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Sex crimes are ubiquitous: Interview with Jacqueline Bhabha

24 February 2013

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The Times of India - Feb 24, 2013

Sex crimes are ubiquitous
Jacqueline Bhabha, a lecturer of law at the Harvard Law School and of public policy at the Kennedy School.

A Harvard University task force has been set up to advise on the implementation of the Justice J S Verma Committee report. It is led by Jacqueline Bhabha, a lecturer of law at the Harvard Law School and of public policy at the Kennedy School. Professor Bhabha speaks to Padmaparna Ghosh about the limitations of the rape ordinance and how good laws are useless without the political will to implement them:

The announcement of a Harvard task force has been greeted with quite a bit of scorn. Can an academic institution in the US make a difference in India?

A good friend wrote to me in exactly those terms, but I don’t believe that expertise has a passport. We do not intend to preach to anyone but simply offer suggestions and recommendations based on our experience and research — it is up to the GOI to decide which inputs they find useful. One of the great strengths of the Verma report was that it drew on expertise widely and inclusively, and did not adopt a defensive nationalist approach. To include expertise from outside India does not suggest contempt or disregard for the wealth of wisdom to be found in India — it simply acknowledges that we inhabit a global information commons and that, alas, gender violence is ubiquitous and has engaged many of us in many countries for many years.

Faced with complex and urgent issues raised post-Verma, it seems to me important to pool our expertise and resources. Of course our work will not be a substitute for the critical thinking and organizing that is happening in India. Indeed India is in a position to assume leadership on this issue, as the global Valentine’s Day demonstrations inspired by Indian activism demonstrated. This is a great time to work together on the issue of gender violence, get public attention and political will behind it. There is no point in being nationalistic about it.

What are your criticisms about the ordinance that was passed?

It has severe limitations and was disappointing given the impressive report submitted by the Verma committee. What I really liked about the report was that it was not a knee-jerk reaction. It even talked about brutalization of poor male kids. Clearly that is part of the story. There needs to be retributive justice and that has been lacking. The government has been derelict in its duties. But just retribution is not the way to go. We need to focus on sex education , juvenile justice, and gender relations. We also need to think about rehabilitation and empowerment of survivors. I would say that there are many places, including India, that associate rape with family dishonour and shame. That needs to change.

Justice Verma’s report redefined the meaning of consent, stating that unless a woman indicates ’yes’ to sex, either by word or by gesture, no one can assume that she consented How important is the issue of consent?

I always say to my students that the consent /coercion division is the one of the biggest human rights issues. There is no clear line. What counts as coercion depends on your own threshold. If you have a gun to your head, you would hand over your money. But is poverty a gun to your head? Will it lead to sex work? Or to sell your child? These are very difficult questions. At Harvard, we have a clear, strict policy on sexual relations that is taught to all freshmen in their first semester here. Male students are told that they have to get explicit consent to sex, that the onus is on them to prove they got it, not on the female student to prove that she objected or was coerced. That is one way to think about consent, to put the burden of proof on the boy, but it is very difficult to establish. We need a sophisticated way of differentiating between coercion and consent.

What about the marital rape issue on which the ordinance is silent even though the Verma Committee recommended its inclusion?

It is regrettable that the ordinance chose to ignore the committee’s wise recommendation. I suppose for the government, it is a balancing act and about responding to many political constituencies.

The other point is that the ordinance does not recognize the right of young girls to have sexual contact by their consent with male friends of a similar age. Families already take a harsh view of adolescent sexuality. On the one hand, we have a delay in the age of marriage, and on the other is the fact that sexual desire is at its most acute in late adolescence. It does not seem wise to criminalize the legitimate and consensual satisfaction of that desire.

A group of Indian school teachers recently told me that they feel very strongly about this lacuna but don’t have the social backing to discuss this. They feel there is a 19th century, prudish attitude to sex. Also, there is a complete mismatch (in the US too) between how girls are viewed (sluts, whores) and how boys are (virile, macho) when it comes to sexual activity.

How far can law go in tackling deeply entrenched misogyny in our society?

Law can never be the entire answer. This is a tough admission for me since I am a lawyer. But framing laws and getting them perfect should not take up all our time clearly one also needs to build the political will to implement just laws and this doesn’t just drop from the sky. Cultural movements need to challenge entrenched attitudes from the bottom up. And it isn’t just about the "bottom" either since there were horrifying comments even from the "top" at the time (after the December 16 gang rape).