New Delhi: Use “woman”, instead of the words like “whore”, “slut”, “harlot” or “seductress”; use “sexually harassed/assaulted or raped” instead of “ravished”; use the word “rape” instead of “forcible rape”; and say “sex worker” instead of “hooker” — these are some of the suggestions in the ‘Handbook on combating gender stereotypes’ released by the Supreme Court (SC) Wednesday.
The handbook begins with a foreword by Chief Justice of India (CJI) D.Y. Chandrachud. It offers guidance to judges and the legal community on how to avoid using harmful gender stereotypes — particularly those about women — in judicial decision making and writing.
It says, “With respect to the judiciary, it is vital that judges not only avoid relying on stereotypes in their decision making and writing, but also actively challenge and dispel harmful stereotypes. If harmful stereotypes are relied on by judges, it can lead to a distortion of the objective and impartial application of the law. This will perpetuate discrimination and exclusion.”
The handbook explains what the stereotypes are and then helps judges avoid such stereotypes by identifying language that promotes them. It contains a glossary of such stereotypes and offers alternative words and phrases. It also identifies common reasoning patterns that stem from gender stereotypes — particularly about women — and discusses why they are incorrect.
For instance, it says that instead of adulteress, the alternative preferred phrase should be “woman who has engaged in sexual relations outside of marriage”, and instead of “bastard”, the preferred phrase should be “non-marital child or, a child whose parents were not married”.
Further, it suggests that instead of “biological sex/biological male/biological female”, the phrase “sex assigned at birth” should be used, and instead of “born a girl/boy”, the phrase “assigned female/male at birth” should be used.
Similarly, it suggests usage of “child who has been trafficked”, instead of “child prostitute”, and “woman with whom a man has had romantic or sexual relations outside of marriage”, instead of “concubine/keep”.
The handbook further objects to the usage of the word “faggot”, and suggests that the words should “accurately describe the individual’s sexual orientation (e.g., homosexual or bisexual)”.
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Survivor or victim?
The handbook also comments on whether the word “survivor” should be used or “victim”, and explains, “An individual who has been affected by sexual violence may identify themselves as either a “survivor” or “victim”. Both terms are applicable unless the individual has expressed a preference, in which case the individual’s preference should be respected.”
The handbook goes into detail about understanding what stereotypes are, how they function, and their impact on judicial decision making. It asserts that as guarantors of the dignity and privacy of all individuals, members of the judiciary have a unique duty not only to avoid perpetuating these stereotypes, but also to challenge and rebut such “anachronistic conceptions”.
It asserts, “This Handbook seeks to raise awareness regarding such stereotypes to ensure their avoidance, and empower judges with the reasoning and language to dispel misconceived beliefs about the “inherent characteristics”, gendered roles, and beliefs about what is right and wrong for a woman in the context of sex, sexuality, and sexual violence.”
The handbook also goes on to define what it means when it says “gender”. It explains that “gender identity is not limited to a binary (girl/woman and boy/man) but rather exists on a spectrum and can evolve over time”. It asserts that “gender is a social construct, and includes the norms, behaviors, and roles associated with a particular gender identity”.
Different types of gender stereotypes
The handbook goes on to list different types of gender stereotypes. It says that the most common kinds of gender stereotypes that concern women are: (i) stereotypes based on the so-called ‘inherent characteristics’ of women; (ii) stereotypes based on the gender roles of women; and (iii) stereotypes related to sex, sexuality, and sexual violence.
It busts several stereotypes that concern women. This includes stereotypes like “women are overly emotional, illogical, and cannot take decisions”, “all women are physically weaker than all men”, “all women want to have children”, “women should do all household chores”, and “women who are also mothers are less competent in the office because they are distracted by childcare”.
While addressing stereotypes concerning sex and sexual violence, the handbook says that assumptions are often made about a woman’s character based on her expressive choices — like the clothes she wears, and her sexual history. It says that these assumptions may also impact how her actions and statements are assessed in judicial proceedings. However, it asserts, “Assumptions based on a woman’s character or the clothes she wears diminish the importance of consent in sexual relationships as well as the agency and personhood of women.”
It provides another illustrative list of stereotypes that are often applied to men and women in the context of sex and sexual violence and explains why such assumptions are wrong. For instance, it looks into the stereotype that women who dress in clothes that are not considered to be traditional want to engage in sexual relations with men. In response, the handbook says that the “clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her”.
Similarly, it addresses stereotypes like “men are unable to control their sexual desires”, “it is not possible for a man to rape a sex worker”, “able-bodied men do not want to engage in sexual relations with women with disabilities”, “rape is a crime which taints the honour of the survivor/victim or her family. If the rapist marries the survivor/victim, her honour is restored”.
The handbook mentions the stereotypes associated with a woman’s response to sexual assault or rape, asserting that “different people react differently to traumatic events”. As for the stereotype that “dominant caste men do not want to engage in sexual relations with women from oppressed castes”, it says that “dominant caste men have historically used sexual violence as a tool to reinforce and maintain caste hierarchies.”
The handbook further goes on to list Supreme Court judgments that have categorically rejected several of the stereotypes discussed in the handbook. This includes judgments on rejection of “pre vaginum test” or the “two-finger test”, and irrelevance of sexual history in trials.
It also cites judgments to emphasise on the fact that the testimony of a survivor or victim is inherently credible, and that “the absence of physical injuries must be evaluated contextually in the facts of a given case”. It asserts that courts should be wary of discrediting the testimony of the survivor or victim merely due to the absence of physical injuries against the survivor.
Similarly, the court also underlined the legal position that “delay in filing an FIR or complaint cannot be mechanically used to create doubt”.
(Edited by Zinnia Ray Chaudhuri)