Violence Against Women and the Death Penalty: Appropriating
the Feminist Agenda
-- Nimanthi Perera-Rajasingham
The death penalty is not new to Sri Lanka. In fact, its history
has been traced to pre-colonial times[1]. Notable also is that
the colonial powers used the death penalty as a form of controlling
and disciplining the natives, until its gradual reduction as a
form of punishment in the late 19th Century. Until 1885[2] executions
were carried out in public, and only after was it taken behind
doors into the dark corners of prisons. The death penalty which
has been legal throughout independent Sri Lanka, but often in
disuse, is an interesting area in which debates relating to human
rights, violence, the role of the state, extra-judiciary torture
et al come to the foreground. In the debates issuing this year
(when Interior Minister John Amaratunga suggested its reintroduction),
certain characteristics become explicit. If in the past cattle-theft
and homicide[3] were important categories to study and evaluate
crime, then today the category of rape, and violence against women
are important. If prior to the 1980s, violence against women received
only passing mention in debates regarding the death penalty, today
it plays almost centre stage along with homicide cases.
Hence, my attempt here is to look at the nature of the debates
around capital punishment in the English newspapers specifically
in the year 2003. These readings will look at how the category
of violence against women, and women’s bodies are used as a means
of justifying the death penalty. I suggest that these readings
make it very clear that not only are women’s bodies used to justify
the death penalty, but also that the rapists, or criminals are
very much the undesirable elements of society: lower class men.
What such debates hide is the way women’s bodies have been used
to pave the way for the state to often discipline and control
its citizens using the prevalence of high levels of violence,
especially against women, as an excuse for their actions. The
violent role of the state itself in such instances has not been
the subject of critical comment. Furthermore, its role as disciplinarian
is hidden under a proposed moral mission of protecting its citizens
and deterring crime.
Women’s bodies as the new reason to kill
Violence Against women seems to be everywhere and in very corner
of Sri Lanka. Feminists in the recent past have demanded of the
state better action and firmer legislation to reduce this violence.
The state’s response to such claims has been more than lukewarm
(such as not even legalizing abortion in cases of rape) except
in the recent past. In the debates surrounding the death penalty,
we have noticed a remarkable interest in reducing violence against
women by not only the state but also on the part of civil society.
Let us then look at some of the comments made by the general
public regarding the death penalty.
Do the Human Rights Commission of Sri Lanka,
the Centre for Policy Alternatives and other so called human
rights protectors know that in ancient Sri Lanka a young woman
with a valuable precious stone could walk from Dondra in the
South of Ceylon to Point Pedro, in the tiger infected (human)
North and East safely without being molested or waylaid and
robbed? The death penalty was in force at the time. Today, not
even a haggard old woman can go a few feet out of her home without
being molested or robbed of a few cents in her possession.
V.K.B. Ramanayake, Daily Mirror,16. 07. 03
In the South, the crime rate is fast galloping
and armed criminal, bandits, daylight burglars, contract killers,
rapists, large-scale drug and human smugglers, and others have
a field day.
Daily Mirror, 07.05.03
In the first quotation above, according to Ramanyake, women’s
unlimited freedom, a surety in the past, is now severely restricted.
S/he finds two reasons for this: the terrorist activity in the
north, and the suspension of the death penalty from use. Here
one notices the construction of history and the past as a safe
time, as a place that was a haven, un-plagued by the violence
of today (as is suggested by the second quotation). Women of the
past are depicted as free, as having lived outside of fears of
violence and oppression, perhaps in the same way that the vedic
dasi is constructed in pre-Islamic India
Let us look at a few more comments:
Certain persons are disturbed when we move this
motion. Murders, rapes, burglaries, abductions, and many other
crimes have increased in this country. People feel unsafe to
walk in the roads”
Gayantha Karunatilleke (UNP, Parliamentary
Sessions June 05, 20Today, Rape and robberies are rampant in
the country and the value of human life is gradually loosening.
This is due to the lacunas in the legal system which allows
culprits to go free without substantial punishment.
K. Velayuthan (UNP) Parliamentary Sessions,
June 05, 2003.
These are but a few of the numerous comments by political members
on the need to introduce the death penalty. There is definitely
then in all these comments a sudden realization of the increase
in crime and the increase in rape cases. Suddenly also the rape
of women, their safety have become priority for the state.
Yet, as we delve deeper into these commentaries, we realize that
these concerns are more regarding disciplining and controlling
a certain segment of society than direct concerns regarding women.
For, Sri Lankan, or rather Sinhala women need to be protected
for a culture to prove itself ‘civilized.’ It is a well-known
argument that a woman’s status in a society marks for many the
very nature and level of civilization within that culture. In
South Asia, especially in India, sati “came to provide the most
clinching example in this rhetoric of condemnation-‘the first
and most criminal of their customs’.”[4] While Sri Lanka was free
of such practices, it is part of the nationalist movement, which
placed women as markers of culture, as “its essence [which] must
remain unaffected by the profane activities of the material world.”[5]
Hence, the problem of women being raped in this instance becomes
a national problem of a culture in crisis. The solution to this
is the death penalty, for the highest punishment must be accorded
to the crime of rape, which is not so much about the violations
to a woman’s body, mind or sense of self, but an injury to culture
itself.
As Lata Mani very articulately in the case of sati in Colonial
India wrote:
Indeed, as the nineteenth century progresses,
at a symbolic level the fate of women and the fate of the emerging
nation became inextricably intertwined. Debates on women, whether
in the context of sati, widow remarriage, or zenanas (separate
women’s quarters) were not merely about women, but were also instances
when the moral challenges of colonial rule was confronted and
negotiated. In this process, women came to represent tradition….
Women in fact became the site on which tradition was debated and
formulated. What was at stake was not women but tradition.” [6]
In a similar fashion, the debates on the death penalty in Sri
Lanka revolve around the issue of women’s safety without really
taking into consideration the voice of women. Women’s bodies are
the site, the ground on which the issue of the death penalty is
debated, without really considering the wishes of women, who are
for the most part silent. One can surely ask in these instances,
why the state and the public have generally done so little in
the past to resolve issues of violence against women.
What is perhaps evident in all these newspaper articles is that
the actual voices or opinions of these supposed victims of rape
are more or less absent. There are no raped women who come forth
with demands for the death penalty. It is rather their supposed
protectors and guardians who take it upon themselves to punish
the perpetrators of violence. Feminist responses, and responses
from those who work in the area of gender and violence, have experienced
violence themselves are dismissed as unimportant and elitist.
(to be discussed later)
Who are these rapists?
When numerous parties comment on the status of women and the
need to reintroduce capital punishment, it is important to look
at the construction of the other, the rapist, the murderer in
these debates. The villain of the piece consists of not simply
all males in society, but a certain section of society. While
the debates were numerous and multi-voiced and cannot be simply
reduced, it becomes quite clear who the main villains of the story
are.
To illustrate this and to delve into the extremely class-based
constructions of the other, let me refer specifically to two articles
that appeared in 2003. One is a reprint of an old speech made
in parliament in 1936 by N.M. Perera which appeared in the Sunday
Island on April 06. The second is the editorial of The Island
which appeared on the 17th of July.
The contents of the articles themselves suggest that the perpetrator
or the violator is outside of the norms of society. Not only is
the gender of the perpetrator fixed as always male, but he is
stripped of all facets of normalcy. It is as if through his crime
the perpetrator has become the enemy of the state altogether.
It is as if he has presumed to have accepted once and for all,
with the laws of society, the very law by which he may be punished….
He has broken the pact, he is therefore the enemy of society as
a whole…. Thus a formidable right to punish has been established,
since the offender becomes the common enemy. Indeed, he is worse
than an enemy, for it is from within society that he delivers
his blows-he is nothing less than a traitor, a monster.”[7]
The rapist, murderer has betrayed the contract society has set
upon him. He has let down the people and the national cause, and
has become worthy of the greatest punishment: the death penalty.
Let me begin then with N.M. Perera’s comments regarding the villains
or perpetrators of violence. Initially, N.M. Perera supported
the death penalty, and then changed his opinion regarding the
efficacy and nature of such a punishment. It is interesting that
statements from a speech made in 1936 should be reprinted in the
newspapers as late as 2003 some 60 years later. Notice, that in
1936, the rapist cannot be placed as part of N.M. Perera’s debates,
for Violence Against Women as a category of analysis had not come
into being so early. Hence, his accounts are against murderers.
He constructs the nature of the criminal and places it clearly
as follows: “when you remove the social conditions that make poor
people the victims of circumstances, the chances of homicide and
serious crime are less. Therefore, our attempt to punish the victims
would not be correct. What we should do rather is give these people
who have been the victims of these conditions a chance with better
conditions of life.”
For N.M. Perera, the murderers are clearly the lower classes,
the poor, the under-privileged. He continues, “human beings are
made criminals by the accidents of circumstances, of environmental
and social conditions. Poverty and ignorance are the main factors.”
(emphasis mine)
Detailed studies have shown clearly that economic status and
crime are not causally linked in this direct fashion. Furthermore,
in Sri Lanka, historical studies in levels of homicide have proven
that they are not “concentrated among low-status social groups.”[8]
“Unlike many societies, offenders and victims were not clustered
at the lower end of the socio economic scale.”[9] Perera’s conceptions
are clearly a bias that he holds suggesting that violence is restricted
to the domain of the lower classes. Thus, he, a man of a certain
class, and background is civilized and modern. In the realm of
human rights, he is the modern man who knows that murder and violence
is unacceptable. The lower classes, who are ignorant, and do not
know better are to blame for the violence in the country. Facts
about the violent nature of the state, the organization of large
scale violence by political parties as during election times need
to be remembered here.
Outside the Nation, Outside liberal discourse.
If N.M. Perera can be excused for making such suggestions before
research had shown otherwise, then contemporary commentators cannot
be excused for such class-biased attitudes. We notice clearly
that if in the past, it is the lower classes who were in a sense
‘the criminal classes,’ then today the rapists are again the lower
classes.
Let me turn to an Island Editorial written on the 17th of July
2003. The writers suggest that “the galloping incidence of this
dastardly crime against women is alarming and puts Sri Lanka as
a nation to shame.” For the editor of The Island then, women =
culture. Rape = shame of culture. He does not stop here but goes
on to describe the nature of the violators themselves. Here he
is no different in his attitude that N.M. Perera. As he recounts
the terrors that women must go through not only at the hands of
rapists, but also in the legal process where women “run the risk
of being raped yet another time,” he clearly places the blame
for such crimes on “sex maniacs masquerading as drivers and conductors.”
He continues saying that “the proposal for deploying policemen
in civvies in buses, which had been pigeonholed due to threats
by private operators go on strike, must be implemented forthwith.
And the bus crews and trishaw drivers must be fingerprinted and
made to display their photographs prominently in their vehicles
as in other countries like Singapore.” Need I say more on the
extremely class biased nature of this editorial? Obviously the
editor or editorial collective of The Island are not aware that
large numbers of rape against women and children are committed
not by bogey men waiting to attack them, but by their family members:
fathers, husbands, brothers; and is definitely not restricted
to a certain class of people.
Furthermore, notice that he constitutes the police as a proper
form of corrective to the problem. If one is serving the state,
then one is a legitimate citizen who will protect women from rapists.
But on the other hand, if one is simply a lower-class man outside
the disciplinary order of the state, then one can be potentially
dangerous. Further, the editor or editorial collective of The
Island see themselves as outside of the rape paradigm, as the
liberal human being in whom all forms of humanity are invested.
Who is the victim?
In constructing the villain, these newspaper accounts also simultaneously
construct the victim. For if the lower-class man is responsible
for the rapes committed in Sri Lanka, then the village girl, or
young innocent woman, the school child is the victim. In The Island
article used above, it is the “garment factory worker… on her
way home [who] had been raped and robbed by a private bus crew.”
For Gamini Ratnayake who wrote an article in The Daily Mirror
on March 26 of 2003 entitled “The Death Penalty Must be Implemented,”
the victim is “a schoolgirl of 13 years of age who was selling
hoppers to support her poor family [who] was raped and strangled
to death” or a “5-year-old girl who was returning from school
[who] was dragged to a shrub jungle and raped and killed.” The
victim is always a woman/ young girl who fits into nationalist
debates of a ‘pure’ woman who has been shamed.
For Ratnayake feminist oppositions to the death penalty are merely
“the beautiful ladies from Colombo, [who] do not know the ground
situation. They are affluent people. They have no experience about
rural Sri Lanka. None of their loved ones has been murdered. Their
daughters go to school by car.” Here, feminists from Colombo are
dismissed on the grounds that they are from Colombo and of a certain
class that can afford to drive cars. Violence against women is
again shifted out of a certain affluent class, but also out of
Colombo to the villages of Colombo.
The contradictions of such a statement become apparent if one
is to look at cases of violence against women in urban areas like
Colombo. For Ratnayake and the likes, purported concerns regarding
women will not stretch as far as one of the most victimized and
brutalized groups of women in society: the prostitute, the ‘impure’
woman of society. Often sex-workers are abused, treated outrageously
with very little regard to their dignity. Jody Miller documents
in her work on sex workers in predominantly Colombo that for sex-workers
who operate on the street, one of their biggest problems is “harassment
by the police”[10] because of whom “they can’t go down the corner
store. They can’t pick their children from school. They can’t
actually take the bus. If they appear in public, particularly
in an area that’s known for prostitution –which could also be
the area where they live-they can be picked up and arrested by
the officers.”[11] It is no different for sex-workers who operate
in brothels for they must service police officers free, and often
when brothels are raided, they are arrested under the Vagrants
Ordinance rather than the Brothels Ordinance because then the
brothel managers can avoid being charged while the sex-workers
are taken in.[12]. Research on the sex-work industry in Anuradhapura
shows even more clearly the ways in which women are victimized
by the state.[13] For many sex workers who must endure gang-rape,
assault, theft, and all forms of harassment, neither the police
nor the army is a possible saviour.
Indeed, none of those who in the debates regarding capital punishment
spoke of the violence against sex-workers in Sri Lanka. Such women
do not fit into the nationalist debates on women as markers of
culture, as part of its spiritual realm; hence, they are not worth
the time for serious consideration.
Let us now look at some comments made by feminists regarding
the death penality
Feminist Responses
The demand for the death penalty for rape brings
this stark reality of women’s lives to the surface….We have not
once in the past witnessed a vociferous demand for the death penalty
for those accused of crimes against women by mainstream political
parties. Even now, if women’s groups and human rights groups put
forth a demand that the law should include marital rape within
its purview, and then go on to demand the death penalty for rape,
we can be sure that the entire constituency that is advocating
the death penalty in this case will make a hasty retreat. The
ideological underpinnings of the demand for the death penalty
for rape reflect the traditional patriarchal and reactionary view
of women as property. Rape is seen not as an assault on the integrity
of the women as assaulted, but far more as an assault of the community,
of society, of the nation.
-Kalpana Kannabiran and Vasant Kannabiran[14]
As in the case of India where the death penalty was advocated
for rape, Indian feminists Vasant and Kalpana Kannabiran point
out such demands cleverly hide certain power relations and assumptions
made by those advocating the death penalty. Furthermore, they
point to the fact that bringing in the death penalty for rape
will not in anyway increase convictions, but may lower the already
very low-levels of convictions because of fear to convict any
rapist incase of error.
I suggest that this may be because 1) because of the very ‘common’
everyday nature of violence against women. 2) the very complex
nature of any case that looks at violence against women.
If rape and violence against women are not rare but occur within
every class, and at a variety of junctures, making the offense
itself almost ordinary by nature of its frequency of occurrences,
then to accord the death penalty for such cases would simply reduce
convictions totally. For which judge would accord a death penalty
for every confirmed rapist in Sri Lanka? The numbers on death
row would be incalculable in this case.
Furthermore, convictions against cases of violence against women,
especially rape cases are themselves extremely complex and pivot
around the nuanced issues of consent/force. It is never a simple
and straightforward matter to determine whether the woman had
consented. From the beginning? At what point otherwise? To what
extent was she willing to have physical relations with a man?
But at which point did it become force or coercion? The entire
issue of violence against women is not easily amenable to legalistic
jargon that makes claims to truth “based on a binary logic which
sets up oppositions like truth/untruth, guilt/innocence, consent/non-consent.
This binary logic is completely inappropriate to… the ambiguity
of rape.”[15] According the death penalty in such complex cases
as violence against women, would surely ensure that convictions
would simply drop and that the law would prove entirely ineffective
in dealing with such instances.
Let me look now at Sri Lankan a feminist response to the death
penalty which appeared in the case of the Krishanti Kumaraswamy
case in the Cat’s Eye[16] Column entitled “No Death Penalty” on
the 15th of July 1998.[17] The Kumaraswamy case was a rallying
point for many feminists in Sri Lanka. Her gang-rape, murder,
and the subsequent murder of most of her family led to enormous
agitations for justice, not only from feminist organizations,
but from a large part of civil society. Despite the long vigils
held to pressurize the state to prosecute the perpetrators of
such violence, many feminists did not favour the death penalty
that was meted out to the five rapists and murderers in this instances.
The column states:
The death penalty weighs the scales of justice heavily in favour
of the state by giving the state legally sanctioned power over
the life and death of its citizens. Such power all too often is
used arbitrarily; it is applied neither uniformly nor fairly,
even in cases of the same nature and severity. In many cases,
the decision to apply the death sentence is driven by issues other
than the crime itself.[18]
By playing to the desire for revenge in individual cases, states
in which the death penalty is used ignore difficult questions
about the relationship between crime, the criminal and the state.
A fake sense of moral superiority is thus sustained as culpability
is shifted from formal and informal social, political and economic
structures of domination and oppression, solely to the accused.[19]
The above arguments make it clear that for feminists these promises
of security, better safety and liberty have been questionable
and problematic. It hides the strong link between justice and
the state and how justice may operate to benefit certain parties
only. Hence, the use of women’s bodies and the category of violence
against women to insist on the death penalty is a manipulation
of the feminist agenda and its concern for women into a tool by
others (including but not exclusively the state) to control and
discipline its citizens further.
Conclusion
If the column that appeared in the Cat’s Eye admits that power
vested in the state often “used arbitrarily… is applied neither
uniformly nor fairly [and that]… the sentence is driven by issues
other than the crime itself,” then feminists must also acknowledge
that the only option offered by all who oppose the death penalty
in these debates was life imprisonment or the penitentiary. If
the death penalty is not an option, then are prisons any better?
Foucault in his extremely complex and nuanced study of the birth
of the prison looks at how new forms of punishment in the post-18th
century merely relocate power and redistribute it for an even
stronger control of citizens. He questions the whole premise that
humanism was the basis for the demise of public execution and
capital punishment in Europe. Indeed for him “the great movements
of extension that characterize modern penalty- the problematization
of the criminal behind the crime, the concern with a punishment
that is a correction, a therapy, a normalization, the division
of the act of judgment between various authorities that are supposed
to measure, assess, diagnose, cure, transform individuals- all
this betrays the penetration of the disciplinary examination of
the judicial inquisition.”[20]
Hence, I am not simply suggesting here that the prison is a problem
because the law does not work well, because the place and function
of the prison is abused (as in the case of say perhaps the Welikada
prison massacres in 1983) but rather that prisons as a more humane
alternative to the death penalty needs to be re-examined. As suggested
by Foucault, the prison itself maybe a new way of ordering society,
of disciplining it and creating new forms of docile bodies constituted
in such a way as to make the power of the state and certain groups
more effective. It is important then to rethink forms of correction
and punishment to ensure that those convicted of crimes are not
merely placed in another institution in which power is even more
insidious than even the death penalty or public executions.
---------------------------------------------------------------------------
[1]Jayawardena, C.H.S. “The death Penalty in Ceylon.,”
in The Ceylon Journal of Historical and Social Studies. (July
1960)
[2] Rogers, John. Crime, Justice and Society in
Colonial Sri Lanka. (London: Curzon Press, 1987): 143.
3. John Rogers’ work Crime, Justice and Society
in Colonial Sri Lanka looks specifically at the nature of homicide
and cattle-theft as a means of locating levels of crime, and studying
the nature of crime in colonial Sri Lanka.
[4] Chatterjee, Partha. The Nation and Its Fragments:
Colonial and Postcolonial Histories. (Princeton: Princeton University
Press, 1994): (119)
[5] Ibid., (121)
[6] Mani, Lata. Contentious Traditions: The Debate
on Sati in Colonial India. (Berkeley: University of
California Press, 1998): 79.
[7] Foucault, Michel. Discipline and Punish: The
Birth of the Prison. (New York:, Vintage Press, 1979): 90.
[8] Rogers, John: 133
[9] Ibid., 123.
[10] Miller, Jody. Violence Against Sex Workers
in Sri Lanka: Causes, Consequences and Remedies. (Colombo: ICES,
2000): 12.
[11] Ibid., 17.
[12] Ibid., 20.
[13] De Silva, Mangalika. Carnal Desires: Sacred
State & Criminal Women. Politics, Power and Violence in the
Postcolony of Anuradhapura. Forthcoming
14.Kannabiran, Vasant and Kalpana Kannabiran.
De-Eroticizing Assault: Essays on Modesty, Honour and and Power.
(New Delhi: Stree Publishers, 2002): 99.
[15]For a detailed discussion of law and rape
in India see Nivedita, Menon. “Embodying the Self: Feminism, Sexual
Violence and the Law,” in Eds. Pradeep Jeganathan and Partha Chatterjee,
Subaltern Studies IX: Gender, Community and Violence. (New Delhi:
Ravi Dayal, 2000):85.
[16] The Cat’s Eye newspaper column comes out
of the Social Scientists Association office every Wednesday in
The Island daily, but consists of contributions made by numerous
feminists living in Sri Lanka.
[17] De Alwis, Malathi. Cat’s Eye: A Feminist
Gaze on Current Issues. (Colombo: Cat’s Eye Publications, 2000):
51.
[18] Ibid., 51-52.
[19] Ibid., 53.
[20] Foucault, 227.
___________________________________
Nimanthi Perera-Rajasingham is a researcher
at the International Center for Ethnic Studies (ICES) Colombo,
Sri Lanka.
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