By **Nilanjana Roy**

From Akhond of Swat.

I have a lot of respect for Kavita Krishnan and her work in the field of women’s rights in India. Reading the first four paragraphs of her opinion piece in the Huffington Post on rape, I was in complete agreement with her. Krishnan confirmed my understanding of the way rape laws work in this country—the conviction rate is low, reporting rapes is often a difficult, brutalizing process, and the understanding of consent is limited in the legal system. (Marital rape is not yet an offense, for instance; and a woman’s right to the integrity of her own body is not at all well defined in India, in either legal or cultural terms.)

It is in the final paragraph of Krishnan’s article where we part company. Here’s what she has to say:

“Certainly, from the perspective of all those women in India who find the most brutal of rapists going free, protected by the police and the state, and their most serious charges of rape trivialized or even suppressed by force, the idea of a man being hunted down by Interpol on charges which are as complex and ambiguous as those in the Assange case is disturbing. From what I hear, Sweden’s rape laws are nothing to quarrel with, and are in fact quite enviable for us in India, where even marital rape is yet to be deemed illegal. But for the U.S. to fire at Assange from the shoulders of the two Swedish women indeed is an insult to the women struggling in vain for justice the world over. It is possible that Assange’s casual flings with female fans may not be very democratic; he may be guilty of insensitivity to the concerns and rights of women (for instance their right to be free from HIV). But if sexism is a crime worthy of Interpol’s attention, then Interpol should immediately arrest Silvio Berlusconi and Bill Clinton, just for starters!”

The Assange case is complex, and has drawn intense scrutiny across the world. At present, allegations have been made by two Swedish women of sexual assault, sexual molestation and, under the nuanced provisions of Swedish law, an allegation of “less severe” rape; he has not yet been formally charged. The case is nuanced and it would be very wrong to assume his guilt. (I’m attaching some links that might be of interest below.) But this is why I disagree with Krishnan, and think that she has not paid enough attention to the details of the Assange case before offering her opinion on it.

1) She assumes that the allegations brought against Assange by the two Swedish women are part of a U.S.-backed conspiracy; there has been little evidence of this so far. There are legitimate fears that the case will be misused, and legitimate questions about the workings of the legal system and the timing of the case, given Assange’s current situation, but news accounts do not support the idea that the two women are involved in any conspiracy. The allegations made by the two Swedish women should be treated as a separate matter, in the absence of any evidence to back the conspiracy theory.

2) It’s a fallacy to assume that because the worst and most violent instances of rape routinely go unchecked across the world—Somalia, South Africa, India, and a score of other countries—it is an insult to those women to seek redressal for cases that involve apparently lesser degrees of rape and sexual assault.

The allegations against Assange wouldn’t hold up in any Indian court for a reason: The rape laws in this country are extremely unevolved. A woman’s consent or withdrawal of consent is not taken seriously, and the assumption most courts would make is that if a woman agrees to sleep with a man, she gets what she deserves, even if the man subsequently overrides her wishes or uses force.

The better argument would be not to envy or marvel at Sweden’s laws, but to work for more progressive laws in India. In terms of degree, there is a difference between a Dalit woman brutalized and raped by the men of her village, or a Somalian woman subjected to repeated, violent rape, and a woman who experiences a turning point when the man she’s in bed with uses unacceptable force or coercion. But can we be clear that both of these—first-degree and third-degree rape, so to speak—are unacceptable, instead of drawing false parallels?

The right to consent should be the right of every woman, and every man; it shouldn’t be a luxury at all.

3) Krishnan should know better than to assume that Assange’s crime is “sexism.” The allegations made by the two Swedish women concern sexual molestation, sexual assault, and “less severe” rape. These are not trivial, if true. And this case is not about an HIV test, sex by surprise, or a broken condom. It’s about consent, the overriding of that consent, and the use of force in the process of the overriding of a woman’s consent. The allegations made by these two women deserve to be taken seriously. There’s a big difference between being “insensitive” to a woman’s fear of HIV, and the allegations of molestation and assault laid out in the Guardian report.

I am not an expert on either the law, or on rape victims, though I have written on rape and sexual assault in the course of writing for the gender beat. I’m following this case the way I’ve followed rape trials in India—just as an observer and as a woman who is interested in women’s rights.

But Kavita Krishnan is an expert, and she should know better than to prejudge two women, and to trivialize the allegations they have made against Assange. I understand and share her concerns for the harshness that Indian women face, on a daily basis, and I understand how dealing with the everyday brutality of rape and rape charges in this country can make anyone wonder why the Assange case matters at all.

Here’s the thing. To the two women involved in this case—women who have been vilified, who have had their names and addresses posted on the Internet, who have been blamed and dismissed, even before the case comes to court—it matters. The laws in their part of the world allow them to file a complaint against a man like Assange; the laws in my part of the world would leave an Indian woman in a similar situation with little or no prospect of redressal. I get that discussing the nuances of consensual sex versus non-consensual sex might seem like a luxury, when every week brings its raft of gang rapes, call-center rapes, caste-conflict-inspired rapes, the casual rapes of sex workers, the routine rape of Dalit women, or women in conflict zones to our attention.

But the right to give or withdraw one’s consent is not a small thing. The right to say ’no’ to one’s sexual partner, when you’re uncomfortable, afraid, in pain, or fear rape, and to have that ’no’ heard and accepted, is not a small thing. The right to be heard instead of being dismissed, or belittled, or vilified, is not a small thing. The right to consent should be the right of every woman, and every man; it shouldn’t be a luxury at all.

Here are some links that might be of interest:

1) The full allegations against Assange, from the Guardian:

The two Swedish women say that consensual sex with Assange turned, in separate incidents, into non-consensual sex. One woman alleges that he used force to hold her down, and then deliberately tore his condom when she insisted that he wear one. The other woman alleges that after several instances of consensual sex, where she insisted that Assange wear a condom, she woke up to find him having sex with her, not wearing a condom. He faces charges under Swedish law of sexual molestation and sexual assault. The allegations are yet to be proved, and Assange is yet to be charged.

2) Jessica Valenti on the laws in Sweden and the US on rape, and issues of consent:

3) From Kate Harding, an early piece contesting Naomi Wolf’s assessment of the Assange case:

and a more recent post on the rape myths coming up in the wake of the Assange case:

4) Caroline May on the rift between feminists and progressives on the activist left:

5) Jaclyn Friedman on What We Talk About When We Talk About Rape:

and: Friedman debates Naomi Wolf on Democracy Now:

6) Salil Tripathi: When No Means No

Copyright 2010 Nilanjana Roy

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This post originally appeared at Akhond of Swat.

Nilanjana S. Roy is a journalist and literary critic from Kolkata, India. She is the author of A Matter of Taste: The Penguin Book of Indian Writing on Food, and currently writes a weekly column for Business Standard.