Abstract
Since December 2012, it seems that everyone wants to talk about rape as an index of worsening times, a call for stentorian State attention, a warning to further protect women. Alongside, we hear a popular thread (the likes of Akhilesh Yadav, only the most extreme of its proponents) that rape charges are extreme, spurious, motivated by the desire for money, revenge or political advantage. These latter claims often rely on National Crime Records Bureau statistics that while reported cases have vastly increased, only about 20 per cent of chargesheeted cases end in convictions; the gap is interpreted to call 80 per cent cases ‘false’ by conflating non-convictions, unprovable cases and (the much smaller figure of) made-up charges. Pratiksha Baxi’s book offers a meticulous genealogy challenging such discourses, explicating why rape prosecutions pervasively fail despite the roaring of the State.
‘Falsity’, we should become convinced, is constitutive of rape law—police procedure, forensic investigation, scrutiny of testimony and legal reasoning operate through narratives of doubt, rather than framing responses through emotional or material support to survivors. Rape trials are ‘public secrets’, in Michael Taussig’s sense of ‘that which is generally known, but cannot be articulated…. Knowing is essential to its power, equal to its denial’ (p. xxiii): trials are not elaborate conspiracies hidden from public view, but produce failure in plain sight, in their very ordinary use of documents, evidence and testimony. Such technicalities may be characterised as ‘jurispathic’ in their tendency to valourise processes over moral concerns, to ‘hollow out state law of its normative content’ (p. 350). The difficulty of proving caste-based hatred based on utterance, or indeed caste identity through certification, in order to obtain a conviction under the Prevention of Atrocities Act (1989) even among well-disposed judges, is an illustrative example (chapter 6).
This is a very erudite, evocatively argued book located at the intersection of the jurisprudence of law, feminist legal theory, studies of sexual violence and analyses of discourse. Its theoretical skill lies in interweaving the concerns of each of these fields and bringing them into conversation with each other, to demonstrate the ways in which everyday adjudication foils the grand ambitions of law and feminism. Detailed, lucid narratives of appellate case law on various aspects of sexual violence provide a reminder both of horrific histories and the frames through which they have been read (chapter 1 traces the broader arc of Indian case law while later chapters feature topically relevant overviews).
The exceptional contributions of the book lie in highlighting the role of ethnography to diagnose gaps, failures and excesses in law. We become aware of ineffable moments in courts and corridors and labs and offices which shape jurisprudence: the child who cannot tell time but must meet the testimonial requirements of accounting for temporality in her rape (chapter 3); the ‘hostile witness’ in a ‘compromise’ solution who must deny her own narrative of violence in order to preserve the dignity of natal and affinal kin (chapter 4); the woman who cannot narrate her own experience of love in law but is charged instead by her natal family as a co-conspirator to her own abduction and rape (chapter 5); the psychologist who uses ‘relaxation methods and audio-stimuli’ (p. 100) to help rape accused fantasise and ejaculate in order to collect semen samples for evidence (chapter 2); the Dalit father who resists compromise attempts and bears witness to the ways in which police delays, report-writing techniques and cash demands deliberately vitiate his daughter’s case (chapter 6); the defence lawyer triumphant that he scared a rape victim enough to ensure she never returned to court (Introduction). Public Secrets reminds us that testimony and evidence are constructed through the messiness of comportment and affect, obligations and exchange.
How do we know when a rape survivor is telling the truth? Are there any better techniques than taking them at their word? Is there a way to read the woman’s body against her speech, to use Veena Das’s evocative phrase? Baxi traces the ways in which medical textbooks from the colonial classic by Chevers to Indian versions from 1922 to 2002 are grounded in colonial suspicion of ‘natives’, especially women (chapter 2). But when, in an incredible smoking gun moment, a lawyer takes Pratiksha aside to patiently explain why ‘a woman can’t really be raped’, relying on the cultural construction of the vagina based on a combination of social, moral and biological logic, rendered in pornographic mimesis (p. xxxix, Introduction), we graphically understand the power of medical jurisprudence to put forth an ethnosexology of behaviour and morality.
Baxi’s analysis scales up from everyday encounters in Ahmedabad courts to broader readings of appellate cases to the stark mass violence affecting in Khairlanji (chapter 6) and Bilkis Bano in Gujarat (Conclusion). It becomes manifestly evident that these latter cases are not represented as exceptional violence, not only because they are quotidian deployments of caste and religious hegemonic power, but also because they are litigated through the ‘ordinary’ discourse of rape trials. Despite the grossly sadistic slaughters and rapes, they are presented through ideas of uncontrolled lust of perpetrators rather than violence; of depicting the rape survivor’s body, life and love as cause for doubt; in the deliberate vitiation of First Information Report (FIR) and forensic protocols to shield the accused. The onus falls upon destitute people with few support systems to pursue justice despite formidable discouragement.
Baxi suggests that feminist ethnographers too are complicit in probing about bodies and feelings, similar to forensic techniques which ‘must mimetically do to a woman what the particularized aggressor did’ (p. 348) in order to establish its particular version of truth. As this riveting investigation of the life of the law shows, however, ethnography also destabilises and exposes the processes of legal knowledge production. It helps us understand the dynamic, though fraught, relationship between law, feminist advocacy, judicial activism and elusive justice.