governance, political economy, institutional development and economic regulation

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Thanks to Bill Clinton and his legal brilliance, the definition of what constitutes a sex offence has become so broad that men and women now need to comply with the strictest code of antiseptic, social behavior.

Earlier we all knew when we were crossing the line since the rule was simple. In Rome do as the Romans do….and what they do can fill entire books. Red lines of sexual behavior are contextual.  Hugging, kissing on the cheek, or the palm of your hand, holding hands, caressing acquire significance only in a particular context. What would pass as acceptable in Africa or Russia would land you in jail in the US and India. USAID training manuals, in the 1990s, were compelled to advise Indian scholars visiting the US, that if their host’s spouse kisses them on the cheek, that is not an invitation to grope her!!! Even today China feels compelled to issue advice to their overseas travelers on behavior norms.

We have come a long way from there and as is usual in such things, overshot considerably on what a law should prescribe. Consider this. Under the 2013 Indian law if you come up on your ex-boyfriend trying to open his own room in a hotel corridor and hug him tightly from behind, in a “hello again gesture” and he does not shake you off but just turns around in your arms, making you reach up and caress his face, he could send you to jail for “sexual assault” for three years. Surprised? But this is the kind of nonsensical rule that a law obsessed, urban society, led by the nose by social activists, legislates.

It assumes two preconditions, neither of which exist in India. First, an efficient police investigation and prosecutorial system, which would have the time, energy and the capacity to take an FIR to conviction of the accused. In India public interest tapers off quickly after an FIR has been lodged. Second a judicial system which could decide the case in a short time. If neither exist a draconian law becomes a hotbed of corruption and misuse.

The human body, and indeed any living creature, is morally inviolate. Human society conveniently permits humans to have double standards; one for themselves and another for other living things. We can kill animals, except some privileged ones like the Tiger, but not ourselves. Within humans, there are gender differences and historical gender behavior codes which marginalize women, in India and most of the World.

There are three ways of reversing the unhappy state of gender equity.

First, Laws can give access to public power through positive discrimination (reservations); prescribe special procedures for fast forwarding gender justice in our investigative, prosecutorial and judicial system and reverse perverse economic laws, like on inheritance, which are gender biased.

Second, the government can enhance the functional capacity and skills of women, increasing their market power. It can also dilute the existing barriers to achieve this objective, including by, locating schools in a gender sensitive manner so that girls can access them; enlarge housing for urban, working women in a manner which blends convenience with safety; increase the street level presence of women police officers, especially at night, by instituting mixed gender police patrols and so on.

Third social change led by religious leaders and social activists can target individual behavior and mindsets, stemming and eventually reversing, the baggage of history which constrains the unleashing of woman power in India, across the economic classes.

India has done a great deal on the first two but virtually nothing on the third, especially with respect to sexual equity.

We will not make much progress unless we become more open about our sexual needs and practices. Today most of us live a lie. Spouses prefer to turn a Nelson’s eye to sexual transgressions rather than confront them, possibly because sexual depravity is considered a higher social negative than corruption. The children of sexually deviant people attract opprobrium on the erroneous assumption that it is genes which determines sexual conformity.  The concept of sexual depravity is generally gender biased and it is easier for a woman to fall foul of this “moral” code than a man.

The most affected by the sex warp are the middle class. The poor have no space, time or resources for living by Victorian values. Children grow up in the same room as copulating elders; women change partners, since men often fail to be the “provider”; involuntary sex is one of the many dangers of tight, spatial proximity of an extended family; most poor women work which gives them a great deal more economic freedom.

The Indian elite are more evenly gender balanced, as one would expect. Many are double income households, which automatically dilutes the “man above” hierarchy. The very rich are also known to permit reciprocal sexual equity, though women generally have to be more circumspect about it than men.

What does this mean for the Indian family and for traditional values that spouses and partners genuinely love each other and have no need for breaching the sexual behavior code. Nor surprisingly it is the middle class, both urban and rural, which adheres the most to traditional values. Cynics would say this is not out of choice but compulsion. Middle class men are not enveloped by the miasma of power which so attracts others. Middle class women are so tired out with just managing the cost of onions and tomatoes, cleaning and cooking that they have little time or energy left for even thinking about sex. They sublimate their fantasies through movies and film magazines, since their reality is so grim.

What is a sensible sexual behavior code? Here are some suggestions:

First, sexual behavior should become a crime only if one of the two or more parties, alleges non consensuality and complains to the police. Gay sex, multiple partner sex may be socially deviant behavior, though even this is very, very, debatable, but it must not be a crime unless it transgresses the red lines of involving a person needing protection, like a minor. This single tweaking of the existing law would take way the absurdity inherent in the new law and rationalize the burden of proof required for securing a conviction.

Second, it is good that there are now institutional norms prescribed for sexual behavior in the workplace but it must be clear to all (it appears even senior managers are not aware) that these are only lead to institutional disciplinary action and do not substitute for the rule of criminal justice.

Third, men and women will always be attracted to the route of granting sexual favours for getting benefits in the workplace. This would be entirely their own business, if it did not adversely affect the rights of other employees in the workplace. A boss, looking for sexual favours, and there are many, will always favour a sexually compliant employee, so neither the employee nor the boss would be inclined to complain. Criminal law must consequently provide for an aggrieved colleague, in the workplace, to lodge a criminal complaint against both the boss and the employee for indulging in “sex for benefits” in the workplace.

The “Gods” of acceptable sexual behavior norms are often the ones who are most in breach of them. Such false Gods apart, acceptable sexual behavior norms, in general, are best left to be decided by the society concerned. A multiplicity of locally compliant norms is better rather than a pan-India norm. Meanwhile, a good principle to avoid crossing the red line is to (a) never try and have sex whilst drinking (b) examine the motive of your sexual urge, every time you get one and reject it if it is driven by ego or your “power miasma” (c) never make the first physical move, especially if you are a man, unless it is with another man (d) keep your digits to yourself unless they are asked for. 

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