The Criminal Law (Amendment) Act of 2013 inserted Section 114A into the Evidence Act of 1872. It states
In a prosecution for rape … where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court, that she did not consent, the court shall presume that she did not consent.
In other words, in a he-said-she-said scenario, courts are required to presume the man* guilty, unless he can prove otherwise.
*Only men can be accused under the new law, because enlightened activists decided that female-on-male and female-on-female rape don’t exist.
Tumblr is a blogging platform meant to share artwork. At some point, it became a popular platform for people in 15-25 age bracket who saw themselves as fighting for social justice. While this is an admirable cause, the intellectual content generated has been… odd.
Warning: Do not, at any point, try to engage in a argument, even mentally, with this person. Hatred is toxic. Laughter are cleansing. This selection is for entertainment purposes only.
Without further ado, I present a selection of thoughts from user Feminism and Donuts.
She doesn’t like compliments:
When a man tells me “you’re beautiful” all I hear is “Your only purpose in life is to decorate my world.” (Link)
“It’s a compliment” is something men say when they’ve been found verbally assaulting you. Don’t buy into it ladies. (Link)
Or criminals rights for those accused of rape:
Why do rapists get a “fair trial” when victims of rape didn’t have their attack decided by a group after a long fair trial[?](Link)
Male privilege is people saying “accused rapist” until he is “proven” guilty. Male privilege is having a woman’s word subject to the judgment of others. (Link)
Indeed, she has some odd ideas about male privilege:
Male privilege is being able to get sex from any woman, any time with little to no difficulty or judgment. (Link)
And interior decoration:
It’s not that I hate white cis men, it’s just that I want to use them as rugs. And they say chivalry is gone. (Link)
I’m not sure what to make of this:
No means No. Yes does not necessarily mean yes. (Link)
She, and her followers, need feminism:
Anonymous follower. Text reads “I need feminism because the last time I submitted an essay I got a D despite being smarter than the other students.” (Link)
But she knows how to have fun:
lol I am going to show up to class tomorrow in a see-through shirt with nipple pasties, a G-string and a pair of see-through pants made out of a shower curtain and a nerf gun. and anyone who stares at me because the outfit “provoked” them is going to be squirted in the face with nerf water. (Link)
Disclaimer: Do not generalize from this person to anyone else. No individual who shares a label (e.g. “feminist”) with this person deserves to be tarnished by association with him/her. Every movement has its nutjobs.
There’s a lot of stuff that counts as sexual objectification: rape, molestation, prostitution, one-night stands, sexual fantasies, and scantily-clad models in advertisements are all examples of people treating others as a means to sexual gratification (and nothing more). If you’ve ever checked out someone of the opposite sex, no matter how discretely, you’ve indulged in a bit of sexual objectification. What do these things have in common that make sexual objectification so terrible?
Some claim that sexual objectification is bad because it’s non-consensual. This is tautologically true for things like rape and molestation, and arguably true for well as sexual fantasies and checking-people-out. On the other hand, one-night stands are consensual. Bikini clad models are consenting to have their bodies be used as a means to sell beer. Sex workers consent to have sex in exchange for money. Sexual objectification is not inherently non-consensual.
Another theory is that it harms those who are objectified. Once again, this is obviously true for rape and molestation. On the other hand, people we fantasize about, or check out, are often blissfully unaware of our actions, so it’s hard to see how they’re harmed. Meanwhile flings, models, and sex workers seem to benefit from being objectified, whether sexually or monetarily. Sexual objectification doesn’t necessarily harm someone.
A third theory is that it is indirectly harmful. Men, the theory goes, see women being treated as sex objects in porn films and billboards and start thinking of all women as mere sex objects. This leads to all kinds of negative consequences, like rape. This is an interesting theory, but the data doesn’t support it. Pornography is a fairly stark example of sexual objectification. If the theory is true as the amount of porn available increases, we should see an increase in rape. The availability of pornography has exploded since the advent of the internet, and yet rape rates have fallen. Studies closely tracking the spread of the internet show that porn leads to less rape, not more. Similarly, researchers have found that legalizing prostitution reduces rape*.
Why doesn’t porn lead men to think of women as mere sex objects? Answer – men aren’t idiots. They’re smart enough to realize that some women are sex objects in some contexts. Examples: porn stars in movies, prostitutes on the clock, one night stands on the night in question. In other contexts, meaningless sex is off the table, for example when one is among colleagues, neighbors, or girlfriends. A man who fails to learn this will receive a sharp shock – rejection at best, jail at worst. A man who only thinks of women as sex objects will barely be able to function.
An interesting argument is that treating people as a means to an end is just wrong. Such an act dehumanizes the person by making him an object to be used. Such objectification is inherently degrading. Most people would agree that this makes total sense. Until it starts raining, at which point they call a cab.
When someone hires a cab, they’re using the driver as a means to an end – getting from point A to point B. The driver is also using them as a means to an end – making money. And yet neither the driver nor the passenger feel demeaned or diminished in status by being used. In their day to day lives, people constantly use strangers as a means to an end, without disrespecting their humanity in the process. Objectification is not inherently degrading or wrong.
But there’s a big difference between driving a taxi and having sex – no-one regards driving a taxi as shameful. A great many people seem to regard casual sex as somehow dirty. For these people, to have meaningless sex with someone is to disrespect them. I can totally understand such folks having a problem with sexual objectification.
But it’s not the prudish traditionals who write elaborate essays about the horrors of the Sports Illustrated Swimsuit Edition. It’s the “sex positive” progressives. Is there some deep philosophical theory that enables them to see sex as alright and objectification as alright, but sexual objectification as inherently awful?
Nope – they just haven’t thought it through. The idea that sex is degrading is deeply ingrained, even inside people who see themselves as having escaped such ideas. If you take offense to the question “are you gay?” you’ve probably got a few homophobic ideas lying around. If you take offence to the question “wanna have sex?” you’ve probably got a few sex-negative ideas lying around. Far too many progressives think being sex positive merely means not calling sexually active women “sluts” or arguing for the legalization of prostitution; the more subtle weeds remain unpruned.
If you want proof that opposition to sexual objectification comes from the belief that sex is dirty, you just have to look at how often sex workers are dissed in these discussions. Look at io9 being outraged by a comic book publisher “putting beloved superheroines in positions reserved for porn stars.” Look at Pando getting angry about Uber posting an ad “treating women who may choose to drive cars to make extra money like hookers.” Look at the Feministing contributor who was “embarrassed and humiliated” by a joke that “marked [me] as a stripper.” These aren’t religious conservatives who think that prostitution is sinful, but their unstated (perhaps unconscious) beliefs are clear – sex workers are low-status and no respectable woman should be tainted by association with them.
If you think there’s nothing wrong with hiring someone to drive a cab, and nothing wrong with casual sex, but something inherently wrong with hiring someone for casual sex, you’ve got a lot of explaining to do.
To be fair, some people have taken a sporty shot at explaining. They’re not against sex, nor against mundane objectification, nor against every single form of sexual objectification. What they’re against is people being treated as mere sexual objects and having other aspects of their humanity ignored or denied, especially in art and literature.
Taken literally, this claim is absurd. In a movie, a porn star may be a tool for sexual gratification. This doesn’t mean that she is merely a tool for sexual gratification. Porn stars have hobbies, write essays, attend college and socialize like everyone else. It is even less true that porn reduces women outside the film to the status of mere tools. Female CEOs, athletes, and doctors are not mere means to anyone’s sexual pleasure. They know it, and so do the men around them.
Of course, maybe it’s not a literal statement about the world, but rather criticism leveled against a film’s aesthetics. But why is being a sex object so much worse than being (say) a violence object, as so many thousands of henchmen are? Or bystander objects, as so many extras are? Might it be because sex is seen as dirty and low-status, while shooting poorly and sitting at a restaurant isn’t?
Furthermore, people aren’t reduced – and reduced is the important word here – to mere sex objects as often as critics claim. Take the recent controversy over this Spider-Woman cover. It’s highly unlikely that the main character of a comic series will spend her inaugural issue doing nothing but sticking her ass in the air, so it’s unlikely that Spider-Woman will be “reduced” to a sex object. And yet people lost their shit. Why? That’s kind of a hard question to answer without invoking the idea that sex is dirty and sex-objects are low-status.
Sexual objectification is a really really confusing topic on the internet.
Part of this is grammar. George Clooney doesn’t turn into a walking dildo when you fantasize about him. It can be confusing to hear that you’ve “sexually objectified” him, as if you’ve literally transformed him into a sex object.
Also, people don’t want to have sex with objects; they want to have sex with people. It can be confusing to hear a prostitute being referred to as a sex object, as if she were a rented Fleshlight™ [NSFW].
Information networks muddy waters further. Activists and intellectuals learn about “sexual objectification” through their friends, mentors, blogs, books, or classes. They then use the phrase casually and without explanation, bewildering listeners outside their circles.
When you ask what, exactly, objectification is, you’ll be told that it’s when you treat a person like an object. But there are a lot of ways to treat someone like a object. You could treat them like they were a means to an end rather than an end in themselves. (This is the definition I’ve been using in this essay.) You could treat them like they have no autonomy. You could treat them like they have no subjective point-of-view. You could treat them like they have no voice of their own. You could just be treating them disrespectfully. All of this makes discussing objectification hard, unless the people you’re talking to understand exactly what you mean by “objectification”.
How do you avoid this confusion? Clearly define objectification, and explicitly state why you think it’s a bad thing. Productive discussions can now begin.
If you don’t think there’s anything inherently wrong with sex, should you feel free to proposition people willy-nilly? Of course not. Rightly or wrongly, most people do think there’s something inherently wrong about sex, if only at a subconscious level. The pain they feel at being objectified is real and, as a good human being, you should seek to minimize the suffering of your fellow men and women. Don’t objectify someone unless you know they’re okay with it†.
On the other hand, feel free to engage in all forms of sexual objectification that are consensual or harmless. Watch A Tale of Two Titties, hire that red-headed sex worker, fantasize about Brad Pitt, whatever. It doesn’t lead to rape nor a decrease in the status of women. It turns out that people vastly overstate how evil sexual desires are. Who saw that coming?
* There are those who believe that legalized sex work provides a cover for sex slavery and trafficking. This may or may not be true. But it has no bearing on whether availability of prostitutes lead men to think of non-prostitutes as sex objects.
† This can sometimes be tricky, because seeking permission to sexually objectify someone – by, for example, proposing a one-night stand – can itself cause offense. Having honest, open conversations about sex is an elusive goal.
A man asks a woman out on a date. She’s interested in a long-term relationship i.e. a boyfriend. She doesn’t want to waste her time or money on someone interested in casual sex i.e. a player . She doesn’t know what her proposer wants. Asking would be silly – a man who’s only interested in sex would lie, enjoy a romp in the hay, and not call the next day. She decides to “play hard to get” – pretend to be more reluctant to go on a date than she is. She believes that a would-be boyfriend would persist in asking her out, while a player wouldn’t.
Now let’s look at things from the man’s perspective. He doesn’t know if the woman is genuinely uninterested or merely playing hard to get. If he wants casual sex, it doesn’t matter – the cost of persisting is too high to bother. If, on the other hand, he wants a long-term relationship and thinks that there is a reasonable chance that she is “just playing”, it’s in his interest to persist. The expected gain from her eventually saying yes may (and here we assume does) exceed the cost of pursuing her. Thus, a player will back off, while a would be boyfriend will not*.
Thus, men and women both end up having their beliefs confirmed. Women who want relationships play hard to get because they know that would-be boyfriends will persist and players won’t. Thus some fraction of women who say “no” don’t mean it. Would-be boyfriends know this and persist. Players don’t persist because sex isn’t worth the trouble. Thus all the individuals in this little game are playing their best response to each others strategies. This is what game theorist call an equilibrium.
The problem is that some women are genuinely not interested in the men asking them out. For them, being repeatedly approached isn’t a positive sign; it’s harassment. It imposes serious psychological costs. It is for such women that sexual harassment laws have been introduced.
However, men’s persistence isn’t the only thing causing their plight. It’s ultimately caused by the equilibrium that all the players find themselves in. An important part of that equilibrium is the strategy other women use to filter out players from potential boyfriends. If they stopped playing hard to get, men would have no incentive to persist, and our victim would have been spared. This is not to let men off the hook. After all, if all men backed off as soon women said no, it would be impossible to tell players and non-players apart from how quickly they backed off. Thus, women would no longer have an incentive use “playing hard to get” as a filter. Both men and women are to blame for this bad equilibrium.
(This is not “blaming the victim”. The victims are the women who are uninterested and so feel harassed; the accused are the women who are interested but play hard to get.)
Yet, whenever the question of consent arises, activists demand changes in male behavior, while ignoring the female behavior that supports it. Worse, they present “No Means No” as a factual statement: all the women who are saying “No” to you are genuinely uninterested in you. This is false. One famous study examined whether women ever say no to sex when they mean yes. 39% of their sample had done so at least once, and more than two thirds had said no when they meant maybe.
Filtering boyfriends from players is just one reason for women to pretend more reluctance that they feel. I’ve given it the spotlight because it’s the easiest one to model. Other reasons include: the desire to filter confident, assertive men from “weak” men; the desire to avoid being labelled a “slut” by others; the desire to prove to oneself that one is not a “slut”; the belief that one will not be “respected” if one “gives it up too easily”; the thrill of the being chased; the desire to enact a rape fantasy; the desire to gain power in a relationship; the desire to extract more resources (attention, dinners etc) before terminating a casual relationship etc. And while I’ve presented the refusal as happening at the point of the date, this logic can apply to any stage of the relationship.
If the consent movement ignores this facet of mating behavior, it will fail. Why? Suppose that men in our model were presented with the proposition that women never play hard to get. If all men believed it and changed their behavior instantly, women would be forced to change theirs as well. The equilibrium would collapse. However, suppose instead that some men believe it and others remained skeptical. Women still have an incentive to play hard to get. By doing so, they would snag the skeptics who are interested in relationships as boyfriends, while avoiding the skeptics and believers who are interested in casual sex. A month after the news that “No Means No” came out, the believers and skeptics gather at the pub and compare notes. All the skeptics who want girlfriends now have them, while the believers don’t. The believers conclude that their new strategy is bust, and go back to persisting in the face of resistance. This is true of any movement which tries to sell “No Means No” as a fact. When skeptics do better than believers, beliefs collapse.
This is unfortunate. I want the “No Means No” movement to succeed. Heck, I want the even more ambitious “Yes Means Yes” movement – which calls for a verbal affirmation before sexual acts – to succeed as a social norm**. These movements started in the West, but I think they will eventually find their way to India. What changes do activists have to make to succeed?
Firstly, they must recognize that female behavior is also responsible for this unhappy state of affairs. They must work to raise awareness about it, and to discourage women from engaging in it. They must recognize that actions that are in the interests of individual women (filtering suitors) are not in the interests of women as a whole (avoiding harassment.)
Secondly, they must present “No Means No” as an ethical norm, rather than a factual statement. The idea should be: a moral man should treat “no” as meaning “no” even if the person is possibly faking it. A moral woman doesn’t say “no” unless she means “no”. As time goes on, and we gradually shift from one equilibrium to another, “no means no” will become a factual statement. In the interim, our best bet is impose the costs for immoral behavior (guilt, shame, censure, ostracism etc) on those who break the rules. Few men will take seriously a movement that claims that “[affirmative] Consent is Sexy” when it’s so far from what experience teaches them and women themselves say. Best stick to Consent is Right.
In closing, there are three additional problems with the current male-centered approach:
Firstly, it denies women agency, to invoke a term that is much in vogue. More correctly, it denies that women have agency. It treats them as playing an entirely passive role in the mating process. It ignores the fact that they are savvy players in a complex game. It contributes to the narrative where women are helpless victims at the mercy of men.
Secondly, it treats the mating process as though it were something simple, made complex because of something called “culture”. Somehow, everyone wants an honest, open, mutually respectful relationship, but “culture” thwarts their attempts to enter one. The reality is different. Most people want the same things from a relationship – sex, companionship, children etc. However, relationships are also the site of much conflict, over sex, money, freedom etc. He wants commitment; she wants a fling. He to splurge; she wants to put the money in a retirement account. He wants to spend the night out with the boys; she wants him home by 10. It is these inescapable conflicts of interest that complicates matters, and lead to dishonesty, not “culture”. In this case, there is a conflict of interest (woman wants commitment; man might want casual sex) that leads to dishonesty (playing hard to get). The man’s persistence isn’t the result of a “culture that devalues consent.”
Finally, it is unfair to men. It forces them to bear the entire costs of shifting from one equilibrium to another. It holds them accountable for a terrible state of affairs while letting equally culpable women off the hook.
UPDATE: To clarify: “Persisting” here is a metaphor or stand-in for all behavior that involves ignoring a woman’s stated preferences. “Playing hard to get” is a metaphor or stand-in for all behavior that involves pretending more reluctance than one feels. The story at the beginning was a metaphor for all situations in which women and men have an incentive to lie and persist respectively. All models are parables of some kind.
Disclaimer: over the course of the post, I’ve used “man” to mean the initiator of a sexual act, and “woman” to mean the non-initiator. I’ve done so for the sake of clarity, and because it it’s a reasonable assumption, given modern gender roles. Nonetheless, it doesn’t always hold: women do initiate, men do respond, these roles aren’t clearly delineated in homosexual relationships, and men too can be the victims of harassment and sexual assault, sometimes at the hands of women.
* To make this example more concrete, let’s assume the following: the cost of persisting is 45 to both men. The payoff to the man seeking sex is 80. The payoff to the man seeking a relationship is 100. 50% of all women are interested in a relationship, while 50% of women are not. The payoff to not persisting is zero.
Thus the payoff to persisting for the man who’s interested in sex = (.5*80) – 45 = -5, which is less that zero, the payoff to not persisting. The payoff to persisting for the man who’s interested in a relationship = (.5*100) – 45 = +5, which is greater than zero, the payoff to persisting. Thus men interested in only sex wouldn’t persist, and others would.
** But not as a legal one.
Farhan Akhtar makes a advertisement with the Delhi police, urging men to protect women, and urging women to call 100:
It did not sit well with some folk, such as Tanushree Bhasin:
… I found myself cringing every two seconds. All the points he raised, all arguments he made stank of thinly veiled sexism. So there he was talking about rape, violence, and inequality, without once questioning the underling patriarchal tone of the advertisement itself. “Yeh humaari zindagi mein kai kirdaar adaa karti hai — ma, behen, patni aur beti ban kar. In ki suraksha karna hamari zimmedaari hai,” he says. What this implies is that the narrative is still written by men, the story is still about men; women simply make appearances in their lives to serve them as mothers, sisters, wives and daughters. This age old argument says as clearly as possible that violence against women is not to be condemned because it is wrong to treat any individual that way; instead it is seen as man’s failure to protect his women — an embarrassment to any real man.
Interestingly, Farhan Akhtar is perfectly aware of the tone of his campaign:
Unfortunately, we live in a country entrenched in patriarchal norms. Now, if you were to see a woman being harassed on the streets, would you close your eyes because it might be condescending to her if you, as a man, were to try and help? In an ideal world, men wouldn’t have to be ‘the protectors’. The best we can do today is to change whatever enables violence against women.
Bhasin’s response is condescending dismissal: “A case of misguided feminism no doubt.”
Yet, Akhtar is, if not categorically right, certainly not categorically wrong. You have a problem: violence against women. One way to curb it is to create norms that induce men (who may lack the empathy or experience to understand what women are undergoing) to intervene. One way to do so is to create advertisements that tap into the existing “men should be protectors” rhetoric. The upside of this is potentially reduced casualties. The downside of this is that you end up re-enforcing existing gender norms, which hurt women in other ways. If you think that violence is a more serious weighty problem than other forms of discrimination, or that the advertisement has a large impact on male behavior and a negligible effect on gender norms (after all, it’s just one message among millions of “patriarchal” messages), then making that advertisement is the welfare-enhancing thing to do.
I’m not saying I buy this argument – I’m generally skeptical of the impact of advertisements on human behavior – but I do think it’s valid enough to deserve a serious response such as “The long term negative effects of this advertisement outweigh the short term positive gains.” Instead we get this drivel:
… the point is not to delineate gender lines again, and invent chivalrous men instilled with a protectionist spirit; what we need is quite the opposite — a complete negation of such lines drawn between men and women. … So long as gender sensitisation campaigns continue to speak in a language that is embedded in patriarchy, the very agenda of preventing violence against women will be continuously subverted.
Bhasin also cites two other examples of campaigns that try to improve the lives of women by tapping into existing gender norms: Akhtar’s own MARD campaign, and an ad from Apollo Hospital urging men to encourage their partners to get tested for breast cancer. All this really proves is that there is a trade-off between improving the lives of women within the existing system and dismantling the system. Whether to opt for the first or the second is not a trivial decision: if dismantling the system is difficult (it is) and if violence persists even in an atmosphere of relative equality (such as in Sweden, which has one of the highest rape rates in the world*) then one may sensibly conclude that women will be better off if one takes steps that – despite re-enforcing the system – make’s them better off within it.
This applies to many other debates as well. If one observes that divorced women suffer an enormous decline in their standard of living (because they can’t work, and don’t get adequate alimony) then one can either push to dismantle the homemaker/breadwinner division of labour (which is hard) or one can argue that the breadwinner owes the homemaker for services rendered, and therefore alimony should be adequate**. The latter option, because it’s based on existing cultural norms, is easier to push through. Downside: the campaign will have the effect of re-enforcing (at the margin) the cultural norms that caused the problem. Upside: it lessens the intensity of the problem.
One can have a serious discussion of long-term costs and short-term benefits, of how hard or easy it is to dismantle systems, or about whether such moves actually improve the welfare of women, even in short-term, but only with people are willing to think deeper than Bhasin and her ilk.
*Although I personally think this is the result of a high reporting rate, combined with a broad definition of what constitutes “rape.”
** A thank-you to Radhika Chitkara, a women’s issues activist/lawyer, for this example. She insists that I misunderstand it.
Juniot Diaz thinks so:
If you’re a boy writer, it’s a simple rule: you’ve gotta get used to the fact that you suck at writing women and that the worst women writer can write a better man than the best male writer can write a good woman. And it’s just the minimum. Because the thing about the sort of heteronormative masculine privilege, whether it’s in Santo Domingo, or the United States, is you grow up your entire life being told that women aren’t human beings, and that women have no independent subjectivity.
It’s certainly an interesting theory, although Diaz chooses to phrase it in a deliberately provocative manner. “Subjectivity” here refers to the characters being subjects (which can take actions) as opposed to objects (which can’t.) For example, Princess Peach in the Mario games, who patiently waits for Mario to save her, is an object, not a subject. More here.
Diaz believes that because of the sexist stereotypes that they’re exposed to (in life and literature), men are unable to grasp that women are capable of a wide range of beliefs, attitudes, actions, choices etc. In contrast, women are brought up aware of how deep male characters can be and, because they’re women, are capable of writing equally deep and interesting female characters. The claim here strikes me as theoretically sound. Of course, it’s very difficult to empirically test – you’d have to collect a large sample of characters, think of a way of measuring “deepness” or “subjectivity” and figure out whether the female characters written by men are better (or atleast more stereotypical) than male characters written by women. This strikes me as an almost impossible task, given how subjective coding characters is. This is the kind of thesis for which, perhaps, the only evidence is the experience of readers.
So I’d have been happy to defer to Juniot Diaz’s experience (he’s a hotshot writer, has won many heavy literary awards, and teaches writing to boot, so he has a decent sample) if it weren’t for the fact that he trips over himself with the very next sentence:
And because you grow up with this, it’s this huge surprise when you go to college and realize that, “Oh, women aren’t people who does my shit and fucks me.”
In other words, men (or, atleast, boys) are pigs who are interested in women only for sex and what they can do for them. They’re emotionless brutes, incapable for forming meaningful, understanding relationships with the women in their lives. They’re only interested in sex. In the span of one minute, Diaz goes from berating sexism to personifying it.
So we have two competing theories: (1) women don’t create stereotypical male characters, and Diaz has astutely observed this tendency (2) women do create sexist male characters, and Diaz lacks the knowledge required to spot this. Given his inability to spot anti-male sexism in his own speech it seems highly unlikely that he’d catch it in the stories written by his (female) students. At this point, I’m leaning heavily towards (2).
For a better understanding of sexism in (Western, english) fiction, read the entries on the TVTropes Double Standards page. It categorizes tropes into sexist against men, sexist against women, against either, and “sexist in execution, but not nature”. Each trope will be accompanied by dozens of examples, including cases where the trope has been averted or subverted.
Note: My views on this matter have changed substantially since this post was first written. Please see the updates at the bottom.
At first there was the Hindu article claiming that the Madras High Court had decreed that couples having pre-marital sex are considered married. Then Firstpost called the article sensationalist, insisting that merely having sex does not, even now, mean you’re married. Who’s right? I got my hands on a copy of the order and, as it turns out, The Hindu wasn’t off. You can read the order here* and decide for yourself. My analysis is below.
Imagine that you’re a judge at a family court. One day, a woman shows up claiming to be the wife of a man who, she says, has deserted her. The man denies being married to her. Here’s the problem – in India, marriages are rarely registered with the government, even though they’re supposed to be. If a marriage sours, the wife (assuming she’s not the breadwinner) is entitled to maintenance – but how does she prove that she’s the man’s wife when she has no formal document to establish that the marriage occurred? Few divorces are “amicable”, and it’s not a stretch to imagine a man being bitter enough to deny that he ever married her. What do you do?
You, the judge, may want to rely on other ways to confirm that a marriage exists, such as ration cards (which list the entire family) or birth certificates (which list both parents). This problem is what led the Supreme Court to declare that women in “live-in relationships” are entitled to maintenance – they were trying to protect women in undocumented marriages.
In this vein, Firstpost believes that this is merely an attempt at “awarding rights to couples who may not legally married but have lived together in every other way as spouses”, and to say that you “can’t live with a woman for years, have kids with her and then dump her without support.” And, indeed, the Madras High Court did, in this specific case, attempt to establish the man’s husband-hood using documents like the “Live Birth Certificate” etc.
Yet after it did so, the court presented an opinion so broad that any two people who have ever had sex are considered married, full stop. On page 11, the relevant opinion starts:
(vi) … The court is of the view that if a women [sic] aged 18 or above has a sexual relationship with a man, aged 21 or above, and during the course of such relationship, if the woman becomes pregnant, she would henceforth be treated as the ‘wife’ and the man would be treated as the ‘husband’. Even if the girl does not become pregnant after having such sexual relationship with a man but if there is strong documentary evidence to show the existence of such a relationship then also the couple involved in such acts would be termed as “wife” and husband”.
The Court’s view is crystal clear – if you’ve had sex with someone, the other person can claim that you are now married, regardless of whether the woman is pregnant or not (and the unwilling party can be either a man or a woman). The tone and phrasing are general. The court does not qualify it’s opinion. This is not something that can be understood only in context. This is a not an opinion that applies only to this case. It can be interpreted as a rule to be applied in such cases.
What are the implications of this? If you’re a man (and men are singled out), your exes can prevent you from getting married:
(vii) The Court is of the further view that even after such a sexual relationship, if both decide to separate due to difference of opinion, the ‘husband’ cannot marry without getting a decree of divorce from the Court of law against the ‘wife’. He could not marry a second time without getting such a decree as it had been established that sexual relationship had existed between them and consummation had taken place.
The next point is relevant:
(viii) This Court is of the further view that if the bachelor has complete 21 years of age and the spinster 18 years of age respectively then they acquire the freedom of choice as guaranteed by the Indian Constitution. Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow except on certain exceptional considerations. Therefore the marriage formalities … is only to comply with each one’s respective religious customs for the satisfaction of the society. However, if any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”, as a result of their choice of freedom …
Pre-marital sex is now an oxymoron**.
Firstpost then confuses the question of how to decide if two people are married or not with the Supreme Court observation that pre-marital sex is not an offence and concludes that the “incendiary statements” have no legal value. They do have legal value – pre-marital sex is not an offence, but in the state of Tamil Nadu any two people who have sex will be considered husband and wife in the eyes of the law, if the order is taken seriously. A precedent has been set.
This might seem trivial – if you and your partner don’t want to be married, who’s going to tell you otherwise? However, there are three very real problems. Firstly, abuse – as I’ve noted above, a bitter ex can prevent you from leading a normal life (if you’re a man). Secondly, unwarranted entitlements – just as paying for dinner doesn’t entitle you to sex, having sex doesn’t entitle you to any further commitment. This order undermines this norm, for both men and women. Thirdly – reproductive rights. Abortion is legal in India, which means that women are entitled to terminate a pregnancy that arises out of pre-marital sex, regardless of what the man wants. This seems fine to me. In contrast, in the state of Tamil Nadu at least, if a woman decides to bring a child (conceived as the result of pre-marital sex) to term, the man is obligated to support her, whether he wants to or not. Thus, while women have the right to choose whether they want the burden/gift of a child, men do not. This is both wrong and unfair.
Summary – this judgement is, overall, an admirable effort to solve the are-they-married-or-not problem. However, it’s unnecessarily blunt, somewhat careless, and goes far beyond merely protecting women in undocumented marriages. The relevant passages do little to further safeguard the rights of such women, while exposing men (and some women) to abuse. I may be wrong, of course – law isn’t my domain. If I am, please let me know in the comments.
UPDATE: I’m sure this is not what the court intended, and I’m not even sure that this will be outcome – we live in a common law system and future judgements may render this one moot. But maybe not. I believe that this opinion can be used as a precedent, which is what would lead to all the problems listed above. However, I’m not aware of how precedents are set and used, so I may be wrong.
UPDATE: Apparently, I’m mistaken in my belief that the entirety of HC judgments gain enormous precedence value. Questions are placed before courts – in this particular case it was “Are these two married?” The portions of the judgement that directly answer these questions are called the ratio decidendi of the case, and are binding as precedents. The remainder is called the obiter dicta, and consists of the random bits of pontificating that judges do. The bits of the judgement that I quote are more obiter than ratio, and so do not have much precedence value. Hat tip to Prabhat Kiran Mukerjea and Vipul Nanda for pointing this out. Furthermore, as Shruti Chopra points out below, courts take the facts and circumstances of the case into consideration before deciding whether an opinion should is valid as precedence or not.
Whether courts in the future will take these opinions seriously or not (i.e. consider them ratio or not) is an empirical question, and we can only know for sure with time. However, given how silly they are, it seems plausible that they’ll be ignored.
So – yes. The Madras HC did say these things (and The Hindu is still technically right in this sense), but it’s largely harmless which justifies the accusation of sensationalism.
*Thanks, Samarth Moray for sending me the document. I’ve removed some of the annotations to spare whoever originally scanned it the embarrassment of being responsible for a leak. I’m told that uploading it here is perfect legal.
** Thanks, Garima Singal, for the line.
I like Kavita Krishnan, so when she argues that capitalism causes rape, I sit up and take notice. The post is long so it can take a while to figure out exactly what her argument is. The crux is in this paragraph:
The global upswing in gender violence (including sexual violence and domestic violence) and misogynistic rape culture, ought then to be traced at least in part to the imperatives of global capitalism and imperialism and their local agents, to justify an increased burden of social reproduction for women, the availability of women from the former colonies as pliant labour, and rape as a weapon against people’s movements resisting primitive accumulation. The fear of violence contributes to disciplining women into suitable labourers, both for global production as well as reproduction.
This, and much of the post, is somewhat confusing (more on this later) so I’m going to try explaining the ideas as simply as possible. There is not one, but three ways in which Krishnan tries to link capitalism** to violence against women.
*Her essay includes a long critique of the ideas of Maya John and Prabhat Patnaik, which I will not discuss here. I’ve restricted this post to the links between capitalism and gender violence.
**Note that I find the word “capitalism” itself quite vague and dodgy, but you can’t have a discussion without some common ground, so I’m going flow with it.
1. “…an increased burden of social reproduction for women…”
Any society, to thrive and prosper, requires people to engage in two kinds of work: making goods for consumption and sale, and taking care of people – children, sick friends, relatives, aged parents etc. The first is called “productive activity”, and second is called, somewhat cutely, “reproductive activity” (and includes giving birth). No economic system – including capitalism – can survive unless there is a steady flow of new labourers to replace those who have retired or died, and the burden of ensuring that children are born, raised, and taken care of until they enter the workforce typically falls upon women, who give up paid “productive activities” to focus on unpaid “reproductive activities”.
How does this result in gender violence? Her argument appears to be that, in order to keep women engaged in reproductive activities, it becomes necessary (for capitalism) to create a “patriarchal” culture, where women take up a lot of the housework. This culture makes them dependent upon their husbands, and vulnerable to abuse. Furthermore, the need to create a patriarchal culture causes the “capitalist class” to oppose things like abortion, often with rhetoric that is misogynistic and indirectly causes rape by contributing to “rape culture”. One example she obliquely hints at is US Representative Todd Akin’s claim that rape can’t result in pregnancy.
In short – capitalism needs patriarchy; thus capitalism supports patriarchy; patriarchy causes abuse/rape.
This argument is tenuous, to say the least. Firstly, economic systems can function just fine – perhaps better – if men take up half of all domestic duties. Given this, it’s hard to see why “capitalism” needs women specifically to engage in a lot of “reproductive” activities – it could work just as well by inducing men to engage in more reproductive activity. “Capitalism” doesn’t need “patriarchy” (although firms adapt to such cultures) and it functions quite well in countries like Sweden etc.
Secondly, the link between capitalism and “rape culture remarks” is baseless, and consists of little more than the observation that some pro-business politicians said silly things about rape. Given the weird international division of beliefs into “left-wing” and “right-wing” beliefs, this does look like a coincidence. Anyway, as Krishnan herself notes in her critique of Maya John, right-wingers hardly have a monopoly on stupid ideas about rape.
Thirdly, it’s not clear how Krishnan’s version of “rape culture” works. While Akin’s statement was vile and ignorant, how exactly does it lead to more rape? Rapists aren’t worried about impregnating their victims. Insensitive statements such as these are hurtful and make life harder for the victims of rape, but it’s a strong and unsubstantiated claim that these lead to more rape. “Rape culture” should not be a black box into which unpleasant things go in at one end and come out as rape at the other. It’s this kind of muddled thinking that allows me to compile lists like this.
Finally, and most importantly, the last thirty odd years – the era of “neoliberalism” – have seen the large scale entry of women into the workforce, a fact that is at odds with the capitalism-promotes-patriarchy story. It is to this that we will now turn.
2. “…the availability of women from the former colonies as pliant labour…”
One of the biggest changes in the last thirty odd years has been the entry of women into the labour force in countries across the world, a phenomena that scholars call the “feminisation of labour”. There are many possible explanations. One is the destruction of welfare nets, which induces families to send women to work. Another is the erosion in the power of labour unions, which kept wages high, but led to unemployment for “outsiders” like ethnic minorities and women. A third is the weakening of labour market regulations like minimum wage, which means that families can no longer count on men being able to earn a secure income. A fourth is increasing use of casual labour, contract labour, home-working etc. which are cheaper than permanent factory labour; such work is particularly suitable for women, given their “reproductive” duties. A fifth reason has been the shift to production using “unskilled” labour, which requires no investment in training workers – firms are now more willing to hire women who may quit to get married. Finally, women, because of their upbringing, are apparently more “docile”, which firms want in a labour force. These points are taken from pp. 584-585 of this Guy Standing paper. In countries like India, the Phillipines, Bangladesh etc. there has been an increase in the number of women working in what are disparagingly called “sweatshops”.
The responses to the feminisation of labour has been mixed. On the one hand, it increases female income, reduces dependence on men, and raises women’s bargaining power within households. On the other hand, it is unclear whether there is an increases the welfare of women. Firstly, in many places, their wages are taken by their families. Secondly, working women receive less money from their husbands, family and community. Finally, many of the above factors may result in lower incomes for the communities that women live in.
Krishnan seems to believe that this state of affairs increases violence against women. She asserts that “their insecure working conditions create greater hurdles and challenges for these women in their struggle against patriarchy.” This claim is odd. The feminisation of labour can potentially reduce gender violence against women, by freeing them from being completely dependent on their husbands and making them less vulnerable to abuse and marital rape. By increasing female incomes relative to men, capitalism can undermine patriarchy, defined here as a system in which (elder) men dominate households. How does the reverse happens i.e. how does women working more reduce their influence within a household, increasing domestic violence? Krishnan doesn’t explain.
It’s possible that she uses “violence” in a broad sense and sees working in a sweatshop as a form of violence in itself. Whether this is valid is a question for another post; for now I’ll simply note that this is not what most people think of, or should think of, as “gender violence”.
3. “…rape as a weapon against people’s movements resisting primitive accumulation.”
Capitalism requires goods like land, minerals, coal etc. to produce goods. In order to provide these things, they must be taken away from the farmers, tribals etc to whom they belong, preferably without compensation. These farmers and tribals resist the theft of their land, and this brings them into conflict with corrupt governments. This conflict can become violent as governments try to suppress these movements with the police or the army. These forces often rape women as a way of breaking resistance. In condensed form: capitalism causes appropriation, which causes conflict, which causes rape.
While there is nothing wrong with this argument, there is nothing particularly right about it. Such cases aren’t even registered at police stations, so it’s hard to see how it explains a “global upswing”. It doesn’t explain rape in cities, towns and villages where there is no active resistance to government appropriation (i.e. most of them, including Delhi). It doesn’t explain sexual violence in countries like the US where police do not resort to raping protesters who Occupy Wall Street. Some of the most violent expropriations in recent history have occurred under communist governments, and plenty of appropriation occurred in India before 1991 – the notion that this kind of conflict is unique to, or even particularly bad in, capitalist economies is absurd, as is the notion that this will disappear under “socialism”. It doesn’t help the case when “neoliberals” – from Milton Friedman to Swaminathan Aiyer – are against this kind of theft.
Rape is one of the most most awful aspects of humanity. Figuring out what causes it is important, and the first step towards ending it. Kavita Krishnan believes that capitalism is a factor – she is wrong. It’s hard to see how an attempt to “keep women in the kitchen” (so to speak) will result in more rape. It’s hard to see why capitalism needs to keep women in the kitchen – it functions quite nicely in countries where they aren’t. It’s hard to see how women working in larger numbers will result in more rape. It’s easy to see how conflict can result in more rape, but it’s hard to see how this is a major factor, or unique to capitalism. I get that there has been an apparent increase in violence against women, but people need to be more careful while presenting potential causes.
Note: You can find a critique of Kavita Krishnan’s writing style here.