Public Secrets of Law: Rape Trials in India, Pratiksha Baxi
When Baxi was conducting courtroom ethnography on rape trials in India, she was treated as an outsider on multiple counts - she is a woman, a nonlawyer, and somebody who did not understand the “language of rape.” Interested in rape trial cases, Baxi observed routine cases that did not capture media attention and interviewed lawyers, people who were raped, and their families.
In her book that was based on the same project as the article featured in Chapter 8 (Crime and Justice), she wrote:[H]ow does the legal norm, as a shifting norm, constitute the legal subject? The over-determination of analysis by appellate law has shifted attention from the way in which written records efface those operations of power that make it difficult to read the agency of women other than as victims or manipulators of the law. Such operations of power are far more complex than the usual framing of a legal subject as victim, prosecutrix, witness, or complainant suggests, since a single legal subject may occupy different juridical identities simultaneously. Nor is the category of victim or complainant a stable category in the life of a trial. By focusing on the making of the rape trial, I wish to suggest how the culture of a courtroom alters the very meaning of rape from the point of view of the woman or child.
(xxviii-xxix)
Baxi's fieldwork encounters show that the law and society research process cannot be disentangled from its substantive findings.
After the first few days of sitting in the court, a middle-aged male lawyer who knew about my work gestured to me to follow him. Hesitantly I followed him to his chamber, not knowing who he was. Hirabhai, one of the five additional public prosecutors (hereafter, APP) then began to interview me. Soon I was incorporated as a researcher amongst his juniors, mostly women. One of his junior lawyers, Beenaben, became a confidante and defended the validity of my research, which was keenly contested by lawyers in the court.
In the chamber, my research was supported and defended. Hirabhai's journalist friend wanted to do a story on my ?courage'. When a woman clerk gossiped that I was shameless to do research like this, Beenaben stoutly defended me and refused to talk to her. Later she added, ?Do not be discouraged. These people are very narrow-minded. They do not know how courageous you are. Women like you and me are very few. We are different.' Hirabhai was appointed as my ?guide' by one of the judges whose courts I used to observe. [...]Although the district and sessions judge had granted me permission to document in camera trials, I also secured consent from the complainant in each case to follow the case. Consent for me did not mean the routine ways of securing informed consent but was based on full disclosure of my location and my work. The interviews were difficult in the absence of support services for victims or their families. In the case of statutory rape, the anxiety generated by the legal proceedings, my inability to develop a relationship with young children in the space of the court, and above all the fear of harm to the children precluded the possibility of ethnographic interviews. I also found that the parents perceived that talking to a stranger was therapeutic, while revealing what happened to the extended family was perceived as a source of stigma with long-term, deleterious consequences for the child's future. Rapport, then, was not a measure of the amount of time spent with the person interviewed, nor did it remain a given as the case unfolded over time. I was present in the courtroom during their testimonies, yet we would never meet again or keep in touch.
Most interviews with the complainants and their families happened in court corridors. The lack of privacy posed a problem as time went by. I was nicknamed 376 by some male lawyers, after the section on rape, posing an indexical relationship between my presence and the topic of my research. Once when I was interviewing Dhirubhai - whose ten-year-old daughter had been raped - four male lawyers who were passing by stopped, pointed to his daughter, and said, ?This is the one, look at her, so small and she has been raped.' I asked the men to leave and stopped the interview.
The fact that I was seen in their presence directed a gendered gaze on the child - an identification I struggled with. Where I felt that it was unethical to interview rape survivors, I refused the help of lawyers or the police to set up such interviews. I have included in the analyses of these cases fragmentary conversations in between the court proceedings with child survivors of rape. [...]Initially, no one was willing to speak to me about ongoing rape trials. I had yet to learn the vocabulary of how to speak about rape in the court. Just as I had begun to despair, Hirabhai introduced me to a young woman in a statutory rape and kidnapping case he was to prosecute. He then took me to the courtroom, where he asked the bench clerk for the case papers. We sat at the far end of the lawyers' table, and he turned to the medico-legal aspects of the case. Turning to the accused's medical certificate, in his usual booming voice which echoed in the half-empty courtroom, Hirabhai said, You know what a man's primary sexual organs are, don't you?' A little taken aback, I nodded. Then he turned to the victim's medical certificate. After going over the other details about bodily development and superficial injuries, he asked me, ?Do you know what a hymen is?' I responded in the affirmative. Rather theatrically, he drew a vagina on small piece of paper to explain the technical terms for injury on the labia minora or labia majora. The discussion continued on in the chamber where he instructed Beenaben to explain ?it' to me. After he had left she said, ?Pratiksha, do you know that a man cannot rape a woman by simply touching her, or kissing her.' I nodded, even more puzzled and curious now. She carried on, ?Well, how do I explain how a man rapes?' I replied, ?Beenaben, do you mean partial or complete penetration?' She nodded in relief.
In performing a specific revelation of the public secrets of rape, Hirabhai directed my attention to the vocabulary by which I could research rape.
Insisting that medical jurisprudence separates the social from the clinical, Hirabhai maintained that a ?decent' legal practice could coexist with frank discussions on the topic of rape. The route to generating this ?frank' space initiating the research, as he put it, enabled him to teach his woman juniors how the prosecution could successfully fight rape cases more freely. This linguistic route became his way of teaching me facts of anatomy, sexuality, and the rape law.Hirabhai and his junior Beenaben made it possible for me to undertake this research in many ways. Hirabhai - whom I called ?sir', unlike other women juniors, who addressed him by fictive kin terms - was like a teacher instructing me in the ways of the court. He did not hesitate to reprimand me on many occasions. I was instructed on whom to speak to and whom to avoid. I stopped wearing bright colours to the court. I was taught what constituted decent modes of dress, appearance, gait, posture, and speech. While I was schooled to ?fit into' the scenes of the court, I remained an outsider. It was this status as an outsider that allowed me access, although on the verge of experiencing alterity. As if aware of this, Hirabhai would reassure me without any obvious cause for it: ?Baxi, you are safe here.' When I was leaving the field, almost reflexively, Hirabhai said to me, ?I don't know why, Baxi, but I never looked at you with that kind of gaze [nazaar]. I liked you because you work so hard. Do invite me to your marriage.'
The complicity with adopting medico-legal vocabulary as the modality of talking about rape was deeply problematic. I was tutored not to ask direct questions about rape. For instance, I could not ask direct questions about what lawyers and prosecutors meant when they said that women are habituated to sex. I knew that the determination of whether or not a woman is a habitue is on the basis of a clinical test, which doctors conduct routinely. This test, popularly known as the two-finger test, is used to determine the absence or presence of the hymen, and whether it is distensible or not.
If the doctor finds that the hymen is broken and there are old hymeneal tears, they may write that the rape survivor was habituated or used to sexual intercourse in the medicolegal certificate. When a prosecutor or defence lawyers reads a medico-legal certificate that declares a woman to be a habitue, more often than not, they conclude that she has lied about being raped. A defence lawyer routinely uses such medical findings to establish past sexual history. I wanted to know why prosecutors who purportedly represent the victim exploit the category of the habitue.Towards the last phase of the research (fifteen months after the preceding conversation), I decided to ask direct questions which may have been thought of as talking about secrets men do not share with women as equals in a professional setting. These secrets ?appear in ethnographic texts as signs of alterity'. I cite here a discussion with Mr Rajput, who argued that women could not be raped unless there is grievous violence, and women who were habituated to sex without marks of injury frequently lied about rape. This was not an uncommon view in the court. He pursued this question in the privacy of his chamber to explain to me why he thought that ?habituated' women were liars. He asked me to sit in a chair beside him and lowered his voice so that his colleagues could not overhear him through the wooden partitions that separated the chambers of the public prosecutors. He spoke in English.
R: That day you were saying about habituated. I did not say anything because other people were around. A woman cannot really be raped.
PB: Why?
R: It becomes quite large. The opening in a habituated woman therefore becomes quite large therefore habituated.
PB: You mean the vaginal canal?
R: Yes, that's why two fingers go in quite easily.
PB: But that's what I was discussing with Dr B [a forensic expert] - that is, the finger test is quite unreliable. What about masturbation?
R: That is there. But see if two fingers go in easily (mimicking such penetration with his fingers) it means that she is habituated, the entire hole, that's why I say a woman cannot really be raped.
PB: But that was not my point of view. I was trying to say that why must her past sexual history be linked to her credibility?
R: But it must.
PB: Why? Why should it be considered against morality?
R: Because it is. Because with married women rape is not possible, and in our society sex before marriage is not allowed.
PB: Why do women have to experience rape as worse than death or shameful that they will kill themselves? I am arguing for another point of view.
R: But a woman cannot be raped unless... how do I explain? Do you know what secondary sexual organs are? Do you know why doctors write secondary sex organs are well developed?
PB: You mean...?
R: The organ develops after a woman has an erection, that's why they are well developed, that's how they find out she is habituated. How do I explain this to you?
R: The woman becomes wet. The penis cannot go in unless the woman is not willing. She cannot be willing unless she is wet - like a machine - a rod cannot go in without lubrication. (gestures)
PB: But what about cases in which there is partial penetration?
R: I have not found such cases, they all claim complete penetration; that is why I am saying that a woman cannot be raped.
Mr Rajput stopped speaking when a colleague walked in and I was hugely relieved to put an end to this conversation. He added, ?You see I am an MSc in Biochemistry. We were taught all of this. I have worked in a hospital for one year. Come again we will discuss this.'
Parmar, Chua, and Baxi observed the activities of their research subjects, but they did not partake in them. Other law and society scholars may choose to engage in participant observation and join in the activities of their research subjects. They may do so in order to build trust or cultivate a deeper understanding of their research subjects' experiences. Engaging in participant observation can cause ethical dilemmas and worries about personal safety, especially when illegal or downright dangerous activities are involved. Whatever the choice, it should involve a constellation of considerations, including the research site, the researcher's identity, and their local connections and sense of safety. Moreover, scholars like Hoang (2015) caution against cowboy ethnography, that is, portraying the field site as exotically dangerous so as to cast oneself, the scholar, in an admirably courageous light. In her study of sex workers in Ho Chi Minh City - though not a piece of law and society research - Hoang further deliberated over the dilemmas of whether to disclose her decision to participate or not participate in sex work as part of her immersive fieldwork, and she decided not to say either way.