Can Retributive Justice Ever Fully Account For The Heinous Act Of Rape?

Can Retributive Justice Ever Fully Account For The Heinous Act Of Rape?

by Mallika Nawal - Friday, June 30, 2017 08:25 PM IST
Can Retributive Justice Ever Fully Account For The Heinous Act Of Rape?Indians protest against rape laws (Daniel Berehulak/Getty Images)
  • Patriarchy – and the lawmakers, who are mostly men – has failed to understand what rape does to a woman’s body, mind and soul.

“I just want to sleep. A coma would be nice. Or amnesia. Anything, just to get rid of this, these thoughts, whispers in my mind. Did he rape my head, too?” … “unspeaks” Melinda Sordino, the raped and traumatised young teen character from Laurie Halse Anderson’s bestselling novel, Speak.

I know that I will be asked the inevitable question (as female writers have been asked on innumerable occasions when broaching this sensitive topic): “Have you ever been raped?” Well, my answer will simply have to be… “No”! NO, I have not been raped (at least not in the legal sense of the term as legal and medical practitioners define it). But then, if I am not a victim (or a criminologist or a medical doctor or a lawmaker), who the hell am I to write about rape?

The answer to that inevitable question is this: “I am someone who knows just how vulnerable she can be—a defenceless prey to a merciless predator!—if he so chooses.” A realisation that hit me a few days back.

You see, one of the perks of my job include having a chauffeur-driven car, to ferry me to office and back, something that my parents share rather smugly with anyone who’d lend them their ears. Of course, while the perk does not change, the chauffeurs usually do.

When an untoward incident in the office (where words and blows were exchanged between my chauffeur and a colleague) left my driver with a bruised hand and me with a new driver, I did not give it a second thought; after all, in a volatile labour market, drivers come and go; but what I didn’t realise was that this new driver was going to make me much more than just uncomfortable…

To say that there was something off about him would be an understatement. For some inexplicable reason, I was filled with a strange dread. You may call it whatever you want – sixth sense, a foreboding sense of doom, or just my plain idiosyncratic delusion, but it was the first time (in a really, really long time) when I realised that I was just a woman – hapless and helpless. I was so petrified of the man that I practically begged my beau to join me for the ride, just so that the driver didn’t take me for a ride instead. A realisation that I found extremely unnerving.

After all (and if you have read my regular columns), you know I pride myself on being a strong, independent and assertive woman – someone who doesn’t cower to external forces and is always ready to speak her mind. And yet, something happened that made me stop and think. Even as the car rode along (with my man holding my hand, reassuringly), I couldn’t help but wonder. This “so-called” strength of mine was solely intellectual. How could intellectual strength ever supersede physical strength? How did I – after all my years of fortitude – become ill-fated to actually become the damsel in distress?

Even as I struggled to regain my lost sense of self – after having the management replace the disconcerting driver – the news channels delivered a fatal blow to my self again. The news of another woman, who had been savagely brutalised by yet another beast(s)! Which is what made me put pen to paper.

What is it about a woman that a man takes when he forcibly rapes her, against her will? After all, for as long as man remembers, he has raped and plundered… and plundered and raped. (Note: admittedly, while rape – even though it does exist! – is still a rarity among actual animals.)

Truth be told, rape is not just sexual violence. It is a permanent desecration of the victim’s mind, body and soul. Hence, it is not surprising to note that Susan Brownmiller, the first author to have penned the history of rape in her monumental book, Against Our Will, wrote: “Man’s discovery that his genitalia could serve as a weapon to generate fear must rank as one of the most important discoveries of prehistoric times, along with the use of fire and the first crude stone axe. From prehistoric times to the present, I believe, rape has played a critical function. It is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.”

Thus, as clichéd as it sounds, rape, therefore, is nothing but a repulsive and repugnant remnant of patriarchy. A social order where women, for all intents and purposes, are second-grade citizens. Even if we look at the rape narrative from a legal perspective, most cultures and societies have viewed rape as a crime against the man of the house.

In fact, as stated in the Bible (Deuteronomy 22:28), “If a man finds a girl who is a virgin, who is not engaged, and seizes her and lies with her and they are discovered, then the man who lay with her shall give to the girl’s father fifty shekels of silver, and she shall become his wife because he has violated her; he cannot divorce her all his days.” And so were drafted the laws of the land – to bend to patriarchal whims. If in case you don’t believe me, look up Section 497 of the Indian Penal Code (Adultery), which treats the wife as the property of her husband.

Thus, patriarchy (and the lawmakers, who are mostly men) have failed to understand what rape does to a woman. And just in case you wish to argue that the justice system delivered justice to Nirbhaya (or Jyoti Singh, as her real name was, not a media-concocted honorific), by upholding the death sentence for the accused, consider this: they awarded the death penalty simply because she “died”, not because she was “raped”. Else, Bilkis Bano’s rapists would have met the same fate! (Note: It is keeping in line with the jurisprudential concept of lex talionis: an eye for an eye or the law of retaliation.)

While capital punishment may seem like a befitting blow to the animals, somehow it does not seem enough. After all, the principle of retributive justice promises to make the person suffer (in equal measure) for the suffering he caused.

Of course, when it comes to retribution (in the case of rape), the patriarchal mindset is a dangerous space. Just as death begets death, it believes that rape should beget rape too. Unfortunately, the discussion seldom calls for rape for the rapists, instead calling out (like animals) for the rape of the criminal’s mother, wife or sister. In other words, as the patriarchists believe, for a woman suffering at the hands of a man, the punishment must be meted out to another woman. Which is why I said, rape is strangely patriarchical. After all, women – simply by virtue of their biology! – cannot partake in retributive justice against the man.

Or as Susan Brownmiller writes: “From the humblest beginnings of the social order on a primitive system of retaliatory force—woman was unequal before the law. By anatomical fiat—the inescapable construction of their genital organs—the human male was a natural predator and the human female served as his natural prey. Not only might the female be subjected at will to a thoroughly detestable physical conquest from which there could be no retaliation in kind—a rape for a rape—but the consequences of such a brutal struggle might be death or injury, not to mention impregnation and the birth of a dependent child.”

But if the death penalty does not serve the principles of retributive justice, what would? To be honest, the only answer that I can think of is castration. After all, unlike the animals (and their estrous cycle), for a human being, sex lies in the head. Thus, when a man rapes a woman, he f***s her mind. Maybe it’s time, we f***ed his too.

And just in case you are still wondering why I was compelled to write this article – the honest answer is, I just don’t want to be the next victim.

Also Read: Thank You, Minister, For Reminding Me It’s My Fault

Mallika Nawal is a professor-cum-author, about to complete her doctorate in marketing from IIT Kharagpur. She is the author of three management books which serve as prescribed textbooks in several universities across India. She has taught at premier institutes like IIT Kharagpur, and S. P. Jain Centre of Management, Dubai.
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