SEXUALITY AND THE STATE

by Sevanshi Kamdar and Shivani Choudhary

INTRODUCTION

Promoting and protecting individual autonomy lies at the heart of every liberal state. Though this has not been explicitly acknowledged by states, states do recognize that the freedom to be one’s own person is a right that, if is granted, would be empowering for its citizens. However, this recognition still has to be universally shared in various arenas, especially with respect to matters relating to sexuality. Laws are enacted by states that severely restrict an individual’s ability to express and experience their sexuality. What is more interesting are the penal provisions. The punishments for violating laws that regulate sexuality range from fines to the death penalty, an example of the latter being Iran.

In this article, I aim to answer three questions viz, firstly what is sexuality? Secondly, why does the state take a keen interest in regulating the sexual behaviours of its citizens? And lastly, was the ‘Anti-Pornography Bill’ passed by Indonesia a religiously neutral piece of legislation or an attempt by the state to impose conservative sexual morality?

DISCUSSING SEXUALITY

At the outset, the meaning of a broad term like ‘sexuality’ must be discussed. Sexuality is a significant characteristic of an individual’s life. The term includes one’s gender identity and sex, sexual orientation, sensual gratification, gender roles, reproduction and sexual desires. Through gestures, thoughts, attitudes, relationships, mannerisms and practices, one can feel and given expression to one’s sexuality. Factors that affect an individual’s sexuality are- the society, government, religion and education.[1]

In this article, the influence of the state on an individual’s sexuality is discussed. States prevent the explicit display of certain forms of sexuality. Every state has its own reasons for doing the same and therefore, there are multiple reasons and theories on the state policing sexuality. Feminists like Catherine MacKinnon believe that the state has weaved the domination of men over women in its policies by ‘ensuring male control over women’s sexuality at every level.’ [2] An example of this could be how marital rape is not an offence in 43 countries.[3] Another reason for policing sexuality relates to ideas of national identity and securing the future of the state. Religion also plays a dominant role, especially in Muslim majority countries where states seek to impose sexual morality to uphold religious beliefs and values. Two important reasons for the state to regulate the sexuality of its citizens are enumerated below.

POPULATION MANAGEMENT

The development of a state depends on the composition of its population, at least, that is what the Prime Minister of Singapore, Lee Kuan Yew believed when he assumed office in 1983. He observed that the problem that needed to be addressed was that the ‘intellectually superior’ citizens of Singapore were not contributing adequately to the growth of its population. [4] PM Lee feared that the intelligence of Singapore would keep decreasing because of the difference between the reproduction rates of the uneducated class and the intellectually superior class. He believed that a child inherited most of its intelligence from its parents and therefore, the population of the intelligent Singaporeans could be increased if the intellectually superior class increased their rates of reproduction. Therefore, to ensure that the general intelligence of Singapore increased by reproduction by the ‘right kind of woman’, in 1984, PM Lee established the Social Development Unit whose primary function was to play matchmakers for young graduate men and women.[5]

By this example, it can be said that a state regulates or at least, regulated sexuality to secure a ‘wise’ future. Whether the rapid pace at which Singapore has developed over the decades can be attributed to its efforts to regulate sexuality cannot be said with certainty. What can be said with certainity is that PM Lee went too far in curbing individual autonomy for the greater good. Though he wanted the future generation of Singapore to be intelligent, it is quite ironic that his intelligence quotient seemed to have taken a beating when devised and implemented such a ludicrous policy.

How could he possibly assume that children born of uneducated parents would be less valuable or low contributors to the growth of the country? Who gave him the right to decide children born of which parents or which class would be worthy? Most importantly, who gave him the right to politicise the sexual relationships of the citizenry in order to meet his absurd policies and objectives? Emotions and choices of people are not supposed to be a business deal where the outcome is assessed before mating is allowed. Lee must have thought that he striving to achieve the greatest good for the greatest number of people but in reality, he was violating the sexual autonomy of the citizenry.

RELIGION AND SEXUALITY

Upholding religious ideas, values and beliefs is also an important reason for the state to regulate sexuality. An apt example would be a Muslim majority nation where Islam affects the formulation of policies by the state. The Islamic view on gender and sexuality, which is widely criticized, has been endorsed by many Muslim majority States. There has been much debate within the Islamic religion about the rights of women when it comes to sexual intercourse within a marriage. When the husband desires to have sexual intercourse, the wife cannot refuse because, according to Muhammad, the founder of Islam, refusal by the wife to have sexual intercourse would anger her husband as a result of which, she would be cursed by angels throughout the night.[6] As a result of this view, marital rape is not recognized as an offence in some Muslim countries.

When the issue of marital rape came up in the Parliament of Malaysia, the legislators decided not to incorporate marital rape as an offence in the Malaysian Penal Code because they wanted to uphold the aforementioned views of Islam. In fact, the wife’s refusal to have sexual intercourse was introduced as a valid ground for divorce under Section 70 of the Law Reform (Marriage and Divorce) Act 1976. At a meeting of the UN Committee on the Elimination of Discrimination against Women, the delegation of Malaysia stated that if marital rape was criminalized, it would contradict the Sharia Law and they were not willing to do so.[7] In order to enforce Islamic views, Malaysia continues to regulate the sexual behaviours of its citizens. Till date, women in Malaysia are not allowed to refuse their husbands to have sexual intercourse. Here, we see that the state is capable of regulating sexuality not only in public spaces but also inside an individual’s home. There is no sense of privacy or individual autonomy. Whether a person should or should not have sexual intercourse does not depend on the willingness of the person, but depends on the willingness of the state. This is a case of omission wherein the state omits to change the status quo of gender hierarchies.

It should also be recognized that it may seem that certain laws that regulate sexuality are religiously neutral when in reality, they are influenced by religion. One such law is the ‘Anti-Pornography Bill’ passed by Indonesia in 2008. Apparently, this law was not inspired by religion. This law against pornography had its origins in a fatwa issued in 2002 by the Assembly of Indonesia Clerics.

In response to the increasing degradation of morality among the Indonesian youth, the fatwa was issued which banned pornography and ‘pornoaksi’, which means arousing bodily movements, sexually.[8] Muslim organisations and women rights activists saw through the real motive of the legislation. They claimed that the provisions were insufficient to regulate pornography. However, they adequately enforced sexual morality as per the principles of Islam. Apart from banning sexual behaviours like masturbation and homosexuality, the law also banned exposure of thighs, breasts, belly buttons and ‘pornoaski’. Islamic terms were present throughout the Bill. For instance, the word ‘aurat’ was used to indicate the body parts that were required to be covered. The reference to the principles of Islam was so evident that minority groups opposed it saying that the Bill went against the diversity and pluralism of Indonesia.[9]

By analyzing this and the previous example, it can be concluded that where a sufficient number of people share the same religious views and those in power consider it to be obligatory or expedient to apply religion in the political arena, the instruments of a state will propagate religious views, including regulating ‘immoral’ sexual behaviours. States may have to or perhaps States want to regulate the sexual behavior of its citizens because of religious principles. However, I believe even if the majority of the population of a State comprises of one religious community, the State must not indulge in curbing individual autonomy on the basis of religious principles.

It must be left to the individual about what they want to do with their lives. Perhaps an individual may not believe in or want to abide by the principles of the religion to which they belong. Or perhaps, they may want to abide by their religious principles but may want to establish their own principles about their sexuality. Many permutations and combinations are possible but the point is, why is the State imposing religious principles on the citizenry and curbing their autonomy? All the citizens have the right to control their own sexuality, the State cannot and should not interefere in such a personal and sensitive matter.

CONCLUSION

The state may believe that by curbing individual autonomy in matters of sexuality, the state is acting for the benefit of its citizens and for the betterment of its future. The state may not have an evil intention when it seeks to regulate sexuality. However, the major issue with the state regulating sexuality is the question that to what extent can the state interfere in the lives of its citizens. In the guise of looking after its citizens, can the state completely reject the entire idea of sexual autonomy?  I believe that certain factors make a person, for instance, the thought process, personality, behavior, knowledge and sexuality. It is one thing to lead a nation but quite another to control the personal lives of the citizenry, more specifically, their sexually autonomy. 

Views are personal.

Image credits: Amnesty International

ABOUT THE AUTHOR

Sevanshi Kamdar and Shivani Choudhary are currently pursuing law at West Bengal National University of Juridical Sciences, Kolkata

REFERENCES


[1] Report of a technical consultation on sexual health, World Health Organization, Department of Reproductive Health and Research, 2006.

[2] C. A. MacKinnon, Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence in The Feminist Standpoint Theory Reader: Intellectual and Political Controversies, Routledge, London, 1983.

[3] Saptarshi Mandal, The Impossibility of Marital Rape, Australian Feminist Studies 29 (81), 2014, 255-272.

[4] G. Heng and J. Devan, State Fatherhood: The Politics of Nationalism, Sexuality and Race in Singapore in Bewitching Women, Pious Men, University of California Press, 1995.

[5] S.Yao, Oral Sex, “Natural Sex” and Other Pleasures of the State, Broadsheet 33 (3), 2004.

[6] Muhammad Endriyo Susila, Islamic Perspective on Marital Rape, Media Hukum, 2013.

[7] Julian Lee, Policing Sexuality: Sex, Society and the State 64, 2011.

[8] Ibid.

[9] J.C.H Lee, Mobilizing for Social Change in Muslim Societies amidst Political Turmoil and Conservatism, Development 52 (2), 2009.

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