## Gender Violence, the Law, and Society

### Emerald Interdisciplinary Connexions

Published in partnership with Progressive Connexions: https://www.progressive connexions.net/

### Series Editors

Robert Fisher, Founder & Director, Progressive Connexions M. Susanne Schotanus, Director of Publications, Progressive Connexions

### Editorial Board

Ann-Marie Cook, Principal Policy and Legislation Officer, Queensland Department of Justice and Attorney General, Australia Teresa Cutler-Broyles, Director of Programmes, Progressive Connexions John Parry, Edward Brunet Professor of Law, Lewis and Clark Law School, USA Lorraine Rumson, Network Director, Progressive Connexions Karl Spracklen, Professor of Music, Leisure and Culture, Leeds Beckett University, UK

### About the Series

Emerald Interdisciplinary Connexions promotes innovative research and encourages exemplary interdisciplinary practice, thinking and living. Books in the series focus on developing dialogues between disciplines and among disciplines, professions, practices and vocations in which the interaction of chapters and authors is of paramount importance. They bring cognate topics and ideas into orbit with each other whilst simultaneously alerting readers to new questions, issues and problems. The series encourages interdisciplinary interaction and knowledge sharing and, to this end, promotes imaginative collaborative projects which foster inclusive pathways to global understandings.

# Gender Violence, the Law, and Society: Interdisciplinary Perspectives from India, Japan and South Africa

EDITED BY

M. SUSANNE SCHOTANUS

Progressive Connexions, Netherlands

United Kingdom – North America – Japan – India – Malaysia – China

Emerald Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK

First edition 2022

Copyright © 2022 Respective chapter authors. Published by Emerald Publishing Limited.

This work is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of these works (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/ by/4.0/legalcode

Open Access

The ebook edition of this title is Open Access and is freely available to read online.

#### British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

ISBN: 978-1-80117-130-4 (Print) ISBN: 978-1-80117-127-4 (Online) ISBN: 978-1-80117-129-8 (Epub)

An electronic version of this book is freely available, thanks to the support of libraries working with Knowledge Unlatched. KU is a collaborative initiative designed to make high quality books Open Access for the public good. More information about the initiative and links to the Open Access version can be found at www.knowledgeunlatched.org

### Table of Contents

#### Gender-Based Violence and the Law

### About the Editor

M. Susanne Schotanus is the Director of Publications for Progressive Connexions and in that position is currently involved in the production of a range of books for the Emerald Interdisciplinary Connexions series. She's one of the co-founders of the Inter/Connexions publishing house as well as a freelance editor for both fictional and academic text. Her work is marked by a passion for interdisciplinarity and knowledge production, especially on those topics that have traditionally been considered taboo.

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### About the Contributors

Deepesh Nirmaldas Dayal is a Master of Arts in Counselling Psychology graduate from the University of Johannesburg, in Johannesburg, South Africa. He works as a Counselling Psychologist and Career Counsellor at the Counselling and Careers Development Unit (CCDU) at the University of the Witwatersrand, in Johannesburg. Deepesh's work has been interdisciplinary, with him taking up roles in the education and mental health sector as a trainer, teacher and therapist. His research interests have focused on inclusive education, gender and psychology. Recently, Deepesh completed a study titled 'Microaggressions Against South African Gay Indian Men', which focuses on the intersectional microaggression experiences of South African Indian gay men.

Gavan Patrick Gray is a Professor at Tsuda University's College of Policy Studies in Tokyo and holds a PhD in Politics and International Relations from Leicester University. His research interests include the fields of language and communication, national security and propaganda, and gender violence. He is currently engaged in a multi-year research project comparing the social and political responses to gender violence in Japan, Thailand and Ireland.

Dr Nidhi Shrivastava completed her PhD in the department of English and Writing Studies at the University of Western Ontario (now Western University) in London, Ontario, Canada and works as part-time faculty in the Department of Languages and Literature at Sacred Heart University. Her research focuses on the #MeToo movement, Hindi film cinema, censorship, the figure of the abducted and raped women, Indian rape culture, and the 1947 partition. She co-edited the volume of Bridging the Gaps Between Celebrity and Media with Jackie Raphael and Basuli Deb and her academic research has also been published in South Asian Review. She has also contributed to the edited volume, #Metoo and Literary Studies: Reading, Teaching, and Writing About Sexual Culture. She is currently co-editing with her colleagues an edited volume on Reimagining #MeToo in South Asia and the Diaspora and working on her book proposal to turn her dissertation into a monograph.

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### Acknowledgements

In this book, we often talk about communities. And it really did take a community of brave and open-minded people to bring this book into existence. The lengthy process of creation has brought home the conviction that there really is something resembling an international, interdisciplinary academic community. And despite popular belief, this community is rather welcoming of new ways of 'doing publishing'. Though this edited volume has some unique qualities – containing essays by only three authors, and incorporating discussions between the authors into the structure of the book itself – from its first conception, the project has seen a unique level of enthusiasm from a wide variety of people. And without this enthusiasm, it would have been impossible to realise our ambitions in the current format.

First, of course, there is the Progressive Connexions team, led by Rob Fisher. The authors met at a conference on Sexual and Gender-based Violence organised on the brink of the pandemic by the marvellous ProCon team consisting of Teresa Cutler-Broyles, Lorraine Rumson and Elif Çakmak. In this same context, special thanks should go to Kristine Seitz, the leader of this event, who, with her warm and thoughtful attitude, managed to create a safe space where deeply impressive conversations about these painful topics could be had. She also served as an advisor to this book, making suggestions related to inclusive terminology that have proven to be extremely valuable.

Second, there is our publisher: Emerald. Not only did they create the gorgeous book cover that makes this volume a work of art; our Emerald team – Katy Mathers, Lydia Cutmore, Sumitha Selvamani and Ramya Murali – were kind, generous and knowledgeable supporters throughout the entire process. They were generous with their time, but also generous in putting this book forward for selection in the Knowledge Unlatched programme, which is an amazing organisation that has ended up allowing us to publish the book Open Access. For that, Knowledge Unlatched and all the libraries that have pledged funds deserve not only our acknowledgement but also our sincerest thanks.

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## Introduction: Gender-Based Violence, the Law, and Society

#### M. Susanne Schotanus

This is not an easy book. It's not an easy book to read, and – for both similar and diverging reasons – not an easy book to write an introduction to. The reason why it is not easy to read is the oftentimes heart-wrenching stories that are at the heart of these authors' well-researched, theoretical arguments. From the personal abuse experienced by women on the Post-Partition Indian Subcontinent, through to the continuing failings of the national legal systems in dealing with cases of rape; from the way the COVID-19 pandemic exacerbated the already precarious positions experienced by sex workers in Japan, to the microaggressions suffered by gay man of Indian descent in South Africa – the topic of gender-based violence is rich in narratives of life-destroying (mental) health-affecting and heart-breaking everyday realities. Though it is essential we talk about and seek solutions to these realities, something the authors in this volume do to an admirable degree, the levels of pain captured in this volume do not make for light reading.

As you'll no doubt understand, the writing of an introduction to such a volume comes with its own specific set of challenges. The first of these challenges is geographical in nature. When we first conceived of this volume, it was the combination of narratives from countries that aren't usually represented in volumes produced by British and American publishing houses that got us excited. What I did not sufficiently reflect on at that point was the fact that I, a white, European woman, would be writing this introduction, which puts me in a rather awkward position. I'm very much aware of the privilege my place of birth has afforded me. To have my name on this book, then, and to present these chapters to you, the reader, opens me up to a wide range of potential critiques – from orientalism (in my holding up stories from these countries as quaint, different conceptions of familiar experiences) to playing the role of white saviour (in my presenting this volume as seeking solutions to the heart-breaking realities analysed in the chapters). I have no defence against these critiques, other than to say: I am aware of the dangers and pitfalls and have aimed to remain vigilant against

doi:10.1108/978-1-80117-127-420221001

Gender Violence, the Law, and Society, 1–9

Copyright © 2022 M. Susanne Schotanus

Published by Emerald Publishing Limited. This work is published under the Creative

Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this work (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode.

them with every word I wrote and edited. What's more: I do not seek to speak on behalf of groups that have traditionally been silenced, nor do I see that as my task in this introduction. Rather, I mean to introduce the analyses presented by these commendable authors into the larger, global debates on the topic of gender-based violence. Though in the grand scheme of things good intentions do not account for much, I hope that here they will be enough so you will allow me to introduce the amazing work done by the three authors who've composed the following chapters.

A second challenge is the breadth of both the topic and experiences of gender-based violence, as the table of contents for this volume will already make clear. As a conceptual researcher, I am used to selecting a concept with both the flexibility and strength to – like an elastic band – bundle together the phenomena I want to touch on, and to then trace the historical meaning and usage of this concept through different traditions to come to a comprehensive, interdisciplinary theoretical framework that I can present as the context in which to read the work. For this book, however, I've struggled to find those concepts that could tie the wildly diverging topics together into one logical, cohesive whole. Though they are all relevant, neither my own holy trinity of 'power, agency and consent', nor the concepts offered in this book's title, appeared to do justice to the wide variety of pressing issues touched on by the authors. We're currently seeing an intensity of discussion on sexual assault that we have not seen since the feminist sex wars in the early 1980s, due to the brave people who, inspired by the #MeToo movement, have broken the previously imposed silence to share their personal experiences. Their testimonies of personal abuse and assault are as varied as they are, they are important and need to be heard. However, as the chapters in this book show, sexual abuse is only one way in which gender-based violence is experienced on a daily basis. I finally came to realise that this variety and plurality – the impossibility of capturing the context in a single concept – might actually be exactly the value of this book. Consequently, rather than presenting you with the history of the concept of gender-based violence, and the academic scholarship done on the topic, I'd like to use this introduction to actually introduce this book, rather than it's context. For the theoretical frameworks, I'd like to refer to you to the comprehensive contextualising sections of each individual chapter.

Each chapter in this volume explores the ways in which systems of power, individual gender identities, and cultural norms and practices work together to create and sustain the damaging experiences covered. But what makes this a comprehensive volume, rather than a collection of essays, is not the limited scope that characterises most edited volumes. Instead, what the authors have managed to do is to make the case for a pluralistic understanding of gender-based violence. The issues they discuss are explored on different (institutional) levels such as politics, law, economic status, (former) class and caste systems, media, subculture and the family. Though books could be, and have been, dedicated to gender-based violence on each of these levels, in this book they are not considered separately but rather in their interweaving and dynamic relationships.

The same is true for the methodologies employed and therefore the disciplines with which this book would be associated. Each chapter in this book can stand on its own, due to the exemplary rigour of the authors' work. Nidhi Shrivastava expertly blends her analysis of Hindi film and TV shows with the historical realities that their scenes reflect. Gavan Patrick Gray has managed to make Japanese academic, political and activist discourses not only available to the wider audience that this book aims to cater to but also to do this in a particularly rich, informed, critical and sensitive way. Deepesh Dayal's analysis of (online) magazines and interviews with gay men in South Africa make, to paraphrase a popular feminist slogan, the personal political and the political personal. However, it is where the insights derived from the different disciplines come together – in the transcripts of the authors' discussions, which form the introductions to each of the three sections of this book – that it becomes clear how only an international, interdisciplinary, intersectional and diverse understanding of gender-based violence is equipped to accurately explore and reflect the multifaceted lived realities of those affected.

It's hard to come up with a satisfying definition of gender-based violence that can bring all these different strands together. Therefore, in this book, gender-based violence is understood in its broadest interpretation: any type of violence, whether physical, economical, social or psychological, that is perpetrated against a person because of their gender. Which, of course, brings us to the question how to understand gender. Again, any simple definition will necessarily fall short. However, despite the recent development of alternate ways of thinking about gender, in this book, only cases of violence directed at people who identify as either male or female are explored. Gender, here, pertains to those ideas, assumptions and expectations that relate to the male and female identities. Please note that the exclusions of violence inflicted upon people who don't identify as either male or female is not the result of any political or ideological decision. Rather, it is the unintended result of our decision to emphasise and explore the different forms of violence that are inflicted upon people, instead of exploring the different ways in which people of different genders become victim-survivors of such violence.

#### Gender-Based Violence

The first section delves into the concept of gendered violence in more detail. In their introduction to this section, the authors discuss the increasingly common understanding that societies are becoming less violent. Though they acknowledge that progress has been made on many fronts, an understanding of violence beyond the physical dimension shows that utopia has not yet been achieved. The authors discuss overt violence mostly in terms of precarity: the precarious circumstances in which many women, sex workers and homosexuals find themselves. These people's positions in society are accompanied by feelings of learned shame as well as limited access to power, which makes them particularly vulnerable to various types of abuse. However, it is these systems themselves, the structures that produce this lack of power and induce shame, which the authors identify as themselves violent. Commodified violence, microaggressions and shaming into suicide may be less graphic than sexual and physical abuse, but are no less violent – as is further explored in the individual chapters of this section.

Nidhi Shrivastava's first chapter is entitled 'Genocidal Violence, Biopolitics, and Treatment of Abducted and Raped Women in the Aftermath of 1947 Partition'. In it, she discusses what she calls a 'dark chapter' in India's past. When in 1947 the Indian Subcontinent was divided into India, West Pakistan and East Pakistan (current Bangladesh), it was decided that this Partition would take place based on religion: Pakistan would house people of Muslim faiths, whereas India would be the home to non-Muslims. As a result, mass migrations and violent clashes took place, costing an estimated 1 million people their lives. However, only in the past decade have scholars come to realise that in the midst of this chaos and unacknowledged genocide, an estimated 75.000 women were abducted, forced to marry their abductors and bear children. In their attempts to redress these traumatic events, the Pakistani and Indian governments spent the years between 1948 and 1957 tracking down these abducted women and returning them to their 'native communities'. However, these women were not consulted. Rather, if a woman was married to a man of a different faith, it was assumed she had been abducted and she was transported to underfunded camps where she could be housed in terrible conditions before being returned to her original family. Her family members, however, often perceived her as a dishonour on the family name and had responses ranging from turning her away to asking or forcing her to commit suicide. In her impressive, bold chapter, Shrivastava explores the different layers of violence and trauma that these women experienced at different hands, as well as the relationships of these various types of violence to biopolitics, genocide and traditional gender roles.

Whereas the most familiar attitudes towards sex work fall into one of two camps – either as inherently violent or a legitimate form of enterprise – in the second chapter, 'The Commodification of Sex in Modern Japan: Outdated Attitudes and Overdue Reforms', Gavan Patrick Gray shows that in Japan the debate on legalising the sex industry is quite different. Here, the negative view of the industry also contains the idea that the existence of the industry is proof of a failure to adhere to Western (modern) norms, while positive attitudes contain the idea that the industry contributes to social harmony and sexual health. Still, though both views make their arguments on collective, societal levels, the political status of the sex industry in Japan is precarious. Prostitution is not legal, though the sex industry is condoned. In these dynamics, Gray identifies 'symbolic violence': a form of domination embedded in everyday actions that prevents its victims from expressing grievance, due to acceptance that the system that harms them is regarded as natural, unchangeable, or in some ways beneficial. After discussing in detail the public, legal and political attitudes towards the sex industry, Gray shows that the failure of current systems in offering support to sex workers became especially clear at the start of the COVID-19 pandemic. In a section entitled 'Double Standards and Inadequate Support Systems', he notes that sex workers were excluded from a system established to support parents who were forced to leave their work due to school closures, and shows how this is only a symptom of the larger failing of the system. He argues that commodified violence and symbolic violence are engrained in this system, and need to be properly addressed on political, legal and societal levels.

A third form of often-overlooked violence based on gender is discussed by Deepesh Nirmaldas Dayal in the third chapter: 'Sexual Orientation Microaggressions in South Africa'. Though people with LGBT1 identities have held constitutional protection from discrimination in South Africa since 2006, Dayal identifies a plethora of covert forms of violence, called microaggressions, that are still very prevalent within this country. Sexual orientation microaggressions occur in several forms, and are used to mock, demean and negate the lived experiences of LGBTQ1 people. In this chapter, the author looks at microaggressions specifically in the context of LGBTQ1 people of Indian descent who live in South Africa. Due to stigmatisation within Indian communities, as well as their status as ethnic minorities in a society that is working to overcome the effects of Apartheid, these people experience additional layers of microaggressions, adding up to a volatile mix of psychological challenges. The microaggressions they experience lead to internalised homophobia, shame and highly compartmentalised and isolating ways of living. By analysing three types of microaggressions – microassaults, microinsults and microinvalidations – through excerpts from interviews with South African Indian gay men and magazines that cater to them, Dayal shows the violent nature of these covert forms of discrimination, and argues that they have the potential of harming their recipients just like physical/overt violence. Therefore, they should be included in any discussion of violence, whether in an academic, legal, therapeutic or cultural context.

### Gender-Based Violence and the Law

In the second section, the authors focus on the way gender-based violence is addressed within each country's legal systems. The discussion that introduces this section explores how – even though rape and sexual assault are illegal in each country discussed – both the nature and cultural perceptions of the systems that should execute this legal protection fail to live up to their promises. Factors such as access to financial resources; class, caste and racial backgrounds; and adherence to gender expectations are shown to still play a large role in the legal trajectories following official reports of sexual assault – and to determine to a large extent whether the perpetrator will be convicted and punished for their crime. However, the authors also discuss factors that prevent victim-survivors from reporting these experience in the first place: a lack of trust in the system, and the fear that the legal process will be as violent as the initial crime. Finally, the authors touch on the importance of finding an appropriate terminology when speaking about gender, sexual orientation and the violent crimes committed in response to them. These discussions all serve to introduce the three individual chapters which deal with issues of gender-based violence in relation to the legal system.

In Chapter 4, 'The Insidious Culture of Fear in Indian Courts', Nidhi Shrivastava explores cases of rape, both real and fictional, to show the problems inherent in India's current legal system when it comes to rape and sexual violence. Shrivastava argues that the current system does not support the rape victim-survivor, rendering her helpless and re-traumatising her in the process. The Hindi movies she analyses criticise and problematise the current systems, exposing the widespread and harmful practice of judging the victim based on her previous sexual history and reputation, as well as the role access to financial resources plays in a victim-survivor's ability to seek justice. What's more, even where the systems themselves are reformed, there's a lack of commitment to and enforcement of these systems due to socio-political and cultural structures that serve to induce fear, humiliation and shame in the would-be accuser. A 1980s cult classic the author analyses appears to suggest that the only way a victim-survivor of rape can gain justice is by seeking it on her own terms, even if that means breaking the law. Other films Shrivastava explores show the different ways in which women are silenced throughout the process, as well as highlighting the role that class and caste still play in determining the victim-survivors' chances of success. By drawing links to the 2013 Amendments to rape laws in India, as well as real-world rape cases, she takes her conclusions out of the realm of fiction to make a strong case for more significant reforms, to allow rape victim-survivors to finally get the justice they deserve.

In Chapter 5, Gavan Patrick Gray discusses 'Legal Responses to Sexual Violence in Japan: First Steps in a Lengthy Process of Rehabilitation'. Though Japan has a strict judicial system that has resulted in low crime rates, when it comes to sexual violence the picture is quite different. Gray locates the problem in the slow changes Japanese culture has seen in its change of perceptions of gender identities. Though in 2017 Japan made the first major changes to its penal code on sex crimes in more than 110 years, this has by no means eradicated the weaknesses in the legal system when it comes to punishing perpetrators of rape. Between the statute of limitations on rape and sexual assault, and gaps in legal definitions of terms such as voyeurism, some issues can be addressed with changes to the laws themselves. However, as Gray points out, there are other changes necessary that are related less to the laws themselves, and more to how they are interpreted and executed. Though the Japanese system generates circumstances similar to those described in the case of India – meaning that only an estimated 10% of instances of sexual violence are reported – Gray shows that the major hurdles preventing perpetrators from conviction, even if they are identified, are victim hesitancy and the strongly developed 'settlement industry'. By presenting the current situation, highlighting barriers and issues within both the current legal system and culture, and drawing from activist discourses to make suggestions for reform, this chapter presents a nuanced picture of the gaps and possibilities of Japan's justice system on its own terms.

In 1994, South Africa was reborn as a democracy, promising freedom and equality for all citizens. However, Deepesh Dayal shows in this sixth chapter, 'The Paradox of Constitutional Protection and Prejudice Experienced by LGBTQ1 People' that though constitutionally the freedoms of people with LGBTQ1 identities are protected, this does not mean they experience the freedom and equality promised. He looks specifically at the category of violence called 'hate crimes', showing that about 7% of the South African population fears being the recipient of hate crimes, and that simultaneously peoples' faith in the justice system is in sharp decline. People believe there's a lot of corruption in the courts, sentences passed are too lenient, and the system is too slow to be efficient. What's more, similar to what was reported in the preceding two chapters, people who are the victims of hate crimes fear that they will receive secondary victimisation by the system itself if they choose to file a report. It is here that the concept of intersectionality is first introduced: though these figures are harrowing when related to the South African population, LGBTQ1 people of Indian descent experience particularly high rates of verbal abuse, threats of physical violence, sexual assault and abuse by family members. By exploring all these intersecting factors, Deepesh Dayal explores and brings to light the particular challenges that still exist, in a country that was one of the first to constitutionally protect the rights of its LGBTQ1 citizens.

### Gender-Based Violence and Culture

In their introduction to the third section, the authors explain the social and cultural factors that shape the form of, and attitudes to, gender-based and sexual violence. They point out that though in the EU and US discussions on, and analyses of, these types of violence are becoming more commonplace and easy to examine, in many areas of the world there are regional or national perspectives that problematize these practices. Factors like shame, family honour and collective identity perceptions place additional burdens and stress on victimsurvivors that are not taken into account in standard Western approaches to these issues. The cases analysed by all three authors in their individual chapters in this section specifically look at factors that silence victim-survivors, and pressure them to not speak up. As the lack of reporting of crimes is one of the main barriers in any statistical analysis on the topic, the deeper understandings of these processes of silencing form a major contribution to scholarship on gender-based and sexual violence. What's more, the authors discuss different ways in which these cultural barriers might be removed: through media, education or a combination of both. Finally, the authors end on a discussion of their own role within these processes.

In Chapter 7, 'Rape and the Prevalent Culture of Silence in India', Nidhi Shrivastava discusses the factors that determine whose rape will be discussed and debated, and which will be forgotten. Because of caste, class, gender, honour and shame, only certain narratives are privileged in mainstream media and popular culture. The culture of silence Shrivastava discusses, however, pertains to more than just media: as she already indicated in her previous chapters, factors such as honour and shame often cause the victim-survivors' own families to pressure them into silence – especially when the perpetrator of violence is one of their family members. After outlining these issues, Shrivastava goes on to analyse two media representations that aim to break the culturally imposed silence. These media texts show that child sexual abuse and gender-based violence are not only committed by the poor, lower classes but take place in both the public and private spheres of the elite and upper middle classes as well. Shrivastava teases out those threads in the texts that relate to the culture of silence that protects the upper-class perpetrators and allows them to repeatedly commit their crimes unpunished.

Though in preceding chapters on sexual assault the roles of female gender norms have been discussed, in Chapter 8, 'Japanese Gender Norms and their Impact on Male Attitudes Towards Women', Gavan Patrick Gray dives into the male gender norms that to a large extent determine gender relations in Japan. Gray shows how the male gender stereotype of the industrious, productive and distant breadwinner has created an emotional crisis among many Japanese men. The gender expectations dissuade these men from forming meaningful intimate relationships with their families and cause a range of sometimes psychologically harmful responses: from fixating upon unthreatening juvenile women to rejecting romantic entanglement of any kind. In his chapter, Gray gives a brief overview of the history of gender relations in Japan, before diving into these two different responses to the lack of companionship experienced by these men due to the gender stereotypes. Then, he explores in more detail the ikumen concept – which is used to refer to men who are attractive to women because they take an active role in raising children – and has become part of an ongoing project by the Ministry of Health, Labour and Welfare to promote gender equality in the home. Though many Japanese men are emotionally mature and do not suffer from the issues first explored, the outlier cases are so harmful and widespread that they help illuminate some of the deeper problems with Japan's gender norms. As gender norms are often analysed in the context of harm to women, this chapter will prove essential for both the debates on gender and on gender-based violence, as these male gender stereotypes have the ability to harm everyone involved.

Deepesh Dayal's Chapter 9, 'Intersectional Influences on Sexual Orientation Microaggressions', similarly explores the gender stereotypes that contribute to violence – in this chapter in the specific form of microaggressions – but does so in an intersectional framework. He builds this framework out of the seemingly disparate layers of class, gender, ethnicity and minority cultures which were all addressed to some extent in preceding chapters, to explore the specific experiences testified to by homosexual men of Indian descent in South Africa. Where on a national level LGBT identities are often seen as un-South African and a Western import, within the Indian communities, in particular, there's an added layer of hegemonic male gender expectations – often emphasised and exacerbated by Bollywood movies – which are perceived to preclude gay male identities.  What's more, as a result of Apartheid, Indian communities in South Africa are particularly tight-knit and collectivist, meaning there is a strong level of social control. Add to this the influence of religion in the country, and what you find is a volatile, intersectional mix of factors that support and sustain the use of microaggressions as a response to LGBT identities.

Combined, these chapters show the many forms gender-based violence can take, specifically in the collectivist communities that are often overlooked in scholarship on the subject. Whether violence is committed through rape or harmful gender stereotypes; by individuals or supposedly protective systems; the effects of this violence can traumatise generations. By analysing their case studies in their respective national and cultural contexts, the authors manage to outline the field of issues related to gendered violence on a previously unimagined scale while remaining cognizant of the complicated networks of influences that problematise any simple (Western) solution to these issues. Combining an unprecedented scope with great depth and specificity, this volume shows through practice the value and potential of an international, interdisciplinary and intersectional approach to the topic of gendered violence.

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## Gender-Based Violence

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## Section I: Gender-Based Violence

Gavan Patrick Gray, Nidhi Shrivastava and Deepesh Nirmaldas Dayal

#### Abstract

This chapter is a transcript of an open-ended discussion that occurred between the authors when they met to discuss the subject matter of the first section of the book, which focuses on areas where serious ongoing problems of gender violence are receiving insufficient attention. The discussion took place after preliminary drafts had been completed and the authors share their thoughts on the subjects they will each discuss in more detail in the following chapters – including the cultural representation of historical gender violence in India, the treatment of women in Japan's sex industry and attitudes towards LGBTQ1 groups in South Africa.

Keywords: Gender violence; Japan; India; South Africa; gender equality; precarity

Gray: I think we can agree that this is a very broad topic and we are only likely to touch on some specific and quite focused areas of it in the following chapters. In this space though, we have a little more freedom to explore elements of the encompassing theme. If I can begin, I would like to ask if either of you have read Steven Pinker's Better Angels of our Nature? He argues that human civilisation has been steadily growing less violent and that we are becoming, and will continue to become, more civilised, including an increase in empathy and protection of various rights. I wonder if you feel that gender violence is in decline?

Personally, I think it's clear that there are significant improvements over past social norms. However, I have a deep thread of cynicism about political systems that always makes me fear the dystopian potential of civilisational change, the

doi:10.1108/978-1-80117-127-420221002

Gender Violence, the Law, and Society, 13–21

Copyright © 2022 Gavan Patrick Gray, Nidhi Shrivastava and Deepesh Nirmaldas Dayal

Published by Emerald Publishing Limited. This work is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this work (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode.

1984s and Brave New Worlds, the 'darkest timelines'. A decrease in overall violence that doesn't safeguard the fundamental rights of all people could be portrayed as a utopia for the significant majority that it benefits. However, in terms of gender violence, I have concerns that satisfaction with an overall improvement in well-being for the majority might make it easier for some minority groups to be consigned to potential abuse in the shadows of society. This is why I think it is so important to examine the marginalised and minority groups as they are the ones that are most in danger of being overlooked by people who might think that gender violence is decreasing and not realise that there are those who have been passed by and remain trapped in institutionalised systems of oppression, violence or exploitation.

Dayal: I agree Gavan, this section is quite broad and there are many different avenues that can be debated. Looking at South Africa, the 1994 elections saw citizens from all racial groups help to give birth to a new democracy that represented freedom, equality, social justice and opportunities for all. However, two decades later a paradox exists where, despite numerous new policies and legislation guaranteeing civil and political rights, significant levels of crime, corruption and human rights violations still plague the country. Despite the strong evidence for this, some people are in denial and claim that these high levels of crime and inequality are normal and on par with other countries. The fear of crime that exists is persistent and debilitating and hate crimes are a particular problem, including those that focus on race, nationality and sexuality. In 2016, a survey found that more than seven percent of South Africans have a fear of being targeted by hate crimes. There have been some recent victories though, where perpetrators faced legal punishments and in 2018 new hate crimes legislation focusing on the crimes against LGBTQ1 people was presented for passage. These new laws have resulted in a change in the type of hate crimes being committed. Where previously there were more overt hate crimes now you see more covert forms of discrimination. As you mentioned, Gavan, there seems to be a narrative expressing relief that gender violence is on the decline, but there are new and equally painful ways in which violence is being inflicted.

Shrivastava: Do you feel there is a particular way that sexual and gender-based violence is seen in Japan?

Gray: Of course, though it has changed a lot, especially in the past decade. Women had significantly lower status in Japan throughout most of its history. Similar to many societies, women had a much stronger role within the private family structure but publicly and officially they were almost invisible. It was only after the Meiji Restoration in the late 1800s that things began to change as a result of Western influence. My own university was founded by a woman, Umeko Tsuda, who travelled to the United States at just 6 years of age and on her return to Japan set up one of the first institutes of higher learning open to women. It was only after World War II, however, that women's rights became firmly entrenched in Japanese law. Ironically, the new constitution, thanks to the efforts of a woman called Beate Sirota Gordon, gave Japanese women even more rights than American women of the time; however, because they had not fought for these rights in the same manner as American women, actual deep societal change was much slower to occur, which is one of the reasons why Japan still ranks very poor in terms of gender equality. To answer your question, there is a split between modern Japan, which views gender violence in much the same way as the West, and older attitudes whereby domestic violence can be considered a private matter, and where the wearing of improper clothing can still be viewed as being partially responsible for crimes that affect women. From my own experience, this is not a generational issue though, as much as it is one of lack of education on these matters. Well-educated older people are unlikely to hold the latter views and poorly educated young people are more so.

Shrivastava: How would you define 'commodified violence'?

Gray: I think it relates to the concept of 'precarity' that you speak about in your chapters so if perhaps you could define precarity first, I can build off that.

Shrivastava: Well, for me, precarity is the ontological state of being of an individual who is rendered powerless and vulnerable due to the circumstances they face and who may be left feeling helpless against the actors that are responsible for their situation.

Gray: Thank you. A common danger for women in the sex industry is that they can be viewed by many, both their customers and wider society, not as the workers of an industry but as its products. In this view, they are things and as such devoid of human rights. This is the nature of what I consider commodified violence: it depersonalises the subject and strips them of rights, dignity, agency and their voice. It is not so much about the action of 'sale' but the action of making them into a 'commodity' that can be traded without regard for how this act affects them on a human level. It certainly includes the elements of powerlessness and vulnerability that you mentioned. Of course, it doesn't apply to all women in the sex industry and some can take stronger personal control of their roles within it, but a great many are left in far more precarious states. Even where they can achieve economic stability, as long as they remain within the industry, their place in society remains fragile and open to abuse, whether by public discrimination or political exploitation.

Shrivastava: Are there any social or political barriers when it comes to reforming the sex industry in Japan? In India, for example, sex work is a controversial subject and NGOs or social workers are putting their lives at risk to try to break the chain of sexual trafficking. Also, the system in India is riddled with corruption which also makes the process difficult.

Gray: There is definitely not as much direct threat to life as might exist in India. From what I know from speaking to activists and people working in the industry, physical violence of any kind, while a constant threat, is not among the top concerns that sex workers have and it certainly isn't a significant problem for those working to support them. Generally, the problem is far more economic in nature. For the workers in the industry, avoiding becoming trapped in a spiral of debt and achieving economic stability and independence are key goals. For the majority of workers, alleviating economic pressure is the entire reason for their entry into the industry. However, those who are not in debt when they enter it are often forced into debt by unscrupulous business practices or by falling into the unhealthy lifestyle that surrounds much of the industry.

The average sex worker has little knowledge of how to handle money or deal with contracts that are often used to tie workers to specific shops or pressure them into work they would rather not do. Another key aim for many is to preserve their anonymity. Again, while they have chosen the industry as a means of addressing economic problems they may have, they typically wish to do this anonymously, to the extent possible. In other words, they want to keep their working life and personal life separate. The contracts they sign can be used, again by the worst companies, to pressure workers – by saying that if they break contracts, quit their job or fail to repay debts, the company will contact their families or they will sue them publicly, exposing their career choice to the world. For similar reasons, workers are often hesitant to file tax returns listing their employment as sex work, not because they want to cheat the system but because they are worried about loss of privacy. They are left with a choice of sacrificing their anonymity or risking falling foul of the law. This is a key element of the precarious state they exist in; their industry is legal in name but in practice lacks the support systems and access to official systems that other industries typically have. Because of the bias against sex work, there is a widespread image of those involved in it as shiftless, greedy or parasitical. As a result, the public, police and politicians often view them as a group that is breaking social or legal rules and which needs to be punished rather than a group that are pursuing legal work and who are in need of support to address the hazards associated with their industry. Beyond debt and privacy concerns, these extend to things like STDs, mental health, addiction, child-rearing, stalkers and more.

Shrivastava: Do they have an avenue to speak/protest against the violence they face?

Gray: Although the sex industry has a centuries old history in Japan, in the past there was never any strong, centralised organisation through which its workers could find a voice. This doesn't mean that the industry was unsupervised. On the contrary, the Japanese government, for the purposes of disease prevention and simple efficiency, if not necessarily an interest in women's rights, has long had bureaucratic systems to regulate the rules governing the industry. In terms of safeguarding the workers' own interests, however, there has been little beyond loose collectives and affiliated publications that were small in size and wielded little political influence. In 1956 the government passed a law that would end legal prostitution and one of the groups, the Shin Yoshiwara Joshi Hoken Kumiai, criticised it by saying, 'We do not want to do this work but before you end it please tell us how we will feed our parents'. There are a lot of sex workers in Japan who still engage in their work to support parents who are poor, ill or in debt, to support their own single-parent families, or to pay for expensive college fees. Yet there are still negative stereotype of sex workers as people who are chasing easy money. There are groups that try to represent their collective voice, like the SWASH workers alliance, but there needs to be much greater support from outside the industry if the tired misconceptions, bias and lack of understanding are going to alter in any meaningful way.

Gray: Nidhi, in your chapter you focus on the violence women experienced during the Post-Partition period. I'm curious to what extent the events of this period have been explored by female writers and directors? Have there been any? Were there any barriers to female voices arising in the artistic world?

Shrivastava: That is an excellent question, Gavan. Yes, there are novels and films by female writers, including Amrita Pritam who wrote the novel, Pinjar, which was made into a film in 2003. It was about a strong, female lead who is abducted and later forced to marry. However, she has conflicting feelings as her abductor is someone who has good values and who abducted her due to ancestral traditions. There are other authors such as Pakistani-American writer, Bapsi Sidhwa, who writes about her experience as a young Parsi girl witnessing the events of the Partition in Lahore in the novel Cracking India. Deepa Mehta's Earth dealt with similar themes, and then there is another writer, Anita Rau Badami, who has written a novel about the Canadian diaspora's experience of the aftermath of the Partition in Can You Hear the Nightingale Singh? Therefore, yes, there are numerous contributions of women writers and filmmakers who have worked on this topic and they have typically placed a strong focus on subjects such as rape, the abduction of women, the tattooing of their names on their wrists and so on.

I don't think there are any specific barriers against women's artistic voices. However, there was a popular Urdu writer, Ismat Chugtai, who explored themes of female sexuality and femininity. In 1942, her story Lihaaf caused an uproar because it dealt with themes of female homosexuality. She was, in fact, called to trial at the Lahore High Court for it. So, there are indeed female writers who have produced important works covering the treatment of women during that period.

Gray: As I mentioned in regard to sex work in Japan, the public view of the issue is often oversimplified and inaccurate. Is this the same case regarding the people's understanding of the gender element of genocide in India, or regarding the experience of minority gay men and women in South Africa? One concern I have with public attitudes to this issue in Japan is not that they are bad but, apart from within small, directly involved groups, that they have not really evolved in any significant way over recent decades. For those that are not directly connected, such issues are often presented to broader audiences by focusing on the most dramatic and titillating elements, reducing the subject to oversimplified tropes rather than really trying to educate people or generate a shift in perceptions. Do you experience anything similar in your own studies?

Shrivastava: Yes, you are right Gavan. In India, the Partition is seen as a dark chapter in India's history and it is often eclipsed by the topic of India's independence. It is also only in the last decade that there has been a felt urgency to memorialise the cataclysmic event. For example, the first museum on the Partition was established in 2017 in Amritsar, Punjab. There are also two new archives that have been established in Berkley, California in the United States and in Pakistan. However, the issue for the public is that it is still somewhat taboo. In fact, I have spoken with another Indian academic who said that only now, in 2021, was she comfortable sharing stories of the Partition with her family. Earlier, they had felt that the wound was too raw and painful to talk about. Thus, it is not shown in mainstream discourse, even in an oversimplified way. Rather, it was rendered invisible to the public until the last decade or so. I did not hear about the Partition myself within my family. It was only as I pursued my academic career and began my graduate studies that I began to realise its importance, especially in regard to India's contemporary rape culture.

Gray: Nidhi, you mentioned that 'there is an inexorable link between genocidal and sexual or gender-based violence', and from what I know about the Partition this seems to be quite evident. I have read that the attacks on women are often for the purpose of humiliation and that, perhaps because of this, other women would often be involved in the attacks.  Perhaps, that they are seen as a symbol of cultural or ethnic purity and that by attempting denigrate them, the perpetrators can indirectly attack that which they are perceived to represent?

Shrivastava: Thank you for highlighting this point, Gavan. I do think a better word that speaks further of the idea that you are calling attention to is that of shame, rather than humiliation. Even though humiliation was definitely part of the violence the women experienced, I don't think it fully captures the reasons why the women in the South Asian subcontinent faced the treatment they did from not just their own kin but also their communities, as well as the newly formed India and Pakistan. Yes, indeed, there were multiple reasons why the women were seen as the ultimate target for violence. For one, the loss of their sexual honour would bring shame to the respective ethnic community. Second, rape is arguably a weapon of war – a method by which the female population can be controlled. However, during the Partition, these concepts were intertwined and complex in their own way, in that the fear of rape and abduction drove relatives, especially male members of a family, to encourage female victims to commit suicide, or to kill them themselves, in order to protect the honour of their family.

In my research, I came across the story of Bir Bahadur Singh and his mother, Basant Kaur. Kaur was among the women who had survived in spite of trying numerous times to jump to her death into a well. During an interview with Singh, he makes mention of women who jumped into the well survived multiple times, but he never informs the interviewer that Kaur was his mother. Later, the interviewee realises that that Singh 'had not mentioned that she was his mother because in having escaped death, she could not be classed with the women who had, in fact, died. Much easier, then, to speak of his sister who died an 'honourable' death than the mother who survived'.

This is part of the way that the ultimate goal of this genocidal violence was broader than the crime itself and sought to bring shame and dishonour to the other community. So, yes, I think you are right in stating that women's bodies, especially their sexual purity, are treated as what Menon and Bhasin have called, 'territories to be conquered, claimed or marked by the assailant'. But, the violence as you can see was multifaceted and the assailants were not just men from other communities, but sometimes men who were from the same family. This is one of the reasons why it is such an uncomfortable and uneasy issue that has been silenced over the years. Because it is something that touches on family honour and shame, it is something which can have generational impact.

Gray: Do either of you think that the forms of gender-based violence have changed from what existed in the past? Deepesh, I think you are looking at one form that has only recently been recognised, though, of course, that does not mean it has not always been a problem.

Dayal: Yes Gavan, whilst the forms of violence you mention are quite overt in nature, I have been researching the covert forms of violence called microaggressions.   Perpetrators also use derogatory words when referring to LGBTQ1 people. In my research, I have found that such microaggressions decrease social cohesion and adversely impact the mental well-being of gay men. In particular, I have been looking at their prevalence within the South African Indian community, microaggression perpetrated by South African Indian people against South African gay Indian men. This is something that has been written about in newspaper articles but it has not yet been properly studied through actual research.

 I was wondering if you could speak more about suicide within the sex industry. Would you consider it as a form of violence as well? I'm wondering because mass suicides were common and part of the national narrative in India during the Partition.

Gray: Japan has a serious issue with suicide and has one of the highest rates for highly developed economies. I think the number is over 20,000 per year, which is actually a decline from past levels. However, in Japan it tends to affect significantly more men than women and the primary demographic groups it affects are company workers and the elderly. Of course, to say that women make up a smaller proportion of overall victims, should not be taken to mean that the impact on individual women is any less severe, or that specific groups of women might not suffer far higher rates. The increase in female suicide rates in 2020 is a strong sign that women have been disproportionally impacted by the pandemic when compared to men. Yet, the sex industry is simply one area of work in which women are especially vulnerable and trapped in an economically precarious position: these economic pressures also affect other women in temporary or unstable employment, or single-parent mothers. I don't think I would classify these broader economic forces as violence though, unless you think of them in the same way as the violence of a storm. Though generated by the economic system they do not have a direct source of agency, in effect, they are system-wide forces rather than targeted effects and I think in terms of harm done to women (and sex workers) it is the failure to protect them from the effects of this economic violence that is a charge that can reasonably be laid against the government. In other words, the government is not directly committing the violence that would cause suicide rates to increase, instead it is showing a high level of apathy towards those factors when it has the capability and responsibility to do something to offset them.

Shrivastava: You also mentioned something called 'father industries' in your article. I know that there is also a commodification of the Lolita girl culture and I was wondering if you could speak further to this point?

Gray: In Japan this is something now most commonly referred to as 'Papa Katsu', which means father activities, and it is similar to what would be called Sugar Daddies or 'sugaring' in the West. However, the cultural forces at play are quite different and this is something I will be looking at in my later chapter focusing on gender norms in Japan. Suffice to say, that it is an area with some serious unaddressed problems but also one that tends to be very poorly understood by the West, which tends to judge it through its own particular cultural lens. I think this is a good example of the problems that we face, though. Many issues, like the Lolita issue in Japan, can seem quite clear-cut to Western viewers. In this case, they equate it to paedophilia and wonder why Japan allows it to persist so openly. However, the nature of the problem, as well as the way in which it connects to society, traditions and norms, is very different in Japan and external perspectives are, generally and predictably, quite superficial in their analysis.

Shrivastava: Do either of you feel that governmental responses to these forms of violence are sufficient or effective?

Gray: I think one issue in this regard is the false choice between an immediate, shallow response or a gradual, deeper, long-term response. In Japan, with regard to the sex industry, some activists favour the Nordic model – which criminalises the purchase of sex – and this is typically seen as a step towards abolition of the sex trade. Others would prefer to see complete legalisation of the industry. In either case, these are both long-term goals and with Japan being an especially risk averse country, these would take years, if not decades to achieve. Regardless of which option you would prefer, the danger is that a lot of political effort can be focused on achieving only the long-term goals and that meaningful, immediate, short-term assistance can be neglected.

In Japan's case at least, I think these kinds of issues should always be approached in a two-track fashion, one that researches and considers long-term changes and others that look at current and on-going harm and how that can be alleviated in the interim. With the Japanese sex industry we can see very slow, long-term change occurring but more needs to be done to offset the persisting harm – such as by providing greater funding to NGOs that actually work to support the women who are affected. This is why, when you study issues like this, I think an interdisciplinary approach is an excellent basis to start from but it needs to evolve into an inter-institutional approach, where the various parties involved – those working on long-term aims and those dealing with short-term solutions – need to be sharing data and toolsets, learning from one another and supporting one another's goals.

Dayal: I think these types of flaws in government response, the apathy you mentioned, are quite common. Although the South African Constitution sets everyone on a nominally equal level, LGBTQ1 people still experience high levels of hate crimes which extends to violence, assault, bullying and cyberbullying. Although they have achieved certain rights, such as the rights to marry a partner of the same sex, adopt a child together and automatically inherit their partner's estate, there are still many areas in which they are vulnerable and unprotected. As such, South African LGBTQ1 persons can be said to straddle two worlds, one that offers intricate legal protections and another, in which continuing and violent persecution is commonplace and where there is no abatement of these socially ingrained problems in sight.

Shrivastava: In my case, Partition has been seen as a dark chapter of India's national history and it is only in the last decade that we are seeing an increasing interest in its impact and the Diaspora community. Alongside the Partition archives that were created in the United States, there are also events happening in India itself to memorialise the event. In Kolkata, they have set up the first virtual Partition museum, which focuses on the collective trauma in Bengal during the Partition. But, with that said, the wounds are still continuing to heal as people slowly begin to confront the realities that their ancestors would have experienced during this time. While there is an increasing interest in the Partition, it's still not a primary focus in mainstream culture and I think it will take some time for both the government and public to come to terms with its full legacy. Of course, the first step in such patterns of change is to raise awareness of and become able to talk openly about these issues.

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### Chapter 1

## Genocidal Violence, Biopolitics, and Treatment of Abducted and Raped Women in the Aftermath of 1947 Partition in India

Nidhi Shrivastava

#### Abstract

As we reckon with the #MeToo movement, the gender-based violence that occurred during the 1947 Partition continues to remain forgotten in mainstream discourses and is an emotive and polarising issue within both India and its diaspora. Just like mainstream news in the United States covered the Gabby Petito case, causing a controversy as it led to the realisation that the rape and gender-based violence of missing indigenous women were not covered, it can be suggested that mainstream news channels both within India and in the diaspora construct narratives that privilege the stories of some over others – with issues of shame, izzat ('honour') and policing of women's bodies compounding the silence in South Asian communities. In this chapter, I argue that we need to rethink the Partition as a genocide to recognise the gender-based violence that occurred on women's bodies as the cataclysmic event occurred. I discuss the feminist historiographical research led by Urvashi Butalia, Kamla Bhasin and Ritu Menon who interviewed survivors in the aftermath of the 1984 anti-Sikh riots that triggered their research and reminded them of the Partition violence. It is only recently when the 1947 Partition Archives (in 2010) and the Partition Museum (in 2017) that the conversations of Partition are also taking place in academic spaces.

Keywords: 1947 partition; the #MeToo movement; genocide studies; partition studies; central recovery operation; 1947 partition archives

Copyright © 2022 Nidhi Shrivastava

doi:10.1108/978-1-80117-127-420221003

Gender Violence, the Law, and Society, 23–33

Published by Emerald Publishing Limited. This work is published under the Creative

Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this work (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode.

In August 1947, the Indian subcontinent was partitioned into Hindu-majoritarian India and Muslim-majoritarian Pakistan. The Partition displaced an estimated 10 million to 20 million people in its aftermath, which led to an outbreak of sectarian violence as Hindu-Muslim communities that had co-existed for centuries were enveloped in carnage – looting, massacres, forced religious conversions, mass abductions, and heinous sexual and gender-based violence. Unlike the Holocaust, which was the state-led, the Partition is more akin to brutal, ethnic violence that has been observed in genocides like Rwanda – a by-product of decolonisation.1

During the years leading up to Indian independence, the Partition became imminent after Mohammad Ali Jinnah (the leader of Muslim league) believed that there would not be enough Muslim representation in India, and demanded a separate country – Pakistan. The borders that divided India and Pakistan were hastily drawn by British civil servant, Cyril Radcliffe, and were not known to citizens even on the eve of India and Pakistan's Independence Day (Pollack, 2007). As a result, brutal ethnic and sectarian violence took place. Political scientist Paul R. Brass (2003) describes the violence that occurred at this time as 'retributive genocide' (p. 72). Unlike most genocides, it was neither sanctioned by the state nor spontaneous. Rather, Brass points out, '…there were also local acts of violence carried out for a multiplicity of reasons and motives that were not genocidal in intent: loot, capture of property, abduction of women. Moreover, much of the larger-scale violence was mutual' (p. 72).  Some 75,000 women were raped, and many of them were then disfigured or dismembered'. American photojournalist Margaret Bourke-White (1963), who had witnessed the liberation of Nazi camps and later found herself in India as the Partition became imminent, describes the violence that took place during the Direct Action Day in 1946 Calcutta as follows:

<sup>1</sup> Paul Rusesabagina's An Ordinary Man (2006) speaks at length about the history of Rwanda, which was colonised by the Belgians who considered Tutsis more superior than Hutus. They were responsible for creating identity cards, which were later used during the Rwandan genocide. In Midnight's Furies: The Deadly Legacy of India's Partition (2016), Journalist Nisid Hajri has also drawn a similar comparison between the Partition and Rwandan genocide. He writes, 'The conflagration stands as one of the deadliest and most brutal civil conflicts of the twentieth century, unrivaled in scale until the 1994 massacres in Rwanda. Yet like Rwanda, the riots were relatively confined in time and space. The worst killings lasted only about six weeks. While the chaos spread throughout most of western Pakistan and great swathes of northern India, much of the rest of the subcontinent was not directly affected. Today Partition is a horrific memory for millions – but it is just that, a memory' (Hajari, 2015, Chapter 1, paragraph 12). Though rape was declared a war crime in 1919, this status was not finalised until 1997 during the trial of Jean-Paul Akayesu in the International Criminal Tribunal for Rwanda (ICTR).

On the heels of this announcement [Jinnah's declaration of Direct Action Day], violence broke out in Calcutta. I flew there from Bombay and found a scene that looked like Buchenwald. The street were literally strewn with dead bodies, an officially estimated six thousand, but I myself saw many more…In Calcutta, a city larger than Detroit, vast areas were dark with ruins and black with the wings of culture that hovered over impartially dead Hindus and Muslims. Like Germany's concentration camps, this was the ultimate result of racial and religious prejudice.

(p. 283)

Indeed, Dalrymple notes that 'the comparison with the death camps is not so far-fetched as it may seem. Partition is central to modern identity in the Indian subcontinent, as the Holocaust is to identity among Jews, branded painfully onto the regional consciousness by memories of almost unimaginable violence'.

Partition remains an emotive and polarising issue within India and in the diaspora communities. Just like mainstream news in the United States covered the Gabby Petito case, which inspired controversy as it led to the realisation that the rape and gender-based violence of missing indigenous women were not previously covered, it can be suggested that mainstream news channels both within India and in the diaspora construct narratives that privilege the stories of some over others – with issues of shame, izzat ('honour') and policing of women's bodies compounding the silence in South Asian communities (Shrivastava & Bibi, 2021).2 At the peak of the #MeToo movement in 2018, Rochelle G. Saidel and Batya Brutin held an exhibition entitled Violated: Women in Holocaust and Genocide at the Ronald Feldman Gallery in New York. Although the exhibition brought up pivotal questions on genocidal sexual violence from countries such as Bosnia, Rwanda, Darfur, Yazidi and Guatemala, the 1947 Partition was not highlighted at the exhibition. Only in the last decade, academics and activists have started the work to preserve and research the Partition, leading to the establishment of the Partition Archive (in 2010), the citizenship archive of Pakistan and India's first museum dedicated to the Partition which was founded in 2017 in Amritsar.

While sexual and gender-based violence received worldwide recognition during the #MeToo movement in 2017,3 the turning point in India was the 2012 Delhi

<sup>2</sup> Recently, sociology scholar Somia R. Bibi and I published a conversation on the silencing of Partition narratives within the context of the #MeToo movement in the South Asia diaspora in the United Kingdom and United States, that was published in the following article. To learn further about this issue, please see the following link: https:// bloomsburyliterarystudiesblog.com/continuum-literary-studie/2021/12/metoo-in-south-asiasubcontinent-and-diaspora.html. <sup>3</sup>

Found by Tarana Burke in 2006, the #MeToo movement gained popularity after actress Alyssa Milano tweeted the hashtag #MeToo to encourage victims of sexual violence to publicise allegations of sex crime against their preparators in 2017.

gang-rape case, when a young woman was heinously gang-raped in a bus while she and her friend were returning home after seeing a movie together. During this time, the news coverage called attention to rape cases that dated back to the 1970s (BBC 2013, Newsable 2018), but they did not cover the brutal sexual violence that occurred during the Partition.

In this chapter, I argue that we need to recognise the Partition as a genocide, not only on a global level but on a national level as well. The Partition is rarely acknowledged in private spheres, and if it is brought up in popular culture, the representations do not acknowledge or recognise the gender-based violence that occurred during this tumultuous period. Recent trends in Genocide studies, as represented in the works of Barta (1985), Rashed and Short (2012), Totten, Theriault, and Joeden-Forgey (2017), have shown that the field is recasting jurist Raphael Lamkin's original definition of the term – genocide – to make it more inclusive and include countries that have been undergoing the process of decolonisation. In his article, 'After the Holocaust: Consciousness of Genocide in Australia', Tony Barta (1985) contends that the word genocide has been associated globally with the Holocaust but he suggests that it should be also thought of within the context of the massacre of Australian aborigines (p. 157) and that the 'prospect of genocide – "the most certain getting rid of the race"' also applies to countries that had been colonised in the past. As Hitchcock, Flowerday, and Babchuk (2017) point out in their study, the definition of genocide initially established by the UNCHR that says that a genocide is 'a set of acts committed with the intent to destroy groups whole or in part' (p. 10), other scholars have also included 'actions as intentional prevention of ethnic groups from practicing their traditional customs; forced resettlement; denial of access to food relief, health assistance and development funds; and/or purposeful destruction of the habitats utilised by indigenous populations' (p. 10). Interestingly, in their edited volume about the controversies in genocide studies, Theriault and Joeden-Forgey only focus on trends of genocides within Rwanda, Darfur and Armenia, but the Indian Partition is still not recognised in these conversations.

Haifa Rashed and Damien Short (2012)'s article, however, sheds light on recent conversations in which scholars are locating a 'nexus between colonial processes and genocidal practices' (p. 1144). Rashed and Short contend that Lamkin's conceptualisation of genocide is 'intrinsically colonial' (p. 1144). Thus, their new perspective sheds light to the ways in which genocide studies and the definition of genocide itself is evolving. As has been shown in the opening paragraphs with figures and quotes from the historians and photographers who have studied the Partition and witnessed its violence, the genocidal violence that occurred was not due to one state actor that was determined to destroy a race/ ethnicity. Rather, the violence was similar to Rwanda and Cambodia, in that the act of partitioning India left many displaced. People were unaware where the boundaries of their own new countries were and they feared that their ethnic majority village would go to the country they did not belong to. Hence, the brutal and heinous ethnic and sectarian violence that occurred since 1946. Therefore, the Partition does not enter into the national consciousness or raise awareness among younger generations who may be unfamiliar with the genocidal violence that occurred during this time.4 In the next section, I discuss how rape was used as a weapon of genocide. Furthermore, I'll show that the violence that women experienced was not only perpetrated by members of other communities but also by their own family members, who reiterated the problematic idea that women should embrace death over being abducted or raped by men from other communities. If the women escaped and did not experience violence from their own family members, then they faced ostracisation and rejection from their family after they were often forcibly recovered by the Central Recovery Operation (1948–1957).

#### Rape as a Weapon of Genocide: The Story of Women's Experiences During the Partition

There is a powerful link between genocides and sexual/gender-based violence. In fact, after a decades-long silence that followed both the Holocaust (1941–1945) and the Rwandan genocide (1994), only recently have scholars started to explore and acknowledge the testimonies of women who either witnessed or suffered sexual assault, rape and brutal accounts of violence during these genocides.5 The discourse of Partition has been absent from India's national imagination. As film historian Bhaskar Sarkar (2009) notes, in post-independence India the Partition was seen as a 'one-time aberration in an otherwise continuous tradition of secular unity' (p. 34). According to Sarkar, the 'post-Partition Indian ego' was constructed by 'the experience of loss' (p. 35) which the individual was never able to face, thus never able to recognise the pain and trauma of that loss. Undeniably, Sarkar also suggests that the goal of Indian politicians was to find ways to erase the Partition – as if the sectarian violence, mass rape and abductions had never occurred. This mentality shaped the arduous and complex work of nation-building. Because of this, we have not developed the language needed to address the pain and trauma that many families experienced. Also, until recently, there were no monuments to mourn the aftermath of the violence within India. Therefore, families, including my own, have never discussed the Partition, nor its impact on our lives.

The various types of violence that took place on women's bodies have been largely neglected and are missing from the discourse surrounding India's

<sup>4</sup> During my online writing sessions, one of the academics from Calcutta realised that in her family, the Partition is not discussed because the memories are too painful. She also shared this with me after she learned more about my research.

<sup>5</sup> Research on sexual violence during the Holocaust began in the 1980s. For example, in 1983, Esther Katz and Joan Ringelheim planned the first ever Conference on Women Surviving the Holocaust in New York, NY (Hedgepeth & Saidel, 2010). But it wasn't until Saidel & Hedgepeth's 2010 anthology that the academic conversation among feminist scholars gained traction and wider visibility, perhaps not unlike Menon and Bhasin (1993) research in relation to the genocide in India.

contemporary rape culture.6 While the actual numbers are unknown, Urvashi Butalia (2000) notes that at least 75,000 women were kidnapped (p. 3). However, this history has only recently been recognised in India. It was largely disregarded until 1984 when the anti-Sikh violence took place that motivated scholars such as Butalia (1993, 1995, 1997, 2000), Ritu Menon and Kamla Bhasin (1993, 1996, 1998), and Veena Das (2006) to raise concern over the State's treatment of women. During the Post-Partition violence, often, these women experienced multi-layered traumatic experiences. Not only were they forcefully kidnapped during the mass migrations and forced to marry their abductors, they also experienced a second separation from their newly formed families and children and faced rejection from their society and families if they returned to their 'original nation' (which was determined based on their religion), experienced forced abortions and feelings of helplessness as they experienced abandonment.

Numerous women were subject to state, communal and intra-violence. The degrees of their trauma, however, varied in each individual case. Menon and Bhasin (1998) use the expression 'honourably dead' to demonstrate the sexual violence that women experienced during this time. The authors mention that the forms of gender-based violence included 'stripping; parading naked; mutilating and disfiguring; tattooing or branding the breasts and genitalia with triumphant slogans; amputating breasts; knifing open the womb; raping; killing foetuses…' (p. 43). This is not different from the narratives of gender-based violence that we have seen in the Rwandan genocide, as an example. On 2 September 1998, the International Criminal Tribunal of Rwanda (ICTR) convicted Jean Paul Akayesu for rape and inhumane treatment of women. As Bijleveld, Morssinkhof, and Smeulers (2009) note 'this was a landmark decision because for the first time ever rape was being prosecuted as a crime against humanity and as a war crime for an international tribunal' (p. 213). They further discuss instances of sexual violence that occurred during the Rwandan genocide upon the bodies of Tutsi women – 'many of whom were subjected to the worst public humiliation, mutilated and raped several times in public, in the Bureau communal premises, and often by more than one assailant' (qtd. in Bijleveld, Morssinkhof, and Smeulers, p. 213).

<sup>6</sup> Here, when I discuss the term – contemporary Indian rape culture – I am specifically referring to the actions of toxic masculinity and GBV that have been widespread in the South Asian subcontinent. In fact, a recent article by Rudabeh Shahid, Kaveri Sarkar, and Azeem Khan (2021) also addresses the following: 'The weaponizing of women's bodies has always been part of the fabric of South Asia, with mass rapes in 1947 and 1971 being integral to the birth of the three most populous countries in the region. Women's bodies became a battlefield for national honor, and the shame continues to be laid on the door of the victim while perpetrators face no repercussions' (emphasis added). Although the term 'rape culture' was originally coined by the second-wave feminists in 1970s, I use it as a way to talk about the complexities and nuances regarding the culture of gender-based violence as it has existed within India, specifically. But, as can be seen in the work of Shahid, Sarkar and Khan, the issue of GBV is widespread within the South Asian subcontinent. My work also does not address the GBV that occurs within the LGBTQ1 community in India, because their sexualities themselves are often criminalised.

The quote belongs to the Prosecutor v. Jean Paul Akayesu case and, yet, the similarities in the practices that occurred in the Partition and the Rwandan genocide are striking.

During their research, Menon and Bhasin were unprepared to listen to narratives of women who were 'forced to die – at the hands of men in their own families, or by their own hands' (1998, p. 45; emphasis added). To prevent rape and abduction, women were either 'poisoned, strangled, or burned to death, put to the sword or drowned' (1998, p. 45). The authors further argue that 'it was made abundantly clear to them that death was preferred to "dishonour", that in the absence of their men the only choice available to them was to take their own lives' (1998, p. 45; emphasis added). Urvashi Butalia (2000) concurs with Menon and Bhasin's observations, sharing with her readers that during her research she met Prakashvanti, a Partition victim-survivor, who was living in the Gandhi Vanita Ashram at Jalandar, Punjab. During an interview with Butalia, Prakashvanti mentioned that 'her husband came to her and suggested he kill her. "Else", he told her, "they will dishonour you"' (p. 170). She ultimately notes that she recalls very little of the aftermath because she had lost consciousness after her husband violently struck her (p. 170). Butalia notes that according to cultural perceptions 'women could not, therefore, be named as violent beings. Therefore, their actions are narrated and sanctified by the tones of heroic, even otherworldly, valour. Such narratives are meant to keep women within their aukat [Hindi: status], their ordained boundary, which is one that defines them as non-violent' (p. 171; author's emphasis). In other words, the men, for the most part, problematically assumed that women were not capable of defending their honour and sexual purity, and thus, were vulnerable to gender-based violence by men from the othered ethnic communities. If they chose to defy their family members, especially their fathers and brothers, the women were seen as pariahs and as bringing shame and dishonour to their respective families. Thus, even after they had been recovered, Hindu and Sikh families rejected them. Examples of such rejection can be seen in films such as Pinjar (Hindi: Cage, 2003) and Khamosh Pani (Hindi: Silent Waters, 2003), which explore the psychological, social and emotional experiences that women experienced after they met their families years after their traumatic abduction. Indeed, this national narrative, which privileges and celebrates women who died to protect their own and their respective communities' honour, supersedes the stories of women who were raped and abducted during the chaotic violence of the Partition.

The nation-building project in India located the women who had been exposed to gendered Partition violence in a site of precarity in the aftermath of the Partition.7 Feminist philosopher Judith Butler's (2004) theoretical concept of precarity allows us to understand how biopolitics functions when a country faces

<sup>7</sup> Precarity is defined as an ontological state of being when an individual who is left vulnerable due to conditions they face and who may be left to feel helpless against the actors that are responsible for their situation. In this case, I'll take it to mean that the person faces either social, economic, political, religious or gender persecution or a combination of all the aforementioned.

a political crisis. Biopolitics, in this context, can be defined as the Indian government's responsibility towards its citizens. Although it was not responsible for the initial displacement of these women, the role of the Indian government in the violence the women experienced contains two prime examples of biopolitics directed at women, which created precarious identities and circumstances.

In the aftermath of the Partition, both India and Pakistan decided to restore the abducted women to their 'original countries' based on their religion, often without their agreement. The precarious circumstances that these abducted women experienced on the outset were products of communal violence rather than the Indian State. In fact, with the creation of the Central Recovery Operation (1948–1957), the State worked to reinstate them within the newly formed India. The programme began with an agreement – the Inter-Dominion Treaty of 6 December 1947 – between the Indian and Pakistani governments, which had the goal to restore as many abducted women as possible. Mridula Sarabai, a politically influential chief social worker, and Rameshwari Nehru oversaw the programme. At this time, Sarabai received a team which mostly composed of male policemen, who were to aid her in the recovery and restoration process. According to Menon and Bhasin, the recoveries were carried out between 1947 and 1952, but women were still being recovered until at least 1956. During this period, about 30,000 women were recovered (Menon and Bhasin, 'Abducted Women', 16).

In a state of emergency, the government created laws that defiled the rights that abducted women had in the process of their re-integration into modern India. It problematically assumed that if a woman was found cohabiting with a man of a different religion after a certain date in 1947, she had been forcefully abducted (and potentially converted). While some women were happy to be recovered, the Indian state was unprepared for women who resisted the actions of the social workers (Menon & Bhasin, 1996, p. 16). Menon and Bhasin note that their identities 'were in a continual state of reconstruction and construction, making them, as one woman said to us, "permanent refugees"' (Menon & Bhasin, 1996, p. 16).

The term permanent refugee underscores the precariousness that was related with the Central Recovery Operation because it was ineffective in its cause to restore the recovered women. In theory, Butalia observes, every 'citizen had a choice in the nation s/he wished to belong to. If a woman had the misfortune of being abducted, however, she did not have such a choice' (p. 111). The social worker and tribunal's decisions often left the women who were recovered meaningless often by forcibly removing them from their newfound relationships, their children, and families and sometimes encouraging them to live in ashrams (Hindi: 'a secluded dwelling') for the remainder of their lives if they did not want to live away from their children from mixed unions. Their families perceived these children as illegitimate and did not want to see the women bringing dishonour and shame to them, and thus would ostracise them. The 1960 Hindi film, Chhalia, represents this moment when Shanti (Nutan) introduces her husband Kewal (Rehman) to their son, Anwar. Kewal immediately rejects them, believing that Rehman is the product of her rape and abduction, while, in actuality, he was conceived at a time before Kewal and his family abandoned Shanti in the chaos of the Partition violence.

A second way in which the government played a pivotal role in Post-Partition violence against women was revealed in a conversation that occurred in 1996 between Aparna Basu and Kamla Patel, a social worker who worked with Mridula Sarabai in the Central Recovery Operation. During the interview, Patel mentions that the refugee camps where the women were living after their recovery were worse than cattle sheds (p. 127). She notes that the camps were 'overcrowded' due to a 'lack of sanitary facilities – there were frequent outbreaks of epidemics and deaths. Within the limited budget, it was not possible to provide for more than two meals a day and a pair of clothes' (p. 127). We only see rare representations of the camps in film depictions, especially in the early depictions of Partition films. In Chhalia (1960), for example, the camps are represented as being clean but are not the focal point of the film. The recovery camps can also be seen in films such as Govind Nihalani's Tamas (1989), Deepa Mehta's Earth (1998), Chandra Prakash Dwivedi's Pinjar (2003), Rahat Kazmi's Mantostaan (2017) and Nandita Das's Manto (2018). With that said, these filmmakers do not depict the camps as being unsanitary or unkempt but rather as sanitised versions of crowded areas that can be found in refugee camps worldwide. It is evident that filmmakers are staying away from depicting the government's role in the Partition, and especially the recovery of women in its aftermath.

#### Conclusion

In my experience, the Partition was not brought to light in conversations with elders in my family who may have witnessed it. Rather, the stories that I hear are of my family's treating other ethnicities with respect and helping them. But we rarely speak of the Partition, by stating that since our family belongs to central India (and not Punjab and Bengal, where most of the atrocities took place) we were not directly affected by it. As post-colonial theorist Nandi Bhatia (2013) notes, the 'Partition has been subjected to a haunting silence marked by survivors too traumatized or faced with "collective guilt" to talk about it publicly'. (p. 89) The Partition has always been viewed as a dark chapter in modern Indian history – as a rupture that took place. Although there have been initiatives such as the 1947 Partition Archive and the Partition Museum, it is only in the last decade that the Partition has become a focus for academics, cultural critics, historians and archivists. Nonetheless, I argue that the Partition was and is in fact a genocide that was shaped by interethnic, communal violence as well as rape and sexual violence, and the subsequent silencing of events as if they never happened. Yet, events such as the 1984 anti-Sikh riots, 1992–1993 Bombay riots, the 2000 Gujarat riots and, more recently, the anti-CAA protests, all serve as reminders that the spectre of the Partition continues to haunt the subcontinent and the wounds from the cataclysmic event are yet to heal.

Because there remains a silence in India and the diaspora, these women's traumatic experiences of gender-based violence are not acknowledged, especially as we continue to make sense of the #MeToo movement. Similar to how the narratives of gender-based violence experienced by indigenous women continue to remain obscured in Western mainstream culture, the narratives of these women also do not enter into the conversations of gender-based violence in South Asia and in the diaspora. Therefore, we need to urgently recognise the narratives of raped and abducted women to acknowledge the heinous gender and sexual violence that occurred during the genocidal violence that took place during the Partition.

#### References

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### Chapter 2

## The Commodification of Sex in Modern Japan: Outdated Attitudes and Overdue Reforms

Gavan Patrick Gray

#### Abstract

This chapter looks at the sex trade in Japanese society and the manner in which it has been accepted for decades, both socially and legally, as a 'necessary evil'. This passive and disinterested tolerance of the industry's quasi-legal state, neither banning prostitution completely nor ensuring that it follows the transparent rules and regulations expected of other industries, means that it fails to satisfy either of the primary views on transactional sex: prohibition or legalisation. The result is that the women involved in the industry are subject to various forms of exploitation and abuse that the Japanese government, by failing to take active steps to reform the industry in either direction, becomes complicit to. Shaped by personal interviews with members of the industry and the NGOs that provide them with support, the chapter provides an examination of the industry's historical development, its portrayal in popular media and the prevailing social norms regarding the industry. It then assesses the political and legal responses to the industry and the glaring oversights that exist in their failure to provide adequate support. Finally, it considers, based upon the self-expressed interests of the women working in the industry, in what areas meaningful reform might occur.

 This work is published under the Creative

Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and create derivative works of this work (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this licence may be seen at http://creativecommons.org/licences/by/4.0/legalcode.

The relationship between prostitution and violence is complex, nuanced and contested and in Japan this is especially true.1 Perhaps as a result of never succumbing to the sexual stigmatisation that is common in cultures shaped by more puritanical, monotheistic religions, Japan has generally taken a pragmatic view of the commercial elements of sexual relationships. This gives it a distinct variation on what Mulvihill (2018, p. 223) sees as the two primary views of prostitution: one which considers transactional sex as inherently violent and a result of deep-rooted patriarchal structures of gender inequality, and another which considers it a legitimate form of enterprise which should be regulated to guarantee the well-being and rights of those involved. In the Japanese view, negative attitudes also contain an element of the sex industry representing a failure to adhere to the aforementioned Western norms, while positive attitudes consider it a necessity that contributes to broader issues of social harmony and sexual health (Koch, 2016). In this way, Japanese perspectives are not as solely focused on the effects of the industry on individual women but also on how it relates to society at a broader level.

Mulvihill (2018, p. 230) also refers to what she calls 'symbolic violence' as a form of domination embedded in everyday actions that prevents its victims from expressing grievance, due to acceptance that the system that harms them is regarded as natural, unchangeable or in some way beneficial. This is something that applies very strongly to Japan's particular form of commercialised sex, where long-standing social perception of the industry as a natural, inevitable and even essential element of society both normalises women's participation in the industry and weakens their ability to critique or reform it. This chapter considers the Japanese sex industry as existing in a specific limbo-state, between illegality and acceptance, that means it satisfies the desires of neither of the two main perspectives on prostitution and cannot claim to be safeguarding the welfare of the women involved.2 For those who would seek to protect women by prohibiting prostitution entirely (or at least aspire to implement the Nordic Model),3 its open acceptance can be seen as a disregard for the sexual oppression of women. For those who would rather see those women protected by having the sex industry treated as a legitimate form of employment, its nebulous legality leaves those working in the industry in a tenuous and vulnerable state.

The current, poorly regulated and monitored nature of the industry can be considered to constitute a form of commercial sexual exploitation, which many governments recognise as a form of gender-based violence.4 The United Nations

<sup>1</sup> This work was supported by a Kaken grant (18K13005) from the Japan Society for the Promotion of Science.

<sup>2</sup> Although women make up the overwhelming majority of Japan's sex workers the industry also contains male and LGBTQ1 members and the points raised in this chapter should be considered to apply equally to these groups.

<sup>3</sup> The Nordic Model aims at decreasing the overall demand for transactional sex by making the purchase, but not the sale, of sex illegal.

<sup>4</sup> For example, the United States in the Abolish Human Trafficking Act of 2017, S. 1311 (115th): Section 8.3.

also considers gender-based violence to include the imposition of mental and economic harm,5 and the failure of the Japanese government to proactively support the mental and economic welfare of those involved in the industry should be viewed as passive and apathetic participation in an ongoing system of systemic exploitation. It has frequently been shown that those involved in prostitution and transactional sexual activities are especially vulnerable to various forms of harm, including suicide, mental and emotional health problems, sexually transmitted diseases, addiction issues, physical violence and economic coercion (Henriksen, 2020). Japan is no different in this regard and those working in the industry are often living in situations of significant precarity, whether as a result of poverty, exposure to danger, or the impact of mental and emotional harm.

Yet, even as the industry has grown in size and financial value, its workers continue to remain in such precarious economic and social states. The events of the COVID-19 pandemic beginning in 2019, in particular the Japanese government's response to the difficulties faced by sex workers, only served to highlight the extent to which their work is treated in a contradictory manner, open and semi-legal, yet held to separate standards of social acceptance. While the government itself does not list prostitution as an element of its campaign to end violence against women, its highlighting of the role of exploitation, sexual violence and stalking within both the AV (adult video) industry and the JK industry6 show that it has begun to examine the problems faced by sex workers.7 However, as yet, it has taken few steps to generate meaningful reform and it remains to be seen whether its purported support for sex workers will result in more than mere lip service. Regardless of whether such work is seen as inherently harmful to women or the legitimate independent enterprise of people expressing their economic agency, the industry as it exists now cannot be said to properly protect those involved from various forms of exploitation and abuse and those who have the power to intervene to prevent this, yet fail to do so, should be considered culpable or actively enabling any harm done.

#### Public Attitudes Towards Sex Work

Commodification refers to the process of treating an object purely in terms of its market value, in other words, judging it purely on the basis of what it can be sold for. Other elements of intrinsic worth, such as cultural heritage, aesthetic beauty or, in the case of people, their individual identity and fundamental rights, become relevant only insofar as they influence the potential price of the commodity in

<sup>5</sup> Something clear stated on the website of the UN High Commissioner for Refugees, https:// www.unhcr.org/gender-based-violence.html. <sup>6</sup>

JK is short for Jyoshi Kousei (high-school girl) and refers to various enterprises related to the sexualisation of high-school girls. Although some prefectures have laws prohibiting those under 18 from such employment, even in these areas younger girls are often exploited by businesses that skirt the law.

<sup>7</sup> As shown on the Japanese Cabinet Office's Gender Equality Bureau page on Violence Against Women, https://www.gender.go.jp/policy/no\_violence/.

question. In relation to sex, commodification means that it is stripped of other elements, whether romance, procreation or an element of marital fidelity, and is instead made purely transactional. The formal commodification of sex has a long history in Japan, stretching back to the government-sanctioned yūkaku (red-light districts) that included Edo's (modern Tokyo) Yoshiwara area. The sex industry grew from these initial roots to a more dispersed, varied and nebulous modern form that includes both the mizu-shōbai (Water Trade), consisting of night-time entertainment via clubs, bars and cabarets featuring, nominally non-sexual, female companionship, and sei-fūzoku (Sexual Customs), incorporating the variegated forms of direct sexual exchange. It represents a significant industry, employing hundreds of thousands of women and men, and generating billions of dollars of annual revenue (Ogiue & Iida, 2013) 8 . From love hotels and hostess clubs to soaplands9 and delivery health10 stores, the Japanese sex industry incorporates numerous distinct elements that exist outside of legally prohibited prostitution in a manner significantly different from more clearly delineated understandings of 'sex work' that may exist in the West.

The industry also exists in a quasi-shadow realm, cordoned off but gaudily lit. Red-light districts, such as Kabuki-chō, are clearly demarcated from the surrounding business areas but there is no effort to hide what they sell. Instead, large, colourful posters and neon signs loudly proclaim what is on offer to passers-by and potential customers. Despite its open nature, the sex industry is considered, by most, to be a disreputable career choice and associated with the criminal underworld, though government crackdowns on Japan's organised crime have made their direct influence far less than it was in the past. The sex industry is tolerated, rather than being openly accepted, and those who work in it suffer stigmatisation stemming from these social mores that only compounds the economic and physical hardships they already face (Kamise, 2013).

Public awareness of, and attitudes towards, the industry are often shaped by its representation in popular culture. Over the past century, many directors have examined the issue of sex work through film, such as Kenji Mizoguchi's Akasen Chitai (1956) and Shohei Imamura's Nippon Konchūki (1963). Imamura also examined the issue in documentary form with Karayuki-san (1975) through the recollection of one woman's experiences working as a sex worker in Japanese holdings throughout the Pacific during the early 1900s. Other films framed the changing nature of the sex trade in relation to Japan's shifting economic welfare, with Masato Harada's Baunsu Ko-garusu (1997) highlighting the rise in teenage 'compensated dating' that followed the collapse of Japan's economic bubble in the 1990s.

<sup>8</sup> Kindle Edition, Chapter 1, Page 1, Paragraph 2.

<sup>9</sup> A soapland is a sex business that uses the façade of paying to be bathed by another person as a means of evading the prohibitions against explicitly selling sexual intercourse. Any sexual acts that occur are presented as being coincidental and unrelated to the transfer of money for other services.

<sup>10</sup>Similarly, delivery health services offer out-call massage services that are presented as being physical therapy rather than the blatantly sexual exchange that they are in reality.

Movies such as these helped show changes in public understanding of the sex industry as it moved from an attitude prevalent in the 1960s which saw it almost as an extension of the male-dominated business world (Norma, 2011) to the post-bubble participation of young women as a form of sexual self-determination or even resistance against patriarchal structures (Ueno, 2003). In the interim, greater nuance has been added by works such as Penelope Buitenhuis' Tokyo Girls (2000), which looked at the experiences of foreign women in the industry, Itako's Baibai Bōizu (2017) and its examination of 'urisen', the male prostitution industry, and most recently Kana Yamada's Taitoru, Kyozetsu (2019), which provided a dramatic and realistic view of women working in contemporary conditions.

The aforementioned works appeal, however, to a relatively limited audience and popular television dramas, such as Kiken'na Aneki (2005), Joutei (2007), Hitsudan Hosutesu (2010), have a broader reach and a larger impact in shaping public conceptions. In their examination of the reasons why the hostess industry was an attractive career option for many young women, Miura and Yanagiuchi (2008) highlighted the impact of the positive portrayals found in such dramas which frequently showed the industry to be one in which girls from poor backgrounds could find financial success and social status.

The hostess industry portrayed in these programmes is only on the periphery of the broader sex industry and comprises clubs and bars where men, and frequently women, pay to have their more social and emotional desires catered to by attractive members of the opposite sex. Although, as Allison stated, it exists 'primarily at the level of conversation' (1994, pp. 7–8), there is considerable overlap with the more explicit sex industry and workers frequently engage in sexual activity with clients (Takeyama, 2005). As such, the tendency of popular dramas to portray only the glamorous and successful elements of the hostess industry, both undersells the darker elements of the reality of sex work and promotes a distorted understanding of the industry that is only likely to reinforce the public viewpoints that were dominant during the 1980s 'Bubble' era, wherein the primary reason women engaged in sex work was considered to be as a means of acquiring pocket-money and to have fun (JCO, 1985).

It is unclear whether public perceptions have altered significantly in the interim. Thankfully, however, academics and professionals have developed a much clearer and more nuanced view of the industry and of the backgrounds of many of those involved. There is a growing awareness of the precarious existence faced by many sex workers, whether runaway teens, women in debt, single mothers, women with psychological and emotional problems, or older women lacking support networks (Nakamura & Suzuki, 2016). Many are women who have chosen to leave more superficially 'respectable' careers such as kindergarten teaching and nursing due to the low salaries and lack of economic freedom these paths offered, sacrificing stability and security for opportunities to reinvent themselves and potentially achieve a greater degree of long-term economic independence (Nakamura, 2016). The agency of these, and other, workers must be respected. While some have chosen sex work as a response to debt or to support dependents, for many, it is a deliberate rejection of alternative, minimum-salary labour in poor conditions, in favour of an industry they see as a means of advancement, either because they see a path to success within the industry or because they seek to use it as a stepping-stone to financial independence and the ability to pursue a different, long-term career path (SWASH, 2018) 11. In all cases, the key factor must remain that the rights and welfare of the workers themselves remain preeminent.

There is a tendency for studies of sex work to incorporate secondary themes, which can be either negative (portraying the women purely as victims of a social ill) or positive (portraying the industry as an economic boon or as providing a necessary social function) (SWASH, 2018) 12. While these views are all elements of developing a holistic understanding, this examination considers them secondary to providing support for the well-being, whether economic, physical, emotional or professional, of the workers involved in the industry. It is also important to resist instilling the sex industry as a whole with a motive force that would present it as exerting a causative effect on wider society. We must remember that it is wider society that gives rise to the sex industry and which provides the demand for which supply will be generated. Koch (2020, p. 24) quotes a young Japanese woman who sees her work in the industry as providing 'essential elements', without which, 'lots of people would be negatively affected', and certainly in Japanese society there are clear socio-cultural factors that are deeply connected to the role the industry plays.

It seems to be true at least that there is an increasing trend towards sexless relationships in Japanese society. The Japanese Family Planning Association reported that almost half of all couples are in sexless marriages (Kitamura, 2015), with one of the key reasons given being the pressures of work (Hosokawa, 2017). Suzuki (2013, p. 330) speaks of a traditional viewpoint in Japanese society wherein men view their own wives in an almost asexual manner, while wives considered extramarital sex as being tolerable, especially where it did not threaten the family structure. While such views have no doubt altered considerably in the present day, studies have found that at least 14.6% of Japanese men admit to having used prostitutes, with higher rates among those who reported poor family connections or a lack of intimacy (Ui et al., 2008). The success and broad appeal of the, again nominally, non-sexual elements of the sex industry – such as hostess clubs or the even more mainstream maid cafes – show that this need for intimacy is, if not as strong a factor as the desire for sexual gratification, a significant element of Japan's sex industry. Therefore, examination of it cannot be done with the narrow focus on penetrative sexual intercourse that is common in many Western studies.

Lest the sex industry be viewed in purely gendered terms, it should be made clear that Japanese women are also perfectly capable of participating as customers of both the Mizu-Shoubai and Fuzoku worlds, if to a lesser extent. Takeyama (2020) examined middle-aged Japanese women's pursuit of commercialised intimacy as a means of re-establishing their own sexual subjectivity, while

<sup>11</sup>Kindle edition, Chapter 1, page 4–5. 12Kindle edition, Chapter 1, page 8.

Ho (2019, p. 26) described how some young, married women would form groups to visit strip clubs, host clubs or enjoy 'erotic massages'.

The sex industry in Japan, whether considered in positive or negative terms, is clearly a significant element of Japan's social fabric and one with considerable economic heft. The pertinent questions, therefore, are why, legally, it continues to be so poorly defined and, ethically, why is continues to be so poorly regulated in regard to safeguarding the physical and psychological health of its workers.

#### Legal and Political Views of the Industry

The initial yūkaku, the Edo-era pleasure districts of the 1600s, were very tightly regulated and the movement of the workers strictly controlled. This system, whereby prostitution was open and fully legal though restricted to specific areas, continued up to and through the Second World War with the state taking a direct role in the legal management of the sex trade (Lie, 1997). However, in the wake of the post-war Americanised systems of control, calls for criminalisation of the sex industry became stronger. During this period the former yūkaku were reclassified as 'red line' areas within which legal prostitution could occur. There were also other 'blue line' areas that were designated as night entertainment areas (including present-day Kabukichō) that were nominally 'sex free'. However, a blurring of the lines between the two soon occurred (Kato, 2009).

In 1956, after hundreds of years of tacit legal acceptance, prostitution was finally criminalised in the Prostitution Prevention Law on the grounds that it 'harms the dignity of the individual, is against sexual virtue and disrupts the proper morals of society' (GoJ, 1956). However, two key factors of the law have continued to have a major impact on the status and nature of the sex industry in intervening years. The first is that prostitution was defined as being, 'sexual intercourse with a non-specified person in exchange for compensation or the promise of such'. This meant that by taking a narrow definition of 'sexual intercourse' to be heterosexual, genital penetration, numerous other sex acts could remain legal. Additionally, the definition of 'stranger' and 'compensation' were vague enough that other ways to bypass these restrictions were quickly found that made determining whether prostitution had indeed taken place a very difficult task. The second factor was that even where prostitution was identified, there was no proscribed punishment. As a result, although prostitution in Japan is technically illegal, a wide variety of perfectly legal stores and services exist that cater to more narrowly defined sexual acts and any legal problems they incur will typically be in relation to breaches of other laws (e.g. the Customs Business Law, The Employment Security Law, or the Worker Dispatch Law). In such cases, they are prosecuted for crimes such as solicitation or brothel-keeping. Although specific prostitution arrests do occur, they dropped from a rate of 24,000 in the year following the establishment of the law, to 447 in 2016 (Maeda, 2018).

Evidence of the decline in efforts to strictly enforce criminalisation can be seen in the role played by the 'Women's Guidance Centres'. Originally introduced in 1958, it was intended that these reform centres would be established throughout Japan to provide re-education and re-training of women convicted of prostitution. In practice, only one centre was created, in Akishima Tokyo, where the number of 'residents' declined from 400 per year in the 1960s to just 4 during the 2010s, with the expectation that it will soon be shut down permanently (Kihara, 2020). In his analysis of the industry, Yokohama (1995) considers the passive attitude of those in law enforcement as having effectively decriminalised the industry, due to their unwillingness to proactively enforce the laws to their fullest extent. The result is that Japan is a country where prostitution is illegal, yet the government has other laws (GoJ, 1952) that carefully regulate the ways in which sexual services are offered and organised on an industrial basis.

This apparent dichotomy has created a situation where the definition of prostitution, its legal standing, and the status and treatment of those working in the sex industry remain incredibly nebulous. The question of whether sex workers should be treated like other forms of labour under the law, with equal rights and protections, was already being raised in the mid-1990s (Kataiki, 1996). Yet, in the intervening years, not only has little been done to clarify the issue, the precarious conditions of these workers have only been exacerbated.

As previously mentioned, Japan's sex industry is a significant employer. A 2006 government study estimated more than 140,000 people whose sole profession was sex work (Kadokura, 2006). For many, however, sex work is a side job and representatives of the SWASH sex workers support group estimate at least 300,000 workers with almost one third of these having children (Chiba, 2020). With Japan having roughly 70 million working age adults, this would represent 0.4% of this total. The number of these who are considered 'mature', over 26 in the Japanese context, has been steadily increasing and now makes up half of the total number (Nakamura & Suzuki, 2016). For these women in particular, the profession can be highly unstable. As is common in sex work, the older you become, the fewer opportunities will be available to you. Consequently, Nakamura (2016) has collected numerous accounts of such mature women living on the edge of destitution. These include single mothers, women who have been left homeless, and those who had previously worked in the adult video industry but found it increasingly difficult to acquire such work as they grew older.  She then lists all her friends in the industry who have died from different forms of suicide: hanging, overdose, asphyxiation, jumping in front of trains, drowning and more (Takahashi, 2018) 13. During the COVID-19 pandemic, these dangers have only become more pronounced with suicide rates among women reaching 1.8 times more than those of the previous year (Konno, 2020).

The increasing popularity of Social Networking Services (SNS) and their growing use as a means of facilitating sexual services has also seen a shift away from the traditional 'shop' system through which sex workers were typically afforded a level of management and oversight that reduced worker's

<sup>13</sup>Kindle Edition, Chapter 1, Section 8, page 3.

independence but provided a safety net of sorts (Shibui, 2019). The unregulated nature of the sites that are used to facilitate meetings means that they are prone to exploitation by men seeking, or actively, grooming underage girls. They also remove any opportunity to vet unstable or violent customers, with the result that girls are frequently assaulted, drugged, or secretly filmed and blackmailed with threats to release the illicit videos (Takahashi, 2018).

The industry had already been experiencing a decline in its customer base due to Japan's ageing population and there had been hopes that foreign tourism, especially surrounding the Olympics, would counterbalance these demographic changes, at least temporarily (Maruyama, 2014). Instead, in 2020 the opposite occurred, with the COVID-19 crisis seeing custom as a whole dropping dramatically and foreign tourism drying up completely. This was, of course, a common pattern internationally as sex workers across the globe were affected economically, physically and psychologically by the negative pressures of both the pandemic and the ensuing lockdowns (Platt et al., 2020).

In Japan, the pandemic has especially impacted women who, compared to men, are significantly more likely to work in part-time, contract or temporary employment. The rate of job loss for women in non-regular employment was 1.8 times more than that of men (Zhou, 2020) and an estimated 900,000 women have been left substantially unemployed as a result of the crisis (Takeda, 2021). Loss of employment and increased levels of borrowing and resulting debt are pushing more and more of the most vulnerable women to turn to sex work as a means of economic survival at the same time as the downturn in the industry makes such work even more precarious and open to exploitation.

In April 2020, comments by a famous Japanese comedian highlighted the callous attitude held by many to such women when he said that the pandemic could be seen as a good thing because it would push more pretty, young women into the sex industry (Shioda & Kamito, 2020). Thankfully, these comments received considerable backlash. Sadly, they were merely crudely insensitive, not inaccurate, and many women have given direct accounts of how the crisis has forced them to enter the sex industry as the only means they had of providing for themselves, supporting their families or of repaying the debt they held (Nakamura, 2020).

One indirect form of exploitation can be seen in the grey areas surrounding what is known as Papa Katsu (father activities), an evolution of the previous 'compensated dating' in which young women match with potential sugar daddies, for what are supposedly non-sexual relationships. Again, it can be hard for Western readers to imagine that such exchange could be non-sexual in nature, but many are indeed based upon non-sexual companionship that offers emotional and social satisfaction. Many, of course, does not mean all, and, in the wake of COVID-19, there is even more leeway for young women to be exploited and pressured to provide physical services through such interactions which, conducted as they are through unmonitored and unregulated apps, make it sadly inevitable that many vulnerable young women will fall victim to predatory older men (NHK, 2020).

#### 44 Gavan Patrick Gray

Throughout 2020 and 2021 there were several cases of politicians being accused of engaging in such Papa Katsu, or visiting sex shops, and suffering a career-ending backlash, not because of the activities themselves but because they occurred during the COVID-19 pandemic (Sankei, 2021; Yomiuri, 2020). In other words, politicians can expect to be forced to resign positions for breaking a lockdown curfew but it is clear that at any other period in time, simple engagement in Papa Katsu or patronage of elements of the sex industry would have generated negligible outcry on both social and political levels. As such, one might expect such politicians to treat the sex industry and its workers, where they remain within the bounds of the law, along similar standards to any other legal business. Unfortunately for the workers involved, however, that has not been the case; although politicians are happy to make use of the services the sex industry offers, when it comes to the government determining how it should treat those workers, a certain level of hypocrisy soon becomes evident.

#### Double Standards and Inadequate Support Systems

Sex workers in Japan have long stated that even though their profession is, usually, within the boundaries of legality, they frequently face social stigmatisation. This became more openly evident when, following the initial wave of COVID-19 infections in Japan, sex workers were excluded from a system established to support parents who were forced to leave their work due to school closures (Fujisawa, 2020). Although this exclusion was soon reversed, it made it abundantly clear that there was social and political prejudice at play that significantly affected not only the working conditions of those employed in the industry but also their wider lives.

Tsunehiko Maeda (2020), a former Chief Prosecutor of the Special Investigations Department of Tokyo Public Prosecutors Office, explains that sex workers face additional problems regarding the nature of their work status as their contracts are often indirect compared to those of standard office or factory workers. The wording of the Customs Business Law, which governs the legal sex industry, leaves significant room for interpretation so that workers are unclear whether they are direct employees of stores they work at or indirect, contracted labour. These grey areas have existed for decades but until the COVID-19 pandemic, there was never any pressure to clarify their precise nature.

Now, however, pressure for a clearer definition is increasing from both representatives of the sex industry and those who oppose it. Despite the reversal on parental support, the government continued to exclude sex shops from another subsidy to support small businesses impacted by the pandemic and, as a result, they are being sued by at least one sex shop manager who claims that their business is being discriminated against (Osaki, 2020). The government has its supporters though, among those who argue that the sex industry, due to perceived ties to organised crime, frequent cases of tax evasion, and, for some, the threat it represents to public morals, does not deserve to benefit from public taxes. Additionally, 'abolitionists' – who perceive the sex industry as being inherently exploitative – hope to use the public fear of direct interaction as an opportunity to call for greater restrictions on the industry.

Prior to the beginning of the pandemic, discussions had already begun to revise the Prostitution Prevention Law, which has remained unchanged for over 60 years. While they are still ongoing, it is unlikely that they will result in a dramatic change to the industry. So far, the focus has been upon abolishing Chapter 4 of the law, which introduced the aforementioned reform centres and provided greater support for women in the industry who are in distress – whether due to age, family status, debt, violence or other problems (GoJ, 2019). While such changes are needed and may do considerable good, it is unlikely that the revisions will adequately address all the problems that exist.

The changes are certainly unlikely to appease the abolitionist groups and activists who might hope to see such revisions lead to the introduction of the Nordic Model of sex laws, wherein the purchase of sex, but not its sale, is criminalised (a format which activists argue protects the agency of sex workers and reduces demand, but which many workers see as making their work less safe and more economically precarious). Such changes are incredibly unlikely to occur in Japan though, as they would upend a multi-billion-dollar industry that has a deeply entrenched position, no matter how vaguely defined, in Japanese society. Reforms to the existing law, and changes in the way in which women in the industry are treated, are far more likely to take place on a slow and incremental basis which only increases the importance of understanding the various factors that might positively impact the lives of the women involved.

One of the most important things for women in the industry is their anonymity. Typically, they work far from their own home areas to avoid what some call the danger of 'social suicide' and the work is seen by some as a means of addressing economic problems without exposing their identity to public scrutiny (Sakatsume, 2018) 14. Shingo Sakatsume, director of the White Hands NGO, which provides various support systems for women in the industry, including the Fu-Terasu counselling service, highlighted the fact that in his own hometown the minimum hourly wage was ¥830, whereas women would expect to earn at least ¥5,000–6,000 at a 'delivery health' store. They also have considerable flexibility over when and for how long they are willing to work, something that appeals to students who might have debt, or single parents who need to provide for children. What these women lack, however, is business knowledge. Much of the advice that Fu-Terasu provides relates to issues of budgeting, contract advice and dealing with debt or bankruptcy (Hojo, 2020).