[Trigger Warning: Mention of Rape and Sexual Violence]

To truly perceive privilege or disadvantage, we must consider how multifarious aspects of a person’s identity – race, caste, religion, class, to name a few – operate together. This notion, widely known as ‘intersectionality’, has informed Saumya Srivastava’s understanding of feminism and the criminal justice system. In this article, she tells us why looking through the prism of intersectionality is crucial, particularly for those fighting to remedy the cracks in our present-day criminal justice system.

“When they enter, we all enter” Kimberlé W. Crenshaw concludes in her extraordinary paper in which she coined the term intersectionality. It very succinctly describes the bottom-up approach to uplift the most disenfranchised persons amongst us. Professor Crenshaw describes intersectionality as “a lens, a prism, for seeing the way in which various forms of inequality often operate together and exacerbate each other.” Although the genesis of the term is very recent, Professor Crenshaw points out that many black feminists have been studying the interplay of race and gender for quite some time now. So, the nomenclature may be new but its conceptual underpinnings definitely are not (Potter 306).

Even though her paper mainly focused on the interaction of race and gender in a legal set-up, over the years, many allied disciplines and social movements have adopted the intersectional approach against discrimination. Intersectionality's universal appeal has also led to the expansion of its ambit and therefore, the inclusion of other identities like those of caste, religion, sexuality, class, among others. Had it not been for the feminist movement, I would have had no concept of intersectionality's brilliant framework. What started with a very superficial interest in feminism (mainstream, savarna feminism) has given way to a deeper, more nuanced conception of intersectional feminism. Delving deeper into it made me realize how narrow-minded my perception of discrimination and oppression was. Intersectional feminism made me recognize my own privileges. It also made me confront my long-held prejudices about different frames of discrimination especially those related to caste and class. Just like black feminists have been the pioneers of intersectional feminism in the US, in India, it has been the feminists from the Dalit, Adivasi and trans communities. Be it their robust opposition to Brahmanism or the cis-heteronormative social order, it has been these feminists who have been the real torchbearers for the fight for equality in India. Despite the multi-layered marginalization that they have been subjected to, they’ve been able to bring about significant change in our patriarchal society, oftentimes, without any mainstream support or acknowledgement.

I firmly believe, much like the term ally, feminism should be an action word. It can’t just be a label that we (savarna womxn) give to ourselves if we don’t simultaneously put in the work to learn more about social justice, and unlearn our deep-rooted bigotry. Being a feminist is much more than just believing in formal equality, it is striving to understand and subsequently challenge the power structures in our societies (that we, as savarna womxn, benefit from). This is why I wholeheartedly disagree with the idea of inadvertent feminists that Emma Watson popularized in her United Nations Women HeForShe campaign speech. Since then, she has acknowledged her white privilege and has stated that “being a feminist is more than a single choice or decision”. Her feminism, like most of ours, is a work in progress. Feminism is not a perfect movement. It has been exclusionary and discriminatory based on caste, class, religion, race, gender identity, sexuality, ability, age, and other such categories. It has also been called out for its shortcomings and rightly so (of course, yelling feminazi every time womxn highlight the discrimination they face, is not a valid criticism). Feminism is an ever-evolving set of ideals that have gradually gotten more inclusive and equitable due to the constant struggles of its most marginalized members. It’s because of their contributions that over the years, feminism has stayed relevant for so many womxn trying to manoeuvre through a prejudiced society.

Intersectionality broadens our horizons and gives us a framework to analyze complex issues involving multiple identities and axes of discrimination, simultaneously. It makes us question the established norms that have been accepted by us, as a society. Intersectional feminism has been a gateway which has led me to understand the various domains of social justice, especially the criminal justice system. It has equipped me to look at the complex issue of balancing the rights of the victim along with those of the perpetrator. It has taught me how advocating for the rights of one doesn't have to translate into abdicating those of the other. It helped me understand the underlying factors in the commission of crimes. It enabled me to look at the carceral system in all its glory, wherein it fails both the person against whom a crime has been committed and the one who has executed said crime.

My first encounter with something akin to an alternative approach to the retributive model of justice was when I came across an article exploring the high rate of rapes in Alaska. The author explored such approaches like community-based interventions that were being employed in Alaska, through the story of a man who had raped his step-daughter. Themes of generational trauma, history of abuse, low conviction rate of perpetrators, silence around the prevalence of sexual violence, and the involvement of community volunteers in fighting the problem of rape were brought forth. Although the article made me curious enough to read it, I did not quite entirely engage with it. It seemed to me that the step-daughter was handed the short end of the stick as I failed to center her wishes and needs over my own self-righteous indignation.

Crimes are deemed as offences against the State. Additionally, studies suggest that rape is perceived as more severe and reprehensible than most other crimes. Consequently, a violent, visceral response to sexual violence, by the public and the state machinery alike, may be expected. The issue, that we as a society, oftentimes fail to understand is the socio-economic background within which crimes are committed. We also fail to look at the part the state plays in the commission of these crimes. Phyllis Crocker highlights how laying the blame on an individual for a crime, that is the consequence of the state’s negligence to societal issues plaguing womxn, is a complete abandonment of its duty as a welfare state. As a feminist and a lawyer, I've struggled with reconciling the need to safeguard the rights of womxn and the right of legal representation that is offered to all accused persons. A reductive understanding of feminism had led me to believe that I couldn't stand for womxn's rights as well as those of the accused. An intersectional understanding of crimes presents a solution to this supposed dilemma. It provides us with a lens to look at the criminal and not merely the crime. It points towards the larger problem of violence against womxn and rape culture being a product of our patriarchal society, and not just an act of a “monster in a dark alleyway”.

The onus of rape is not on rapists alone but also on the state machinery and its incompetence to prevent such crimes from being committed. The fault also lies in our societal structures that enable this violence and fail to acknowledge their role in this. When violence against womxn is so commonplace, it's no longer about a few bad apples, but about the whole rotten society that subjects its womxn to violence and fails to hold the perpetrators accountable. The carceral response to crimes against womxn doesn't hold the state or the society responsible. It seeks to punish an individual for the failure of a collective. In such a scenario, demands for harsher punishments including the death penalty are nothing but a cop-out of the state’s responsibility towards its people. The state and the public use the perpetrator as a scapegoat to assuage their guilty conscience. Blaming an individual for the prevalence of gender-based crimes is easier than fixing the institutions and power structures that have been disadvantaging womxn since time immemorial.

Intersectionality also aids us in acknowledging the external circumstances of persons who are accused of crimes. It shows us how persons from marginalized communities are routinely policed. Their traditional trade practices are criminalized and they are relegated to the status of habitual offenders. Such marginalization often causes lifelong distress and trauma. Crimes committed by such persons are “a consequence of disadvantage and deprivation, rather than a pure reflection of their character” (Dellplain 587). Add to this the disproportionately high rate of incarceration of marginalized communities that points toward deliberate targeting, false charges, and inadequate legal aid services. Intersectionality helps us recognize marginalization within the criminal justice system, just like it does in the case of the feminist movement. It shows us the power structures that operate to criminalize Dalit, Adivasi, Nomadic, Semi-Nomadic Tribes and Muslim communities. It also presents how womxn from these communities are treated differently by the criminal justice system. It clearly depicts how the criminal justice system is classist and casteist in its approach towards curbing crime.

Intersectionality provides a more rational and well-rounded understanding of the criminal justice system and its current drawbacks. It helps us take a step back and look past our need for vengeance that we pass off as justice. It enables us to look at the cracks in our justice system that punishes the same people it ought to protect. It gives us a language to recognize struggles different from ours. Most importantly, it gives us the tools to examine where power comes and collides, where it interlocks and intersects. Unless the feminist movement centers the voices of the most marginalized within it, it will not be truly intersectional. Until that happens, we'll continue to be part of the problem that we claim to be fighting against.

References:

  1. Potter, Hillary. “Intersectional Criminology: Interrogating Identity and Power in Criminology Research and Theory.” Critical Criminology 21, June 2013, pp. 305-318. https://doi.org/10.1007/s10612-013-9203-6.
  2. Dellplain, Melanie. "Can a Feminist Defend a Rapist: The Ethics of Legal Representation." Georgetown Journal of Legal Ethics, vol. 31, no. 4, Fall 2018, p. 583-600. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/geojlege31&i=603.