In this issue of In Plainspeak, we interview Madhu Mehra, lawyer and feminist activist. She is a founding member and the Executive Director of Partners for Law in Development (PLD), a legal resource group on women’s rights. Her activism, work, and writings over 29 years cover issues relating to gender, sexuality, identity politics, violence against women, access to justice and the law. She has consistently pushed for decriminalisation of consensual sexuality – homosexuality, adultery, and adolescent sexuality. Madhu is a leading expert on CEDAW, the UN treaty on women’s equality, having written extensively, conducted trainings and provided technical assistance to both civil society and governments. She engages with several UN Human Rights mechanisms and processes to advance implementation of women’s rights, and notably, researched and drafted the review of 15 years of the mandate of the UN Special Rapporteur on Violence Against Women (1994-2009) for the Office of the United Nations High Commissioner for Human Rights (OHCHR). Our sincere thanks to Madhu for taking time out to share her observations, work and experiences on the connections between power and issues of sexuality.
You can read Part 1 of the interview, here.
SA: That is an important piece in understanding the intersections of power and sexuality, thank you Madhu. Your work, indeed that of PLD, is positioned as socio-legal, in terms of its research, publications, and communications. I want to ask, what does this mean and how is this different from legal research for instance or legal literacy?
MM: Socio-legal means that you don’t look at law in isolation of society, but understand law through its relationship with the larger context of social relationships and macro structures that shape our lives and our access to resources. This allows an insight into whether the law addresses social inequalities or reinforces them. For this reason, PLD sets its goals in terms of promoting women’s rights and social justice – with rights involving law, but social justice involving structural change to address social and economic inequalities.
For us therefore, legal literacy is not enough. Instead we prefer the term rights education or feminist approaches to law to convey that a perspective within which law is understood is important to how we use, critique and engage with that law. Our action research on law is also about inquiring into who uses the law, whom does the law benefit, and who does it harm. Sometimes asking these questions, has led us to data that has made us rethink our positions, even existing feminist positions, on a particular law.
For example, around 2003-04 we were categorising cases documented by PLD’s partner organisations providing crisis intervention within communities. As part of this study we identified two remedies women most frequently sought, these being section 125 the Code of Criminal Procedure on maintenance and section 498A Indian Penal Code on cruelty to a married woman. Two aspects which would ordinarily be treated as incidental – jumped at us in this data, to lead us to develop an entirely new study specially around it. The first, that all the cases taken up by crisis intervention organisations concerned married women, or legal wives and the second, that in a large number of cases, the complaint seemed to allude to another woman in the life of the husband. This led us to undertake a study on ‘rights in intimate relationships’ to look at concerns and status of legal protection to women in non-marital conjugalities. This trajectory was possible because we allowed the data to speak to us in all its richness, rather than conclude the first study once our initial questions were answered. We wanted to look at the lives of the ‘other’ women and what their relationship with the law was. If in a patriarchal society all relationships are gendered, then it is likely that the cohabitee or second wife, also suffer the consequences similar to that of a wife, except that she has no legal protection.
It was not just unravelling the law, but also a process of unravelling biases of social workers and organisations who avoid taking up cases of cohabitees/ second wives, perceiving them as home breakers. We mapped concerns relating to four types of non-normative relationships that lack legal recognition – second wives in Himachal, women in nathapratha, a customary practice that involves serial monogamy transacted through bride price in Rajasthan, maitrikarar or friendship contracts in Gujarat, and lesbian and transgender relationships in Kerala. We found that similar anxieties underpin all relationships, exacerbated in these contexts by lack of legal protection. This study led us to question working within the family law framework, which as feminist lawyers we endeavor to improve, because this framework only accords legal protection to ‘wives’ not cohabitees.
SA: In May this year, PLD launched the video series on ‘Conversations about Consent and Rejection: Exploring Faultlines between Friendship, Intimacy, and Harassment’. These videos show their characters processing unspoken expectations in their friendships that lead to assumptions about intimacy and sexual availability of the other. In what ways, if they do at all, would you say these videos raise questions about the ways in which peers construct, understand, use, or abuse power?
MM: These videos seek to focus on the confusions that young people navigate while dealing with attraction and desire. It intentionally steers away from playing out power in conventional ways within the story narratives, focusing instead on silences, boundaries, assumptions – all of which play a role in constructing intimacies in the minds of both or one of the parties.
Yet, when located in a larger arena of the state and society, in which sexuality is stigmatised, and sexual agency of adolescents punished, the power play becomes clear: of a state where being sexual for the young is criminalised, and comprehensive sexuality education denied within schools – the state renders the adolescents and youth exceptionally ill-informed, vulnerable and powerless in navigating sexuality. Through policy design it creates a power imbalance – rather than address it. It is in this scenario, that we must situate young adults navigating attraction and desire in their educational institutions and work places.
This power imbalance that renders youth vulnerable and without support is what we should be seriously concerned about. The videos on consent and rejection are non-judgmental, avoid constructing ‘creeps’ to allow viewers to connect empathetically with confusions that young adults have as they build social capital – at work and in higher education – and navigate desire and attraction. The videos validate desire without shaming or stigmatising, to open conversations for self reflection on how to navigate the terrain better. We hope that they indeed, will be used in this way. Given our societal assumptions about sexuality and attraction that underpin the forms and extent of sexual violence – as well as one’s vulnerability to it – PLD believes that these conversations are a vital part of prevention strategies.
The videos are based on cases documented by PLD in the course of providing technical assistance to implement the law on sexual harassment at the workplace. Of the many categories of cases we documented, these deserve empathy and attention. We intentionally focused on both consent and rejection around which faultlines occur the most. Rejection is the flip side of consent, and unfortunately never gets talked about as an area of work, to help individuals handle it without resorting to harm or revenge. The rejection video of Sonal for instance, brings out not just harm in the aftermath of rejection – but also the abrupt manner in which the breakup occurs. We hope the discussion around these will unpeel the different layers of each story.
On consent, the video of Mary Anne, raises issues of blurred boundaries and ambiguity about intimacies created on social media – which allows each party to make what he/she will of it – leading to denial or assumptions about shared intimacy. The silence of the parties keeps the ambiguity alive – so it is possible to ask if the process of taking/ giving consent, also involves clarifying this ambiguity and communicating where each party stands in relation to what is unfolding between them – as much as asking/confirming before going public about a relationship.
SA: Do you find that as a society we are not raised or prepared to think about issues such as ‘consent’ and ‘rejection’ which are integral to our lives and relationships?
MM: The issue of sexual consent is not isolated from other personal areas of our life. Beyond the issue of ‘sexual consent’ it is important to look at how relevant consent is in our everyday lives. As a society, our roles and responses are shaped by gender, age, status of a daughter, mother, husband, brother, son, worker and so on. In a recent PLD workshop the participants discussed the relevance of consent in caregiving and housework in their lives, only to conclude that these are duty-driven almost, based primarily on gender and age. So while there was some evidence of negotiation, in almost all narratives, the notion of consent did not play a role within intimate family spaces.
The concept of negotiating consent therefore needs to be cultivated and cannot be assumed, and requires more work that just lessons in legal literacy. Particularly in relation to sexuality, where women are constrained by femininity to not articulate desire while men are entitled to act upon their desire, by making the first move. There’s a lot of work to be done within communities to inform/build sex positive culture that affirms sexual desire, and enable women to set the terms of their sexual experiences. Building such agency and supportive environments requires much more work than a legal definition of consent or deterring men with the threat of criminalisation. The consent culture cannot simply come about through law, legal assertions or over-stating the binaries of yes-no, but needs much more work with youth within communities.
SA: Following from this line of thought, would you say there is a strong connection between constructions of power and sexuality education? What are your thoughts and observations around denying, or providing to children, an age appropriate understanding of sexuality through comprehensive sexuality education? What are the power dynamics here between children, parents, families and communities?
MM: The fact that Indian law infantilises people within ages zero to eighteen years, and treats adolescents as having no agency or capacity at all in relation to sexuality, renders them vulnerable to abuse and to be guilt ridden about their desires. There is also a denial of sexuality education and sexual health services to adolescents. As a result, we have created the policy foundations that do not distinguish between positive and negative sexuality. This is contrary to human rights standards that mandate provisioning of age appropriate sexuality education based on the principles of evolving capacities of the child. Beginning with understanding one’s body, distinguishing between bad touch from good touch, sexuality education includes moving on to more advanced information.
I think that the level of power that law makers, opinion builders and stakeholders wield over the more vulnerable and younger people in society is enormous. Yet, these actors have chosen to focus only on building a policy regime of sexual violence, even to the extent of allowing juvenile offenders to be treated as adult accused – without any corresponding effort to build a sex positive culture within which they may exercise agency. How does an adolescent protect herself, or exercise agency responsibly, if they are denied the information and the non-judgmental space to discuss issues intrinsic to their growing years during and after puberty? This denial is a way by which society and the state, both join hands in disempowering the youth in relation to sexuality, which cannot be resolved or addressed through prosecuting sexual offences, or higher convictions or stringent sentencing. It calls for treating sexuality as a necessary area of empowerment and agency development – even to be able to identify and seek assistance to protect oneself against sexual violence.