Marital rape: trivialization vs criminalization - Part I

In the aftermath of Nirbhaya BBC documentary, the country came out united. Who would agree with Mukesh Singh's justification to rape? I guess, only miniscule proportion.  Now consider another case, Suppose a person did the same with his wife. I guess these will be the most probable reactions- 1. Aadmi hi vaaiyad tha (the man was beast),  this was an unacceptable act, so she should have gone for legal remedies, and if left to us, we would have lynched him 2. It is not possible marriage is a sacred institution, the wife should have been lying, moreover it is their personal matter and wife has already given consent to have sex at the time of marriage  (any third moderate reaction is welcome).

Though marital rape has been an issue of political and social debate for a long time without any conclusion yet. Lets try to demystify it.

What is marriage?

It is a social and legal institution  in which two people mutual consent to work out things together in the train of life.

What is marital rape?

Marital rape (also known as spousal rape) is non-consensual sex in which the perpetrator is the victim's spouse. It is a form of partner rape, of domestic violence and of sexual abuse.

What does the data say?

Out of the total number of rapes reported to NFHS(though it is an informal survey whose premise was to provide anonymity), 97.7% rapes were committed by the people known to the victim, out of which marital rapes accounts for 2/3rd. UN study has established the fact that 75% men want their wives to agree to sex. There have been many heartrending stories of women raped every night, even during pregnancy and child birth. It is a physical as well as mental trauma because the perpetrator is known to the person, often very close. It is a bitter reality even in developed nations.

Why all the fuss now?

Recently during parliamentary proceedings, a minister reacted on a question regarding the status of marital rape in India, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc”. Other proponents of the marital rape exception, also, argue that it is essential to preserve the integrity of marriage, which is a crucial social institution, so marital rape cannot be brought within the purview of rape law.

What are the possible reasons?

Though we can easily attribute the prevalence of patriarchal mindset as the main reason, yet there are many deep rooted causes.

According to NFHS survey around 74% marriages in India occur without due consent of the bride and the groom. How can we expect two strangers to be very comfortable with each other at the very first night? And the same thing becomes routine due to lack of any firm resistance. We, as a society are stuck in the bus vs bedroom debate and usually make a remarkable difference between the two. If a woman is getting raped in a bus it is rape, but in bedroom it is a ritual. This trivialization of marital rape is one of the major reasons for the perpetuation of the same.

Moreover, there is huge divide across the society. Though, the main victims are women, yet in most cases it is the elder women who give formal acceptance to marital rape by putting it in the category of necessary adjustment or "compromise" in a marriage. And it goes on and on across generations, and we consume this culture of adjustment. Forced sex has become a “wifely duty.”

Another important reason is economic dependence of women on their husbands and in-laws. Rape every night and domestic violence becomes a small price to pay, when basic survival is at stake.


To be continued...

Modern Feminism = Equality?

This article addresses a very sensitive topic, especially for women.  We are going to look at the concept of Feminism, origin and necessity of the idea and it’s modern transformation.

Feminism is a movement and not a nuisance

As Wikipedia says, Feminism is a collection of movements and ideologies that share a common goal: to define, establish, and achieve equal political, economic, cultural, personal, and social rights for women.

The origin of these movements and ideologies lies in the fact that our society has been male dominated (patriarchal) for a long time.  For such a society, women’s standing up for their rights of equality seems like a nuisance, instead of a fair call.

However, the proponents of feminism based it on the fundamental idea of equality for all.  Taking into account the reality of Indian villages and small cities where women are still treated as second grade citizens, feminism has always been a necessity.

Feminism and Affirmative action

Affirmative action (vaguely similar to reservation in India) for oppressed and backward classes of the society is closely related to the concept of feminism in the sense that they both seek to provide favorable conditions for the section they want to benefit by violating the principle of equal opportunities.  Simply put, they use inequality in competition to provide equality in standard of life.

Modern Feminism

There is no such real term as modern feminism; I am using this term, as I could not find anything more suitable. Although the original motivation for feminism still applies and there is still a lot of work to be done, it is growing into something undesirable in some sections of the society.

The original concept behind feminism was and will be of equality rather than preferential treatment or superiority. The cases where men see women as inferior are the majority, but, I have come across women who put all men (except may be their brothers and father) into the same bucket of being perverts, dominating or extremely rude. The negative traits mentioned here are individual characteristics and have equal probability of being present in women as in men.

It’s a known and researched fact that media has been commoditizing women in India. They are not portrayed as source of inspiration, rather, as source of pleasure or a thing to use. The so-called modern Indian woman has so accepted this portrayal so blindly that if a man tries to challenge this image (sometimes it’s not a challenge, but just a display of male dominance, but as women, we should learn to differentiate between the two), he is hated, scolded and put in the same bucket of having an orthodox patriarchal mind set.

As I already mentioned that feminism does not promote preferential treatment either (there is a difference between preferential treatment and affirmative action). Recently, on social media, I saw a girl beating a man who was teasing her after police arrested him. There is no problem in standing up against eve teasing, but feminism does not give you permission to break the law, unless you need it for self-defense.

Conclusion

The idea is that the concept of feminism is very fundamental in the sense that it only demands equal treatment for women as men, and it should be promoted in a male dominated society. However, women should also learn to treat men as equals, rather than inferior (or superior).  Promote equality through affirmative action not preferential treatment. 

Juvenile justice: Retribution vs Rehabilitation

In recent past, due to many serious crimes committed by juveniles, the trial process and the severity of their punishments has been a matter of debate. One of the most disturbing acts involving a juvenile was the recent Nirbhaya rape case, where the victim was severely molested ending up dead after fighting for life for a fortnight in the hospital.

The biggest controversy in the context is whether the Juvenile Justice Act 2000 holds significance for heinous crimes like the Nirbhaya case or not. The Juvenile Justice Bill 2014 recently got the nod of cabinet treats juveniles in age group 16-18 as adults for heinous crimes. Should the juveniles be given more liberal trials and punishments for their crimes, or should they be punished equally as adults for heinous crimes like rape, following the public sentiment?

Since this is a very debatable issue and opinions vary from person to person, I will not try to support a specific point of view. However, I would rather take a balanced approach to look at the matter, present arguments in favor of and against the public sentiment and the JJ Bill, 2014; and leave it to the reader to choose a viewpoint.

Who is a juvenile?

The United Nations Convention on the Rights of the Child defines a child/juvenile as any human being under the age of eighteen, unless the age of majority is attained earlier, under a state’s own domestic legislation.  The nations that ratify to this convention are bound to it by international law.  Since, India is also a signatory of this convention, the juveniles in India are people under the age of 18 (since the age of majority is also 18), which is also mentioned in the Juvenile Justice (Care and Protection of Children) Act, 2000.

.

The Juvenile Justice Bill 2014

The bill replaces JJ Act, 2000 and addresses children in conflict with the law and children in need of care and protection.  Following are some of the important and debatable points in the JJ bill that are relevant to this article:

·         The bill defines three classes of crimes for dealing with a juvenile i.e. petty, serious and heinous.

·         The bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous crimes. Also, any 16-18 years old, who commits a lesser, i.e. a serious crime can be tried as an adult only if he/she is apprehended after 21 years of age.

·         Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district.  If the juvenile in question is in the age group 16-18, the JB will decide whether he/she is to be tried as an adult i.e. whether the committed crime is heinous. The CWC will decide the care and protection needed for the child in question if  (s)he is to be tried as a juvenile.

Support: Retributive justice to those old enough:

This is the most popular of the public sentiments, with public demanding severe punishments to those committing heinous crimes and equal punishment to 16-18 year old juveniles. I have used the term “retributive justice” because the situation can in some ways be equated to the argument of “Capital punishment or not” in case of heinous crimes, since the boundary between a juvenile and an adult is drawn based on the severity of the crime.  Following are some of the points in support:

·         If they are old enough to commit a crime (old enough to rape), they are old enough to be granted the punishment.

·         The boundary between a juvenile and an adult should not be so crisp. This will allow for different punishments for people who differ by just a day in age (on boundary of 18 years), which is not fair. So, severity of crime should also be a deciding factor in whether the person is juvenile or adult.

·         Severe punishments to everyone who commits heinous crimes will act as deterrence, because it will reduce the likelihood of criminals getting away with minimal punishment on false grounds of being underage.

Criticism: Give reformative treatment to children

Most the criticism is based on the idea that reformative justice should be preferred over retributive justice wherever it is possible (which ideally should be in every case).  Following are the arguments given by the people who oppose the JJ bill:

• Parliamentary Standing Committee found out that such a move violates our constitutional mandate and India's obligation under UN's Convention on the Rights of the Child
• MoWCD: One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution.
• The bill does not clarify whether a child tried as an adult will end up in prison (during trials)
• Flawed assumptions- determining their maturity and mindset, as deterrence. 
• [Research Network on Adolescent Development and Juvenile Justice at MacArthur Foundation, U.S.]: shows that human brain undergoes key physical changes from the ages of 16 to 18 and this continues right until the mid-20s
• Adolescents know what they are doing is wrong. But They are unable to act on that knowledge. The underestimate risk; so, deterrence is probably not the best policy against them.
• Adolescents are greatly affected by their environment. So they can be molded in a better person too. Transferring them into adult prison would have negative effect on them.
• Transfer policies have generally resulted into subsequent crimes.
• We should focus more on eliminating core problems that lead to such acts like – poverty, broken families, unemployment, access to pornography etc. and providing community based treatment programs.

Conclusion:  Is age really a deciding factor?

As we can see that the proponents of the JJ bill say that age should not be a deciding factor when a crime is so severe. However, the argument against the bill tries to give a scientific perspective of how age is an important deciding factor into a person’s maturity and tendency to estimate risk of a crime. It is up to the reader to take away whichever point of view suits him/her. However, it is clear that overall societal structure and a futuristic attitude should be taken against such problems which minimizes the risk of such crimes in future.

India: Perfect Imperfections

Are you an Indian? A disappointed Indian. Are you the one who pick up

the Indian newspaper or watch an Indian news channel in the morning to destroy own happiness and descend the ladder into depression?

Probably you are one of them(I am the one)?

What is the first image most of us have in our mind, when we talk about India? It is  poverty, destitution, over population, corruption, starvation, crime rates and terrorism. 

 

Indianness has become the passion only at occasional times, either when Indian cricket team is playing in the stadium or when some neighbor knocks our country's borders. On 15th August or 26th Jaunary, it again gets highlighted in the form of selfies(with flag) or facebook statuses.

In the normal times, we are looking to move away from this nation. The number of H1B visa applications (2.5 lakh this year) is the testimony to the fact that people want to leave this place. Probably because this is the place where opportunities are in numbers one could hardly rely on for the safe future. Probably, because this is the land of problems.

Today, the people of India are so blinded by the problems in their nation that they have forgotten the great wealth that lies within. And maybe, just maybe, it is the fault of the Indian media and our prejudices formed because of it.

Why do most of us have so much hatred against the police men irrespective of the fact that we have faced their atrocities or not?

We cry foul against system so much about the system, that we even forget to thank NDRF(National Disaster Task force) for its efforts in the extreme conditions.

It will be a herculean task to enumerate all the achievements of India[neither I am a politician who will like to do the same]. But one hardly pays attention to those achievements today.

At the maximum sympathetic attitude, we attribute India having too much potential in manpower, wealth(may be black money), natural resources, but unable to tap it. Here again we blame the 'system'. True, the people are not corrupt, but the system is. But isn't the case everywhere else? India’s political structure is no more corrupt than any other nation. It is just that the Indian people needs to change its parameters to judge the situation of the country. The institutional failures or the systemic failures can only be corrected by the people facing it.

Lets be more grateful and  responsible citizens and consider this nation as a family where it is not feasible to put the precondition of  keeping all the pieces right. It is not wrong to put problems in perspective, but it is definitely wrong not to revel in what we excel. Self confidence not the false pride is the need of hour.

Should a woman change her maiden surname after marriage?

In 3 idiots movie, the heroine shows concern over adopting the surname of Ranchoddas Shamaldas "Chanchad" after marrying the hero. In the climax the name of hero turns out to be something else, Phunsukh Wangdu. This time as well the reaction of heroine was same.

Once I saw one of my didi who kept her last wedding card laminated, probably because that was the last formal document carrying her original name. It seems like a RIP given to your surname. :(

What is so special in the maiden surname and why a woman needs to leave it after marriage?

Most of the time, this issue never gets attention because it is rare (atleast in India) where our community is slightly conservative and the so-called obedient children married within the same community. Thus, no surname change. So children need to rarely bother, whose surname they carry.

But here we are going to discuss the case where a woman has to undergo a surname change, probably because it is the sign of possession by the man over woman. Sometimes this issue becomes serious enough to lead to divorce. If a woman wants to hold on to her name because that is her identity – and in a way it will always be, she is termed as a feminist. It crosses the light, when some people even try to change the first name of woman as well with the argument of  making the lady auspicious and lucky for the home.

This identity crisis may not bother everyone, but to whom it does it, might not always be justified by the ego of the lady. There are real problems faced by these women. Applying for a job, they need to produce their marriage certificate along with any ID proof, as if marriage certificate is her identity. She need to renew her passport. And obviously as expected the patriarchal society, a man has comfort in this domain. Any married couple with different surnames are seen as two people having affair without society's sanction.

This fact bothers me more when it is love marriage, where the boy was supposed to love the girl with her maiden name, yet has to change his preference after marriage. And a girl has to leave it up as a sign of love and devotion. As if being a human being doesn’t give her right to  keep her identity.

Some people give argument, that what is in the name? If that is the case, Can I call a day as night and a night as day? Obviously, no. The term is associated with the phenomena. So is the name of a girl. She is carrying this term from her childhood, retaining it on all of her documents, why should she leave it after an event, marriage? Won't it be a kind of plastic surgery given to her seizing her identity?

As the woman are becoming career oriented, they need to carry their identity along with. Suppose a girl A become girl B, first she needs to reformulate her documents carrying hassles of affidavits proving that her both names belongs to her. Second, her acquaintances cannot search her on records, facebook except seeing her in personal.

I have one question over the significance of surname. If the name signifies belongingness to one's family, does it mean the girl no longer belong to her original family? Most of the conservatives are going to justify it with the argument that, once a girl get married, she should never spend more than one night at her home. She should never return to her home, it’s better to die with her in-laws rather than to come back.

We just need to ponder over the question, if a woman takes her husband’s name in marriage, is it a sign of commitment or of inequality?

Recent controversy over "Thaali"- mangalsutra is another example of how the imposition of any identity which is limited to women only and sign of inequality. Karwa Chauth - why a women need to do it? Doesn’t the husband want her back? Though, there is a huge list, I will restrict myself here only.

Personally, I think it is a decision best left to the couple, it reflects the strength and trust in the relationship. It’s a human nature, if you impose something on them they are going to revolt, so leave them along and let them decide.

Thus we can conclude, changing maiden surname is one of the stereotype and expectations from a woman. A woman should have enough freedom to decide what she wants for herself. After all, marriage is about growing one's family not leaving them.