Social Relations and Sexual Assault

Yesterday a scholar came from the University of Massachusetts-Amherst to speak on her research work on sex workers of Bombay. Her main concern is that most legal and policy discourses do not take into account the differences in terms they use and the terms the sex workers use. For example, a daily wage laborer who may have been engaging in sex work as well would use the term majburi to describe her undesirable circumstances. A Dalit man Muku also used the same word majburi for moving after a drought in his Maharastrian village. This term is best translated as having to do something under constraint, but even that for the scholar is unsatisfactory and disempowering. Policymakers would usually use the words like "forced" for majburi, e.g., someone was forced to engage in sex work. She finds that this translation reduces the legitimacy of their means of liveligood, which includes sex work. She also finds issue with the liberal paradigm of sex as individual expression and, rather than something socially mediated. She also proposed that there is a strong overlap of sexual labor and daily wage labor for these lower-classed, lower-caste people. She brings up the issue of caste, such as hijras are not only a community seen in a sexually charged manner, but also through caste lenses; but I found the caste issue to have been more of an auxiliary to the talk as a whole. I would have been more keen on understanding how caste is reflected in such an urban sexual economy. The talk garnered a lot of attention and much discussion. Most questions were thinking about how one could link the ethnography with the center questions. I also asked a question about how to think about these undisciplined sexualities in general, since intercaste marriages in India are also punished for breaching the dominant regulation of a casteist sexual economy. I did not get a satisfactory answer.

This post will be discussing another incident related to the idea of ambiguity and sexual relations bounded by social processes. I was exchanging in Delhi at Jawaharlal Nehru University in 2015. I befriended A.S. at the Brahmaputra Hostel, where I went to eat most of the time. Like most people staying at this Hostel, he was a PhD student. Towards the end of the semester, I had the opportunity to travel with him to Gwalior. We stayed overnight in separate accommodations. It was a nice trip overall, with some hiccups in between. We had to wait for several hours due to some planning errors outside of the Gwalior Fort. During this time he mentioned to me about a Lucknow girl who he claimed to be madly in love with. He said that she did not love him as much. We even had beers in a restaurant, which is rather unusual given the relatively conservative environment of the city. At the train station, I bought the memoir Lucknow Boy written by Vinod Mehta, while A.S. continued to reminisce about “his” Lucknow girl. We also played the game of Antakshari (a South Asian spoken parlor game played with song verses) while waiting in the train station. We arrived in Delhi around 5AM, and it was relatively cold. He suggested for me to stay at his hostel for some time, but I refused. We remained on good terms afterwards. I also hosted my birthday party in December in his room, in which he was invited. After the party, he expressed interest in one of my friends who attended as well, to which I downplayed since I thought they would probably not be suitable as a couple. 

A month later I finished my semester. He helped me handle some of my luggage on the last day before I returned to Germany in 2016. He received the opportunity to exchange on scholarship in an Eastern European country, and left for said country in March, but we did not meet. 

Last year, September 27th, I was in the U.S. and recounted the memories of traveling in Gwalior to another friend of mine on Wechat. Then coincidentally, some news about A.S. popped up on my facebook timeline. It was a link reporting sexual assault charges against him. The victim said that he promised he would marry her, which he did not. I automatically assumed that this was the Lucknow girl he used to speak so often about (I was wrong. I searched for this news again today, which has been either cleaned from Google or swamped by other more controversial cases of sexual assault that have since been unfolding. But I did manage to find a link to a news report and in that report, it is said that this girl studied at Delhi University. Only then did I realize I had wrongly assumed the identity of the victim for the nine months.). An Eastern European friend of A.S. had shared the link and defended A.S. against the news. The friend personally vouched that A.S. is a good person and would never do such a thing. This was during the time when JNU had experienced much attack from a biased news media, so I was very skeptical of this report and defensive as well. I discussed this issue with my mom in the same manner and stressed that perhaps it was because of his changed circumstances that severely affected his relation with the Lucknow girl, and this claim was being subsequently being made against him.

My mom thought that such incidents often happen under an environment where people become upward mobile in a short period of time. According to her analysis, the woman would want to share some glory with the successful man who had the ability to go abroad. When she does not get what she wants, she resorts to claims of sexual assault or rape. My mother thought that when it comes down to cases of sexual assault, it is a game of he-said, she-said: the outcome largely depends on the clout of each party involved. If the man has more social and legal resources, then the girl would usually “lose,” regardless of what actually happened. 

The matter stayed in my mind for some time and I gradually forgot about it. When I visited JNU again this year in March, I was again confronted with more details about this case. I met up with Sardarji, who is an affable and popular guard at the university and a true friend of mine. He had met A.S. on two separate occasions with me as well. A.S. and I were once invited to eat handmade makki ki roti (unleavened Punjabi bread made from corn flour) at Sardarji’s home across the road from the University. We had a really good time eating and talking about how the University is often a social force of its own that defends its turf against the other corrupt and elite groups of Delhi, including those that have ties with the state. The other time was when Sardarji attended the birthday party hosted in A.S.’s room.



When Sardarji and I met, I felt like there was much to discuss since we do not have very good ways of communication when we are in different countries. We spoke in Hindi. I prefer to talk in Hindu with someone in person rather than on the phone, because there would be more visual cues for me to understand. Sardarji thought that the case of A.S. was one of the important things to be discussed with me, since we were friends. He asked me if I knew about the case. I said yes, I had read about it, and I was very shocked about the situation. He said he was shocked as well, since A.S. seemed to have been such an innocent boy (sada). We both agreed that A.S. seemed innocent. Sardarji gave me more details which he witnessed on the night of the police raid after the FIR was filed: the policemen stormed Brahmaputra hostel and one even slapped A.S. The moral accusations hurled at A.S. that night by various agents of the law seemed to be more emotionally charged than the actual “crime”: he was married at home and was having relations with more than one girl who were not his wife. Sardarji also seemed to be more appalled by the promiscuity rather than the rape. It is very ironic that the last time all three of us bonded, Sardarji, A.S. and I were discussing about the acts that rebelled against the state (in Hindi): JNU students had been defending one JNU female student who had been harassed by a Delhi elite who was the son of some politician. The police came to arrest students and it was a total chaotic clash. This time, for Sardarji, the police now represented moral authority that rightly punished the philanderer. I listened with awe to both cases, since 1) I did not witness or could not have read about it anywhere and 2) my language capabilities restricted me from posing questions that would generate more nuanced details. Sardarji and I talked perhaps for 40 minutes and this case was the most prominent theme.  We said goodbye and I left the campus.
Through facebook, A.S. also learned that I was in Delhi and reached out on facebook to meet up.  I did not know how to make about the whole situation and I did not reply.

Today, I was reading Nivedita Menon’s book Recovering Subversion and the chapter on rape was particularly thought-provoking. “Law’s claim to truth is based on a binary logic which sets up oppositions like truth/untruth, guilt/innocence, consent/non-consent. This binary logic, [Carol Smart] argues, is completely inappropriate to what she calls the ‘ambiguity of rape.’ In criminal law the object is to establish guilt or innocence, and in rape cases, the establishing of either, turns on another pair of opposites: that of consent/non-consent.

The dualism of consent/non-consent is “completely irrelevant to women’s experience of sex. Neither begins to approach the complexity of a woman’s position when she is being sexually propositioned or abused… (T)he ‘telling’ of a story of rape or abuse inevitably reveals ambiguities. Hence a woman may agree to a certain amount of intimacy but not to sexual intercourse. In the legal model however, consent to the former is consent to full intercourse… (I)n legal terms submission fits on the consent side of the dichotomy. The only alternative when non-consent is not established is to presume consent.” (p123)

This story came up again in my mind and I decided to write down what I have learned so far. How to think about an anthropology of sexual assault or sex work that does not fall into the binaries of consent/non-consent or agency and oppression?

India's Search for Progressive Law

Sandipto Dasgupta, Columbia PhD of political science, gave a thought-provoking and lively talk on the Indian Constitution at my department this month. It was part of his long-term book project Legalizing the Revolution. He uses the important concept that critiques how legalism imposes linguistic constraints on the outcome, and thus makes law always backward-looking: precedence necessitates future decisions. Yet he argues that the Indian Constitution has a potential to become a more revolutionary document than other existing ones. It embodies transformative constitutionalism, termed by K. Klare in a 1998 essay, characterized as legally-driven empowerment and change. In South Africa, for example, readings of the Constitution focuses on issues such as "multiculturalism, close attention to gender and sexual identity, emphasis on participation and governmental transparency, environmentalism and the extension of democratic credentials into the ‘private sphere’."They are in contrast with contractual constitutionalism like the American and French Constitution, which has checks and balances as well as judicial review that prevents it from later turmoil. 

Land reform is one of the most important example regarding the Indian constitution's progressive status and interpretation. Dasgupta argues that this precedent made the later judicial activism through public interest litigation regarding environmental issues in the 1980s possible. Land reform was accepted as an important process to be implemented by the Congress Party when they come to power: on the one hand for the purpose of creative an equitable society in response to peasant movements, and on the other hand, for removing less productive feudal structures as part of the Modernization project.

Congress leaders also agreed that it should be compensative land reform, in which landowners would be compensated. Lawyers faced the problem of how to use it to implement the compensation: How much should the law compensate for land reform? The process is complex and one cannot tie it to one term because contexts vary. There was a consensus among the legal writers that there should be no qualifiers for “compensation” and that the local judiciary representatives should decide. There should have some coherent principle followed throughout the process, but it does not have to be good or just.

One example Dasgupta provided was the Bela Banerjee case. Her land was taken to resettle Partition refugees in Bengal in 1950. Yet Mrs. Banerjee only got compensation from the 1946 price, which has increased since. The Supreme Court declared that this act was unconstitutional because the word “compensation” implies just equivalence and should correspond with market value. I could not help but notice how this process was so much more calculated and technical than the impromptu tribunals in China's land reform that not only took away landowners land, but also in some cases executed them.

Dasgupta notes that this reform was not based on the notion that everyone has natural rights to property. My issue with this framework is the lack of foundation. If rights, such as right to land, are not absolute, the interpretation of them can go in many directions. The interpretive law can fall back on "Hindu" or "Islamic" custom like the British rulers, or it could be used for a progressive goal like land reform. This is the classic problem regarding constitutionalism in the U.S.: Interpretation v. Original Intent. I am not familiar with common law and the British probably have a different understanding based on their law; for example, while the U.S. Supreme Court may legalize gay marriage under the 14th amendment, the British law could have the same outcome with different legal reasoning. Yet I still think that one should have to have a clearer idea of what the ideology is when arguing for a progressive Indian constitution. 

Jawaharlal Nehru thought that writing better text could could help the political mandate of post-independence social justice and bypass conservative roadblocks, yet both Nehru and Dasgupta notes that the class status of lawyers was another issue new legal language could not bypass. Dasgupta quotes Nehru, the Indian constitution "has been purloined by lawyers." The parliament wanted to use legalistic language to mediate the process, but the parliament also has to cede the interpretation powers to lawyers or expert committees. Dasgupta is acutely aware of the question of interpretation under constitutionalism, and I look forward to reading analyses of central themes in Indian legal interpretation, perhaps with more case studies.

Law as Ideology

South Asian history really helps one understand the underlying factors shaping facets of life other social scientists take for granted. Our history class studied law in colonial South Asia for the first two weeks of the new spring semester. Prof. Ahuja provided the following insightful commentary. These avenues of historiography are incredibly ambitious and challenging. I have yet to fathom if one day I can accomplish work to this extent. The late C.A. Bayly's first two books supposedly took 12 years. I must be patient on the way.

There are four different attempts for assessing law in colonial India (South Asia). First, the British created a new law that was unrelated to previous practice. The British authority's sometimes halfhearted, sometimes full-hearted attempt to "solve" the issue of sati is one example.

The second approach shows a clash of legal cultures in which a dominant structure imposed by the British reinvents older structures. Bernard Cohn's Colonialism and its forms of Knowledge shows & critiques Orientalist William Jones' efforts to remove "accretions of bad practice," find the proper Indian practice, and compose a Roman counterpart of "Hindu law." 

The third approach is the subaltern one which argues that colonial dominance did not "stick" onto Indian society. As a consequence, colonial law was not accepted by the locals and had no legitimacy. 

The fourth approach, mostly consisted of historians from Cambridge, attempts to look at Indian society as the basis of colonial power but also with Indian actors who have agency. Radhika Singha's A Despotism of Law falls under this category. Lauren Benton also shows how Indian subjects use the law to further their own interests in Colonial Law and  Cultural  Difference. Lawmaking should be understood as a “cultural enterprise,” and the state is just one of the actors in a social field. Law is a form of ideology; dissecting it shows the interplay between ruling powers and dissent. For example, penal law was linked to ideology and the consolidation of British authority. The British actors had an interest in centralizing the faujdari courts, which did not have clearly designated jurisdictions before. Zamindars shared power with other Kshatriya clans in governing an area and had overlapping regions of authority. This was the case in most early modern societies: ruling power worked with contractors that raised revenue and run jails. When colonial power enters, it sees venality everywhere and critiques it. The colonial power's need for militarization motivates the process of bureaucratization and centralization, but also the moral urge to weed out "venality."

According to Prof. Ahuja, whenever there is a lot of "corruption" or nonviolent but notorious and "immoral" legal misconduct, it usually is hiding a) historical change; b) class formation; c) clash of interest and ethical norms. There is a change in legal thought when the British tried to stop the practice of Blood Money, in a murderer is punished through compensating the victim's family. The British saw murder as a public offense rather than just a problem between two interest parties. The standard for "valid evidence" also changes under British rule. But the previous practices are not totally eradicated. It is like animal-hide paper, which is written over again and again. The text written previously is still visible, albeit hard to distinguish. As a result, India's law is a complex structure shaped by diverse regional actors and imperial cultures. In conclusion: "Law presents itself as generalized ethical ideas that seem universal and timeless. But one should look at varying social forces and dig for [law's] historical roots."

Old Court House and Writers Buildings in Calcutta by Thomas Daniell, 1786. © British Library Board.