Introduction: Gender-Based Violence, the Law, and Society

Gender-Based Violence

The first section delves into the concept of gendered violence in more detail. In their introduction to this section, the authors discuss the increasingly common understanding that societies are becoming less violent. Though they acknowledge that progress has been made on many fronts, an understanding of violence beyond the physical dimension shows that utopia has not yet been achieved. The authors discuss overt violence mostly in terms of precarity: the precarious circumstances in which many women, sex workers and homosexuals find themselves. These people's positions in society are accompanied by feelings of learned shame as well as limited access to power, which makes them particularly vulnerable to various types of abuse. However, it is these systems themselves, the structures that produce this lack of power and induce shame, which the authors identify as themselves violent. Commodified violence, microaggressions and shaming into suicide may be less graphic than sexual and physical abuse, but are no less violent – as is further explored in the individual chapters of this section.

Nidhi Shrivastava's first chapter is entitled ‘Genocidal Violence, Biopolitics, and Treatment of Abducted and Raped Women in the Aftermath of 1947 Partition’. In it, she discusses what she calls a ‘dark chapter’ in India's past. When in 1947 the Indian Subcontinent was divided into India, West Pakistan and East Pakistan (current Bangladesh), it was decided that this Partition would take place based on religion: Pakistan would house people of Muslim faiths, whereas India would be the home to non-Muslims. As a result, mass migrations and violent clashes took place, costing an estimated 1 million people their lives. However, only in the past decade have scholars come to realise that in the midst of this chaos and unacknowledged genocide, an estimated 75.000 women were abducted, forced to marry their abductors and bear children. In their attempts to redress these traumatic events, the Pakistani and Indian governments spent the years between 1948 and 1957 tracking down these abducted women and returning them to their ‘native communities’. However, these women were not consulted. Rather, if a woman was married to a man of a different faith, it was assumed she had been abducted and she was transported to underfunded camps where she could be housed in terrible conditions before being returned to her original family. Her family members, however, often perceived her as a dishonour on the family name and had responses ranging from turning her away to asking or forcing her to commit suicide. In her impressive, bold chapter, Shrivastava explores the different layers of violence and trauma that these women experienced at different hands, as well as the relationships of these various types of violence to biopolitics, genocide and traditional gender roles.

Whereas the most familiar attitudes towards sex work fall into one of two camps – either as inherently violent or a legitimate form of enterprise – in the second chapter, ‘The Commodification of Sex in Modern Japan: Outdated Attitudes and Overdue Reforms’, Gavan Patrick Gray shows that in Japan the debate on legalising the sex industry is quite different. Here, the negative view of the industry also contains the idea that the existence of the industry is proof of a failure to adhere to Western (modern) norms, while positive attitudes contain the idea that the industry contributes to social harmony and sexual health. Still, though both views make their arguments on collective, societal levels, the political status of the sex industry in Japan is precarious. Prostitution is not legal, though the sex industry is condoned. In these dynamics, Gray identifies ‘symbolic violence’: a form of domination embedded in everyday actions that prevents its victims from expressing grievance, due to acceptance that the system that harms them is regarded as natural, unchangeable, or in some ways beneficial. After discussing in detail the public, legal and political attitudes towards the sex industry, Gray shows that the failure of current systems in offering support to sex workers became especially clear at the start of the COVID-19 pandemic. In a section entitled ‘Double Standards and Inadequate Support Systems’, he notes that sex workers were excluded from a system established to support parents who were forced to leave their work due to school closures, and shows how this is only a symptom of the larger failing of the system. He argues that commodified violence and symbolic violence are engrained in this system, and need to be properly addressed on political, legal and societal levels.

A third form of often-overlooked violence based on gender is discussed by Deepesh Nirmaldas Dayal in the third chapter: ‘Sexual Orientation Microaggressions in South Africa’. Though people with LGBT+ identities have held constitutional protection from discrimination in South Africa since 2006, Dayal identifies a plethora of covert forms of violence, called microaggressions, that are still very prevalent within this country. Sexual orientation microaggressions occur in several forms, and are used to mock, demean and negate the lived experiences of LGBTQ+ people. In this chapter, the author looks at microaggressions specifically in the context of LGBTQ+ people of Indian descent who live in South Africa. Due to stigmatisation within Indian communities, as well as their status as ethnic minorities in a society that is working to overcome the effects of Apartheid, these people experience additional layers of microaggressions, adding up to a volatile mix of psychological challenges. The microaggressions they experience lead to internalised homophobia, shame and highly compartmentalised and isolating ways of living. By analysing three types of microaggressions – microassaults, microinsults and microinvalidations – through excerpts from interviews with South African Indian gay men and magazines that cater to them, Dayal shows the violent nature of these covert forms of discrimination, and argues that they have the potential of harming their recipients just like physical/overt violence. Therefore, they should be included in any discussion of violence, whether in an academic, legal, therapeutic or cultural context.

Gender-Based Violence and the Law

In the second section, the authors focus on the way gender-based violence is addressed within each country's legal systems. The discussion that introduces this section explores how – even though rape and sexual assault are illegal in each country discussed – both the nature and cultural perceptions of the systems that should execute this legal protection fail to live up to their promises. Factors such as access to financial resources; class, caste and racial backgrounds; and adherence to gender expectations are shown to still play a large role in the legal trajectories following official reports of sexual assault – and to determine to a large extent whether the perpetrator will be convicted and punished for their crime. However, the authors also discuss factors that prevent victim-survivors from reporting these experience in the first place: a lack of trust in the system, and the fear that the legal process will be as violent as the initial crime. Finally, the authors touch on the importance of finding an appropriate terminology when speaking about gender, sexual orientation and the violent crimes committed in response to them. These discussions all serve to introduce the three individual chapters which deal with issues of gender-based violence in relation to the legal system.

In Chapter 4, ‘The Insidious Culture of Fear in Indian Courts’, Nidhi Shrivastava explores cases of rape, both real and fictional, to show the problems inherent in India's current legal system when it comes to rape and sexual violence. Shrivastava argues that the current system does not support the rape victim-survivor, rendering her helpless and re-traumatising her in the process. The Hindi movies she analyses criticise and problematise the current systems, exposing the widespread and harmful practice of judging the victim based on her previous sexual history and reputation, as well as the role access to financial resources plays in a victim-survivor's ability to seek justice. What's more, even where the systems themselves are reformed, there's a lack of commitment to and enforcement of these systems due to socio-political and cultural structures that serve to induce fear, humiliation and shame in the would-be accuser. A 1980s cult classic the author analyses appears to suggest that the only way a victim-survivor of rape can gain justice is by seeking it on her own terms, even if that means breaking the law. Other films Shrivastava explores show the different ways in which women are silenced throughout the process, as well as highlighting the role that class and caste still play in determining the victim-survivors' chances of success. By drawing links to the 2013 Amendments to rape laws in India, as well as real-world rape cases, she takes her conclusions out of the realm of fiction to make a strong case for more significant reforms, to allow rape victim-survivors to finally get the justice they deserve.

In Chapter 5, Gavan Patrick Gray discusses ‘Legal Responses to Sexual Violence in Japan: First Steps in a Lengthy Process of Rehabilitation’. Though Japan has a strict judicial system that has resulted in low crime rates, when it comes to sexual violence the picture is quite different. Gray locates the problem in the slow changes Japanese culture has seen in its change of perceptions of gender identities. Though in 2017 Japan made the first major changes to its penal code on sex crimes in more than 110 years, this has by no means eradicated the weaknesses in the legal system when it comes to punishing perpetrators of rape. Between the statute of limitations on rape and sexual assault, and gaps in legal definitions of terms such as voyeurism, some issues can be addressed with changes to the laws themselves. However, as Gray points out, there are other changes necessary that are related less to the laws themselves, and more to how they are interpreted and executed. Though the Japanese system generates circumstances similar to those described in the case of India – meaning that only an estimated 10% of instances of sexual violence are reported – Gray shows that the major hurdles preventing perpetrators from conviction, even if they are identified, are victim hesitancy and the strongly developed ‘settlement industry’. By presenting the current situation, highlighting barriers and issues within both the current legal system and culture, and drawing from activist discourses to make suggestions for reform, this chapter presents a nuanced picture of the gaps and possibilities of Japan's justice system on its own terms.

In 1994, South Africa was reborn as a democracy, promising freedom and equality for all citizens. However, Deepesh Dayal shows in this sixth chapter, ‘The Paradox of Constitutional Protection and Prejudice Experienced by LGBTQ+ People’ that though constitutionally the freedoms of people with LGBTQ+ identities are protected, this does not mean they experience the freedom and equality promised. He looks specifically at the category of violence called ‘hate crimes’, showing that about 7% of the South African population fears being the recipient of hate crimes, and that simultaneously peoples' faith in the justice system is in sharp decline. People believe there's a lot of corruption in the courts, sentences passed are too lenient, and the system is too slow to be efficient. What's more, similar to what was reported in the preceding two chapters, people who are the victims of hate crimes fear that they will receive secondary victimisation by the system itself if they choose to file a report. It is here that the concept of intersectionality is first introduced: though these figures are harrowing when related to the South African population, LGBTQ+ people of Indian descent experience particularly high rates of verbal abuse, threats of physical violence, sexual assault and abuse by family members. By exploring all these intersecting factors, Deepesh Dayal explores and brings to light the particular challenges that still exist, in a country that was one of the first to constitutionally protect the rights of its LGBTQ+ citizens.

Gender-Based Violence and Culture

In their introduction to the third section, the authors explain the social and cultural factors that shape the form of, and attitudes to, gender-based and sexual violence. They point out that though in the EU and US discussions on, and analyses of, these types of violence are becoming more commonplace and easy to examine, in many areas of the world there are regional or national perspectives that problematize these practices. Factors like shame, family honour and collective identity perceptions place additional burdens and stress on victim-survivors that are not taken into account in standard Western approaches to these issues. The cases analysed by all three authors in their individual chapters in this section specifically look at factors that silence victim-survivors, and pressure them to not speak up. As the lack of reporting of crimes is one of the main barriers in any statistical analysis on the topic, the deeper understandings of these processes of silencing form a major contribution to scholarship on gender-based and sexual violence. What's more, the authors discuss different ways in which these cultural barriers might be removed: through media, education or a combination of both. Finally, the authors end on a discussion of their own role within these processes.

In Chapter 7, ‘Rape and the Prevalent Culture of Silence in India’, Nidhi Shrivastava discusses the factors that determine whose rape will be discussed and debated, and which will be forgotten. Because of caste, class, gender, honour and shame, only certain narratives are privileged in mainstream media and popular culture. The culture of silence Shrivastava discusses, however, pertains to more than just media: as she already indicated in her previous chapters, factors such as honour and shame often cause the victim-survivors’ own families to pressure them into silence – especially when the perpetrator of violence is one of their family members. After outlining these issues, Shrivastava goes on to analyse two media representations that aim to break the culturally imposed silence. These media texts show that child sexual abuse and gender-based violence are not only committed by the poor, lower classes but take place in both the public and private spheres of the elite and upper middle classes as well. Shrivastava teases out those threads in the texts that relate to the culture of silence that protects the upper-class perpetrators and allows them to repeatedly commit their crimes unpunished.

Though in preceding chapters on sexual assault the roles of female gender norms have been discussed, in Chapter 8, ‘Japanese Gender Norms and their Impact on Male Attitudes Towards Women’, Gavan Patrick Gray dives into the male gender norms that to a large extent determine gender relations in Japan. Gray shows how the male gender stereotype of the industrious, productive and distant breadwinner has created an emotional crisis among many Japanese men. The gender expectations dissuade these men from forming meaningful intimate relationships with their families and cause a range of sometimes psychologically harmful responses: from fixating upon unthreatening juvenile women to rejecting romantic entanglement of any kind. In his chapter, Gray gives a brief overview of the history of gender relations in Japan, before diving into these two different responses to the lack of companionship experienced by these men due to the gender stereotypes. Then, he explores in more detail the ikumen concept – which is used to refer to men who are attractive to women because they take an active role in raising children – and has become part of an ongoing project by the Ministry of Health, Labour and Welfare to promote gender equality in the home. Though many Japanese men are emotionally mature and do not suffer from the issues first explored, the outlier cases are so harmful and widespread that they help illuminate some of the deeper problems with Japan's gender norms. As gender norms are often analysed in the context of harm to women, this chapter will prove essential for both the debates on gender and on gender-based violence, as these male gender stereotypes have the ability to harm everyone involved.

Deepesh Dayal's Chapter 9, ‘Intersectional Influences on Sexual Orientation Microaggressions’, similarly explores the gender stereotypes that contribute to violence – in this chapter in the specific form of microaggressions – but does so in an intersectional framework. He builds this framework out of the seemingly disparate layers of class, gender, ethnicity and minority cultures which were all addressed to some extent in preceding chapters, to explore the specific experiences testified to by homosexual men of Indian descent in South Africa. Where on a national level LGBT identities are often seen as un-South African and a Western import, within the Indian communities, in particular, there's an added layer of hegemonic male gender expectations – often emphasised and exacerbated by Bollywood movies – which are perceived to preclude gay male identities. Effeminate male behaviour is conflated with gay sexual orientation, meaning that often boys are punished and bullied for ‘being gay’ even before they themselves are aware of their sexual identity. What's more, as a result of Apartheid, Indian communities in South Africa are particularly tight-knit and collectivist, meaning there is a strong level of social control. Add to this the influence of religion in the country, and what you find is a volatile, intersectional mix of factors that support and sustain the use of microaggressions as a response to LGBT identities.

Combined, these chapters show the many forms gender-based violence can take, specifically in the collectivist communities that are often overlooked in scholarship on the subject. Whether violence is committed through rape or harmful gender stereotypes; by individuals or supposedly protective systems; the effects of this violence can traumatise generations. By analysing their case studies in their respective national and cultural contexts, the authors manage to outline the field of issues related to gendered violence on a previously unimagined scale while remaining cognizant of the complicated networks of influences that problematise any simple (Western) solution to these issues. Combining an unprecedented scope with great depth and specificity, this volume shows through practice the value and potential of an international, interdisciplinary and intersectional approach to the topic of gendered violence.