Sex, Law, and the Politics of Age

Abstract

Mayo's text is the subject of an excellent book-length investigation that reads its publication as a historical "event" that not only reshaped the contours of the British Empire but also transformed the relationship between the social and the political in India. See Mrinalini Sinha, Specters of Mother India: The Global Restructuring of an Empire (Durham: Duke University Press, 2006), passim., esp. pp. 4-6.

Introduction to ‘Translating Sex: Locating Sexology in Indian History’

“…43 It also recalls how normative sexuality and reproductive temporality undergirded, naturalised and made ubiquitous the very notion of homogeneous, empty time so crucial to national imagining and to the discipline of History, as I argue in my recent book. 44 If the status of women had stood as an index for a nation's place in the scale of civilisations in colonial discourse, Ghurye's text shows how the sexual habits of women now appeared as the epistemic ground for debating sociological method and national history, and thus reveals what Susan S. Lanser terms the 'sexuality of history', 45 and which I understand as an instance of how the very concept of 'modern History' turns on the notions of time and space that rely on sexual normativity.…”

JessicaHinchy, Governing Gender and Sexuality in Colonial India: The Hijra, C.1850–1900 (Cambridge: Cambridge University Press, 2019)LiatKozma, Global Women, Colonial Ports: Prostitution in the Interwar Middle East (Ithaca: State University of New York Press, 2017)DurbaMitra, Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought (Princeton: Princeton University Press, 2020)IshitaPande, Sex, Law, and the Politics of Age: Child Marriage in India, 1891–1937 (Cambridge: Cambridge Univers

“…Pande states as much when she points out that 'no less than its Hindu counterpart, the liberal legal understanding of the age of consent was itself thoroughly and invariably gendered'. 10 The question of uncertainty creeps up in the courtroom and the stakes are huge because as Pande points out that 'science, with its concept of margin of error, refused to give law (or rather prosecutors) what it needed. Combined with the criminal standard of proof-beyond a reasonable doubt-any case where the female was within range of the age from twelve to fourteen could end in acquittal'.…”

“…Combined with the criminal standard of proof-beyond a reasonable doubt-any case where the female was within range of the age from twelve to fourteen could end in acquittal'. 11 Given the impossibility of either forensic technology or the state's documentary methods to offer a clear proof of age, the uncertainty as to whether a crime had been committed was resolved through the manipulation of the discretionary understandings of what constituted childhood. The legal fiction that the age of consent is supposed to uphold, when coupled with the uncertainty of forensic evidence, would mean the difference between rape and unlawful intercourse.…”

“…In fact, the difficulty jurors had in gauging the age of a victim in court might have rendered them all the more sympathetic to such claims. 12 The creation of the juridical fact that age corresponds to a certain personhood, then using the default of that criterion to excuse a 'rash act resulting in death', poses larger questions about the gendered economy of knowing and knowledge of bodies.…”

“…Pande cites a respondent who 'summed up the anomalous situation in which a sexual act carried penalties simply for "it being extra-marital and not for it being violent"', and urged that legislators ought to define rape 'as a crime of violence, and should not obscure matters by introducing extraneous considerations of sexual morality'. 13 The fact that life was not lived according to the rules and norms assumed by the law was evident in everyday life, yet given that this knowledge was not folded into legal practice, shows that violence against young people, like prostitution, was not meant to be eradicated. Rather, the state's enactments were meant to legitimise these very acts of violence.…”