Sex is an outcome but also often the cause of inflamed passions. Regulating sex through law has a downside because the adversarial, legal process we follow is pretty poor at establishing “guilt”. The police are so busy lining the roads for VIPs and doing crowd control, that investigating individual crime is a low priority. Shoddy investigations often do not result in meeting the tests for enabling the State to encroach on an individual’s liberty and life. This is especially so when public sympathy is not with the murderer.
In the popularly followed soap opera of the Aarushi and Hemraj double murders (murders committed in 2009; lower court judgment after six years in 2013), public sympathy seems to be with the murderers-Aarushi’s parents. The disgust is reserved for Hemraj, the male Nepali house help, whose sexual relationship with Aarushi, a minor girl, enraged Aarushi’s father to murder and her mother to be an abettor to the act.
Similarly, in 1959, Nanavati, a dashing naval officer confronted his wife’s lover and asked him if he intended to marry her. When the lover laughed in his face, Nanavati shot him with his service revolver. Public sympathy for the noble, husband, murderer and aversion for the lecherous, opportunistic, lover made the President of India pardon him.
In the ongoing Tejpal rape saga, public sympathy is with the victim, but it seems more than likely that she will not be able to meet the onerous legal requirements of proving him, or his abettor Tehelka Editor Shoma, guilty in court. Tejpal and Shoma have yet to be arrested and Tejpal’s long term political association with the Congress will stand him in good stead, unless yet again Rahul takes a principled stand.
The Gujarat snoop gate in comparison has not attracted much public attention despite it providing a platform for Congress to attack Modi’s governance style. Possibly, the reason is that Modi is not the only Chief Minister using his state police to keep an eye on political opponents. After all, the woman whose privacy was invaded by the Gujarat State has not complained to anyone and her father seems to condone the action. The clearly established charge (for which no commission on enquiry is required) of misuse of public resources is an endemic “perk” across governments. Nevertheless it would be fitting, for a front running, Prime Ministerial candidate, like Modi, to sanction his assistant Amit Shah, who ordered the snooping, by distancing him from the 2014 poll preparations and fast forwarding the criminal charge process.
Trial by the media helps in getting people convicted fast, but it is never clear if the guilty have been punished. Similarly, judicial proclivity to rely on moral outrage rather than the facts on file, can distort justice. Sometimes, this judicial stance provides a convenient just-in-time outlet for widespread social outrage, with the intention of pushing upwards to appeal courts, the tricky business of handing out justice.
Things get confused in a transitional society, like India, where norms of sexual behavior vary enormously. Dress codes and sexual behavior in a night club are very different from the codes prevailing while shopping in a market. Normally the silos are water tight. Night clubbers dress and behave different when shopping. However, signals get mixed when, for example, a “memsahib” tired of her daring clubbing dress, hands it down to her maid, who promptly wears it, inappropriately, in the park, sending out unintended signals, identified by the “Khap Panchayat mentality” as the cause of inappropriate male behavior and defended so vociferously, by women, as their right to dress as they want. Without a doubt, the onus for a mental makeover is on men, who being socially dominant in India, hold women to account to a stricter code of sexual morality, than for themselves.
The rash of recent criminal legislation seeks to reverse this skew by holding men more rigidly to account for sexual transgressions. This is easier said than done. In Germany a recent legislation proposing to criminalize the customer (generally male) of a prostitute was opposed by prostitutes themselves. Their argument was that this would drive prostitution “underground”, make them more dependent on criminal intermediaries and expose them to dangerous customers. Unintended consequences indeed for a law which meant to do good.
Much the same is true of the spate of recent Indian legislation on sexual behaviour. Unintended consequences will mar these well- meaning laws. Here is how:
First, it is difficult enough today for a woman to compete on-the-job with social norms requiring her to multi task between home and office. Effective team work often requires a high degree of intimacy and huge amounts of time spent together. Women are disadvantaged in “hanging out” and “networking” primarily because it is still very much a man’s world. The majority of bosses, at different hierarchical levels, are men. They are likely to be even less willing, than currently, to employ women competitively if even their innocent actions of workplace intimacy can potentially attract criminal sanctions. To put it simply, if today a woman has to be twice as good as a man to get the job, she will now have to be four times as good. Even the “strident voices” which campaigned for making the law on sexual transgressions more draconian, are now finding out how difficult it can be to implement the law effectively in their own offices. Women should be concerned about this additional barrier to their competitiveness.
Second, the notion of a woman as “innocent or naïve” and any man as a “predator” seems antediluvian. The law for sexual sanctions should be gender neutral. Consider for instance the gender biased law on adultery (the most common sexual transgression), where the man is presumed to be the adulterer, even if both parties are married. Similarly the law only regards men sexually harassing and stalking women, as criminals.
Third, laws must respond to the state of play of collectible evidence. It is difficult enough to prove motive but it is even more so to prove whether or not a sexual advance by a man was consensual or not. Oldies will remember the film, “Pakeeza”(1972), in which Raaj Kumar is instantly attracted to Meena Kumari’s ankles, resting on the iron window bars of a train. Only the Taliban would go to extent of banning the exposure of ankles. But it does illustrate how diverse and contextual are the sexual signals communicated between a man and a woman.
It is not for nothing that the eyes are the said to be the windows of the brain. Indian actresses, catering to our modern, prudish, sexual norms, have been adept at using minimalistic body language to convey powerful sexual signals. The lowering of eyes at an appropriate moment is understood to signal consent even if here is no verbal confirmation; playing with their hair is similarly a popular “I am interested” signal. All these are legitimate signals of the human mating dance. Also just as clearly the onus is on the male to calibrate his resultant advances, in a manner which is socially acceptable…and norms vary enormously depending on context.
Our laws are over wordy and over specified. This is a sure sign of a drafting process which gives too much weight to “satisfy” the demands of “strident voices” and “special interest groups”, rather than a professional balancing of the objectives of clarity, specificity, coherence and effectiveness. Drafting good laws, which are forward looking, implementable and effective, is not our comparative strength. We use legislation just as a means to “shut the mouths” of discontents.
Lastly, lawmakers must assume that laws will be gamed by the unscrupulous; both men and women. This is the downside of the adversarial legal system we follow and its key limitation in harnessing social change. The US is a prime example where the fear of attracting “liability-civil or criminal” is so extreme that passers-by will not directly help the victim of an accident and instead wait for an ambulance to arrive for fear of attracting the liability of “legally” harming the victim.
Take a simple example. Increasing the age for becoming a legal adult from 16 to 18 for women is totally unrelated to the prevalent facts on the ground (UNICEF (2009) estimated that 47% of women in India are married in their teens). Dimple Kapadia was 16 years old in 1973 when she played the “quasi-Lolita”, title role in Raj Kapoor’s film; Bobby. Common sense would dictate that a fair proxy for adulthood is the average age of attainment puberty, rather than an arbitrary age, designed only to enlarge the pool of girls who would be “protected” by the more onerous sanctions against sex with a minor.
Finally, acceptable norms for social and sexual behavior must be left to be decided at the local level since the most effective threat against transgressions, is social sanctions. Pan-India laws are incapable of achieving this level of dovetailing between legal and social sanctions. It should then be left to people to vote with their feet and leave jurisdictions, whose social norms do not fit their world view. After all, India is increasingly a country of domestic migrants. Around 35% of the population has chosen to migrate, with the proportion increasing every year. Unacceptable social constraints and skewed gender roles (the Khap Panchayat world view) and unrealistic draconian laws (the social activist world view) would be just more (good) reasons to do so.