Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory

Abstract

Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory Snmati Basu Because prerogative power appears to its subjects as not just the power to violate but also the power to protect—quintessentially the power of the police—it is quite difficult to challenge from a feminist perspective. The prerogative of the state, whether expressed as the intervention of the police or as incessantly changing criteria for welfare benefits, is often all that stands between women and rape, women and starvation, women and dependence upon brutal mates, in short, women and unattenuated male prerogative. —Wendy Brown, "Finding the Man in the State," 1992 Did we triumph as feminists when rape (on the street, in the dorm, at war) was recognized as violence (and not just a property violation), and states enacted sanctions and protections against rape? For many of us who petitioned and marched to demand remedies against sexual violence, it was a feminist axiom to understand rape as an archetyped mark of patriar chal dominance deeply resistant to legal accountability. Despite problems such as botched prosecutions or shamed silences or the intransigence of law, bringing recognition to sexual violence was indeed a symbolic success. However, the satisfaction of legal remedies is also eclipsed by the problems of their very institution: the decoding and use of these laws in a variety of settings raises questions about meanings of violence and sex, agency, and consent. Although it may be disconcerting to interrogate the terms of the Feminist Studies37, no. 1 (Spring 2011). © 20011 by Srimati Basu 185 186 Srimati Basu fragile protections granted by laws against rape, I do so in this article not in an attempt to undo those gains but to examine the context of rape legisla tion in systems of exchange, property, and marriage. Instead of locating rape legislation primarily under the rubric of sexual violence, I examine its embeddedness in property and marriage regimes within systems of exchange and kinship. In particular, the legal terrain reflects sex as a form of property that allows women access to the material privileges of heteronormative conjugality and constructs reme dies that seek to compensate or restore this order. Thus, protection from the state becomes problematic not only because of the ways in which it inscribes gender in terms of the capital of marriage, but also because the meaning of women's sexual agency is mediated by hegemonic scripts of sexuality validated in legal encounters, both civil and criminal. This creates a dilemma for feminist jurisprudence: the choice between theories that emphasize sexual victimization as central to the construction of femi ninity or those that posit equity as the condition of full citizenship. I set the stage for these questions in a dramatic post-show performance in Kolkata (formerly Calcutta), India, in January 2004. Kolkata police gath ered in the wings of the Academy of Fine Arts, waiting for the play Phataru to end, so that they could arrest actor Rudranil Ghosh on charges of rape brought by fellow-actor Oindrila Chakraborty. The actor gave police the slip that night, but for the next few days the papers were full of references to the alleged rape, and an excited public discussed the mysterious circum stances and the actor's reputation.1 Ghosh and Chakraborty had been romantically involved and cohabiting for a while; at the beginning of their relationship she had been going through a divorce but was now free to marry and had brought the rape case on the grounds that Ghosh refused to marry her despite his earlier willingness to do so. Chakraborty's charge relied on a body of case law where men who had sex with women by falsely promising marriage were deemed guilty of rape based on fraudulent "consent." Ghosh did not challenge the fact that he had promised mar riage but contended that he had rethought the decision over time. I could hardly miss the newspaper headlines related to this case, and it leaked into my fieldwork spaces as well: the Women's Grievance Cell of the Kolkata Police headquarters, one of my fieldwork sites, would have Srimati Basu 187 been the unit to which Ghosh was brought and hence was abuzz with...