By Poulami Roychowdhury
In a context like India, where law enforcement personnel are both perpetrators of sexual violence and have limited capacities to enforce legal rights, what should we actually do to counter rape? At the risk of resolving the practical dilemma with a call for academic inquiry, that is exactly what I am about to propose. Before devising more policies and interventions, we need more data and we need better data. The need for data gathering becomes self evident when we examine existing organizational efforts.
Transforming “rape culture” has become an increasingly popular strategy in the aftermath of the Delhi gang rape of 2012. This approach is visible in media commentary about India’s “traditional” culture, satirical videos such as Rape: It’s Your Fault, and awareness building campaigns, such as Breakthrough’s efforts to “make violence against women unacceptable.” I have discussed elsewhere why the cultural turn in organizational efforts is dangerous in post-colonial, developing countries (Roychowdhury 2013). To summarize one of the main issues, cultural interventions are based on a number of assumptions that are tenuously linked to empirical data. These assumptions include the idea that sexual violence occurs because it is culturally “acceptable” and that certain cultures are more violent than others. The limited survey data we have available indicates, however, that on average, Indian women are less vulnerable to sexual violence than women in other countries. According to the Demographic Household Survey, 9% of Indian women have experienced violence versus 18.3% of American women (NFHS 2006). But to what extent these numbers emerge from “cultural” differences largely resides on guesswork.
Women’s rights activists within India have embraced a second strategy against sexual violence: legal reform. The latest Criminal Law (Amendment) Act of 2013 expanded existing definitions of rape, instituted “fast track” courts for rape cases, and increased punishments. Revising legal codes is of course necessary because survivors have no hope of attaining legal redress if the law does not promise it in the first place. Legal reforms can also enable social change by promoting “bargaining in the shadow of the law” (Mnookin and Kornhauser 1978) and enabling extra-legal gains (Roychowdhury 2015). Despite these potentials, a problem remains with the underlying assumption that legal reforms enable access to justice. In actuality, we have very little aggregate data on the relationship between laws on the books, legality on the ground, and gender inequality. We also have little evidence that institutional reforms, such as “fast track” courts, speed up case processing or enable victim-friendly judgments. Creating special courts and increasing the number of judges have, after all, formed the main policy responses to popular complaints for at least fifteen years (Krishnaswamy et al. 2014).
To better understand if and how cultural interventions and legal reforms can mitigate vulnerability and enable redress, we need to know more about the problem we are tackling. While the need for better data is acute in India because existing data sources are limited, this is by no means an India-specific intervention. Rape statistics in the United States, for example, are notoriously unreliable with different organizations and interest groups promoting radically different understandings of the problem. To move forward, we need intersectional data on the social basis of risk: how class, race, gender, sexuality, caste and other social indicators make certain kinds of people more or less vulnerable to sexual violence. And we need a sense of how social inequality relates to cultural norms, if at all. Second, we need data on criminal justice institutions and legal outcomes: if and how procedural changes, institutional reforms, and revised statutes inform case processing, sentencing, and enforcement. Without a better sense of these relationships, further action might waste time, energy, and be counter-productive.
 The Criminal Law (Amendment) Act 2013 can be criticized in its own right for introducing capital punishment, retaining the marital rape exemption, and failing to recognize sexual violence against men, boys, and third sex individuals.
Krishnaswamy, Sudhir, Sindhu Sivakumar and Sishir Bail. 2014. Legal and Judicial Reform in India: A Call for Systemic and Empirical Approaches. Journal of National Law University Delhi 2(1):1-30.
Mnookin, Robert and Lewis Kornhauser. 1978. Bargaining in the shadow of the law: The case of divorce. Yale Law Journal 88(950-997.
Roychowdhury, Poulami. 2013. The Delhi gang Rrape: The making of international causes. Feminist Studies 39(1):282-292.
—. 2015. Victims to Saviors: Governmentality and the regendering of citizenship in India. Gender & Society 29(6):792-816.