Gender overlay in gender equality laws
By Faizer Shaheid-2017-12-20"We all see only that which we are trained to see."
― Robert Anton Wilson, Masks of the Illuminati
The feminists have been at it again, constantly nudging the innocent bystanders, asking them to look their direction, to reason with them, and to endorse what they wish to say. True enough, on more occasions than not, there is a method to the madness, but more often than not, the innocent bystanders only seem to be looking in one direction.
The recent debate on marital rape has gained momentum over the years, and it appears that efforts are underway to crystallize it into law in Sri Lanka, but why is the debate still focused only in the feminist direction?
Gender disparities have persisted through centuries and continue to this day to a far lesser extent. This is primarily thanks to the feminist movement, which began in the early 1830s. The feminist movement has endured and grown from strength to strength, and it appears that from this position of strength, women centric terms are being shoved to propel the women-oriented movement further.
The modern feminist
First and foremost, allow me to clarify that I appreciate the work of the feminist movement up until the 1990s. However, the definition of feminism as described by Google became clearer to me afterwards. Google defines 'feminism' as "the advocacy of women's rights on the ground of the equality of the sexes." The strong emphasis on the words 'women's rights' suggested a lack of focus on men's rights.
Any modern day feminist would claim that the feminist fight is the good fight for the equality of the sexes. However, translate that into action, and you would find a lot lacking in their focus on men's rights. This has led to a rising trend of feminist fanaticism, which has in turn resulted in anti-feminist groups.
However, this trend had grown only very recently. The feminists had fought hard for their rights throughout the first and second waves of feminism. It is the third wave of feminism that appears to have gone overboard with the demands. This is especially in view of the fact that women enjoy without objection many rights which continue to be unavailable to men.
When discussing equality among genders, an important issue to be considered is the lack of a common standard of equality.
Whether equality should be weighed in the standards of formal equality or substantive equality is debatable. Most feminists prefer the loose perimeters of substantive equality as it would best meet their demands. This would mean that, irrespective of whether both genders are of equal standing, the differences must be ignored to ensure equal treatment.
If the differences cannot be equalized, then affirmative action policies are introduced to ensure fairness. However, the same rules would not apply in all circumstances. For example, if a woman becomes pregnant, she becomes entitled to maternity leave, yet paternity leave is rarely recognized, and if recognized, then unequal to the period of leave granted to women.
On the other hand, feminists have claimed unequal remuneration to be an issue. UN Women has claimed that women still get paid approximately 22% less than men for work of equal value. When living in a capitalistic world, it is quite understood that profiteering companies would generally have employed more women if work of equal value can be obtained from a woman at a 22% lesser pay.
Therefore, there are only two possibilities. Either the issue of unequal remuneration is merely false propaganda, or companies have issues and risks to undertake when employing women. I choose to believe in the latter.There could be many reasons why companies may choose to employ men over women. Perhaps there could be a risk of pregnancy, which may reduce productivity, or that women are entitled to maternity leave. Perhaps, it is because it is legally not permitted under the Shop and Office Employees Act for a woman to work before 6:00 a.m. or after 6:00 p.m. under general circumstances. There may be many reasons that are considered by a company when recruiting and measuring the value of an employee.
It may also be considered that women are sometimes paid higher in certain professions than men. For example, female models are paid higher than men in most circumstances. The top paid models in the world, Kendall Jenner ($22 million), Gisele Bundchen ($17.5 million), Chrissy Teigen ($13.5 million), Adriana Lima ($10.5 million) and Gigi Hadid ($9.5 million) among others are all female models.
Issues feminists ignore
While gender equality is paramount, it must also be understood that gender is not merely a social construct. Perhaps, some may debate on this point with a conjecture to a third gender, or with transgender persons in mind. Yet, nonetheless, whether it is male, female, a third gender, or an assumed gender, unless and otherwise one can transform into an animal of sorts, he or she must possess the attributes of a gender. The point to note is that these attributes differ.
The attributes of a male are significantly different from that of a female. There are differences in height, weight, speed, bodily formations, bodily functions, and many other aspects. When these are taken into account, it is at times difficult to confer upon every individual an equal amount of rights. For example, pregnancy is a bodily change experienced only by a female and never by a male, and is caused by sperm produced only by a male and never by a female.
Therefore, as far as maternity laws go, men would usually have no objection when it comes to the right of maternity leave conferred upon women. Likewise, it must also be recognized that the fastest women athletes have never until now beaten the records set by the fastest male athletes. However, males and females both play a role in each event, each doing their part and never competing with one another.
It is the same when it comes to anti-rape legislation. Perhaps, only a woman can be penetrated vaginally, but the vagina is not the only body part which can be penetrated. Therefore, rape cannot be committed only against women. Likewise, only a male may possess a penis, but the penis is not the only body part or object which can be used to penetrate a body part. Then why does Section 363 of the Penal Code only state that only a man can commit rape and only a woman can get raped?
The rape issue
Penetration can be oral, anal, or vaginal and can be made using a penis, or finger/toe, or even an object. Yet, when the law expressly states that only a male can be the perpetrator and that only females can be victims, an issue arises in the definition of rape. Although the problem of males being raped can be addressed through the crime of grave sexual abuse under Section 365B of the Penal Code with the same extent of punishment, the issue will not be considered as rape.
The underlying issue is that there is lack of recognition of a female perpetrator and a male victim, while most modifications and additions are made in respect of only rape law. For example, Section 363 (e) recognizes any type of sexual intercourse with a female below the age of 16 years will be considered statutory rape. What if a 15-year-old male and a 15-year-old female engage in sexual intercourse while in a relationship? The male automatically becomes a perpetrator, while the female becomes a victim.
The issue becomes worse when considering problems relating to marital rape. Marital rape is an issue that has been debated timelessly over the years, and in the case R v R in 1991, the House of Lords determined that it was possible for the husband to rape his wife. The issue of consent is the biggest problem in such circumstances, especially in relation to evidence before a Court of Law. Evidence of penetration is insufficient as penetration may have occurred from previous penetrations. Therefore, the mere word of the complainant becomes the solitary evidence before Courts. Furthermore, what if it is the husband who has been abused by the wife?
Conclusion
While marital rape is certainly unconscionable, it also imposes a massive burden upon the Court of Law, especially when determining the guilt of a suspect. It sheds a man, even if he may have been a husband, in a negative image where his integrity and repute will be challenged. Even so, the Minister of Justice, Thalatha Atukorale, although having adhered to the feminist demands for the recognition of marital rape, has failed to address the issue of gender bias in the law on rape.
It is advisable for the Minister of Justice to follow the example set by the USA. The Federal Bureau of Investigation (FBI) operating under the jurisdiction of the Department of Justice in the USA decided to redefine rape in the following manner:
"Penetration of the vagina or anus with any body part or object, no matter how slight, or even oral penetration by a sex organ of another person, without the consent of the victim."
The above definition recognizes both males and females as having potential to be a perpetrator or a victim. This is a more apt definition for the law on rape. It is also a more urgent amendment required to rectify the gender bias in the law on rape.
(The writer is a political analyst and an independent researcher of laws. He holds a Postgraduate Degree in the field of Human Rights and Democratization from the University of Colombo and an Undergraduate Degree in Law from the University of Northumbria, United Kingdom)
faizer@live.com
