Death Penalty Revisited: Women’s Bodies as Sites of Protest

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 19^th 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, 2003

Today, 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 17^th 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 17^th 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 15^th 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-18^th 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.