Homosexual sex is a crime in India. Again.

What a terrible day. An emerging superpower, home to well over a billion people, taking such an appallingly retrograde step. My thoughts are with the Indian LGBT community.

NDTV reports:

The Supreme Court today said gay sex between consenting adults remains a criminal offence, dealing a severe blow to the largely closeted homosexual community in India.

The top court today said that the Delhi High court’s 2009 order decriminalising homosexuality is constitutionally unsustainable.

Activists say the onus is now on Parliament to legislate on homosexuality and repeal Section 377, a British pre-colonial era law that banned “carnal intercourse against the order of nature”. Conviction carries a fine and a maximum 10-year jail sentence.

Although prosecutions have been rare, gay activists have said that the police used the law to harass and intimidate members of their community.

Don’t Hang the Rapist

A Case Against the Death Penalty for the Perpetrators of the Delhi Gang Rape

The first news story I read this year was about the death of a young Indian woman, whose ashes were being scattered over the Ganges. Two weeks earlier she was imprisoned on a bus, repeatedly raped by six men, brutally beaten and then dumped naked on the side of the road. Though reports suggest there was some hope for her survival, in the end the injuries to her brain and intestines (inflicted when she was violated with a metal bar) were too great to be endured.

Death Penalty Delhi Gang Rape ProtestsI’m sure most people already know the details of that story, but I feel it’s important to dwell on them, horrific as they are. It’s important, as I discussed a few months ago, to recognise the real horrors behind our protective language, to know what rape, gang rape, sexual assault, and sexual harassment really mean. The horror of this case prompted the encouraging protests across India, calling for fast-track courts for sexual crimes, harsher and more consistent punishments for sex offenders and better police services for victims of rape or sexual assault. India, despite being the world’s largest democracy and in the top five world economies, is a terrible place to be a woman.

However, it’s intensely worrying to see that public outrage over the brutality of the attack has also prompted many, including the police and the victims father, to call for the six perpetrators (though one may be exempt due to his age) to be hanged.

The death penalty is wrong, I’ve discussed my reasons for believing that before (read them here). However, in cases of rape, the death penalty is also ineffective and perhaps counterproductive. A lawyer who participated in recent protests said the protest’s goal was for “the laws to be amended in such a stringent way that before a person even thinks of touching a girl, he should feel chills down his spine.”

Killing these six men does not achieve that. Men don’t rape because they think they’ll only be mildly punished, they rape because the overriding likelihood is that they won’t be punished at all. In India, where sexual purity is exalted, women are blamed for their own assault, and girls are coerced into marriages with rapists to protect their honour, a woman faces unthinkable barriers to reporting crime and seeking justice. The society is intensely patriarchal and that’s all the protection that most men need. Even if these six men are executed, across India and across the world husbands will continue to rape their wives, women will still be raped by family members and neighbours and politicians, but their cases won’t be in the headlines and the public won’t bay for blood and their lives will again be silently torn apart. As Samar Halamkar put it in a thought-provoking article:

What we do not speak of is the issue that is at the crux of our dysfunction — the Indian family’s moral decline. Deep hypocrisies lie under this family’s mask; terrible secrets hide behind its culture of religiosity and community spirit. Self-loathing, shame and the fear of being blamed and forever stigmatised prevent millions of girls from speaking out against the sexual abuse they face from predators among friends and family. This is India’s real war against women, its dark, silent night, which perpetuates private atrocities and primes men for their public outrages.

What’s more, if these men are hanged, and it seems quite a likely outcome, certain elements of the society will be sated. hang the rapist delhi gang rapeThe ones who want blood, who want primitive, vengeful justice, who want their women’s honour to be defended, will be able to rest easier. But the women won’t. Across the world we see that violent vigilantism towards sex offenders is a common public response, but it doesn’t actually stop sex offenders and it does not provide solace to victims.

Trying to stem the tide of sexual assault  requires steady systemic change across society. It requires adequate, consistent, respectful justice, not a single smash of the iron fist. It requires education, to instill respect for women and understanding of sexual norms and practices among young men and young women. It requires personal, educational and economic empowerment of women and girls so that they are not trapped in situations of dependency on known rapists, so that they can step out of the repressive practices of traditionalist communities and so they can report and speak out about being survivors. It requires sensitive, thorough police investigations into all sexual crimes and provision of carefully tailored physical and emotional care for the victims of trauma.

The protesters have, of course, been calling for many of this measures but I worry that the dramatic call for a lynching will override those more reasonable demands. The perpetrators will be executed and too many people will be content that the ultimate justice has been delivered and close their eyes once again to the epidemic of gender-based violence in India.