They proclaimed that despite the non-existence evidence, based on the shady testimonies alone, Ghomeshi should have been held guilty. Soon #Ghomeshi and #IBelieveSurvivors were trending on Twitter in Canada. In this post, I will examine some of the tweets that caught my attention.

Tweets claiming that the verdict will discourage victims from coming forward.

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A lot of women were concerned less about the actual verdict and more concerned about the impact of the verdict. They were not interested in establishing the facts at all. If they had the means, they would have held Ghomeshi guilty, merely so as not to discourage future victims from coming forward. They perhaps believe that any man accused of sexual assault should held guilty, only so that future victims do not feel discouraged.

Tweets claiming that the Canadian justice system is broken.

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There were also a lot of tweets claiming that Ghomeshi was acquitted because the legal system of Canada is broken. I had trouble understanding what they meant by that. I also read some of the links shared by them, but they all talked about suggested reforms like free legal counsel for women and separate courts. Some of them argued that testifying in front of their attacker is traumatising for the victims. But none of them exactly explained how in this particular case, the “broken” justice system supposedly let Ghomeshi walk. Unless, the argument is that the accusers forgot that they emailed Ghomeshi for months, by the trauma of facing him in the court.

Tweets attacking the judge.
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There were also a lot tweets criticising the judge. Someone were offended by the words he used in the verdict, others argued that he should have upheld the flawed testimonies of the accusers. In an opinion piece in the Times Colonist, two women law professors wrote that they accepted the verdict due to the lack of evidence, but were offended by the words used. The verdict said, “is impossible for the court to have sufficient faith in the reliability or sincerity of these complainants.” The writers argued that judge should not have called them dishonest.

Tweets attacking Ghomeshi’s lawyer.
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There were a lot of vitriol filled comments towards Marie Henein. Some pointed out that she had previously defended Michael Byrant in a drunk driving and accidental death case. A lot of tweets however accused Marie Heinen of being a party to injustice and a betrayer of womankind. A blog claimed that it had found that the judge’s son was working with Heinen’s brother in some firm. Thus, there was a conflict of interest and the judge should have excused himself from sitting over the case.

Later in an interview, Heinen defended herself. She said that she found the tweets accusing her of betraying women to be distressing. She also said, “Hashtag I believe is not a legal principle, nor should it ever be.” In a speech at the Young Women in Law gala in Toronto, she said, “Throughout your career in this profession, you will be told what you should do, how you should act, which way you should bend. Do not listen to any of it. Do not be dissuaded by my experience. Do not for a moment be disheartened. I am not.”

Not all tweets.

However, not all tweets were disheartening in this manner.
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Some people were disappointed with the verdict but they still understood the importance of evidence.
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Not all tweets were hateful of Marie Henein either.

The bottomline is that when a man is accused of sexual assault, everyone will presume him to be guilty. The concept presumption of innocence simply disappears. Anyone remotely associated with him or defending him will be vilified. Canadian men (and men around the world) should try their best to avoid getting entangled in such cases.

I will also write about the next trial of Jian Ghomeshi. In the upcoming weeks, I will write about how the media and society views men accused of sex crimes. Until then, let’s be thankful that the judiciary system is not a democracy run by Twitter Feminists.

 

 

Arranged marriage still beats dating in India

Recently on 2 April 2016, the Indian newspaper The Hindu published an article titled “Running in the family“. In this post, I will make some observations about the article.

The article opens by quoting an excerpt from the women’s self-help book – Do you Know Any Good Boys?: A Woman’s Guide to the Arranged Marriage by Meeti Shroff-Shah. The excerpt mentions how the authoress was asked by a relative of a prospective groom if she can cook. The author’s reaction to this was to outrage internally, “If I were a little kid, this could be the moment I flung a toy car at his face.” I think the reaction was rather excessive. Good cooking skill is an essential attribute that almost every men looks in a wife, usually after beauty and youth. I think all men should also have good culinary skills to be more well-rounded and less dependent on women. The article also mentions that the authoress went through about 40 prospective men before she found a man willing to marry her. Quite amusing, if you think about it, since she can admittedly cook only pasta. I am not surprised at all. She probably had very high requirements for her man. I pretty sure her one of make or break questions was: “What do you do?” It is code for “How much do you earn?” Anyway this book seems like a bag of laughs. I will probably buy a copy.

The article then mentions that only 5% of Indians marry outside their castes. I have mentioned it my last post. Many love marriages are actually same-caste marriages. I have observed many women discreetly asking about the caste before they start dating the man. This ensures that there is less resistance from the families at the time of marriage. Thus, even while dating, family is frequently on the mind of the young people. Many people also date the person suggested by the parents before they get married. This they call the “arranged-cum-love marriage”. This kind of arranged dating is also gaining popularity in India. Most young people in urban India nowadays, have at least some say in their marriage, as opposed to the old days when basically most of the decisions were made the parents. The article also mentions that all this is an illusion of choice as various limiters still exists on their choices, such as caste, class, horoscope, food (omnivores vs. vegetarians) etc.

The article mentions to a study from the National Institute of BioMedical Genomics (NIBMG). The study by Analabha Basua, Neeta Sarkar-Roya, and Partha P. Majumdera was accepted by the PNAS in December 2015. The study took DNA samples from 367 unrelated individuals. According to the study, endogamy (marrying within caste) started around 1500 years ago for higher castes. The study also found that male members of higher castes had offspring with lower castes for sometime. But the reverse was not observed, indicating female hypergamy based on caste or higher castes misusing their power. The Marathas continued to draw warriors from the peasant castes, but eventually the warrior castes or the Kshatriyas closed themselves off from the lower castes around 1,100 years ago. Given that the caste system has existed for hundreds of years, it will be slow to fall.

The article also mentions the rising popularity of dating apps. But notes that most people use to apps to experiment and then settle into an arranged marriage. Mostly because there are no established rules and no experiences of elders to draw on in dating. For some dating comes first, and arranged marriage is a last resort if they are unable to a mate by dating. Harrish Iyer’s case has been mentioned, who is gay and whose mother is looking for a boy for him to marry.

Either way the basic rules that I have mentioned in my past posts still apply. If you fulfil those criteria, it will be relatively easy for you find a girlfriend or wife.