Man-Made Laws and Feminine
Feelings: A ‘Lesbian’ Encounter with the Law in Sri Lanka
--
Yasmin Tambiah
The use
of law to regulate arenas of sexuality and sexual speech is
as familiar a phenomenon in South Asia as it is elsewhere. The
law is a discursive site where particular kinds of sexual acts
are established as permissible, consequently determining who
is deserving of legitimacy as a sexual actor and therefore protection
by the state. These moves of permission and legitimacy are made
possible because the law simultaneously prohibits certain other
acts regardless of the nature of consent of the actors involved.
It outlaws select actors, especially those perceived to be constituted
through participation in such prohibited acts. The law is thereby
implicated in the construction of sexual personae or identities,
both normative and dissident. In examining the processes by
which laws are made, interpreted and implemented, it becomes
clear that they are intimately linked with, and reflect, other
social and political fictions and constructs. That is to say,
the law is not ‘neutral’, either in its articulation or impact.
Nor, contrary to its intentions, does it completely circumscribe,
define or fix a subject or her/his actions. Its partial nature
therefore leaves open spaces, discursive and otherwise, that
may serve sexually subversive intentions.
The process by which elements of the Sri Lankan Penal Code that dealt
with sexual acts, consensual and nonconsensual, came to be amended in 1995
exemplifies how social concerns and anxieties (re)form sexual behaviours and
actors in the legal domain. Using this law as a point of entry, and an incident
reported in the press in 1998, I want to look at how women deemed lesbians
are ‘talked about’ in Sri Lanka, and the implications for women who desire
other women outside the projections of compliance with heteronormativity.
The sections in the Penal Code relevant to this investigation fall
under the rubric of ‘unnatural offences’. Section 365 of the Penal Code states:
‘Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment
of either description [i.e. simple or rigorous] for a term which may extend to ten years, and shall
also be liable to a fine.’
Until the end of 1995,
its subsection, 365a, stated the following:
‘Any male person, who in public or private, commits, or is party to
the commission of, or procures
or attempts to procure the commission by any male person of, any act of gross
indecency with another male person, shall
be guilty of an offence, and shall be punished
with imprisonment of either description for a term which may extend
to two years or with fine, or with
both, and shall also be liable to be punished with whipping.’
In 1995, parliamentarians
approved of an amendment that, in the first instance (section 365) increased the
penalty to rigorous imprisonment between ten and twenty years if the offence
was committed by a person over eighteen years on someone under sixteen. In
the second instance (365a), that of gross indecency, ‘any male person’ became
‘person’, and the same penalty, as for 365, if one person was over eighteen
and the other below sixteen was added, along with a provision for compensation
to be determined by the court and payable to the person under sixteen.
A new section, 365b, also appeared. 365b addresses grave sexual abuse
defined as ‘committed by a person who, for sexual gratification, does any
act by the use of his genitals or any other part of the human body or any
instrument on any orifice of any other person, being an act which does not
amount to rape under section 363’. It is applicable in situations where there
is no consent or consent is deemed to have been obtained through coercion
or in circumstances of poor judgment. The general penalty is rigorous imprisonment
between seven and twenty years, and ten to twenty years if the victim is under
eighteen. In 1998, this was amended to include an additional section that,
in effect, put in place ‘statutory gross indecency’, where the law was to
be applied even if a person under sixteen had given her/his consent. In addition, in 1995, while there were changes made to
the laws on rape, and incest was criminalized for the first time, a proposal
to criminalize marital rape was severely attenuated.
The background to the Penal Code amendments is very much couched in
permissible and prohibited sexual encounters. They were spurred by concerns
of increasingly reported instances of child sexual abuse, highlighted in the
early 1990s. Most notably, the motivating issue became the sexual exploitation
of boy children by foreign/white men, linked therefore with tourism, a
primary source of national income that has had a roller-coaster history for
the duration of the interethnic civil war. While this focus on boy children
violated by male ‘outsiders’ glossed over the long-standing systemic abuse
of girl children by male ‘insiders’, especially in home/domesticated spaces,
the Technical Committee constituted to draw up recommendations for legal amendments
had at least one prominent feminist legal scholar who utilized the occasion
to review laws that had an impact on both women and girls. The Committee in
general consisted of a mixed group of practicing lawyers, legal scholars,
police representatives, representatives of relevant government ministries,
and children’s protection advocates, who nonetheless came to an accord on
several issues. It made a number of progressive recommendations, including
the decriminalization of homosexual acts between consenting adults, and therefore
a repeal of 365 and 365a, which were usually interpreted as applying to (male)
same-sex sexual activity. 365b, which covered coercive acts other than vaginal
penetration amounting to rape, was meant to replace the clauses that had criminalized
consensual but non-normative sex. Somewhere along the law-production line,
probably in the domain of the Legal Draftsman’s Office, not only were the
recommendations of the Technical Committee regarding the decriminalization
of consensual ‘unnatural’ acts between adults disregarded, but also the language
was made gender neutral. Male person became simply person, extending then to females
as well. As interpreted by legal scholars, sex between women was thereby criminalized
for the first time, since specifically male homosexuality was understood to
have been the subject of the original section 365a, with its reference to
gross indecency between males. Significantly, there was no debate in parliament
on either the continuing criminalization of male homosexuality or the new
criminalization of sex between women. Only one Member of Parliament called
for the decriminalization of homosex between consenting adults.
In the three years following the law’s passage, it was not formally
deployed against any woman by the state, but there were instances where private
citizens threatened to use it against others, usually family members, and
roped in the agents of the law. The example that follows draws on a 1998 report
in a weekly English-language newspaper and brings into play the relationship
between the media; law, its interpretation and its keepers; understandings
of culture; and legitimate and illegitimate desire for women.
The story is of two Sinhala women of village background, Sunitha and
Kusum. Other residents of the village, and Kusum’s mother, allege
that they are more than just good friends, and are sexually involved. The
mother had attempted to end the relationship, and when she was unsuccessful,
called in the police. According to the article ‘the two young women at first denied any lesbian relationship but finally “under
pressure,” had admitted to it’. Sunitha has a different response – that they
are not lovers, but were forced to confess to a relationship because of police
brutality. Sunitha is, nonetheless, extremely concerned about the well being
of Kusum (who at the time of the interview had disappeared from the village,
Sunitha alleging that Kusum was being sexually harassed by her (Kusum’s) father
and facing pressure from the family to join the army, while Kusum’s mother
accused Sunitha of hiding her daughter). Having a measure of material independence,
Sunitha states, ‘I can take care of [Kusum] for the rest of my life’. Sunitha
anxiously asks the journalist if the law can prevent them from living together.
The police, while remarking that ‘socially and culturally such a thing is
unacceptable’, respond that they have no legal basis on which to intervene.
The newspaper then points out that ‘Article 365a of the Penal Code may be
used to prohibit such a relationship’, but concedes that ‘[this provision]
has never been applied in a court of law and it would depend a lot on interpretation’.
In general, though, the story is written in a sympathetic manner, and ends
with ‘the determination displayed by these two women in the face of such opposition
is evidence enough that they are determined to weather all odds for the sake
of the feelings that bind them’.
This narrative prompts reflection on a number of issues. Firstly, the
newspaper’s reading and representation of desire between the two women, and
its implications: The report is titled ‘A Female Affair’, and the lead-in
byline states ‘Man-made laws threaten feminine feelings’. Under a photograph
of Kusum’s mother is the caption, ‘hard time with a soft relationship’. Most
obviously, the invocation of stereotypic gendering pits the masculine, factual
terrain of law against feminine, amorphous feelings. More subtly, through
the mother, it suggests that the ‘hard time’ results from cultural expectations
(culture presumed here to be hard/nonmalleable, homogenous, static) that are
brought to bear on this all-female, ‘soft’ relationship.
By positing the megalithic certainty of masculine law against light,
uncontainable, feminine feelings, the newspaper hints that the women’s relationship
is undeserving of serious attention by the law because it is an all ‘female
affair’, that is, it is not male homosexual or subversive heterosexual or
any other configuration which engages men as the subjects or objects of desire.
In a context where the density or levity of a situation is signaled by whether
or not the weight of the law may be brought to bear on the matter, it is tempting
to read into this the possibility of the newspaper’s backhanded tolerance
for a relationship perceived by family, community and the police as lesbian.
However, the newspaper’s ambivalence seeps through, for while it suggests
that this relationship, by further extension desire between women, is vulnerable
to the law, it also publicizes 365a in the Penal Code as a possible basis
for preempting the women from living together in a marriage-like arrangement.
There is no evidence that the police had independently concluded the same
regarding the utility of this particular Penal Code provision.
Secondly, the reactions of the police, and the subversive implications
of discussions on the law: The article says that the police had ‘scoured through
legal records to find grounds for stopping the relationship’, but found nothing.
They are concerned that they have no basis in law to prevent the women from
either living together or even marrying each other if the women desired to
do so. The challenge to legally constructed and thus legitimated (hetero)sexuality,
institutionalized as marriage, is revealed in the police’s perplexed anxiety
that ‘we can neither tell them to go ahead and get married, or stop them’.
This is accompanied by the police officer’s observation that the relationship
(or is it the possibility of a lesbian marriage?) is neither socially nor
culturally acceptable, but, as far as the police can see, there is nothing
in the law that says it is impossible either. Thus, while the police attempt
to compensate for the law’s lack by invoking culture as inhibitor (the police
officer understanding culture in much the same terms noted above) Kusum’s
mother looks to what she sees as the law’s seamless hegemony to counter the
inadequacy of cultural-moral censure against a lesbian relationship where
her daughter is a partner. In that
fissure whose perimeter keeps changing stand Sunitha and Kusum.
It is at this point in the narrative, after the police officer’s conundrum,
that the newspaper intervenes to direct attention to section 365a of the amended
Penal Code, but is compelled to concede that this statute has not yet been
applied in a court of law, and its efficacy is very much dependent on interpretation.
It is also at this moment that the possibility of subversion for the two women,
albeit conditional and tentative, emerges. But it is a very precarious subversive
moment, whose treacherous nature is not to be at all underestimated, given
the systemic disabilities women are often compelled into on the basis of locations
such as gender, class, ethnicity, rural or urban dwelling, let alone the hostile
terrain of the legal process itself.
Thirdly, the sex root of the dis-ease among the villagers and Kusum’s
mother: They are explicitly concerned about the sexual aspect of the relationship,
which to them is the variable that distinguishes a friendship from something
else. The dis-ease is projected in a context where a respectable woman and
a woman publicly known to be sexually active are a contradiction in terms,
where female premarital virginity is prized, and where extramarital (hetero)sex
for women is condemned. It is only by occupying this stigmatised space of
sexuality and space of stigmatised sexuality, that Sunitha can speak of sex
at all. She can intimate intimacy with Kusum only by denying sex, and thus
also (unwittingly) place them both beyond the tentacles of the criminal law.
The implications of the sexual script are not lost on the two women,
and compels Sunitha to exclaim: ‘If they say that Kusum and I have a sexual
relationship, then where are the photographs or video to prove it?’ The ostracism
and its (homo)sexual basis, however, do not deter Sunitha, who is willing
to materially support Kusum, from observing: ‘I no longer care about my reputation
but on no account will I end my friendship with Kusum’. Even as she chooses
the tension-fraught, sexualised space as the context for voicing her defiance,
whatever the contradictions inhering in this moment for her, Sunitha is also
concerned that the law will prohibit them from living together, a law that
can be referred to only by recognising that very aspect of the relationship,
the sexual, that she is pressured to deny.
I place the term ‘lesbian’ in the title of this piece within quotation
marks to signal this and other sexually framed contradictions as voiced by
Sunitha, rather than to ask whether or not this qualifies as a relationship
of desire between two women. The treacherous terrain of both admitting, and
denying-to-admit, the nature of the relationship that Sunitha in particular
negotiates, is conveyed by the articulated depth of emotional intimacy between
Sunitha and Kusum, which Sunitha refuses to forswear even in the midst of
immense opposition, and which sustains her strong desire to live together
with Kusum; Sunitha’s statement that they are not (sexually) lovers, even
as the villagers and Kusum’s mother insist that they are (Kusum’s mother at
first disbelieving the villagers, and later reckoning it is true while Sunitha
was a lodger in their house); and Sunitha’s challenge to the community to demonstrate
the allegation that the relationship is sexual by showing photos or videos
of the same, in a context where gossip, while damaging, may not be infallible
evidence in a court of law, and where any such recording of sexual activity
is likely to implicate the recorder too as being sexually deviant, in community
or court, for entertaining voyeuristic and pornographic intent.
Fourthly, there is the freedom of speech issue, even if articulated
in a conventional way, as they relate to the story. However problematic the
representation, the women are able to publicize their experience through space
made available for them in the mainstream press, even though this particular
newspaper’s motivation for enabling such space may not necessarily have been
lofty. At the same time, the women’s class location raises an important question:
To what extent did they have the power to resist the press, or engage with
it on their own terms, even as they did not reject the media as a means to
‘speak out’? The law, almost reluctantly drawn in at an instance of sexual
transgression, at the behest of a sex regulator from within the family whose
bid at control is deemed to have been flouted by the transgressive subjects,
is instrumental in attracting the media, which in turn is used by the subjects
to ‘speak’. The act of (alleged) sexual transgression thereby catalyses, however
risk-filled and undesired, the creation of an opportunity to resist being
silenced, and through speech makes known the dangers as well as the subversive
potential inhering in this particular legal space.
In conclusion, the alleged hegemony of the law as both discourse and
practice in this instance is undermined or countered by the gaps and partialities
in the larger legal text and procedure, as well as by the stereotypic renderings
of gendered sexual subjects under parental, communal and cultural surveillance
that entangle with the law’s lack. But any tendency to read a lesbian relationship
as ‘harmless’, or undeserving of, or capable of escaping serious (legal) attention
is thwarted by the depreciation of opportunities for autonomy or empowered
negotiation that results from any kind of police intervention (let alone police
brutality), notwithstanding police puzzlement as to how to deal with two women
who want to live together. Hopeful however is the fact that neither the presence
nor intervention of the law completely discourages or silences the women,
that in fact Sunitha’s query whether the law can disallow their relationship
is evidence of the women’s willingness to interrogate its power, and to secure
a foothold as transgressive (sexual) subjects, however tentative, within its
fissures.
Yasmin
Tambiah is a director at the Centre for Feminist Legal Research,
New Delhi, and a research fellow at the International Centre
for Ethnic Studies, Colombo. This is a revision of a paper presented
at the CFLR seminar on Prohibited Pleasures/Forbidden Desires:
Intersections Between Speech, Sex and Culture, Khajuraho, 1999.
