Questions of evidence and testimony

Feminists have long theorised about how to consider evidence and women’s testimony as factual. In South Asia, the question of evidence in cases of sexual violence has been critical to feminist organising for the last 50 years. The rape law was passed under colonialism as part of the Indian penal code in the 1860s, and medical evidence takes precedence over a woman’s own testimony about what happened. Particularly in the context of colonial India and post-colonial South Asia, including Pakistan, India and Bangladesh, we see the rise of the question of evidence of women’s virginity in sexual violence cases, where a woman’s virginity becomes critical for the determination of whether a woman has been raped or not.

© Photo by iMetal21

Feminists have been organising around these issues for decades. In the 1970s, the case of an extraordinarily violent gang rape goes all the way up to the Indian Supreme Court. In this case, the Mathura rape case, a girl is gang-raped by the police. The Indian Supreme Court determines that she had been so-called “habituated” to sexual intercourse. In other words, she was accustomed to sex and therefore had not, in fact, been gang-raped. From that moment, we see the galvanising of an extraordinary feminist movement which tries to transform the concept of evidence itself.

The problematic history of forensic evidence

In my scholarship, I have looked at the long history of the collection of medical evidence in cases of rape and abortion, where scepticism about a woman’s own testimony becomes critical to the way that the patriarchal state reproduces itself. In legal cases of rape and abortion, women were generally examined from the 19th century onward to create medical evidence of whether they were virgins or not, whether they had menstruated or not, and whether the allegations that they were bringing to the courts were, in fact, true.

I have worked with legal scholars such as Mrinal Satish, who is based in Delhi, to look at the way medical evidence functions in rape cases in India, examining cases that went to Indian high courts from 1952 to 2011. We looked at the way a woman’s virginity was determined by medical evidence. And there are two ways that a woman’s virginity is determined through medical evidence based in Indian medical textbooks and Indian mandates around the collection of forensic evidence in rape cases.

One is called the finger test, which is an extraordinarily violent idea that a doctor or the person performing the forensic exam would insert one, two or more fingers to determine the pliability of the vagina, to determine whether or not so-called penetration had happened and whether a woman was a virgin. The second test in terms of virginity and forensic evidence is known as the hymen test, determining the presence or absence of a hymen. And these two tests are related in the medical literature. That medical literature, what is called medical jurisprudence or forensic science, was created in the 19th century and those textbooks continue to be replicated today, not only in India but in Pakistan and Bangladesh.

The fight against so-called virginity tests

We looked at the way that the so-called finger test and testing for the hymen determine the outcome of rape cases. Perhaps unsurprisingly, but sadly, the determination of a woman’s virginity was critical to the outcome of a rape case. If a woman was seen as being so-called “habituated” to sexual intercourse, not a virgin, or seen as a person who was sexually promiscuous, most often the person who was accused of rape would get off or there would be other kinds of compromises. An idea about women’s sexual propriety is often linked to ideas about sexual violence. And so much of the advocacy work that we’ve done has been about disaggregating those things.

The question of evidence continues to be critical. For example, in March 2020, a set of lawyers, journalists and feminist activists in Pakistan filed a petition in the Lahore High Court against the finger test, saying that it was unconstitutional, it was a violation of women’s dignity and privacy, and it was not, in fact, a scientific test.

Of course, the hymenal test or the finger test are not scientific at all. That helps us think about what counts as science, and how we can use feminist thought to critically engage what has been constituted as science for centuries. The science is patriarchal. Not only is it biased but it has normative ideas about female propriety, female sexuality and women’s virginity that are not at all relevant to the determination of whether sexual violence has occurred or not.

The “false charges” mentality

© Photo by sirtravelalot

What medical evidence should be considered viable in a rape case? Many medical doctors come to me and say: if we can’t do the finger test, how are we to determine whether a woman is a virgin, whether she’s bringing actual rape charges accurately or whether she’s truthful in her accusation? That mentality of what evidence counts as good evidence is the wrong mentality. It puts the idea of science and the idea of truth against women’s testimony. And the Indian court system and, more broadly, the South Asian court systems, are based on the idea that women will bring false charges.

You need other kinds of objective evidence to help mitigate the problem of so-called false charges. The phrase “false charges” appears in the medical textbooks, it appears in syllabi and curriculum across medical schools, and it appears in the way that the police are trained. As a result, there is no training of medical professionals to understand the collection of good forensic evidence, like DNA evidence in rape cases. There is no training of the police. So, we see extraordinary violence enacted by the police themselves on women who had already been victims of sexual violence.

In addition to the question of evidence, we need to think more broadly about criminal justice reform, policing and women’s testimony. What kind of carcerality serves on behalf of women and on behalf of feminist ideas? What is good policing? When is it that we will finally give women the ability to speak in court in a way where their testimony is considered valuable? This is how I think about the question of evidence in relation to women and fighting for women’s rights.

#MeToo: Making the personal political

The #MeToo movement is extraordinary. It shows the importance of women’s testimony in women’s personal experiences as a political idea. The personal is political. This idea, which is essential to how we think about feminist thought, is enacted in a political movement that starts with the individual but becomes a collective imagination.

The #MeToo movement is a global movement. Through women’s testimony, women’s experiences of sexual harassment and sexual violence, we learn that we need to drastically rethink institutions and structures that claim gender equity but have not produced gender equity today. This includes policing, access to institutions, access to leadership positions or aspects like the medical profession or the way that legal structures work. The reason that women said #MeToo from 2017 onward is often because a legal system that formerly had protections for women had, in fact, failed women.

The next logical step from #MeToo is to ask: what does structural change look like? We can talk about individual experiences of sexual violence. But how do we move from that personal testimonial to political transformation? That happens in multiple ways. It happens in organising around issues like the Movement for Black Lives, organising around the death of women like Breonna Taylor, women who died in the supposed safety of their own homes. The state saw the penetration of the home as easy and inevitable; it killed her in her own household with impunity. There have been no charges against the people who brought the state actors who killed Breonna Taylor.

State right over the body

There is a logic of the state right over intimacy, state right over the body, that we have not yet dealt with as a society. We can see this in deeper movements. I always try to point people to a long history of feminist organising. In the context of South Asia, we see this around the political movements against the Delhi rape case that happened in 2012.

In December 2012, a woman was gang-raped on a private form of transportation because of the failure of public transportation in the city of Delhi. She was left on the side of the road and she eventually died as a result of the rape. Massive political movements took place as a result of that rape, and that political mobilisation led by feminists transformed over the course of many weeks and months.

In 2013, the Indian government formed a committee known as the Verma committee, where the chief justice brought together a set of experts, feminist scholars and people working on legal reforms together to create a comprehensive reform of Indian rape law. The committee came up with a wide range of recommendations, including revisions about the collection of forensic evidence in rape cases and making rape law gender-neutral. Before, it had been men who perform acts of rape on women, so a man, in Indian law, could not be raped.

Translating feminist critique into structural change

The legislature in India only adopted certain parts of the recommendations, and even went against feminist recommendations for the reform of rape law by recommending that certain kinds of rape, such as gang rape, would lead to the death penalty. Feminists in India were arguing against capital punishment. And yet, the Indian state’s response was patriarchal: if we could just put certain rapists to death, then we can solve the problem of rape.

The recommendations for systemic reforms such as training the police, creating new systems of medical education or creating new forms of education around patriarchy and violence were not enacted. Instead, we see the passage of laws around the death penalty. What was initially a feminist mobilisation turned quickly into a patriarchal structure of the reform of Indian law.

How do we move the critique of defunding the police, for example, and sustain that critique in the reform of law? How do we translate the individual case, the killing of particular people, the death or rape of particular people into structural change that reflects feminist values? That is the conundrum and the paradox that we live with today.

The pandemic as a turning point

The coronavirus pandemic is a radical transformation in time. No other moment has been more defined by uncertainty in the last one hundred years. As a historian and as a scholar of feminist thinking who has thought a lot about uncertainty, this moment brings out other kinds of uncertainty that have been part of the late 20th and early 21st century and has transformed them.

What is feminist leadership at a time like this? And how do we see the role of feminism in a political and social moment like this? The potential is limitless. Young people are transforming how we think about political organising today. The critiques that scholars and activists felt were too radical, too extensive or too far to the left 10 years ago have transformed the political discourse today. The global movement of Black Lives has led and translated into arguments about Dalit lives, Dalit feminist lives and women’s lives in India. In contexts like Pakistan, regarding the question of minoritised people, everyone is looking at the political movements that are happening now, led by young feminists who are making an argument about a more just society.

© Photo by arun sambhu mishra

The most radically different imaginaries of the future come from feminist leaders, feminist scholars and feminist artists who are working today. We see this in the work of women of colour, queer of colour, transgender people of colour who are trying to radically imagine the world anew. It is in the work of art, and feminist and queer theory, that the radical imagination of the future is happening.

Exposing multiple crises

So much of what defines our contemporary movement has been people saying we don’t know what to do. The time of the coronavirus is a time of suspending future thinking. In that absence of future thinking has been a whole set of feminists who have come in to say: we need to think about the future in the most flexible way possible. To throw our hands up and say that there’s nothing that we can do in the face of rising authoritarianism is not acceptable. We’re going to put our bodies on the line. We’re going to put our people on the line, our family on the line. And we are going to make an argument and we’re going to fight for political change. That’s the role of feminists today.

The coronavirus has brought out every major crisis related to what feminists have argued about and thought about for decades, if not a century. Things like the question of the crisis of domesticity: who does household labour? These are fundamentally feminist questions. We see the rise of domestic violence all over the world because of the idea of sheltering in place. What does it mean to shelter in place? Who has the right to shelter safely? What is the idea of the domestic space itself? And is the state supposed to protect those people who are vulnerable within the domestic space?

Feminist tools for re-imagining the future

The coronavirus gives us this opportunity to think about how we can approach domestic violence anew again. And, finally, it gives us a sense of the crisis of domesticity itself. Perhaps no crisis is more profound and more present to us than the problem of the migrant: people who have been excluded from the right to domestic space, to the right to citizenship. Feminists have been pointing out the dehumanisation of migrants, and the failure of the promise of democracy in places like Europe and the United States in the face of ICE or the massive migration from across the Mediterranean.

It’s feminists who are helping us think about the crisis that the rest of us don’t want to think about. But, of course, we know that the crises brought out in 2020 were there before. The crisis of the exploitation of labour was there before; the crisis of domestic violence and violence against women and violence against queer and trans people was there before. So, here is this radical moment to imagine anew. And there are no better tools to help us think about what that imagination would be, what that future would be, than feminist and queer thought.

Discover more about

sexuality and sexual violence

Mitra, D. (2020). Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought. Princeton University Press.

Mitra, D. (2018, September 27). History’s Apology: Sexuality and the 377 Supreme Court Decision in India. Epicenter.

Mitra, D. (2018). Sociological Description and the Forensics of Sexuality. In R. D. Roy., & G. N. A. Attewell (Eds.), Locating the Medical: Explorations in South Asian History (pp. 23–46). Oxford University Press.

EXPs by Durba Mitra

Website

Bookstore