NY Daily News and NY Post on Tuesday, May 8, 2018 report on allegations against New York State Attorney General Eric Schneiderman. Richard B Levine/Press Association. All rights reserved. There are many examples from the recent past which show that consent as a mere verbal ‘yes’ or ‘no’ has very little value in incidents of structural violence. Structural violence is embedded in the practices of our everyday conduct and relationships. A dependence on consent for justice only ensures that violence continues without any possibility of recognising it.
Take the example of Eric Schneiderman, the New York attorney general, who resigned earlier this month after four women accused him of physical abuse. In a statement, he said that he had been engaging in role-plays and that all his intimate relations were consensual. The concerned women, however, disclosed that they were beaten, slapped, physically abused, choked and one of them alleged that Schneiderman called her a “brown slave” and “his property”.
There is a possibility that relations, such as the one stated above, are consensual, but it is important then to question the nature of this consent. I say this because in India we have only looked at consent from a legal perspective that medicalises it. The use of medical techniques to determine consent, especially in the case of rape trials, traditionally relied on arbitrary – and intrusive – medico-legal processes such as two-finger tests and the virtue of women ‘habituated’ to sexual intercourse. Thus, the burden of proof in a rape case was on the complainant. Interestingly, in the amended rape law of 1983, non-consent was presumed in its absence during incidents of gangrape or rape of a pregnant woman, unless the defendant could prove otherwise, therefore, shifting the burden of proof on the accused. As Pratiksha Bakshi notes, however, even with this shift, a simple character analysis of the raped person was enough to dismiss the case and was unquestioned until as late as 2010 when the court upheld that such medical practices violated the privacy of women.
