The Muvman Liberasyon Fam (1) learnt, through the Press, about the Law Reform Commission’s Discussion Paper on new laws on sexual assault. Our Committee members studied it and decided to submit formal objections to its proposals. On 10 May, we learnt via Defi Media outlets that Government has rejected the proposals. The MLF welcomes this. The proposals were a cut-and-paste from the reactionary French law, coupled with increases in prison time. The Government has called on the LRC to rely instead on the Canadian law on sexual assault. This, too, we welcome.

Here are the two points the MLF objected to in the original LRC proposals:

1. MLF says Sexual assault must be defined by absence of consent

MLF calls for the words “without consent” to be the key element in the definition of all types of sexual assault. We note that, while the LRC’s argumentation relies on absence of consent, as does the case law it cites, their proposals had recourse, instead, to French law that relies on the completely different logic of establishing “violence, constraint, threat or surprise”. We fail to understand how this monumental non-sequitur occurred. Canada’s law is, thankfully, based on the absence of consent.

Another interesting aspect of the Canadian law is that “sexual assault” is a sub-category of “assault” tout court. This is one of the MLF’s long-time demands. It is a formulation that sees rape and sexual assault for what they are: aggression, bullying, physical abuse. This simplifies the law and prevents it from going into all sorts of bizarre situations one-by-one. Seeing sexual assault as assault tout court also makes reporting much easier for the women and girl victims – often the only witnesses – and makes giving evidence less traumatic. Also interesting is the Canadian law’s specific out-lawing of evidence of the girl or woman’s prior sexual activity. This, too, we welcome.

We believe that, if the concept of “consent” is the basis for the law, many of the sub-categories in the LRC draft will be subsumed into the very logic of the definition. We mean victims under the age of consent, or unconscious, drugged, asleep, with mental disabilities, or where perpetrators use “violence, constraint, threat, or surprise” (that the French law cites). Sodomy will then clearly be illegal when without consent. Marital sexual assault and “contract rape” need specific mention in the law, given their prevalence.

The French law is arguably worse than Mauritian law. Note that President Macron, himself, in his famous 2017 speech specifically criticized the law, referring to the “consent” issue. In fact we, as non-lawyers, are shocked at the implications of what he said, referring to “la présomption de consentement”(3). We deduce that the logic of the French law is that there is a need to have this list of “violence, constraint, threat and surprise” precisely because there is a hideous, patriarchal concept (4) of “présomption de consentement” in French law. The patriarchal implication is clear: “Who would, after all, dare say ‘no’ to a male?” Especially a powerful one. The model the LRC proposed is a cruelly accurate reflection on just how backward French society is on this issue. And while President Macron promises to move forwards, the LRC original proposals threatened moving backwards here.

2. Draconian Prison Terms are Absurd, Harmful to women, and bear grave Unintended Consequences

Everyone in the women’s movement, though not in society as a whole, knows that:

Sexual assault (including rape) is a Widespread Societal Problem

a) Somewhere around 10% of adult males in Mauritius – we estimate this from our 43 years of collective experience and documentation – perpetrate sexual assault multiple times. It is a crime that is, unfortunately, widespread. We mean some 50,000 male perpetrators are at large. It is a shocking but true reflection of society. Sexual assault is part of a generalized social problem under patriarchy. This assault occurs most frequently within the family circle or in groups of friends and colleagues. It is covered up constantly. We believe that the quasi-totality of Mauritian women have experienced sexual assault by the time we reach, say, 40. The same 10% of men are the perpetrators of these abuses on nearly 100% of women. Such is the pervasiveness of the assault on women. The LRC, an all-male panel of six, may not itself be aware of this, but their sisters, wives, mothers, aunts, daughters and nieces already know this. A much smaller number of men are victims of similar assault. The sad fact is that society, including non-predatory males, does not yet know how to rein in these predators. Society still fears them. They operate everywhere with impunity. The way forward is certainly not to choose a few dozen men for locking up for decades to rot in prison, thus merely pretending to address the problem while turning a blind eye to 50,000 perpetrators. It’s absurd. “Exemplary” punishment like this, i.e. sentences imposed on one person to deter other people, is basically an unjust tool, anyway. Society has to work out ways to help women to denounce these men in front of society (to friends, the family, the Press, religious and civil authorities, the CDU, and this way to end the continual on-going assault. We commend the #MeToo movement in the USA, founded in 2006, for showing the way.

b) The “revenge” and “punishment” aspects of criminal law are part of patriarchy’s own arsenal. When used, they re-enforce patriarchy. They are not part of “justice” but of a cycle of aggression. Patriarchy is not the reign by “men”, but the reign by dominant males, often at the top of pyramidal social hierarchies – bosses at work, heads of Government departments, leaders of parties and unions, officers in charge of an enquiry, big brothers and older uncles who lead a clan, husbands as heads of household and so on. Patriarchy is an unequal “balance of power” between dominant males, on one side, and all women and most men on the other. In the women’s movement, we do not subscribe either to “revenge” for crimes like sexual assault, including rape – whether this revenge is meted out by the State or by men in the victim’s clan resembling lynching – nor do we subscribe to “punishment” meted out to beat the evil out of men perpetrators. We put store on social control. As for the law, what is important is the process i.e. someone is tried in public for a sexual offence, and thus is brought to book. Then, when it is just to do so, he is found guilty, again in public. This is the role of the law in decreasing sexual assault and rape: to make it clear that society no longer acquiesces. The perpetrators – dozens of thousands of them – must no longer be free to act with social impunity. They must be called out. So, the law must assure, when there is a prima facie case, that the authorities arrest, release on bail where possible, and put on trial, hear evidence, and judge someone – all within a reasonable time – months, not years. As for prison sentences, we, in the women’s movement, see prison as a time for reform. In extreme cases of a perpetrator with pathological violent behavior, it can be a social necessity to put him in prison to protect society. Generalized, draconian prison sentences, however, are part of a cycle of patriarchal brutality. The State just adds fuel to the patriarchal fires. When we say we want to end impunity, we mean encouraging victims to come forward, to speak out in general, to tell their friends and sisters, publicise the truth, talk in public whenever possible, in the courts when appropriate. Society must listen, pay attention; when there is a complaint, the authorities must accuse the person in public, try him (and sometimes her) in public and then give a verdict in public. Putting all the emphasis on punitive, even vengeful punishment, is a hallmark of patriarchy. As such, it also often adds to the notorious difficulty for girls and women to come forward with complaints. The draconian punishment raises the stakes, often within the family, remember, higher than the girl or women victim can risk going, and so they end up perpetuating silence.

c) Girls and Women Will Risk Being Murdered as Well

Calls for long prison times (or worse still, the death penalty) stem from either righteous anger or, more sinisterly, from those who project their own predatory tendencies on to others and then seek to punish this other. We must recognise this as part of the “lynch gang” tendency. And then, society obsesses constantly over “the man” while ignoring the girl victim. Look how everyone cries for long sentences on-the-spot, while it has taken the women’s movement 17 years’ struggle for a system whereby women by-pass the police station and go direct to the hospital to report sexual assault. And do people care so little about girls and women that they fail to notice that long prison sentences cause, and can be predicted to cause, the murder of victim? The only witness is often the victim. Once the perpetrator terminates his abuse, he immediately, realizing the danger of 20 years in prison, acts quickly so as to be rid of the only witness i.e. the victim. This is an unintended – if predictable – consequence of excessive, vengeful, or “exemplary” sentencing.

Conclusion

We, therefore, call on the LRC to propose decreasing, not increasing, prison sentences. This, coupled with a law similar to that in Canada on “consent” is then part of a broad campaign against sexual assault. The campaign must include consciousness-raising on “consent” – assuming consent is the centre-piece of the new law. It must encourage victims to denounce men. Victory must be measured not by locking up a few perpetrators forever but by society making sexual assault so unacceptable that no man wants to risk the ostracism it will bring.