The Muvman Liberasyon Fam was invited by the Law Reform Commission to give an outline of its proposals for new laws on sexual assault. A delegation from the MLF met representatives of the Commission on Monday 22 July from 2:00 pm to 4:15 pm. Present for the MLF were three spokeswomen Rajni Lallah, Ragini Kistnasamy and Lindsey Collen, with other members present Begum Bedullah, Veronique Topize, Sadna Jumnoodoo, and Soufia Bham.
The MLF had already submitted a Memorandum explaining its rejection of the original proposals based on the French Law. We did not again go into this.
Instead the MLF put emphasis on the vital issues that need to be addressed in a new law, and on aspects of the Canadian law, a code that the Attorney General has recently advised the Law Reform Commission to rely upon.
The MLF delegation deponed in Kreol. The deponing lasted some 45 minutes.
Then there was discussion for the rest of the time. It was in three languages.
Here is a summary for the Press of what the MLF proposes.
Lindsey Collen spoke on two closely related issues:
1) Assault: Sexual assault is best seen as a sub-category of assault tout court. In Mauritius, the law itself as well as law practitioners, the press and the public, tend to see sexual assault as a sub-category of “sexuality”.
One hears people saying that some man could not control his “pulsions”. Or that women somehow provoke men. And in general, even the wording of laws in many countries is, in itself, somewhat voyeurist. The change towards making “assault” central (instead of sex) makes reporting cases, discussing cases and giving evidence easier for the victim. And rape is thus serious sexual assault. There is no need to go into all the technicalities of penetration.
All the salacious details are thus relegated. The far-fetched evidence on the woman’s (or victim’s) previous life, way of dressing, supposed provocation, inappropriate presence at some place or some time, are then just not admissible, as they would not be for ordinary assault.
2) Absence of Consent: The essence of sexual assault is the absence of consent. This, too, is a clear-cut issue, and it covers all assault. Giving someone a blow on the face is assault. But consent can be given for boxing as a sport, if rules are followed. Cutting someone’s tummy open is assault.
But consent can be given for surgery. This consent is given, when feasible, in writing. Similarly, someone who cuts one’s hair or massages one’s shoulder commits assault, unless consent is given at the hairdresser or physiotherapist. So, sexual assault is infringement of one’s sexual integrity without consent.
Consent cannot therefore be given by young children, say less than 16 (except in circumstances where the age differential is small and there is no other power differential). It cannot be given by someone unconscious, under the influence of drink or drugs, or someone with a mental disability that precludes the possibility of conscious consent.
Consent must obviously be given by sex workers and by wives/partners, or else there is sexual assault.
Ragini Kistnasamy spoke on:
3) No to Draconian Sentences
Exemplary punishments are populist. They pretend that, by locking up a few men for an excessive numbers of years, a systemic social problem of male predators is being addressed, when it is not. The MLF estimates that some 10% of men are the predators responsible for sexual assault on the quasi totality of Mauritian women, as well as on children and men. They benefit from social impunity. This is tens of thousands of men, who are responsible, not just the few dozen reported to the authorities. And it is hundreds of thousands of victims of these predatory males.
She stressed the added danger of an unintended consequence of high sentences: that the perpetrator is, immediately after the rape, tempted to assassinate the victim, who is all often the only witness.
Another unintended consequence is that the victim denouncing someone (remember he is often an uncle or older cousin) will provoke upon herself the wrath of an entire clan by exposing one of its powerful earning members to decades in jail. Knowing this draconian punishment will ensue thus silences the victim.
4) Canadian Law
Rajni Lallah then outlined articles of the Canadian Law that are important to the MLF. The main philosophy she said was that the law was drafted so as to encourage the reporting sex assault, and to put the victim of the assault, not the aggressor, as the central concern. As well as submitting her paper, she submitted a “table” of the relevant articles of the Canadian law.
Important progress in key aspects of Canadian Law on Sexual Assault The Canadian law, unlike many other codes, specifically defines sexual assault as one of the forms of assault. Rape is thus a serious form of assault. It is not something defined by the technical issue of penetration.
Men or women can be the victims, or indeed the perpetrators, of sexual assault.
The essence in Canadian law on sexual assault is the absence of consent.
This central issue makes for logical conclusions, like young children, unconscious people, drunk or drugged people, people with mental disabilities, cannot give consent. Consent cannot be assumed to have been granted for a whole series of actions, but is specific. Consent can be withdrawn at any moment. It affects society, in that men are bound to ensure that consent is given.
Canadian law specifically makes inadmissible, though it flows from the philosophy of their law in any case, any evidence on the woman’s personal life, her work in the sex or escort-girl industry. It specifies that marital rape is assault, though this, too, flows in their law, from the absence of specific consent.
The gravity of the sexual assault is to be judged by the harm done to the victim, and not on technical grounds.