Shades Of Grey In Sexual Legislation
Have the people who demand legitimately, stringent laws against marital rape, considered the nuances behind each law in sexual legislation?
Recently, the ex-Chief Justice of India Shri Dipak Mishra showed his hesitance in formulating laws against marital rape, a very controversial topic which has seen much headbutting between the conservatives and the liberals. Though his comment has stirred a hornet’s nest, resulting in many lawyers slamming him saying ‘he stands exposed on patriarchy’, I feel that it is necessary to understand the nuances behind sexual legislation, particularly when topics like marital rape is concerned. This does not undermine my stand that marital rape is real, and this problem should be combated effectively.
Whenever specific laws on sexual harrasement and rape are made or are in the process of making, an element of gender bias and unequal distribution of social justice is always feared. Current laws regarding rape as well as sexual harrasement consider that only a man is capable of that, not a woman. Furthermore, an element of abuse of such powers through deceit is also feared, especially amongst innocent men who regardless are supportive of gender equality.
Today I will be talking about why such laws are constantly under scrutiny and hot debates.
Number One : Ambiguity in Consent
There are two types of consent -
- Expressed consent
- Implied consent.
While implied consent is verily wrong in sexual intercourse, even expressed consent tend to become ambiguous, especially when not taken in written. Expressed consent are given in three ways : either in writing, by speech (orally) or non-verbally, e.g. by a clear gesture such as a nod. The problem becomes when non-written expressed consent not evidenced by witnesses or an audio or video recording may become disputed if a party denies that it was given.
The resultant insecurity becomes so prominent that there has suddenly been a rise of “consent videos”, as stated in one article. The author in that article, though admitting that these forms of taking consent exists, also says that it is immoral to do so, stating why it will be nigh impossible for anyone to make a false accusation, citing “the vitriol that victims of rape and sexual assault are subject to”.
Well, that did not stop Jasleen Kaur to falsely file a case of sexual harassment over Sarvjeet Singh, a case which has been dragging on for years.
Interesting to note is that the story of the plaintiff in this case do not match with the story of the witnesses of the incident, which instead corroborated more with the defendant’s story. Still, Jasleen says she will continue to fight in court.
On the other hand, this guy is still now tagged as a ‘pervert’ and has not been able to get a job — he is still now stuck with that label, given to him four years ago.
That did not stop Wanetta Gibson to accuse Brian Banks of rape.
Wanetta Gibson, then 15 years old, claimed Banks, then 16, had raped her at school. Banks did as his lawyers urged — to plead no contest and accept a short prison term rather than risk a long one. Gibson collected $1.5 million after suing the school, while Banks spent six years in prison and five years on parole. After this many years, Gibson confessed to Banks through Facebook that she falsely accused him, but refused to confess the same in court, and had gone into hiding now. Luckily, the recorded conversation was put forward as evidence in the court, which later exonerated Banks.
There are many such cases of false accusation of sexual harassment, leading to a heightened sense of paranoia amongst men in relationships, which might later spark a trend of “consent videos”, written documentation of consent before sex, or even a hidden camera recording consent in a couple. This might eventually kill intimacy and break relationships without even progressing.
Shouldn’t sociologists address this flip side of such laws and formulate ways for reducing such paranoia? I am yet to see this concern amongst them.
Number Two : The Power of “NO”
This title reminded me of the famous Bollywood movie Pink starring Amitabh Bachchan espousing consent :
But this has cast a facade over the very distorted reality of the word “No” nowadays.
Tammy Bruce, former National Organization for Women member, says how women in current times are themselves responsible for reducing the power of “NO”.
Media, Hollywood, Bollywood, etc. have reduced the power of “NO” to a ridiculous level. So much that even some women regard those men as ‘impotent’ and ‘effeminate’ who cannot read the undertones of Yes inside a No, prompting them to go to ‘grooming classes’ for the same and even getting more confused!
Do you think that the MGTOW movement is baseless? Part of the reasons of having this movement is because of this ongoing ambiguity that continues to chastise innocent men.
In recent years, there has been a increasing push for “affirmative consent”. To obtain affirmative consent, rather than waiting to say or for a partner to say “no”, one gives and seeks an explicit “yes”. This can come in the form of a smile, a nod or a verbal yes, as long as it’s unambiguous, enthusiastic and ongoing. “There’s varying language, but the language gets to the core of people having to communicate their affirmation to participate in sexual behavior,” said Denice Labertew of the California Coalition Against Sexual Assault. “It requires a fundamental shift in how we think about sexual assault. It’s requiring us to say women and men should be mutually agreeing and actively participating in sexual behavior.” I sincerely hope for a good push for affirmative consent now.
This needs to be reiterated that marital rape and sexual harassment are real issues that needs to be combated. While this is true, the way to achieve a non-partisan, gender-neutral law countering these crimes is meandering, and needs active participation of both men and women from all sections of society to remove the obstacles for a better tomorrow.
Till then, we might continue to see our judges’ hesitancy.
