FemJustice | Gender-Stereotyping and its Contributions to the Vicious Cycle of Sexual Violence: Myths, Facts, and Law
The FemJustice series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work.
“She was wearing a short skirt so she was definitely asking for it”, “They should have avoided walking down this dark street at that time of the night”, “Of course, she was consenting to it, she is a prostitute…”
Myths about sexual violence are countless and contribute to the upholding of a rape culture within society. There is an urgent need for us, as a community, to realise the widespread harm such myths can perpetuate and break the circle of violence.
Society’s perception of sexual violence and the stigmas that perpetuate it
Gender-based violence against women, transsexuals and non-cisgendered persons is a major public health issue worldwide. India is considered to be the most dangerous country for a woman to live in due to sexual violence. 18% of transgender persons in South India have suffered from sexual violence in the past year alone, and globally, half of the transgender community experience sexual violence at some point in their lifetimes.
One of the main factors contributing to the persistence of such violence is gender-stereotyping and more specifically, myths around sexual violence, or “prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists….creating a climate hostile to rape victims”.
These stereotypes are present all around us in our films, TV shows, pornography and ads. Sexual assault is often portrayed solely as physical violence, often involving a stranger and always with little focus on the victims. In some cases, rape scenes even depict the victim as enjoying the forced sex or as lying about their experiences. How these myths are perpetuated in the media is particularly pertinent since marketing professionals are often said to be simply reflecting societal views and perceptions in order for consumers to identify with their media. The representation of women, especially in ads, is therefore extremely worrying and reveals the dangerous myths, biases and stereotypes we hold within our collective consciousness.
These stereotypes are extremely harmful, as they are both the cause and the consequences of structural gender-based violence. One study showed that 30% of the participants were uncertain about the myth that “A woman cannot be raped by someone she previously knew or had sex with.” While almost 35% of participants believed that “Most rapes are carried out by strangers.” Strong sexual desire of guys, drunkenness, and girl’s clothes were reported to be factors that provoke rape by 50%, 40%, and 33% of respondents, respectively.
This articles seeks to address some key myths when it comes to sexual violence, looking at the reality as well as the legal position with respect to a particular myth. Rather than simply stating the myth and the facts side by side, we also go further to explain the existing national or international law around a particular myth to use policy to dismantle some prominent misconceptions.
Dismantling myths about sexual violence with facts and laws
Myth: Survivors who do not fight back or escape, consent to sexual acts.
Fact: Studies indicate that only one third of survivors engage in a form of active physical resistance. The majority, however, develop a tonic immobility syndrome in responding to fear, an actual threat to life and physical restraint during a sexual assault. This ‘‘rape-induced paralysis’’is characterized by the inability to move, to call out, and a feeling of coldness and numbness.
Law: The India Criminal Law (Amendment) Act provides that “a woman who does not physically resist the act of penetration shall not by the reason only of that fact be regarded as consenting to the sexual activity.” This means that the law in India does not require a victim to fight back to prove lack of consent.
Myth: “Unchaste” or sexually active survivors are more likely to have consented to sexual intercourse or to falsify a claim.
Fact: The sexual history of a rape survivor is irrelevant to her credibility. This would lead to the absurd assumption that once someone has voluntarily engaged in sexual intercourse, the consent is implied for any acts to follow. In fact, studies show that sexually experienced persons are less likely to identify non consensual forced sexual intercourse as rape, so they would actually be more reluctant to report.
Law: The 2002 Indian Evidence (Amendment) Act provides that “it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to her general immoral character, or as to her previous sexual experience with any person for proving such consent or the quality of consent”.
Myth: Survivors who report their claim late after the sexual assault are more likely to have fabricated it.
Facts: There are many reasons why a survivor might be reluctant to report an incident of sexual violence. A major obstacle to disclosure can be a close relationship between the perpetrator and the survivor. This is coupled by the potential trauma caused by such an event characterized by memory loss or denial. What is more, the unsupportive atmosphere in police stations, absence of gender-sensitive perspectives in hearing the complaint, and lack of information concerning the judicial process are additional factors that might deter a survivor to report sexual assault.
Law: In the State of Punjab v. Germit Singh and Other case, the Indian Supreme Court stated that: “The courts cannot overlook the fact that in sexual offences, delay in the lodging of the [complaint] can be due to a variety of reasons (…) The finding has taken no account of the nature of the offence in the social context of this country”
Myth: Sexual violence necessarily involves physical force resulting in injury.
Fact: Oftentimes, sexual violence does not involve physical force at all. The perpetrator may have some other form of power over the victim. For example, they may be threatening the victim or have emotional control in a relationship. In such cases, there may not be any physical injury at all. In addition, as mentioned above, a victim does not always fight back and so physical injury is not always likely. What is more, absence of physical injury does not mean the survivor was consenting to sexual acts. In fact, psychological consequences of rape are more common and just as damaging as they often do not have the property of healing. Importantly, in the case of rape, penetration also does not always imply injury to the hymen as its shape and texture are variable. Thus medical examination of intimate parts cannot be a reliable method to prove consent.
Law: The High Court of Rajastan stated that “It would be too much to hold that whenever a prosecutrix is found to have sustained no visible injury in a case of rape, consent on her part should be presumed. It would amount to leaving the unprotected girls at the mercy of the wolves of the society”.
Myth: Sexual violence is only perpetrated by strangers.
Fact: In most cases, offenders are friends or members of the family, well known from the survivor. This is why it is hard to report such incidents as it may disrupt the balance established within a family or community group. This is particularly true concerning children who are under the influence of a member of their family and therefore not even able to identify sexual violence as such.
Law: Very recently, the Delhi High Court clearly stated that the “Trial court has erred in not appreciating that the accused is the father of the prosecutrix and was in a dominating position and keeping in the view the relationship, it would not be abnormal for the prosecutrix not to make a complaint against her own father”.
Myth: Rapists are not entirely responsible for their acts as they cannot control their sexual desire.
Fact: Sexual violence is not a crime of lust and passion that perpetrators cannot control. It is proven that rape is not a sexually motivated crime but rather answers a need to demonstrate power and control over women and non-cisgender persons. It reflects the structural inequalities within society according to which men are superior to their female counterparts, showing masculinity and strength.
Law: This is acknowledged by the Committee on the Elimination of all forms of discrimination against women (CEDAW) which is the international organ of the United Nations in charge of setting international laws and guidelines regarding women’s rights. The General recommendation n°35 provides that “The Committee regards gender-based violence against women to be rooted in gender-related factors such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, the need to assert male control or power, enforce gender roles, or prevent, discourage or punish what is considered to be unacceptable female behaviour.”
Challenges to overcome in tackling sexual violence myths: the example of marital rape
Unfortunately, some misconceptions about sexual violence remain in the Indian legal system. The most important one being that sexual violence does not occur between husband and wife. 60% of married women have suffered from domestic sexual violence in India. Marital rape, is, therefore an incontestable reality. Nevertheless, it is still not criminalised by the Indian legal system.
The Indian penal code clearly states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This creates disparities between non-married women and married women, the latter being left without legal protection against sexual violence. In this instance a myth around sexual violence and gender roles – the idea that a woman is either owned by her husband or owes sex to her husband no matter what – has been embedded into the legal system itself.
Tackling myths to eradicate gender-discriminations: a common responsibility
Perpetuating myths about sexual violence is extremely dangerous. It can deter survivors from reporting their claim, it can influence judges during the trial phase and, more generally, it reinforces the existing patriarchal norms and rape culture. Sexually violent incidents towards women, transsexuals or non-cisgendered persons are symptoms of gender discrimination. Challenging stereotypes is vital in order to ensure survivors’ right to seek justice fairly and, more generally, to eliminate rape culture in order to move towards substantive gender-equality.
We all have a responsibility in this fight against gender-stereotyping. The first step to take is to learn how to identify sexual violence myths and engage in a personal discussion to try and understand why they are harmful. Debates about movies, TV shows or advertisements encouraging misconceptions about perpetrators and survivors is an excellent way to raise awareness about gender-inequality in general. More specifically, listening to the stories of survivors with a gender sensitive lens can start to create a new approach to understanding gender-based violence. In addition to personal action, we require policy level shifts including law reform to truly embed a more gender-equitable approach to gender-based violence into our legal and socio-culture psyche.
We are playing our role in this through our work at the FemJustice Legal Centre. To find our more or get involved visit http://onefuturecollective.org/femjustice-legal-centre/
Maelle Noir is a Research Associate with the Feminist Justice Vertical at One Future Collective.