(Veena Das) Sexual Violence, Discursive Formations and The State

Sexual Violence, Discursive Formations and the State
Author(s): Veena Das

Source: Economic and Political Weekly, Vol. 31, No. 35/37, Special Number (Sep., 1996), pp.
2411-2413+2415-2418+2420-2423
Published by: Economic and Political Weekly
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Sexual Violence, Discursive Fornations and the State
Veena Das
While in the face of the disorder of collective violence the state seems to absent itself so that we cannot guess
how the judicial discourse would have constructed pathological sexuality, we have evidence of how 'individual
pathology' is constructed in the rape trial during normal periods. Further, in the dense discursivity of the state as
it engages in separating the normal from the pathological, we get a production of bodies (male and female) that
normalises sexual violence at least for the purpose of the law.
THE World Mental Health Report contends 'individual pathology' is constructed in the "Courtroom talk captures the moment to
that domestic violence and rape constitute rape trial during normal periods; and further, moment enactment and reproduction of rape
approximately 5 per cent of the global healththat in the dense discursivity of the state as as criminal social fact" [Matoesian 1993:27].
burden for women in their reproductive years.
it engages in separating the normal from There is a genealogical link between the
Realising the enormity of the health burden the pathological, we get a production of argument made here and Foucault's
on women that this imposes, the report urges bodies (male and female) that normalises understanding of the relation between power
the international community to take the sexual violence at least for purposes of the and sex. In his history of sexuality Foucault
physical and sexual abuse of women as an law. (1980) understood by power as essentially
area of priority for research and social that which seeks to dictate its law to sex.
action. This paper looks at the processes RAPE IN JUDICIAL DISCOURSE This means first of all that sex is placed by
through which, I believe, sexual and physical power in a binary system of licit versus
violence through the mechanism of rape is The pervasiveness of sexual violence at illicit and permitted versus forbidden sex.
'normalised' in Indian society. It also every level of social organisation has been In this reading the effects of power take the
suggests certain directions in which the rape demonstratedby feministscholars.
decisively general form of limit and lack. Yet it is
law might move to provide better protection
Many have claimed that the everyday Foucault above any other thinker who has
to women. heterosexual practices and the practice of emphasised that sexuality in modern
Sexual violence against women is rape participate in the same structure of societies is not so much aproductofjudicio-
constitutive of social and political disorder relations defined by patriarchal ideologies. political prohibitions as of the will to
in India. Widespread violence against women Forexample MacKinnon has argued that "... knowledge/power that lies behind discourses
was witnessed at the time of the Partition sexuality is a set of practices that inscribes defined by techniques of confession and
of India with more than hundred thousand gender as unequal in social life. On this level scientific discursivity. Hence, "we must not
women having been abducted from each of sexual abuse and its frequency reveal and think that by saying yes to sex, one says no
the two parts of the Punjab alone [Butalia participate in a common structural reality to power" [Foucault 1980: 157]. This seems
1993; Menon and Bhasin 1993]. Not only with everyday sexual practice" [MacKinnon to imply that the search for freedom in the
were women abducted and raped, but slogans 1992: 126; see also MacKinnon 1989]. But pleasures of sex is ironically what places a
like 'Victory to India' and 'Long Live there is a peculiar puzzle here. If sexuality person under the domain of power. The
Pakistan' were said to have been painfully in everyday life, sexual ecstasy and sexual distinction between sexual pleasure and
inscribed on the private parts of women. abuse have complex, albeit discontinuous sexual subjugation becomes blurred here. It
Although a Fact Finding Organisation was linkages, then how is it that the state steps is this very play between pleasure and
set up to enquire into these atrocities, the in through its judicial institutions to subjugation, I shall argue, that defines
findings of the organisation were never made'problematise' the assumptions of everyday techniques of confession injudicio-political
public. I have argued elsewhere that the life regarding men's uncontested rights over discourse so that the woman's body is made
bodies of women became political signs, women's bodies? If the law was only to confess against her explicit speech;
territories on which the political programmes
interested in treating sexual offences on subjugation is read as pleasure. The court
of the rioting communities of men were analogy with offences against male property,room trial and the structure of sentencing
inscribed [Das 1995]. Although thejudicial as many have alleged, it would be difficult demonstrate how a woman's no to sex can
silence of this occasion is a stunning fact to explain the importance of the notion of be converted into a yes to it through the
of history, I think one can suggest that in consent in the case law as it has developed operation of judicial grammar and judicial
order to read this silence it is necessary to in India and elsewhere. Indeed, 'consent' of sentencing. It is in these practices that we
juxtapose it with other occasions when the the woman turns out to be the most significant shall see what consent means in the dense
judicial discourse is engaged in the task of category for distinguishing between non- discursivity ofa field defined by thejuridical
separating 'normal' sexuality from punishable sexual commerce with a woman domain.
'pathological' sexuality, and to ask whether and the offence of rape against her. In this
the very logic by which courts of law in India context Smart (1989) considers that the JUDICIAL DISCOURSE
bring out this separation does not 'normalise' significance of the category of consent is
the violence against women during periods that ithelps to systematically transform rape One way of conceptualising judicial
of disorder. In other words I submit that into consensual sex in the legal system. discourse is to see it as a cross roads for
while in the face of the disorder of collective More recently Matoesian (1993) has identi- multiple transactions by which a particular
violence the state seems to absent itself so fied court room talk as the site for examining way of talking about rape sorts women into
that we cannot guess how the judicial how the victim's experience of sexual categories that brings law and social prac-
discourse would have constructed patholo- violence is delegitimised and decriminalised tices into congruence with each other. In
gical sexuality, we do have evidence of how, by converting it into consensual sex. their pathbreaking work on a semiotic under-
Economic and Political Weekly Special Number September 1996 2411
standing ofjudicial discourse, Greimas and that we can see why judicial discourse Even a cursory reading of the text would
Landowski (1976) have described how the becomes silent when rules of alliance stand make it clear that in defining the offence of
legislative function of this discourse first suspended during periods of collective rape, the concern is with regulation of
separates the licit and illicit comportment violence. Let me try to give flesh to this sexuality rather than protection of body
of human desires through normative enu- argument by a consideration of the rape law integrity of the woman. One of the commen-
nciations. These desires, they argued, are in India. tators to this paper, Stacy Cherry (1994),
then classified and hierarchised through raised the question that a woman giving her
processes of judicial verification by an RAPE IN INDIAN CASE LAW consent because she believes herself to be
application of such distinctions as nature lawfully married to an 'alleged rapist' seems
and culture on the one hand, and individual At the level of the codification of law, rape particularly problematic. What kind of
and social, on the other. constitutes an offence against the body. At circumstances must exist, asked Cherry, for
The legislative function in the discourse one level, it may be seen along with other a woman to believe that she is married and
is a function of enunciation - it belongs to crimes in which force is used against a yet possibly not be married? To my mind,
the order of being by which legal objects person resulting in grievous harm or death this clause clearly brings out the manner in
are brought into existence in the process of of the victim. Yetby separating and codifying which social reality is mediated through the
being named. The adjudicatory level, on the a separate category under the heading of judicial discourse. For instance, in cases of
other hand, belongs to the order of doing. sexual offences, the Indian Penal Code, bigamy a woman may believe herself to be
Although the linguistic practices encountered directly recognises the right of the state to married but the marriage is null and void
injudicial prose orient one towards thinking regulate sexuality. It is important therefore in law. Hence although the husband may not
that the processes of adjudication belong to to note that although in the sentencing have used any force in having sexual relations
a reality that exists prior to being named, structures one finds that the judges are with her and indeed, the woman may have
in fact it is the legislative function that gives compelled to constantly distinguish between
consented to the sexual relationship, in law
direction to those elements of the world that grievous bodily harm caused by an attempt he would be defined as a rapist according
will be selected for reference. Thus the order to rape a woman and rape proper; in the to this clause. When we read this along with
of doing is the operational sphere of those penal code itself sexual offences are classified the clause which does not consider it
semiotic objects which have already been through a binary distinction between 'rape' judicially possible for a husband to 'rape'
brought into existence by legislative and 'unnatural offences'. The deployment his wife if she is above the age of 16, we
enunciations or by the legislative definitions can see that the offence of rape is about the
of the concept of nature, as we shall see later,
of reality. allows rape to be viewed as an offence whichregulation of sexuality and not about the
The juridical domain is defined by the is 'natural' and men as falling into a natural protection of the body integrity of women.
combinations of prescriptions and state when the ordering mechanisms of An examination of the case law shows that
interdictions, 'that create a solid and culture are absent. the consent of a woman can be read as non-
immobile architecture', but since the The law relating to crimes in India was consent, and the absence of consent can be
production of rules is constantly subject to codified in 1860 by the colonial British read as consent, depending upon where she
verification, the undifferentiated domains of government by the introduction of the Indian
stands in the system of alliance. What rape
non-prescriptions and non-interdictions that Penal Code [Dhagamwar 1992]. The Code as illegal sexual commerce offends, it seems,
initially define the non-juridical domain can identified rape as an offence and made it is not the body of the woman but the order
move into the juridical domain through the punishable under Section 376. Thedefinition of correct sexual relations as defined by
application of juridical phrases. In the final of rape in this section read as follows: societal norms.
analysis, then, thejuridical discourse splits It is not that the law is not concerned with
A man is said to commit 'rape' who, except
into the two poles of grammar and in the cases hereafter excepted, has sexual the question of consent. At the level of
semanticity. The legislative level is the level intercourse with a woman under judicial verification, the question of injury
of grammar without content while the to the
circumstances falling under any of the body
five becomes crucial in finding
adjudicatory processes relate to the level of following descriptions: evidence of consent, but at the level of
judicial verification through which content First - against her will. judicial enunciation of norms that the
is given to the judicial grammar. The level Secondly - without her consent. question of consent in the definition of rape
of non-judicial discourse - devoid of both Thirdly - with her consent, when her consentis a very complicated issue indeed. This
has been obtained by putting her in fear of becomes even more clear if we see the
judicial grammar and judicial semanticity -
death or of hurt.
constitutes avirtual world elements of which subsequent Section 377, which defines
Fourthly - With her consent when the man
may enter thejudicial world through judicial 'unnatural offences' and prescribes
knows that he is not her husband, and that
production and verification. It is this double punishment for these.
her consent is given because she believes
process of judicial production and Section 377 reads as follows: "Whoever
that he is another man to whom she is or
verification that negotiates the 'reality' of believes herself to be lawfully married. voluntarily has carnal intercourse against
societal categories and fits it into frames of Fifthly - with or without her consent, when the order of nature with any man, woman
law. In the process the judicial discourse she is under 10 years of age. or animal, shall be punished with
comes to mediate the everyday categories Explanation - Penetration is sufficient to imprisonment of life, or with imprisonmen
of sexuality and sexual violence, sorting and constitute the sexual intercourse necessary of either description for a term which ma
classifying the normal and the pathological to the offence of rape. extend to 10 years and shall also be liable
in terms of marriage and alliance. It is Sexual intercourse by a man with his own to fine." The explanation states that
because of the manner in which categories wife, the wife not being under 10 years of "Penetration is sufficient to constitute the
age is not rape.
of alliance are brought into the process of carnal intercourse necessary to the offence
judicial verification, separating women into The original age of 10 years in the fifth described in this section" while a Comment
'consenting' and 'non-consenting' ones; clause has been amended through a series to the Section clarifies that this particular
regulating male desire by channelising it of legislative amendments so that it now offence consists of carnal knowledge against
towards women of appropriate categories - stands at 16 years. the order of nature.
2412 Economic and Political Weekly Special Number September 1996
I regret that I do not have information four law teachers [Baxi, Dhagamwar, Kelkar
how much force had been used, the act does
about the case law that developed around and Sarkar 1979). It was their agonised not amount to rape. In all these issues a
the category of unnatural offences at the formulations that led to a countrywide way of reading the relation between signs
moment, but an examination of this seems mobilisation of women's groups to press for inscribed on the surface of the body and
important to further amplify the notions of changes in rape law. After discussions in the 'depth' of female subjectivity are
'nature' as deployed in thejudicial discourse. parliament and the submissions of the Law established.
For the present I shall be content to note that Commission on this question, the rape law As far as the second point pertaining to
in contrast to the law on rape, in which the was amended both with regard to procedural penetration is concerned, a number of cases
notion of consent plays a very important and substantive issues in 1983. In the define that partial penetration amounts to
part, the idea of voluntary participation is amended law, efforts were made to tighten penetration for purposes of the law; that
crucial for defining offences 'against the the law in favour of the victim. More it was not necessary that the hymen be
order of nature'. Thus, in law, a man cannot specifically, the category of custodial rape
ruptured, and that the medical evidence
be raped by definition and a woman submitted was defined. The burden of proof was shiftedmay add to the other evidence but cannot
to sado-masochist practices by a man through to the accused in the case of custodial rape be treated as sole evidence of rape having
the use of force could not be said tM be raped; and a minimum punishment of 10 years occurred since rape is a legal category
one is then compelled to conclude that rape rigorous imprisonment was prescribed. and not a medical category. As was stated
is not an unnatural act. Indeed, as Charles Under this provision, gang rape, and rape in Joseph Lines (1844) I C & K 393, "to
Bright (1994) stated succinctly in his with a woman known to be pregnant would constitute penetration, it must be proved
comments on this paper, "the whole question also normally lead to a minimum 10 years that some part of the virile member of the
of female consent becomes a process of imprisonment [Dhagmwar 1994]. accused must have entered within the labia
positioning the male to do what comes The 1983 amendmentcited more than 100 of the pudendum of the girl, no matter how
naturally - that is to act from and in nature,
cases to clarify the different clauses. A little."
in full accord with both body (desire) and compilation of these cases, undertaken by The 1983 amendments were expected to
speech (will)". I think the point is sufficientlyPratiksha Baxi,' shows that there are two make it easier for victims to seek redressal,
clear that the rape law is not oriented towardsmajor concerns in the case law -one pertains and case law since then has introduced the
protecting the body integrity of a woman butto the definition of consent and the second idea that mere absence of injury on the body
towards the regulation of sexuality and that to the judicial definition of what constitutes of the prosecutrix does not constitute
the category of nature is deployed as an 'penetration'. evidence of consent; neither is corroborative
important category for effecting this As far as consent is concerned, the case evidence always necessary. Surprisingly the
regulation. law evolves in the direction that consent rates of conviction are steadily declining.
Important amendments to the rape law cannot be obtained after the act, that a woman
According to the statistics provided in Crime
have taken place in recent years (see Agnes who is sleeping or is intoxicated cannot give in India, the percentage of convictions in
1992). One must treat 1979 as a crucial year consent; that a woman who is not of sound rape cases was in the range of 35 to 38 per
when serious gaps were identified in the law mind cannot give consent; that if she had cent between 1980 and 1986, in 1988 it
and apush towards reform was initiated. The a misapprehension of the act then she cannot declined to 8 and in 1990 to 9.1. Although
precipitating event was, as is well known, be said to have given consent. It seems from many of these cases did not concern
the Supreme Court judgment in the case of these cases that consent is defined in the custodial rape, and several were in courts
Tukaram versus State of Maharashtra, AIR process of judicial verification as an act ofof law before the amendment was passed,
1979, SC 185. The facts of the case were reason and will. This is clearly spelt out inone would have expected that the new
that a young girl Mathura was summoned Idan Singh 1977 Cri LJ 556 (Raj) in which directions which were given for interpreting
to the police station on a complaint of it was stated that consent was an act of reasonconsent, may'have made conviction easier
abduction lodged by her brother against her in which there was aconscious and voluntary rather than making it more difficult. The
lover. She came to the police station along acceptance of the act of sexual intercourse. question of why rates of conviction have
with her relatives, including her brother. She Yet there is a counter text which assumes declined is one to which I do not have a
alleged that while the relatives were asked consent to be not only a matter of cognitive
ready answer. It is worth considering,
to wait, she was taken to the rear of the main and moral recognition, but also the choice however, that the underlying assumptions
building where the head constable raped her a woman makes between resistance and of judicial production and verification -
while a second constable made an attempt assent (Rao Harnarain Singh (1958) Cr LJ especially the normalisation of rape through
to rape her. The accused were acquitted by 563). Here we see that the will of the womanits naturalisation - make the process of
the Sessions Court who found no evidence as expressed in her speech and the body ofjudicial reform much more difficult than
of force having been used. The High Court, the woman as providing evidence of was anticipated.
on appeal, reversed the finding of the Sessions acceptance or rejection, are set in opposition
Court on the grounds that it had failed to to each other. As we shall see later, the body JUDICIAL GRAMMAR AND
distinguish between 'consent' and 'passive is made to often speak as under torture, JUDICIAL SEMANTICITY
submission'. The Supreme Court in appeal against the idea of consent as constituting
held that since the victim had not raised anya cognitive category. Finally, since the In terms of the two poles of judicial
alarm, her allegations were untrue. In the underlying idea is that sexual intercourse grammar and judicial semantics proposed
course of pronouncing thejudgments, several with a woman defined as vaginal penetration by Greimas and Landowski (1976), we get
statements were made in the respective courts is an act of nature, it is rarely asked as to the following taxonomy. At the pole of
regarding the girl in which she was described what is constitutive of the act of sexual judicial grammar, the law defines two
as a 'shocking liar' and frequent references intercourse that a woman is consenting to? circumstances - the first in which rape cannot
of her having been habituated to sex weighed For example, in Jarnail Singh 1972 Cri LJ occur by definition, and the second where
heavily -with the Supreme Court in 824 (Raj), it was stated that if consent is no judicial verification in terms of the
discrediting her own account of the event. given prior to sexual intercourse no matter circumstances relating to consent is
This judgment was strongly protested by how tardily or reluctantly and no matter necessary. The former covers cases of sexual
intercourse between a man and his wife, While in all cases pertaining to the violation not rape proper. The following was the
regardless of the consent or otherwise of the of body integrity, it is inevitable that the reasoning of the judge.
wife. The possibility that a man could use body would be objectified in the process of Now the question arising for consideration
force to have sexual intercourse with his judicial verification, here the body is is whether there was penetration to the
wife is in the realm of judicial nullity. The objectified as a sexual body. The female vaginal canal so as to term rape. In case of
second is the case of a girl below the age body is defined in this discourse primarily rape the prosecution in order to prove sexual
of 16 in which case only the fact of intercourse
as one which is marked by the impress of intercourse, need prove penetration in the
has to be established in order for the offence male bodies on it leading to a gendered vaginal canal. Penetration is enough so as
of rape to have occurred. A wife who has to constitute rape whereas without
reading of this process of objectification of
penetration the offence or the act cannot b
been forced into submission by her husband the body.
termed 'rape'. ... The girl being two year
and a man who has obtained the consent of The first question in a rape trial that the
old penetration appears not easy. Still there
a girl below 16, are subjects in the 'real' judges seek to determine is whether sexual is perineal tear... There is no concrete
world-areality thatjudges have toencounter intercourse has occurred. A whole way of evidence of penetration into the vaginal
in the courts again and again - but since the talking about the sexualised body comes canal of the girl in spite of the perineal tears
real world is a virtual world as seen from into play here; is the hymen intact; how on the private parts of the girl which can
inside the law, it needs the mediation of much of a finger could be inserted into the probably be caused by criminal force.
judicial phrases to negotiate this 'messy' vagina under medical examination; is Presence of the seminal stains and human
sperm heads on the girl's frock and the
reality. As we shall see later, there is a penetration to be understood as vulval or
evidence of the mother that the accused lay
tension between judicial grammar and vaginal;2 etc. Thus, a whole topology of
on the girl does not prove penetration though
judicial verification so that ajudgment may signs is created that move on the surface of it does prove sexual assault. Thus the act
take into account that a man does not have the body, territorialise it, and constitute it does not come within the purview of 'rape'
a right to inflict grievous bodily harm on as a sexual body, fit or unfit for exchange. as defined in S375 IPC ...
his wife in the process of having sexual The body is objectified in ways that become The accused having laid the girl on the
intercourse with her although within the a kind of judicial pornography. I give an floor shutting her mouth by his hands and
limits of the judicial grammar, this cannot example of this particular mode of being half naked lying against her as seen
be classified as rape. In the converse case, verification on the question of whether the by the mother and having completed sexual
act by the discharge -of semen which the
whenjudges have encountered the evidence offence committed is to be classified as a
mother saw him wiping off from his own
of a girl's consent to sexual intercourse even sexual offence or is better treated as a non-
private parts and also from the body of the
if she is proved to be below 16 (but not much sexual one.
girl, the accused having taken the girl to the
below this age) this has been taken to In this case' (SC 58/1986 decided on 20/ room and having done the act with the
constitute mitigating circumstances for 1/1987, per P N Santhakumari, Sessions determination and the intention to commit
reduction of the period of imprisonment. Judge, Ernakulam, Kerala) the prosecution the offence of rape though he had completed
The judicial grammar then leaves a whole case was that the accused, who was 17 years his sexual acts there being no evidence as
domain of sexual commerce to which the old, committed assault and rape on a two- to penetration which is the most essential
year-old girl when her mother had left her
distinction between force and consent, comes ingredient for rape, it is only sexual assault
to be applied in order that the difference in the care of her elder brother (seven years and attempt of rape.
between 'sexual intercourse' and 'rape' be old) for a short while, when she went to post This lengthy quotation has been given
judicially demonstrated. It is in the play of a letter. The mother came back and found here, not because this represents the typical
power here to define sex that we find that way in which judges define penetration -
that her son was standing in the corridor and
the distinctions between nature and culture crying. The door to the room in which the there are many other cases in which the
come to be articulated in order to dramatise accused was with the baby was locked and judges have held that partial penetration is
masculinity and femininity as capability. did not yield to her repeated attempts to pushsufficient to constitute penetration under the
The following sections depend heavily upon it open. Looking through the window she law - but rather to show that while the same
evidence taken from modes of reasoning in saw the accused, in a half naked position, act is constituted as a sexual act for the man,
the judgments in rape cases. Hence the lying on the baby. He was corimitting there is an ambiguity as to whether a girl
judicial prose that has its own stylistic sexual assault on her, having laid her on child's body can be treated as a sexual body
the floor while he shut her mouth with his
peculiarities, is embroidered in my prose (so in the commission of this very act.
to say) but I hope it retains its mark of hands. On finally being able to get into the I give one more example in which the
'otherness'. room, the mother found the girl to be judges came to an opposite conclusion, viz,
that though the girl had not sustained any
bleeding profusely. The girl sustained injury
FORCE AND CONSENT on her private parts and was rushed to the injuries theoffence was thatof rape. It seems
hospital. to suggest that the question as to whether
The deployment of the concepts of force In the medical evidence it was stated that the girl had been sexualised by the experience
and consent in the process of judicial there was a perineal tear on the private parts is an important one in determining whether
verification moves at two different axes of the girl and profuse bleeding. The doctor the offence is sexual in nature. It shows that
had deposed that he could not examine the
constituted by reading the signs on the body the movement between surface and depth -
girl completely because she needed urgent
and relating them to the speech of the woman. between reading the body and reading the
In every case the speech of the woman is medical care to save her life. woman as subject provides the underlying
pitted against her body for the production grammar of judicial verification.
In arriving at the sentence in this case the
of truth. In the process ofjudicial verification, judge had to decide whether the offenceThis example is of a case in which the
the judges find that either the body bears respondent/accused was a medical officer
committed by the accused constituted rape.
witness to the truth of the statements of the She summarily dismissed as absurd the plea
staying in ajoint family. One day he tricked
prosecutrix that she had been forced into of the defense that it was a case of false a young friend of his niece who was then
submission, or contrarily, it provides accusation. Nevertheless the judgment was eight-years old to come to the house when
evidence to negate the speech of the woman. that the offence was of attempted rape and he was alone with his niece. He then
compelled the young girl to commit fellatio the discourse on sexuality and this is the inside my vagina and since it was fat it kept
on him and also slightly inserted his penis discourse on alliance. In Hindu society the slipping out. After that my vagina was
into her vulva and had an ejaculation. young girl, with her body unmarked by the paining". The judge's reference to her
Although the girl did not relate this to sexual
her desires (lusts) of men, is considered feelings of shame in recalling these events
parents immediately since he had threatened the appropriate gift in marriage that shows that it is not only changes in the body
her with dire consequences, the story came establishes alliance between men. A girl's but also in the construction of the self as a
out in the next few days. On being confrontedawakening into sexuality is considered not sexual being that determines
by the girl's enraged father, the accused as the work of her own desire but rather the 'marriageability' of a girl and hence the
confessed that he had frequently abused working of male desire, which in the code judicial discourse dwells on her memory of
other girls in a similar manner, including of
hisalliance is most appropriately, the desire the event as much as on bodily harm as
own niece. In the court the statements made of her husband. The sexual offence of rape constitutive of rape.
by the accused were treated as extrajudicial against ayoung girl thus becomes an offence Whereas in the case of a child or a virgin
confession made in the presence of the girl's against the code of alliance - although this the question is whether a body previously
fatherand his own relatives. In this confession is only obliquely alluded to in the judicial unmarked by the impress of male desire on
he clearly stated that he had "raped Tulna discourse. Hence in the case of Tulna, the it, has been 'sexualised' through the offence
and had also committed the same kind of Supreme Court having defined the offence under trial, in the case of women who may
sexual assault on earlier occasions with Richa,
as that of rape, went on to state the following:be defined as 'sexually experienced', the
Priti, and other girls of that locality, but We are told at the bar that the victim who di scourse on sexuality and alliance intersects
being a doctor he had been careful enough is now 19 years old, after having lost her on a different point. This is the point at
not to rupture their hymen". virginity still remains unmarried undergoing which a slippage occurs in which the offence
The case had come up before the High the untold agony of the traumatic experience against the body and will of the woman
Court of Madhya Pradesh which had acceptedand the deathless shame suffered by her. becomes transformed into an offence against
the entire evidence of the prosecution but Evidently the victim is under the impression the rules of alliance. These rules implicitly
had nevertheless entertained a doubt as to that there is no monsoon season in her life state that men may only treat those women
whether the offence could be classified as and that her future chances for getting married
as sexually available who are not integrated
and settling down in a respectable family
rape. The High Court held that since there into the structure of alliance. Thus, those
are completely marred.
were no signs of injuries, on either the girl men who recognise each other in the
or the accused, the offence was not one Without making every qualification, I 'matrimonial dialogue of men' to use the
punishable under either the provisions of would like to maintain that judgments on evocative phrase of Levi Strauss (I1969), are
rape or of causing grievous bodily harm, but rape in the case of young girls (especially normatively required to constitute the women
only under Section 354 IPC on the ground if a girl is a virgin), lie at the intersection
as signs, as women carrying significance in
of the discourse on sexuality and the discourse this dialogue. If, on the other hand, awoman
that the respondent had outraged the modesty
of a young girl. on alliance so that the question of whether is not chaste and is therefore without
The decision of the High Court created a sexual offence has been committed, is significance, in the exchange between men,
decided not by recourse to the opposition
a scandal in the international press. Although then she may be seen as available for sexual
between force and consent but on the issue
the state did not prefer an appeal, the father experimentation. In all such cases the rape
of the girl appealed in the Supreme Court, of whether the body has been so sexualised trial becomes a dramatic enactment,
against the judgment. In its review of the by the experience as to make it unexchange- showing how force may be used against
case, the Supreme Court held that there was able in marriage. Thus, it is not only a matter the will of the woman but is likely to be
enough evidence that the respondent "withoutof regarding the signs on the surface of the converted into consent by the application
completely and forcibly penetrating the penis body but also constructing an 'inside', much of judicial reason-ing on the relation
into the vagina of the girl had slightly as Foucault talks of the inside being in the between surfaces and depths in defining
penetrated within the labia majora or vulva nature of a fold. Hence, in the first case of the mode of being female.
or pudenda without rupturing the hymen and the two-year-old child, the offence came to The example I offer for the first kind of
thereby satisfied his lust after ejection of be constituted as one of having caused bodily reasoning - i e, the offering of judicial
semens'. The Supreme Court held that this injury, but not rape, although the injuries protection to a woman who is integrated into
was sufficient to constitute the statutory were on the private parts of the girl. While the structure of alliance - is to be found in
in the second case, although the girl did not
definition of penetration which was necessary ajudgment delivered by the KamatakaHigh
to prove rape and accorded punishment sustain any injuries and her hymen was not Court in Criminal Appeal No 79 of 1983,
accordingly. broken because of the technical mastery D. II - II - 1986, in the case of the state
In contrast to the earlier case that we over the body that the accused had by virtueof Karnataka (Appellant) and Mehaboob
discussed in which the girl had suffered (or vice) of his profession, the act was clearly
and Others (Respondents). The case was as
grievous bodily harm, in this case the girl defined as sexual in nature. I suggest that follows. The prosecutrix was a married
was forced to co-operate with the accused this may be attributed to the fact that the two-woman, normally residentin Bangalore, who
and had hence escaped injuries on the body. year-old child though badly injured, was not had gone to another town by bus, to see her
The accused, being adoctor had the technical seen as having been 'sexualised' by the act ailing father. From the bus stand she took
skills not to rupture the hymen. In the earlier whereas the eight-year-old by having been an autorickshaw which was being driven by
case of the two-year-old child, the offence compelled to experience male sexuality had one of the accused. On the way the driver
was declared to be a non-sexual one. In this been so sexualised as to be constantly stopped and at his whistle another accused
case the Supreme Court came to the ashamed by her experience.4 In fact the entered the autorickshaw. Instead of going
conclusion that it was a sexual offence that judges quoted from her account in their to the residential colony, where her father
had been committed. judgment to show that what she experiencedlived, the driver took the rickshaw to a
I suggest that underlying the discussion may be appropriately termed as sexual lonely place. The prosecutrix was threatened
on what constitutes penetration and hence violation. For example, she had stated that and bodily carried to a ditch where she was
rape, is another discourse that criss-crosses "Nawal Chacha (uncle) put his male organ raped. The defense plea was that the absence
of injuries on her body or on the accused We shall see a little later that how judges I need not labour the point further that a
showed that the prosecutrix did not resist interpret the absence of injuries depends woman whose testimony is likely to be
and hence her accusation was a tissue of lies. upon their understanding of the character of believed is normatively defined as one who
The Sessions Court had acquitted the accused the woman and more precisely whether a is 'tradition bound', who displays the
on the grounds that injuries were not found woman 'habituated to sexualintercourse' is appropriate modesty with regard to male
on the woman or on the accused, and there firmly bound within the structure of alliance
desire, and who is in danger of losing the
was lack of other collaborative evidence to or whether she can be treated as someone love and respect of her husband if it turns
prove rape. In an appeal against the order outside it. out that she had consented to sexual
of acquittal, the Appellate Court held that In this particularcase, the dividing practices intercourse with anoLher man. This brings
it was possible that the woman did not by which the good woman and the bad me to the issue of how judicial logic is
physically resist for fear of being assaulted woman are separated becomes even clearer applied to issues of consent when the woman
and that absence of injuries could not be since thejudges gave an elaborate discourse does not come within these defined limits,
constituted as lack of proof of a sexual on the meaning of consent. It may be and hence violates the definition of a good
offence having been committed on her. The worthwhile to quote this at some length. woman.
court also held that it was now settled law I should like to take my examples of
And whilst the sands were running out in
that corroboration was not essential for judicial reasoning of this kind from two
the time glass, the crime graph of offences
conviction and that necessity of corroboration cases - one (state of Orissa vs Pratap Misra),
against women in India has been scaling
was a matter of prudence. In this case since new peaks. This is why an elaborate was quoted in the previous judgment and
the prosecutrix was a respectably married rescanning of thejurisprudential sky throughthe second,Tukaram vs StateofMaharashtra,
woman, her testimony did not need the lenses of 'logos' and 'ethos' has been more popularly known as the Mathura case,
collaborative evidence. The orderofacquittal necessitated. In the Indian case refusal to was alluded to earlier. It may be recalled that
was thereby reversed. act on the testimony of a victim of sexual Mathura, a young girl who was between 14
This case is agood example of the manner assault is adding insult to injury. Why should to 16 years old had been raped at the police
in which femininity as capability is the evidence of a girl or the woman who station while her brother and lover were
constructed, and how the rape trial may complains of rape or sexual molestation be outside the police station. The Sessions Court
viewed with the aid of spectacles fitted with
become adramatic enactment of the division had acquitted the accused arguing that there
lenses tinged with doubt, disbelief or
between a good woman and a bad woman, was a world of difference between sexual
suspicion?... We must not be swept off the
displaying norms of femininity. intercourse and rape and that there was no
feet by the approach made in the Western
The defence of the accused in this case evidence to support the contention of the
world which has its own social milieu, its
had been that the prosecutrix had been own social mores, its own permissive values, prosecution that she had not consented to
abandoned by her husband and had taken and its own code of life. Corroboration may sexual intercourse. The High Court, on
to prostitution. They alleged that the police be considered essential to establish a sexual appeal, reversed the decision of the Sessions
had afalse case foisted against them and that offence in the backdrop of the social ecologyCourton the grounds that passive submission
the woman being of an immoral character, of the Western world. It is wholly unneces- by the girl could not be read as consent. The
norelevance could be placed on herevidence. sary to import the said concept on a turn- judgment that we shall be considering is that
The defense had also relied on an earliercase key basis and to transplant it on the Indian of the Supreme Court which reversed the
(Pratap Misra vs State of Orissa, AIR 1977, soil regardless of the altogether different decision of the High Court and set aside the
atmosphere, attitudes, mores, responses of
SC 1307: (1977 Cri LJ 817) when it had been conviction of the two accused.
the Indian society and its profile...
held that absence of injury either on the Let us see how Mathura is portrayed as
accused or the prosecutrix shows that the Having established through the means of a social persona in the judgment. "Mathura
prosecutrix did not resist. (We shall come spatial differentiation, thedifferencebetween (PW 1) is the girl who is said to have been
to this case later). a social milieu which is permissive (i e, the raped. Herparents died when she was achild
In its judgment the Appellate Court West) and one in which girls live in a and she is living with -her brother. Gama
"tradition bound non-permissive society"
admitted that according to the medical officer (PW 3). Both of them worked as labourers
the woman had not complained of any pain (i e, India), the judges map this spatial to earn a living. Mathura (PW 1) used to
in her private part. However "as stated by difference onto a difference between women go to the house of Nushi (PW 2) for work
the medical officer herself further, there of two kinds. They give no less then 12 and during the course of her visits to that
would be such pain or injury only if the reasons why one may presume that women house, came into contact with Ashok, who
victim is virgin and admittedly PW -I was in India, would not make false allegations was the sister's son of Nushi (PW 2) and
a married woman and used to sexual of sexual assault 'with the rare exception of was residing with the latter. The contact
intercourse. Therefore, the fact there were one or two cases coming from possibly developed into an intimacy so that Ashok
no injuries on the person did not necessarily amongst the urban elite'. These 12 reasons and Mathura (PW 1) decided to become
mean either the story of PW -I regarding define the limits within which sexual desire husband and wife".
the incidence was unreliable or that she was may move. Thus, a woman admitting to Following this Mathura's brother Gama
a consenting party". sexual assault against her would be conscious had lodged a report at the police station
The judges went on to state further that of social ostraci-sation; if she is unmarried alleging that his sister had been kidnapped
"We have gone through the evidence of PW she would appre-hend the difficulty of by Nushi. At the police station the Head
-1. with utmost care, particularly having in securing an alliance with a suitable match Constable asked Mathura to wait while he
view the defense version of the case tried 'from arespectable or an acceptable family'; asked the others to move out. It was while
she would risk losing the love and respect
to be made out affecting the character of PW her companions were waiting outside that
-1, but for the suggestions in the cross of her husband; she would feel extremely the head constable took hertoatoiletsituated
examination which she has also stoutly embarrassed in relating the incident to others at the rear part of the police station, loosened
denied, there is nothing to even remotely on account of the upbringing in a tradition her underwear, lit a torch and stared at her
suspect that she is a woman of such easy bound society where by and large sex is private parts. He then dragged hertoacharpoy
virtues". taboo. and felled her on the ground and raped her
in spite of protests and stiff resistance. After she was a particular kind of girl who would rights to the protection of the state. In their
this a second constable fondled her private be so overcome by her sexual desire for the cases the body always speaks to negate their
parts but was unable to rape her because he constable whom she had never even seen speech. By declaring them to be shocking
was in an intoxicated condition. before that she would surrender her body to liars, thecourts construct acategory of women
The main contention of the appellants him while her lover waited outside and then in whose case a 'no' to sex can be converted
before the Supreme Court was that there wasmake accusations of rape in order to appear to a 'yes' by the application of judicial
virtuous. Taken together, these two
no direct evidence of rape since no injuries reasoning. I shall now argue further that the
were found on the body of the girl or of the judgments show that judicial belief or judicial discourse does not simply blot out
accused. The court held that no marks of such women from sight but actively
disbelief in the woman's version of the events
injury were found on the person of the girl is a matter of the classificatory practices constitutes them as available for the
and "their absence goes a long way to indicatethrough which good women are separated satisfaction of male lust by the judicial
that the alleged intercourse was a peaceful from bad women - it has less to do with phrasing of the relation between surface and
affair and that the story of stiff resistance protecting the body integrity of the woman depth. This is the logic within which we can
put out by the girl is all false". The High and more to do with regulation of sexuality understand the concern of the case law to
Court had found evidence of passive in accordance with rules of alliance. Far define, first, what is penetration and second,
submission, believing the victim when she what is consent. The first re-orders the body
from problematising the practices of sexuality
stated that "immediately after her hand was in this regar d, the judicial discourse as surface on which the judicial gaze can
caught by Ganpat, she cried out. However, normalises the dividing practices. Sexual read different kinds of signs, establishing
she was not allowed to raise the cry when violation becomes the opportunity in which either complicity to sexual intercourse or
she was being taken to the latrine but was courts of law become the sites of dramatic resistance to it. The -presence or absence of
prevented from doing so. Even so, she had enactment of the judicial norms through injuries, the state of the sexual organs of the
cried out loudly. She stated that she had which the relation between the surface of woman all become evidence of where her
raised alarm even when the underwear was the body and the depth of feminine being place is in the division between virtuous and
loosened at the latrine and also when Ganpat could be read to create the female as the wanton women. The second question, that
was looking at her private parts with the aid subject, a necesarily fragmented one since of establishing consent which requires
of a torch". The Supreme Court, however, her body and speech are put at war with each inference about the will of the woman, then
held that the cries and alarm were a concoctionother. turns on the question of how depth or the
on her part. It said that it was preposterous If further proof were needed of the interior motive of a woman may be esta-
to suggest that she was so overawed by the classification of women suggested by the blishing the surfaces of the body through the
persons in authority and the circumstances case law, one could refer to state of Orissa judicial gaze. Female subjectivity is made
that she could not resist. Thejudges supported vs Pratap Misra. In this case a pregnant transparent as thejudicial gaze moves from
thejudgment of the Sessions Court including woman who was in a holiday resort with a the surface to the depth of the body. Thus,
the version that "Finding Nushi angry and man, was raped by some NCC students. the integrity of her being is shattered in the
knowing that Nushi would suspect something Despite the presence of corroborative rape trial and the whole question of female
fishy, she (Mathura) could not have well evidence, what weighed heavily withjudgesconsent becomes a 'process of positioning
admitted that of her own free will, she had in pronouncing the sentence of acquittal the
wasmale to do what comes naturally - that
is to act from and in nature, in full accord
surrendered her body to a police constable.the finding that the man she was accompanied
The crowd included her lover Ashok and sheby was not her husband but her lover. The with both body (desire) and speech (will)'
had to sound virtuous before him." absence of injuries on her body was then [Bright 1994:3].
How is it that in the state of Karnataka seen as a sign of her consent and it was
vs Mehboob and Others, the judge made assumed that the man had contracted with CONSTRUCTION OF MALE DESIRE
such a strong case for giving full credence the students to make her available for sexual
to the stated version of the woman that force intercourse. Even the fact that she had a The discourse on male desire is veiled.
had been used against her, despite absence miscarriage following this sexual assault The judicial phrases uttered in judgments,
of injuries, while in the present case the was seen as unconnected to the event of rape. nevertheless, show clearly that the concept
Supreme Court had no hesitation in assuming We are now in a position to give a concise of nature is deployed to first define men's
that the girl had actively participated in thedescription of the classification of women desire for female bodies as 'natural', and
act of intercourse at the police station with that emerges in the rape trials. There is first then the classification of women that we
a constable? This, in spite of the fact that a binary distinction between a girl who is discussed is used to direct such 'natural'
her brother and lover waited outside. One a virgin and a woman who is sexually desires towards the appropriate categories
has to take recourse to the structure of allianceexperienced. Desirable women are those who of women. Here too we shall see that the
relations within which the girl/woman was can be integrated into the system of alliance discourse on sexuality intersects with the
placed to see why her body was seen as if - virgin girls by being gifted in marriage discourse on alliance but the points of
it were pitted against her speech. Mathura to 'respectable and acceptable' families (to intersection are somewhat different.
was already cast in the social persona of a use the phrase which occurs frequently in Since male desire for female bodies is seen
woman who had taken a lover and hence her the judgments) or those who are already so as 'natural' almost as a counterpart of rape
protests could be dismissed as a tissue ot integrated. Sexual desire in these women isbeing seen as an offence that does not violate
lies. In support of thejudge's contention the regulated by the structure of alliance - hencethe order of nature, thejudicial discourse on
medical evidence was read to show how an offence against them constitutes a sexualmale sexuality is engaged in the creation of
habituated to sexual intercourse she was. offence for it violates the codes through a 'social savage' [Greimas and Landowsky
"Her hymen revealed old ruptures. The which the matrimonial dialogue of men is 1976]. This social savage is tamed by the
vagina admitted two fingers easily". Thus, conducted. By the same logic, however, the application of rules of alliance which provide
the reading of the surface of the body is made women who are described as of easy virtue, the grid within which men may be constructed
to confirm to the judge's reading of the 'habituated to sexual intercourse' with men through their relatedness to each other. Thus,
'inside' of her being - his conviction that who are not their husbands, do not have desire in the male is schooled through rules
of culture by placing men in positions relative had to be given. There is no evidence of any consisted in having made the girl
to each other, and desire for female bodies provocation or enticement from the side ofunmarriageable, may be found when the
is regulated through this social recognition the victim. There is no evidence that the accused belongs to a higher status than the
prosecutrix is of easy virtues. The accused
that Tnen grant to each other in the system girl, except that in such cases thejudges may
is aged 32 years and the crime evidently is
of alliance. Male desires are then judicially either seek to correct the injustice by insisting
not the result of any impulsive act due to
classified in accordance with the various on a marriage between the victim and the
the irrepressible sexual urge of an adolescent
points of intersection between the discourse offender, or the punishment may consist of
or youngster.
of sexuality and the discourse of alliance. financial compensation to be provided to the
Desire for the female when embodied in Many other examples could be given of girl to secure a bridegroom who would be
a young male is classified as instinct, provided this form of reasoning. I hope the point is willing to marry her.
it is directed towards a woman who is not sufficiently clear that in the process ofjudicial Rose Verghese (1992) cites a case (Braja
integrated in the system of alliance and henceverification, courts construct the category ofKumar Chauhan versus the state of Orissa)
can be categorised as a woman of easy young males who are acting out theirimpulsesin which the judge first tried to arrange a
virtue. and 'irrepressible sexual urges' when they marriage between the prosecutrix and the
The judicial construct of 'young male rape women. Thejudicial intervention is notaccused. After the attempt failed, the judge
acting out his natural sexual instincts' is directed towards the protection of all women
then reduced the sentence of imprisonment
deployed in the sentencing structure in the from such males on the prowl. What the of the accused and instead fined him Rs
course of hearing on mitigating courts do through their intervention is to 3,000 which was tobe paid to theprosecutrix.
circumstances granted to the accused. It may define the category of women on whom He stated that the prosecutrix 'now a young
be evoked in the context of acquittal or even these urges may be acted out and separate girl, will be left at lurch on account of the
in cases when judges are laying out their them from the women on whom these acts stigma' due to the publicity that the case
reasoning as to why the offence should be may not be committed. The former are must have locally received, and prospects
treated as a grave one. Independent of the definedas women of 'easy virtue', while the
for her marriage appeared bleak. However,
context, the judicial phrasing (emphasised latter are women who in future may be she could be rehabilitated, he thought, if she
in the following texts) make this construct integrated into the system of alliance or are received some financial assistance. In order
of a 'natural sexuality' residing in the male, already within it. to achieve this end, the financial
available for thought. This is particularly I believe it is this definition of certain kind compensation was to be provided to her
striking in face of the fact that women whom of sexual violence as stemming from the the term of imprisonment of the accused
courts classify as of 'easy virtue' are never order of nature, which allows agents of the accordingly, reduced. Clearly the courts are
seen to be acting out any natural instincts state such as policemen to commit rape and instrumental in 'trade off' in this case so that
which would be symmetrical to the sexual assault on those women, who have a man of a lower social status may be pro-
construction of desire in the male. come within their jurisdiction due to the vided with the financial incentive to marry
In the case (SC 58/1986, Ernakulam) of disturbances in the code of alliance. In the the woman who has otherwise become
the two-year-old child who was sexually case of Mathura which has already been unmarriageable. The concern is again not
assaulted by a young man discussed earlier discussed, it was the complaint lodged by with protection of the body integrity of the
in the paper, the assistant sessions judge the brother against her lover that allowed the woman but with correcting the disturbance
gave her reasoning for reduction of the period police constables access over her. Thejudicial in the system of alliance?5 which has been
of rigorous imprisonment as follows. "It is phrasing of the Supreme Court judgment violated by 'untamed' male desire.
indeed a cruel and wretched act to commit was also based upon the fact that she had The judges are also likely to treat sexual
sexual assault or attempt to rape an infant a lover, she was habituated to sexual desire as 'unholy lust', in cases of gang rape
girl of two years, especially in the intercourse and the hymen had shown 'old' if the husband is present at the time of the
circumstance that the accused was sharing tears. It was as if 'natural' for such a woman sexual assault. This is, provided, the man
his stay in the residential apartment of the to agree to sexual intercourse with the is recognised as an appropriatepartnerin the
family of that girl along with them. At any constable whom she had not even known matrimonial dialogue. In one case, three
rate the accused could have refrainedfrom before, right in the police station while her men broke into a house, committed robbery
whatever his sexual instincts may be, from relatives, including her lover, waited outside.and gang raped the wife, one by one, while
the child. Still in due consideration of the In other cases of custodial rape also, one the husband was held by the other two men
prime of youth of the accused and his tender common feature has been that the woman on the pointof aknife. In the First Information
age of running 17 at the time of the act has violated the code of alliance and hence Report, the husband did not report the rape
...etc." becomes a field on which men may gratify "due to fear of loss of reputation".6 However
The second case, I would like to cite, is their sexual instincts. after the accused were identified and arrested
that of an unmarried woman who was raped In the eyes of the courts when does sexualhe reported the rape saying that "this should
by a hospital attendant after he had taken instinct become unholy lust? I have suggestednot happen to any husband in future" [Cited
her to an empty roomn on the pretext that he that this is so when the sexual act has made in Verghese 1992:159; emphasis mine]. In
was taking her to the ward where her niece a girl who was previously suitable for beingawarding the sentence of 10 years rigorous
was admitted. After rejecting the defense given in marriage, now unmarriageable. Weimprisonment, the court noted the heinous
pleathat the prosecutrix could notbe believed already saw that this is reasoning applied innature of the crime. Although the woman
because she was not a virgin and that there the case of Tulna, the eight year old girl. had not physically resisted the rapists, the
were discrepancies in her account, the court In that case the appellants and the defendantsjudges noted that this was "due to fear of
observed: belonged to 'respectable' families - a point death of her husband, herself, and her child".
emphasised quite strongly in the judgment As Purvi Shah (1993:4) noted in her astute
The beastliness and atrocity of the crime is
which noted that the girl's father was a comments on the paper, "This court's
evident from the injury resulting due to the
thrust. According to PW 2, the doctor, about journalist who had travelled abroad, and the
decision is not based on any injury to the
thirty stitches were put for the ragged tear people involved were men of 'status'. The woman's body or lack of consent. Rather,
inside the vagina and blood transfusion also same reasoning, viz, that the offence of rape it is framed within the context of the harm
her husband, family and she - within the The third construction of the rapist is of of the female body has no information to
context of her family - may face. Indeed, a man securing vengeance against another convey for determining the nature of the
this woman has been made into a wife or man by violating the latter's wife, daughter
'inside' for she does not exist as a subject
mother rather than a woman. The cases or sister. In such cases also the woman's for purposes of rape law.
whereby the court renders decisions of rape body is merely the sign through which men Pratiksha Baxi (1995) argues that the
involve subjects seen as wives not as women". enter into relationships with each other. In discourse on marital rape, not only in the
She goes on to state that not only is the the Indian courts this comes up frequently courts but also in the parliamentary debates
husband's respectability seen as the central in the context of policemen going on a normalised the use of force in sexual
factor determining the court's decision in rampage of looting, destruction and mass intercourse within marriage. She points out
this case but also , "It is interesting to note rape in order to punish the population of a that in the report of the Joint Parliamentary
how this privileging of the husband echoes villageoralocality. Varghese (1992) quotes Committee on the proposed amendments to
the power granted to a father. For instance, the case of 14 policemen who went on a the rape law, a separate category of 'illicit
in the rape case involving the eight-year-old, rampage against the women in asmall village sexual intercourse not amounting to rape'
part of the case's validity stemmed from"the in order to avenge an insult to one of their was created to cover cases in which a man
girl's enraged father' who was responsible colleagues (Quoted in Varghese 1992, and who is separated from his wife has forcible
forappealing thecase." Thus 'natural instinct' Dhagamwar 1992). The court acquitted the sex with her (the JPC Report 1982:8). In
is transformed into 'unholy lust' in judicial policemen on the ground that the women in defence of this amendment it was stated that
phrasing if acting out this instinct leads to the village who were from the lower castes "The Committee feel that in a case where
stigmatising men as husbands or fathers. In could not be equated with 'such ladies who the husband and wife are living separately
arranging and aligning women and hail from decent and respectable societies' under the decree ofjudicial separation, there
positioning them in relation to men as either as they were engaged in menial work and is a possibility of reconciliation between
available for sex or protected within systems were of questionable character?.7 Thejudge them until a decree of divorce is granted.
of alliance, the courts construct and classify further added that "It cannot be ruled out Hence, the intercourse by the husband with
male desire in a manner that leads to either that these ladies might speak falsehood to his wife without her consent during such
the formal naturalisation of rape as somehow get a sum of Rs. 1000, which was a huge period should not be treated as. orequated
legally consensual or they criminalise it as sum for them". with rape. The Committee are of the opinion
challenge to patriarchal alliance systems. Because the naturalisation of male desire that intercourse by the husband with his wife
Simi lar facts, however, of raping a womanis connected to systems of alliance, the whole under such circumstances should be treated
in the presence of her husband begin to look
question of marital rape is removed from the as illicit sexual intercourse" [The JPC Report
different in judicial reasoning if it turns out
arena ofjudicial discourse. The satisfaction 1982:8; cited in Baxi 1995:73]. Baxi's
that the woman was not legally wedded to of male desire when it is sought to be fulfilledinterpretation of this statement is impecca
the man. In the case of Pratap Mishra vs State within the confines of matrimony is "The distinction between rape and sexuality
of Orissa, to which reference was made considered legitimate, no matter how it is from the woman's point of view gets blurred
earlier, the woman was subjected to sexual fulfilled. The legal code does not recognise for the state permits force in sexual
assault by three NCC cadets while on holiday marital rape - hence at the level of judicial intercourse, not only for describing it as
with a man. In this case the judges of the grammar, this category does not exist. In the normal but by normalising it for the sake
Supreme Court disbelieved the version of process ofjudicial verification, however, the of 'reconciliation'. Here power is deployed
the woman although she suffered an abortion
judges can find instances when grievous to constitute married woman's sexuality as
after the rape and assumed consent on her bodily harm has been done to the wife in 'passive' for the capacity to say 'no' to sex
part. Among other factors one, which the process of the exercise of his conjugal within marriage is not recognised by the law
weighed heavily with the judges was that rights by the husband. In such cases the as a legal right."
the woman was only a 'concubine' of the courts have held that while a husband can In Foucault's (1980) history of sexuality,
man. Vasudha Dhagamwar (1992:246) in cause grievous bodily harm to the wife, this power was understood as essentially that
providing an excellentcritique, quotes from cannot be classified as a sexual offence. The which dictates its law to sex by dividing
the judgment: first and best known case of this kind was sexuality between licit and illicit and
We do not mean to suggesteven for a moment reported in 1890 when Phulmoni Dasee who permitted and forbidden compartments. In
that PW2 was a pimp, but the fact remains was a little over 10 years died when her looking at the relation between power and
that the appellants undoubtedly wanted to husband tried to have forcible sexual sexuality as it is revealed in the judicial
have negotiations with him before insisting intercourse with her. The husband was discourse in India, I suggest that it is
upon him to open the door. This is also a convicted under section 338 of the Indian encountered not in the form of limit and lack
circumstance that militates against the case Penal Code which deals with causing but in its dynamic active form of production
of rape and shows that PW2 himself connived of bodies and speech -both male and female.
grievous hurt by doing an act so rashly as
at the sexual intercourse committed by the
to endanger human life or personal safety The sites ofjudicial discourse are the female
appellants with his concubine.
of another. Subsequently the age of consent body and male desire - while there is a
One is stunned to observe in this case that was raised to 12 and has continued to rise corresponding silencing of the discussion on
what counts with the judges is the assumed till 16 [see Dhagmwar 1994]. The law clearlyfemale desire and male bodies".8 As we have
relation that the men have formed with each takes recourse to the idea that marriage is seen, it is male desire which is considered
other- the circumstance that militates against the prescribed institution for the satisfaction 'natural', hence 'normal' and the female
the case of rape, they say - is that PW2 of 'natural' sexual instincts - hence sexual body as the natural site on which this desire
himself connived at the sexual intercourse intercourse within marriage cannot be is to be enacted. Women are not seen as
committed by the appellants with his considered a sexual offence. If a woman desiring subjects in the rape law - as wives
concubine. Neither the injuries on the body
incurs injury during sexual intercolurse with
they do not have the right to withhold consent
of the woman, nor her own will count - the her husband this is to be treated with other from their husbands - although the state
female body and will is placed in the 'custody' non-sexual offences of a similar kind. Thus invests its resources in protecting them from
of the male to be disposed off as he wishes. in the case of a conjugal couple, the surface the desires of other men. Paradoxically
women defined in opposition to the wife or relevant is whether the accused is capable collective identity whether of nation or of
the chaste daughter, i e, women of easy of sexual intercourse or not and whether community should become metamorphosed
virtue, as the courts put it, also turn out to there are signs of injury especially on the into the desire to humiliate men of other
have no right to withhold consent. Unlike sexual organs of the male. Both in the case nations or communities through violent
the case of the wife, however, it is not of the two year old child and the eight year appropriation of 'their' women, but I believe
through the application ofjudicial grammar old child who were violated, the judges that my analysis lays the foundation for
but throughjudicial semantics that this right found evidence of sexual acts on the part understanding why the judicial institutions
though legally granted is taken away in the of the male. Tulna, the eight year old child of the state become silent in the face of such
course of court hearings. As Purvi Shah described the fattening of the penis and the disorder. I cannot find even the rudiments
(1 994:6) put it, "A reading of female desire pain she experienced when the man tried to of ajurisprudence in the Indian legal system
as interpreted by the courts demonstrates insert his penis into her vulva. Similarly the (but perhaps this can be generalised forother
that while men are seen to be acting out their
judges hadevidence of 'ejaculation of semens legal systems) thatcould address the problem
'natural' urges when engaging in 'illicit' (sic)' in the two year old's case. Yet in both of rape in the kinds of contexts in which the
sex, women who show any sort of desire cases thejudges only considered the question problem is notof ordering and sorting women
outside the confines of marriage are of penetration - although in one case partial but of protecting their body integrity against
immediately considered 'loose'. By escaping penetration was considered sufficient to brutal rape and abduction.
the confines of male-centred discourses of constitute rape while in the second case it
sexuality and alliance, these women are then was not. An alternate way of constructing Notes
castigated by becoming the objects of any rape would be to consider the evidence on
sort of male desire. Rape is not a crime but the male body - reading the surface as [An earlier version of this paper was presented
is reduced to an act that she herse-lf deserves at the seminar on 'States of Violence', held in
conveying information on the nature of the
Michigan. I am especially grateful to the student
or seeks... Under the court's adjudication of offence - as sufficient for establishing it as
commentators Carole McGrahanan, Purvi Shah
these rape cases, every man thus becomes a sexual offence. In that case the whole
and Stacy Cherry; and to Charles Bright for
not an object of female desire, but rather question of what constitutes penetration comments that proved extremely challenging
these women who show 'illicit' desire would become irrelevant as both male and in the revision of the paper. Discussions with
become consensual objects of male desire female subjects would be constructed in Upendra Baxi, Pratiksha Baxi and Kalpana
even against their will". their wholeness. Viswanath were very fruitful for formulating
the issues.]
Thus it is clear that a woman's yes to sex
outside marriage puts her in a position in CONCLU)IN O3SERVATIONS
I I am grateful to Pratiksha Baxi for compiling
which she is rendered judicially incapable
the list of these cases for me.
of constructing desire in the singular for a In the introduction to this pziper, I raised 2 The female body is objectified as a general
partis ular man. Her illicit desire places her the question as to whether an understanding body - all women are assumed to have a
within the power of any man and especially of howj udicial discourse constructs normal 'normal' body with the same kind of changes
within the power of the agents of the state and pathological sexuality at the level of the as a result of sexual activities.
such as policemen. It would, however, be individual could help us to understand the 3 Many of the cases that are analysed here are
cited in the painstaking report on sentencing
a mistake to think that this is only a widespread violation of women during
structures in rape cases by Verghese (1992).
disciplining of female desire. It is equally episodes of collective violence and the 4 Pratiksha Baxi has argued that the link
a disciplining of male desire. By constructing judicial silence in the face of such grave between shame and sexual violence often
male desire as 'natural' it is also generalised, disorders. I am not sure that we have an results in rape being seen as 'worse than
so that once the system of alliance is answer to the question but it appears to me death' - an interpretation that she says the
suspended in thought, then one woman is that I may have found a possible direction Indian Women's Movement has consistently
tried to reject [Baxi 1995]. See also Kalpana
considered as good as any other for the towards which such an enquiry could move.
Vishvanath (1994) who shows how the idea
satisfaction of this desire. Thus the judicial If the combination of judicial production
of shame and sexuality as a linked pair are
discourse cannot admit of desire for a and verification (judicial grammar and internalised by women.
particular woman even in the male subject. judicial semantics) that we have considered 5 I wonder if we can compare this with mediation
One may recall the evidence of the chowkidar produces a discourse on rape which places in feud-anothersysteminwhich menrecognise
(watchman) of the guest house in the Pratap itself essentially on the intersection of the each other through the exchange of violence
- in which the party that is on the verge of
Misra case that he had found the man crying discourse of sexuality and the discourse on
losing may be persuaded to acceptblood money
helplessly outside the room in which the alliance, and which provides the essential
to terminate the feud.
NCC cadets raped the woman, presumably function of protecting the system of alliance6 The question of how temporality enters the
his lover. Similarly Mathura's brother and rather than protecting the body integrity of judicial discourse is very important, not only
husband were made to wait outside the police women, then the law can only function as atthe level ofjudicial grammarwhich determine
station while she was raped by the constable. long as normal classifications of marriageable how cases become time barred, but also at the
Just as there seems to be no place for the and non-marriageable women; and of men level ofjudicial verification. Delay in the case
of reporting a rape seriously prejudices the
woman as the desiring subject in thejudicial who recognise themselves as partners in
outcome not only because of the difficulty of
discourse, but there is an elaborate vocabulary alliance versus those for whom such obtaining medical evidence, but also because
for describing the female anatomy and the recognition is withheld since they are not judges are less likely to believe a woman if
impact of sexual intercourse on it - likely partners in alliance; is in place. Since she has delayed reporting the case. In the
correspondingly there is no reading ofthe thethe function of law turns to sort out Indian judicial system the delays in arriving
signs of sexuality on the surfaces of thewomen male and position them in terms of at a judgment (in Tulna's case the Supreme
Court gave its judgment I I years after the
body for establishing sexual offences, availability
nor and non-availability with
event) can make time itself a resource in the
any understanding that desire in the male reference to different categories of males,
hands of litigants. The systematic examination
may be for a particular woman rather the thanentire judicial discourse falls silent in
of temporality cannot be undertaken here - it
for a generalised, standarised female body?.9 face of the collapse of these categories. This would require another paper.
About the only question that seems medically does not explain why desire to assert 7 It should be noted that when the exchange of
violence is within the framework of the Bright, Charles (1994): Comment on 'Sexual Levi-Strau'ss, Claude ('1969): Thte Elementary
institution of feud, there are strict rules whichViolence, Discursive Formations and the Structures of Kinship, revised edition
control the styles of violence that may be used.State', conference on 'States of Violence', (translated by J H Bill and J R von Sturmore),
The sexual violation of women by the feuding University of Michigan, April 16-18. Rodney Needham (ed), George Allen and
parties is strictly considered outside the Butalia, Urvashi ( 1993): 'Community, State, and Unwin, London.
normative frame [see Das and Bajwa 1994]. Gender: On Women's Agency during MacKinnon, Catherine A (1989): Toward a
What we witness in the case of policemen Partition', Economic and Political Weekly, Feminist Theory of the State, Harvard
goingon arampage against lowercastewomen (17): WS I 2-WS24. University Press, Cambridge.
cannot be derived from rules of feud in which Cherry, Stacy (1994): Some comments on Veena - (1992): 'Does Sexuality have a History? in
only men of equal status are said to 'recognise' Das's 'Sexual Violence, Discursive Format- Discourses of Sexuality: From Aristotle to
each other, but aperverted theory of punishment ions and the State', conference on 'States of AIDS, University of Michigan, Ann Arbor.
in which the illegitimacy of state practices Violence', University ofMichigan, April 16-18. Matoesian, G (1992): Reproducing Rape:
combine with a perverted working of caste Das, Veena (1994): 'Language and Body: Domination Through Talk in the Courtroom
hierarchy to produce the kind of outcome we Transactions in the Construction of Pain', Polity Press, London.
are describing here. conference on 'Social Suffering', Bellagio, Menon, Ritu and Kamla Bhasin (1993): 'Recovery,
8 This point was made forcefully by Purvi Shah July 4-7. Rupture, Resistance: Indian State and Abduct-
(1994). ion of Women during Partition', Economic
- (1995): Critical Events: Ant Anthropological
9 Desire for a male sexual partner is similarly antd Political Weekly, (17): WS2-W 12.
Perspective oni Contemporary hIdia, Oxford
generalised as an enactmentof unnatural desire University Press, Delhi. Shah, Purvi (1994): 'How to Get on Top of the
- an offence against nature. Das, V and R S Bajwa (1994): 'Community and Social Savage',Conferenceon 'StatesofVio-
Violence in Contemporary Punjab' in D Vidal. lence', University of Michigan, April 16-18.
References G Tarabout and E Meyer (eds), Violences antd Smart, Carol (1989): Feminism anid the Power
Non-Violences in India, Special Issue of of Law, Routledge, London.
Agnes, Flavia (1992): 'Review of a Decade of Puru,sarthla (16): 245-61. Verghese, Rose (1992): 'Sentencing in Rape
Legislation, 1980-1989: Protecting Women Dhagamwar, Vasudha (1992): Law, Power, and Cases: Legislative Cases and Judicial Practice
against Violence?', Economic and Political Justice: thie Protectiont of Personal Rights in in theContextof GenderJustice and Atrocities
Weekly, (7); WS19-WS33. tlhe Indiain Penal Code, Sage, Delhi. against Women', National Law School of
Baxi, Pratiksha (1995): 'The Normal and the ' Foucault,Michel( 1980): TheHi.story fSexuality, India University, Bangalore.
Pathological in the Construction of Rape: A Vol 1: An Introdulctiont, translated by Robert Viswanath, Kalpana ( 1994): 'Shame and Control:
Sociological Analysis', unpublished M Phil, Hturley, Vintage Books, New York. Feminism, Sexuality and the Body', paper
dissertation of the University of Delhi. Greimas, A J and Landowsji and E Landowski presented at the conference on 'Feminity, the
Baxi, U, Vasudha Dhagamwar, et al (1979): 'An ( 1976): 'Analyse Semiotique d'un Discourse Female Body and Sexuality in Contemporary
Open Letter to the Chief Justice of India', Juridique' in Semiotique et Science Socials Society', Nehru Memorial Museum and
Supreme Court Cases, (4): 17-22. by A J Greimas, Seule, Paris. Library, Delhi, November 21- 25.
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(Veena Das) Sexual Violence, Discursive Formations and The State

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(Veena Das) Sexual Violence, Discursive Formations and The State

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Sexual Violence, Discursive Formations and the State

Author(s): Veena Das

Economic and Political Weekly Special Number September 1996 2411

2412 Economic and Political Weekly Special Number September 1996

Economic and Political Weekly Special Number September 1996 2413

Economic and Political Weekly Special Number September 1996 2415

2416 Economic and Political Weekly Special Number September 1996

Economic and Political Weekly Special Number September 1996 2417

2418 Economic and Political Weekly Special Number September 1996

2420 Economic and Political Weekly Special Number September 1996

Economic and Political Weekly Special Number September 1996 2421

2422 Economic and Political Weekly Special Number September 1996

SBI MUTUAL FUND's

OPEN FUND 1995

* High Liquidity * Dividend Reinvestment Plan

o _SBI MUTUAL FUND

Economic and Political Weekly Special Number September 1996 2423

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