What is most dangerous in the Madras HC order is that instead of recognizing the patriarchal family as the biggest part of the problem, it proposes the same patriarchal family as panacea!
By Kavita Krishnan
There is a flurry of media attention for a Madras HC order by Justice Kirubakaran recommending castration for rapists of children.
Before I address the order (which itself is chock full of misogynist and patriarchal ideas) I would like to remind the readers that Justice Kirubakaran is the same judge, who, while inaugurating a Fast Track Mahila Court in his official capacity, blamed women for rape.
In particular, he said “why should women invite trouble when they are well aware that they will get into trouble in some situations,” and said that the December 16 rape victim “should be blamed for choosing a wrong time to travel” on the fateful night. It is well known by now that one of the men convicted for the December 16 rape, said much the same as the Honourable Judge.
Why is it important to remember the above bit of victim blaming by the same judge?
Because it is wise to pause and ask if we should be taking advice on curbing rape from someone who blames rape victims for rape and recommends moral policing.
The current case in question was one in which a foreign national was accused of molesting a child. The judge was hearing a petition from the accused arguing for dismissal of the case against him. The judge dismissed the petition, but also held forth on how castration of child abusers could produce ‘magical results’ in curbing such rapes.
In the case in question, one of the grounds cited by the accused was that the child and his mother had themselves claimed they made a false complaint under pressure from the police. The prosecution argued that this withdrawal from the original complaint was testimony to the pressure exerted by the accused. But this withdrawal actually underlines one of the biggest problems relating to rape cases in general and rapes of children in particular. There are a variety of social pressures on complainants to recant, especially if the accused is influential and well-off, or a close family member.
How on earth can the threat of castration help the complainants to resist this pressure? The real problem is securing a conviction – and in this case the problem is to secure extradition of the accused British national so that he can stand trial in India. Any irresponsible remarks threatening castration can only harm the case for extradition. In a sensitive case, why did the Judge, instead of sticking to his brief and passing a temperate and reasoned judgment, indulge in grandstanding on a subject of which he has a pretty poor grasp?
The Judge, in his order, has chosen to sneer at human rights activists (misspelled Human Rights Activities!) claiming they only care for the human rights of molesters and rapists who are not human or even animal but ‘monsters’. He has advised human rights activists to instead “show sympathy to victims, console them”.
The Honourable Judge has perhaps just woken up to the issue of rapes of children – and has cited a series of newspaper reports to underline how shocking and barbaric they are. He needs to be told that it is in fact women’s rights and child rights groups that work silently with scores of survivors of rapes – rapes that rarely make the headlines, and are all the more horrific because they are perpetrated by close family members and continue for months and even years. It is these activists who are the most appalled by recommendations of castration – because such policies would only deepen the already strong reluctance of victims to report rapes by close family members. For the judge to mock and jeer at these activists – branding them as advocates for sex offenders rather than victims – is shockingly abusive and irresponsible.
The Madras HC order is actually a study in half-baked knowledge, proving that “A little learning is a dangerous thing”. The order cites studies showing that 53 per cent of children face physical or sexual abuse. It also states what is widely known: that the “Majority of child rape cases are not reported to Police”. What it fails to ask is why child rapes are so vastly under-reported. Those despised ‘activists’ could have given the Honourable Judge the answer.
One such activist, Flavia Agnes, who has written much reflecting on the vast experience of her organization Majlis in supporting rape survivors, wrote in July 2015 “In the 241 FIRs filed in Mumbai between March 2014 and ’15, 12 per cent cases involved rapes by fathers and stepfathers, while rapes by strangers in public places were 3 per cent. Yet our discussion on girl safety revolves around street lighting and CCTV cameras.”
She cites the case of a schoolgirl in Mumbai who wrote to her teacher about being raped by her own father for six years ever since she was 7, and her mother refusing to intervene. Will harsher punishments like death penalty or castration deter such rapes? Rather, they will have the opposite effect – of further chilling reporting of such rapes, says Agnes: “There is also need for concerned citizens to rethink their stock demand of death penalty for rapists after every gruesome case that comes to light. No daughter will come forward if she knows that her father will hang.”
What, in fact, is the biggest challenge when it comes to rapes of children? Not, as the Madras HC order would have us believe, ‘native Monsters’ and ‘foreign Monsters’ – but everyday fathers and other patriarchs who are confident that their power and control over the family can prevent reporting of such rapes. To quote Agnes again:
“We don’t take to the streets when a girl accuses her own father of rape over several years because this threatens to shake the very foundation of our society, the unit held most sacred — the family.
“A patriarchal society has to protect the patriarch, whatever the cost. That’s why rape or sexual assault within the family, by a father, is a sure shot conversation killer. Bring it up anywhere and a hush descends, discomfort rises. It’s a story India doesn’t want to hear. But don’t be fooled by the silence around it. It doesn’t mean that these incidents are rare. The silence is a conspiracy — to protect the alleged rakshaks even if they are, in reality, bhakshaks.”
What is most dangerous in the Madras HC order is that instead of recognising the patriarchal family as the biggest part of the problem, it proposes the same patriarchal family as panacea!
The order suggests:
“Since both parents are working and there is no elderly people namely grant (sic) parents in the family, the children are left with custody of third parties, namely servants, neighbours etc resulting in abuse of children. Therefore, at least one parent should be available in the family to look after the children.”
Who is this ‘one parent’? In our patriarchal set-up, of course, it is the mother who will be expected to quit work to look after children! The order further recommends that “There should be efforts by all to revive the disintegrated joint family system for more benefits including safety of children.”
These are baffling recommendations.
In a case in Delhi not long ago, a working class mother found that her father-in-law and brother-in-law had been raping her three young daughters. She complained to the police – who declared that she was lying to claim her in-laws’ property. Asked to explain the medical reports corroborating sexual abuse of the three little girls, the police brazenly claimed they were prostitutes! Since the accused were not arrested, the mother and father were forced to take it in turns to stay home from work, to protect the children.
Can this working class mother afford to quit work – and if she quits work, will she be more or less empowered to report abuse of her children by male family members on whom she will be dependant? How will the ‘joint family’ help her children when the perpetrators of abuse are the very same family members who are, in the eyes of the Honourable Judge, the protectors?
The truth is, as I have argued elsewhere, that child sexual abuse shares the same intimate space that domestic violence does. Most perpetrators of child rapes are not “abnormal”, “perverted” strangers who are “animals”. They are men we are likely to know, trust and even love. Child rapes happen most in the familiar milieu of the patriarchal household – the kind that demands obedience from children and women and prey on the dependence and subservience of both. Women who complain of domestic violence or of sexual abuse of their children by family members are faced routinely with accusations of ‘false complaints.’ Victim blaming, in such cases, takes the form of blaming and shaming the mother of the victim. Such blaming is enabled by a larger milieu and discourse that discourages reporting of domestic violence and brands domestic violence cases as “false cases” filed by greedy women, while women’s groups supporting such women are accused of wishing to “destroy the family.”
Unsurprisingly, the same Honourable Judge who is so eloquent on castration, has himself contributed to that toxic thought that trivialises domestic violence complaints by arguing that women ‘magnify’ these to destroy families. In the same speech where he blamed the December 16 rape victim and other women for being “equally responsible” as men for rape, Justice Kirubakaran also said that “lawyers should not magnify the cases (of domestic violence) leading to disintegration of families,” since “When families disintegrate, society disintegrate…” (Women Equally Responsible for Crimes against Women: Judge, Justice N.Kirubakaran cautions lawyers not to magnify cases, The Hindu, Dated 29.08.13)
The Madras HC order also makes other dangerous recommendations. It advocates that “moral science” be taught in schools. What will such moral science comprise of? According to the order, such moral science comprises of “insisting about the importance of the family and relationship to mould them as good citizens.” Recommending counselling in schools, the order adds that such counselling must “find out any disorder or negative attitude and the same could be informed to the parents… to make all the children to grow as well-groomed citizens.”
The child in the Mumbai case cited by Flavia Agnes, spoke up about being raped by her father after a counselling session on child sexual abuse in her school. Instead, had her school held forth about the ‘importance of family’ above all, would she have found the courage or confidence to come forward against the patriarch who ruled her family? If counselors, instead of acting responsibly, were to violate confidentiality and “report” the behavior of victims of abuse to their parents – parents who could possibly be the perpetrators – will any child come forward to report such abuse? The order, instead of being concerned with creating safe spaces for children to report abuse, seems more interested in creating “well-groomed citizens”, whatever that might mean.
Finally, let me address the question asked by some well-meaning persons on social media: “We agree with you when you criticise the victim-blaming or the other misogynist parts of the order. But don’t you agree that castration could help deter rapes of children?”
My answer: The order, in the first place, makes no distinction between physical castration and chemical castration.
Chemical castration is used in some countries to ‘treat’ compulsive paedophiles. In the first place, the efficacy of such measures is highly questionable and is the subject of an ongoing debate. And in any case, even advocates of chemical castration admit that it might be helpful only in the minority of cases involving paedophiles. All perpetrators of child sex abuse are not necessarily paedophiles. Rapes are crimes of power, not sexual acts. So, even a castrated or impotent person can commit rape – using other body parts or objects. Some of these arguments are well summarised here.
I will end by emphasising that it is no coincidence that the recommendations of castration come in an order that also recommends bolstering up patriarchal notions (of women quitting work) and institutions.
In fact, in my experience, recommendations of death penalty and castration for rape are the last refuge of the misogynists – they say “we blame women for rape and domestic violence, and prescribe patriarchy as the panacea for rape – but good heavens, how can you call us misogynists? We want to hang and castrate rapists while those useless family-breaking feminists don’t!”
Such sentiments are often expressed by laypersons on rape. In fact, every individual seems to be an ‘expert’ on how to deal with rape and rapists. But it is truly dangerous when a Judge uses the Court as a pulpit for such intemperate, half-baked and outright misogynist rants on rape, or when politicians do so from political platforms. We activists who work with survivors of rape and child sexual abuse and other forms of gendered violence, do not have very high hopes from politicians and judiciary. We tend to hope, at best, that they will avoid the usual misogynist traps and perhaps do justice and offer support on some occasions. But the judiciary and politicians have power that we do not. And what we truly fear most is that they will use that power to pass laws or orders or shape a discourse on rape that is harmful to survivors and further deters reporting. A discourse that pushes the elephant in the room – physical and sexual violence against children and women inside the family – further into the shadows.
- See more at: http://indianexpress.com/article/blogs/castration-order-patriarchy-is-the-problem-but-madras-hc-proposes-it-as-panacea-for-rape/#sthash.r0OobMO5.dpuf