16 Aug 2023 11:13 AM GMT
he Supreme Court has released the ‘Handbook on Combating Gender Stereotypes’ on Wednesday. The plan to release this legal glossary of inappropriate gendered terms used in legal discourse – a mission Chief Justice DY Chandrachud admitted to personally undertaking – has been in the works for several years now, although it was announced for the first time earlier this year at a Women’s Day celebration.
This handbook, prepared by a committee headed by Calcutta High Court judge Moushumi Bhattacharya, not only identifies language that promotes gender stereotypes and offered suitable alternatives, but also flags common but incorrect reasoning patterns based on gender stereotypes, particularly those about women; and highlights binding decisions of the Supreme Court that has rejected these stereotypes.
Among other things, the handbook tackles stereotypes about women’s character that have percolated into judicial thinking. These stereotypes could be based on her choice of clothes, sexual past, as well as other factors that have no place in the process of adjudication. The real impact of these assumptions, the handbook states, is that they may also affect how her actions and statements are assessed in judicial proceedings. “Assumptions based on a woman’s character or the clothes she wears diminish the importance of consent in sexual relationships as well as the agency and personhood of women,” the handbook reads.
Some illustrations given in the book are :
Stereotype
Reality
Women who dress in clothes that are not considered to be traditional want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault
The clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. Women are capable of verbally communicating with others and their choice of clothing represents a form of self-expression that is independent of questions of sexual relations. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way.
Women who consume alcohol or smoke cigarettes want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault.
Women, like all other people, may consume alcohol or smoke cigarettes for a variety of reasons including for recreation. The consumption of alcohol or use of tobacco is not an indication of their desire for sexual relations with a man. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by drinking or smoking.
Men who sexually assault or rape women are typically strangers and are not known to the woman.
Very often men sexually assault or rape a woman known to them in some capacity. The woman may be a colleague, employer, employee, neighbour, family member, friend, former or present partner, teacher, or acquaintance.
Women who are sexually assaulted or raped by men cry incessantly and are depressed or suicidal. If a woman’s behaviour does not conform to this mould, she is lying about having been raped.
Different people react differently to traumatic events. For example, the death of a parent may cause one person to cry publicly whereas another person in a similar situation may not exhibit any emotion in public. Similarly, a woman’s reaction to being sexually assaulted or raped by a man may vary based on her individual characteristics. There is no “correct” or “appropriate” way in which a survivor or victim behaves.
Women do not speak to the man who has sexually assaulted or raped them after the incident of sexual assault or rape. If a woman speaks or interacts ‘normally’ with the accused, her complaint of sexual assault or rape is false.
Women are often forced to interact with the men who have sexually assaulted or raped them. This may be because the perpetrator is a family member, an employer, or some other person in a position of authority over the woman. Social circumstances may therefore force the survivor/victim to interact with the perpetrator. Further, survivors/victims of sexual abuse often find it difficult to report the said abuse immediately due to a variety of factors, including a lack of familial support and a fear of repercussions. Thus, interaction with the accused should not lead to a presumption that the complaint is false.
Women who are sexually assaulted or raped by men complain about the injustice immediately. If they complain after a time, they are lying.
It takes courage and strength to report a sexual offence because of the stigma attached to them. The stigma attached to sexual violence makes it difficult for women to disclose the incident to others. Women may therefore register a complaint after a lapse of some time, when she thinks she is able to. Further, as noted above, several other factors such as lack of familial support or fear of repercussions may cause a survivor/victim to delay their reporting.
Dominant caste men do not want to engage in sexual relations with women from oppressed castes. Therefore, any allegation of sexual assault or rape by an oppressed caste woman against a dominant caste man is false.
Rape and sexual violence have long been used as a tool of social control. Dominant caste men have historically used sexual violence as a tool to reinforce and maintain caste hierarchies.
It is not possible for a man to rape a sex worker.
It is possible for a man to rape a sex worker. Sex workers do not consent to engage in sexual relations with any or all men by virtue of their profession. The offence of rape may be made out if the sex worker does not consent for any reason, including for the reason that the man was unwilling to pay her. Sex workers are one of the groups which are most vulnerable to sexual violence.
Able-bodied men do not want to engage in sexual relations with women with disabilities. Therefore, any allegation of sexual assault or rape by a woman with a disability against an able-bodied man is false.
Able-bodied men may sexually assault or rape women with disabilities. The presence of a disability does not mean that there is a lower likelihood of sexual violence. Some women with disabilities which impact their ability to communicate effectively are particularly vulnerable to sexual violence by men.
Rape is a crime which taints the honour of the survivor/victim or her family. If the rapist marries the survivor/victim, her honour is restored.
Rape does not taint the honour of the survivor /victim or her family. The marriage of the rapist to the survivor/victim does not restore honour. Rather, it intensifies the trauma faced by the survivor/victim and encourages the rapist to engage in further violence. Marriage is not a remedy to the violence of rape. Rape is a criminal offence, which cannot be undone by marriage.
Women are very likely to make false allegations of sexual assault or rape.
Women find it difficult to report instances of sexual assault or rape due to the stigma associated with such crimes. Women often do not receive familial support in reporting sexual crimes. It can also be traumatizing for a survivor/ victim to participate in the criminal justice process, which requires her to repeatedly recount the violence she was subjected to in detail, in the presence of strangers who are often male (police officers, lawyers, judges, etc.).Women are also frequently disbelieved when they report sexual violence. A combination of these factors results in women being very reluctant to report sexual violence. It is therefore untrue that women are very likely to make false allegations. Each case must be judged on its merits and assumptions regarding the (dis)honesty of women as a class must not be made.
Women who say “no” to sexual advances are shy and they actually mean to say “yes” and welcome the sexual advances.
Women who say “no” mean “no” and there exists no further ambiguity. Women who wish to welcome sexual advances will communicate their consent using clear language such as the word “yes.” There cannot be a presumption of consent based on a woman’s broader behavioural characteristics.
Men are unable to control their sexual desires.
Men, like all other humans, are in control of all their actions including their sexual desires. Such reasoning discounts the agency of men and then excuses this purported lack of agency.
A woman who has previously had sexual relations cannot be raped because she has “loose morals” or a “loose character.”
A woman who consents to sexual activity with one man does not consent to sexual activity with all men.12 Similarly, a woman who consents to sexual activity with a man at a particular instance does not ipso facto consent to sexual activity with that same man at all other instances. A woman’s character or morals are unrelated to the number of sexual partners she has had. Her sexual history does not define her and must not influence criminal proceedings. Section 53A of the Indian Evidence Act 1872 attempts to combat this very stereotype by prohibiting lawyers from adducing “evidence of the character of the survivor/victim or of such person’s previous sexual experience” where the question of consent is in issue.
Young people follow “western” culture and engage in “casual” sexual relations which increases the likelihood of sexual violence and other harms.
A survivor or victim’s reporting of sexual violence cannot be disregarded, nor does the legal significance of the offending conduct change based on the survivor/victim’s reasons for choosing to engage in sexual relations. What matters is that they chose, and that sexual relations were consensual. Focussing on the survivor or victim’s lifestyle or previous motivations for having sex perpetuates the harmful idea that the survivor/victim is somehow to blame for the violence and reinforces the stigma associated with sexual violence.
“Good” women prefer death rather than being raped by a man.
It is a patriarchal and harmful belief that women should prefer death rather than being raped by a man. Such beliefs may cause survivors/victims to consider suicide because they have been raped by a man.
Indian women behave differently from Western women or women of other countries after a man has sexually assaulted or raped them.
Each woman reacts to sexual violence based on her personality, social circumstances, upbringing, and other factors. It is not possible to categorise the reactions of women to sexual violence based on the country or region from which they hail. There is no “correct” or “appropriate” reaction to being raped and all reactions are equally valid.
Transgender individuals cannot be raped.
Transgender individuals can be raped. In fact, transgender individuals are one of the groups which are most vulnerable to sexual violence because they are stigmatised and face structural discrimination. It is incorrect to assume that all transgender individuals are sex workers who always consent to sexual relations.
If a woman does not scream for help, attack the rapist or if she does not have any injuries on her body such as cuts and scrapes, she has not been raped.
A woman who is facing sexual violence by a man may not be in the position to attack him. Rapists frequently threaten survivors/victims with death and even threaten to kill their family members if they attempt to resist. Moreover, injuries such as cuts and scrapes may not always result even if the woman attempts to resist as the rapist may overpower her.
Chief Justice Chandrachud wrote in the foreword :
In view of our grim reality, the Supreme Court’s attempt to publish a handbook to combat gender stereotypes is a welcome move. The hope is that it will help judges discharge their responsibilities with a greater commitment to the constitutional ethos, the chief justice writes:
In the 2021 judgment in the case Aparna Bhat vs State of Madhya Pradesh, the Supreme Court had issued a set of guidelines to the trial courts to avoid usage of gender stereotypes and patriarchal notions while dealing with sexual violence cases.
The handbook can be read here.