SHE…HE…S/HE: Gender Neutrality with Emphasis on Rape Law

Article for Blog Post Writing Competition 2011 | by Swati Bala


April 8th, 20118:12 pm


INTRODUCTION

Gender neutrality and Rape Law. The neo-version of liberation, well-evident in every aspect of society keeps questioning the very roots of our intellect and psyche. Being liberal and democratic in theory is no vouching for the actual practice of it indeed. Occupied with a great deal of feminism, which constitutes a prominent issue in the contemporary world, owing to the feminists and their incessant efforts; we usually ignore certain things considering them of trivial importance. Language symbolizes the attitude and even more so when one is practicing lawyer. It seems insignificant at first to ask that why a man represents the whole humankind, belittling the other genders and why sexism is something typical with women only. This could be supplied with a series of questions which we consciously or sub-consciously tend to push aside. Many have realised that to do away with this dubious character of legal language which is either too sexist or awkwardly non-sexist is necessary to maintain the credibility of language and furthermore the ideas they are conveying. And this could be feasible only in a legitimate gender-neutral society where gender does matter but not in itself a prejudice to any of the gender; precisely ensuring the free-play of the society without fixing it to a centrality.

THE PLIGHT OF A WOMAN

“You can do well to weep as a woman over what you cannot defend as a man.”

Women and Nature have been in long association- articulated in nearly all religious books- for instance as in “mother earth” or “virgin forest”, awaiting exploitation.[1] Furthermore, in ancient Hindu Law, it has been said that a man would be condemned to take next birth as a slave, animal or a woman in the creditor’s house since he failed to pay his debts…tame animals or women…does it make any difference. Throughout history, she was pulled back as much necessary as to ensure that she can never access to the real power and decision –making activities. From the cradle itself, the conspicuous bigotry begins and now and then veiled too much to be acknowledged with our docile senses…moreover, got no choice! The moment a child is born, the family and the society start impregnating the unripe mind with gender-norms, expressly or tacitly. Usually, girls are encouraged to be homebound and shy, while boys are encouraged to be tough and manly. To some extent, it has got its own convictions; for instance, a girl passes through a crowded road and realises each moment to protect her alleged chastity and virtue, as if that is the lifeline to preserve her status, whatever it is but nowhere the chastity or virtue of those debriefed who tries to outrage the modesty of a woman.

Manliness in Darwinian Theory is explained as ‘aggression that is valued and chosen by women for their protection and thus “selected” by nature for survival to the next generation and beyond.’[2] The gentleman represents the mankind or say humankind which is quite ostensible in the fact that “man” in legal and other languages stands for both “male” and “female.” He will not mind sharing his opportunities with a woman but the actual achievement always falls short of the expectation because of his adamant belief to let go of the manliness.

WHAT NECESSITATES GENDER-NEUTRALITY

The protection offered to women comes at the price of recognizing the male dominance, usually unspoken that certain things must be left to men.[3] In the words of a German philosopher “the criminal and the powerful man who promises a community that he will protect it from the criminal…are probably the same.”[4] Why there is a painful obsession of becoming great at others expense in aiding them or acting as their saviour when there are better choices. How simple is the linguistic construction of man/woman, he/she, husband/wife seems and it hardly hit us that the opposition man/woman is just one binary opposite among others, for instance, life/death, inside/outside, sun/moon, active/passive…in which left is privileged and the right-hand term becomes marginalised. This thought was propounded by Jacques Derrida, who says almost all of the thoughts, behaves in the same way, forming pairs of binary opposites, in which one member of the pair is privileged, freezing the play of the system and marginalizing the other member of the system. It gives the impression that women and wives are afterthought and of lesser importance.

REFORMING RAPE LAWS: NEED OF HOUR

A lady has usually been defined as one who never loses her dignity regardless of the situation.[5] The words frequently used in our legal language or any such topic considering upon gender issues involve, for instance, “chastity”, “virtuous lady”, and so forth, which could only dilute the meaning or limit the scope of our understanding of crimes against women… a prejudice in itself. Rape in popular belief means complete ‘destruction of women’[6] Whether this “sexism”- a word feminist themselves popularized — is laudable or conveying a notion of timidity is not the issue, and simply it is double-discriminatory and gross indecency to women.

In the contemporary world, there is bound to be more sexual freedom against the once typical values and regularising them is even more important than curtailing them. Today, juvenile males are also sexually exploited, but such cases are hard to come for the simple reason of the offensive characteristic attached with the too “sexist” sexual assault.[7] Recently, in a male-rape case in China, the culprit could not be charged with rape, as under China’s criminal law, the offence refers only to a woman.[8] Even a female can rape a male child under a gender-neutral statute governing criminal sexual conduct with minors.[9] A court observed that it is no longer consonant with constitutional principles of equal protection that males are not entitled to the same protection for degrading ravishment and sexual assaults as are females.[10] In an interesting case in India, Supreme Court held that a woman cannot be said to have an intention to commit rape and therefore cannot be prosecuted for gang-rape.[11] However, High Court rightly was of the opinion that she was guilty of gang-rape, since if any person commits a crime than the proportion between crime and punishment should be a goal to be achieved.

Rape should be re-labelled as sexual assault, relocating its focus on the violent aspect[12] and it won’t belittle the graveness associated with it because in defining sexual assault should still hold the seriousness of crime with more severe punishments, stringent procedure and reviewed as gravest form of violence instead of a tabooed offence. The advantages of this are to eliminate the stigma connected to the victims, to encompass both gender and to criminalise the matrimonial rape exemption.[13] In “The Winning Brief”[14], Bryan A. Garner advocates “Be elegant. Inelegance includes the clumsy s/he, (s) he, s/he/it. To maintain credibility, “write in such a way that no one would ever consider either sexist or awkwardly non-sexist. Then the question of sexism doesn’t even occur to the reader, who can concentrate without distraction on the ideas presented.”[15] Consideration should be given to the situations where gender neutral language is not appropriate. One of the predominant features of gender-neutrality is that it assumes that what was until recently typical to men is actually common to both sexes.

 


[1] Plant, Judith. “Women and Nature,” available at <http://www.thegreenfuse.org/plant.html> (last visited Feb 23, 2011)

[2] HARVEY CLAFLIN MANSFIELD, MANLINESS 11 (New Haven: Yale University Press 2006) at 48

[3] HARVEY CLAFLIN MANSFIELD, MANLINESS 14 (New Haven: Yale University Press 2006).

[4] MARC SAUTET, NIETZSCHE FOR BEGINNERS 94 (Linda Briggs trans., Orient Longman Pvt. Ltd. 2004); see also THE GENEAOLOGY OF MORALS, FRIEDRICH NIETZSCHE, HORACE BARNETT SAMUEL (1887).

[5] HARVEY CLAFLIN MANSFIELD, MANLINESS 20 (New Haven: Yale University Press 2006).

[6] Flavia Agnes, Rape Laws cannot be Gender Neutral, THE ASIAN AGE, BOMBAY, JULY 14, 2006.

[7]Can women rape men, The Jamaican Bserver, Sunday, November 12, 2006, http://www.jamaicaobserver.com/news/html/20061111T2000000500_115197_OBS_CAN_WOMEN_RAPE_MEN__.asp (last visited Nov, 2010

[8] See http://www.asianage.com/international/china-sees-first-male-rape-case-869 (last visited Feb 25, 2011)

[9] Doe v. Brown, 331 S.C. 491. 489 S.E. 2d 917 (1997)

[10] Washington v. State, 301 So. 2d 401 (Fla.1974)

[11] Priya Patel v. State of Madhya Pradesh (AIR 2006 SC 2639)

[12] It would require replacing women/men by ‘any person,’ ‘rape’ by ‘sexual assault,’ ‘man/wife’ by ‘spouse,’ and equal age of consent for both gender.

[13] JOAN MCGERGOR, IS IT RAPE, pp.38.

[14] BRYAN A. GARNER, THE WINNING BRIEF 226 (1999).

[15] The emphasis is upon parallel treatment and balanced portrayal of women and men’s, eliminating all stereotypical or demeaning terms, for instance, “King” becomes “sovereign.” “Madam Justice Aarti” becomes “Justice Aarti.”, “Fireman becomes “fire-fighter.” “Common man” becomes “average person.” “Mankind” becomes “humanity.” “Mrs.” and “Miss” becomes “Ms.,” unless the person prefers “Mrs.” Or “Miss.” “Actress” becomes “actor.” “Poetess” becomes “poet.” “Stewardess” becomes “steward”. “Man and wife” becomes “husband and wife” or “man and woman.”

 

Article by-

Swati Bala (4th Year student)

Chanakya National Law University,

Patna

“[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]”

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