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The Language of Evidence in Rape Trials

-Saumya Maheshwari

Sexual assault laws have been amended on several occasions to make the criminal justice system more sensitive to the tribulations of the prosecutrix. However, the manner in which these reforms are implemented in the courtroom and the kind of language that is used by the advocates and judges are instrumental in achieving its objective. In this paper, the reforms mandating in camera trials for rape cases, and excluding past sexual history from evidence have been examined. It is argued that the language used inside the courtroom may serve to defeat the purpose of these reform measures. This argument is based in the premise that language is not merely a means of putting forth evidence in a case, but it in fact transforms the nature of evidence itself, thus influencing the outcome of the case.

Rape, Impunity and Justice in Kashmir

This article focuses on rape by security forces in the Indian-administered state of Jammu and Kashmir and the question of accountability and justice for sexual crimes committed by State forces in the Kashmir Valley. Moving beyond the 'violence against women' frame, the instrumental use of rape by security forces as a cultural, political and psychological weapon of war is highlighted, as is the denial of institutional justice for the same. The suggestion here is that the question of justice for sexual crimes by state forces in Kashmir must be situated within the overarching context of the abuse of power by executive and military authority, and the unquestioned subversion of local civil and judicial authority. This particular institutional setting and policy it is further argued, justifies the case for international legal intervention in Kashmir. The Indian's state's claim to jurisdiction over the territory of Kashmir is assessed with reference to international law; the universality of the legal principle of self-determination is emphasised, as is the salience of international law regarding sexual crimes by state forces. Drawing upon Kashmir's international legal dimensions in general and its legacy of rape by security forces in particular, the article concludes by advancing a single moral argument for Kashmiri self-determination.

Adultery is a crime in India, punishable with up to five years imprisonment under Section 497 of the Indian Penal Code, 1860. When you took this fact in, perhaps like me your first reaction was outrage at the State's apparent intrusion into the seemingly private sexual realms of life. Such prudes, those Legislators: imposing their moral compass on the unsuspecting citizenry. In truth, it is a bit more complicated, though I argue that the initial assessment is not far off. The paper begins considering principles guiding criminalisation of conduct, to determine whether some principled justifications exist for criminalising adultery. I then move to the substantive section of the paper: arguing that Section 497 must be repealed by the Legislature for inter alia perpetrating invidious discrimination between sexes.

Conference on Gender and Sexuality Organized by the Law and Society Committee

Papers Presented at the Conference

-Arpita Das

Procedures and apparatuses of governmentality function by means of labelling certain people as 'normal' while rendering others of little value. This can be understood from the bio-political framework propounded by Foucault (1990, 2003). The rationale offered is often accorded not only to the idea of catering to the population' but also gearing towards creating a nation-state of healthy, non-disabled people capable of contributing effectively to the nations' worth. The paper looks at the manner in which inter-sex people who do not fit in within the linear logic of the sex binary, get signified within these normalisation processes and are constructed as 'abnormal' and in need of fixing through corrective surgeries and other alterations. People with disabilities are also similarly constructed as 'abnormal' and 'deviant' The paper juxtaposes discourses of inter-sexuality and disability to analyse ways in which inter-sex people are mistakenly constructed as disabled within international and national laws, and thus stereotyped as non-productive. The objective is to understand the state logic of categorisation into the 'normals 'and 'abnormals'.

-Douglas McDonald

In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and proving that one will be persecuted on account of this) is often infected by the cultural biases of individual decision-makers. Assessors may, for example, expect self-identifying homosexual or bisexual asylum seekers to act in a particular manner (conforming to Western assumptions about sexual behaviour or identity), or expect an unreasonable degree of detail and consistency with regard to asylum seekers' experiences in their countries of origin. Alternately, assessors may conflate various forms of sexual identity (such as homosexuality and transgender status, or different forms of sexual expression from other cultures) under the blanket label of 'LGBT' or 'LGBTQ' (and assess risks accordingly).

-Sonakshi Anand, Prakash Bhakuni and Rahul Anthwal

In the past few years there has been an increase in research on 'gender studies'. 'The term 'gender' is a socially constructed term and therefore needs critical analysis. The entire debate surrounding sexual minorities is about attributing a term to define them. This in itself is stigmatizing the community in a way. The entire exercise to try and fit people into 'man' or 'woman' in the accepted modern society is critiqued by various theorists and this is the basis of the overall gender debate. Hence, the paper argues that there is no need for a term to define sexual minorities; however, it does call for a change in the mind-sets of society about 'gender'.

Contents of Volume 10


-Aravind Narain

-Seema Kazi

-Abhinav Sekhri

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