Adv. Ishwari Pendse, Pune District Court and Bombay High Court
‘The Jury of her Peers’ by Susan Glaspell is a short story which revolves around the life of Minnie Foster who has been detained for the murder of her husband. Two women arrive at Minnie Foster’s home to send her certain things which she might need. The story then takes us on a journey where these two women learn of the life of Minnie Foster. The women learn of the abandonment of Minnie Foster by her husband and his indifference towards her. Whereas the men are seen to have interest in gathering evidence on how the crime was executed, the women find various things which lets them infer the reasons why it was committed. However, the women’s reasoning and the ‘evidence’ that they found had no place in the androcentric judicial system Thus, we see that the approaches to justice for arriving at certain legal and moral conclusions are different amongst various persons.
Care Ethics is the recognition of this ‘alternative view’. According to me, care ethics challenges the traditional notion of ethics and justice and provides us with women’s perspective of justice. It focuses on ideas like ‘harm’ and ‘attachment’. It further criticises the male dominated perspective of justice based on the concepts of ‘detachment’, ‘autonomy’ and ‘independence’. This paper will focus on what is care ethics in relation to criminal law and whether it can be integrated in the judicial system and eventually whether it will prove to be a valid alternative for the present judicial system.
Care ethic has been regarded as an alternative standpoint for the concept of justice. Theoretically, the distinction between justice and care cuts across the familiar divisions between thinking and feeling, egoism and altruism, theoretical and practical reasoning.It has been stated by Robin West that women’s hedonic lives are different from men’s. Thus, she argues that the feelings of pain and pleasure enjoyed by the two genders is different. West further argues that gender-specific suffering is ignored by the present legal culture. The pain of women is not understood because it is different and it finds no place in the present judicial system. Similarly, Carol Gilligan states that human experience is better understood in terms of attachment than detachment. The traditional view of justice focuses on detachment i.e. a judge should be detached from the case and think in an objective way. Thus, the Lady Justice’s pivotal attribute is the blind-fold. Care ethic challenge this premise itself. Gilligan’s views are based on psychological research wherein both men and women were subjects. Thus, she criticises the erstwhile idea of justice and moral development of people based upon studies that consisted of only male samples as a consequence of which women’s idea of justice was regarded as inferior or just simply “lacking logic”. Instead of advocating the function of care as a chosen virtue for the cohesiveness of the community, she interrogates its secondary status in a patriarchal world from feminist point of view.
The idea of different voices has been developed by Gilligan. Before proceeding it needs to be clarified that care perspective emerges as feminist ethics and not feminine ethics. Femininity is described as characteristics of women like being passive, emotional, obedient, emotional etc. Whereas feminist ethics focuses on gender and moral beliefs and its effects on the society. Feminist theory is an outcome of organized activity on behalf of women’s rights and interests. The studies show that care perspective largely occurs in women than men. It can be argued that this phenomenon is due to the patriarchal norms which guide our daily interactions in our homes, educational institutions and workplaces. Not all men ignore the ethic of care and not all women acknowledge the ethic of care in moral reasoning. Thus, when Gilligan speaks about a ‘different voice’ she gives it a gender-neutral connotation. Firstly, the ‘different voice’ being gender-neutral brings care as an alternative to justice in the fore-front. Secondly, it recognises the different approaches women adopt in solving a moral problem and brings the same into the mainstream. Thirdly, it provides quite an ideal perspective stating that this ‘different voice’ will exist even when patriarchy has been uprooted.
To put it briefly, care ethic is providing an alternative to the present legal reasoning which is male reasoning that focuses on detachment and autonomy. Care ethic considers the inter-dependence of human relations, recognises different voices and interprets facts, human relations, duties, rights and law from a different perspective i.e. care perspective. When we consider human conduct in light of the perspective of care, that is with regard to the role that each person plays and the duty imposed on each person etc., the conclusions that we arrive at are different from the conclusions of various court decisions. This idea is elaborated throughout this article by interpreting various judgments.
Ethics of care and criminal law
As this paper focuses on the current judicial system, it is pertinent to point out the difference between care and justice. Detachment has been glorified by the idea of justice. Fairness, equality and individualism are the key facets of justice. Virginia Held observes that the dichotomy between reason and emotion, the divide between private and the public and the concept of autonomous self are all constitutive of a patriarchal moral theory. Gilligan like Held, also describes that the ‘self’ is interconnected with the ‘other’. Thus, care perspective states that the ‘self’ is dependent on the ‘other’. It focuses more on ‘interdependence’ and the web of human relations. Thus, the focus shifts from ‘what is just’ to ‘how to respond’.
The major aspect that care perspective will look into is how an adjudicating authority deals with a case and how assistance may be provided to the aggrieved person. Hence, the technicalities and procedure will differ and will attempt to respond to the issues of the aggrieved person with a more humanist approach. Here, the focus is not only on the rights of the woman but also on the corresponding duties of the accused/opposite party, that is for instance, a duty to provide a safe workplace to every person. In relation to criminal law, care perspective will focus on certain aspects like:
Duty of the accused not to harm the victim
The harm caused to the victim
The motive for the act
The response of the accused
The response of the judicial system to the accused and the victim
Thus, it is the duty of not harming any person which is integral to care perspective. Further, care perspective will aid in understanding the harm caused to the victim. It is an essential step in evaluation of the offence as later it will determine the quantum of punishment to the guilty. Further, during this evaluation we recognise that what constitutes harm is interpreted differently by different people. For example, in various divorce cases it has been pointed out that slapping the wife or merely hurling abusive words does not constitute cruelty when the couple belongs to certain social or economic strata. Thus, what constitutes harm needs to be assessed in relation to the duty that is cast upon the person to act in a certain way and not to any external factors. It is a general principle of criminal law that in the absence of statutory exceptions, mens rea (guilty mind) needs to be established for proving a crime. Further, the response of the accused and the victim in the given circumstance needs to be analysed. Lastly, the quantum of punishment and the procedure of execution of the same will be decided according to all the perspectives elaborated earlier. When we analyse the application of care ethic it can be understood in relation to certain questions which it raises:
● Whether the penal law is appropriate?
● What should be the evidence and how it needs to be adduced?
● How the law is interpreted?
Challenge to the law
It can be seen that various laws reflect patriarchy and the subordinate position meted out to women. For instance, Section 60 of the Code of Civil Procedure, 1908 even today states that a person’s wife and children are not liable to attachment for the execution of the decree. The wife is still looked at as property by the Code. Thus we can see that law has been a by-product of the patriarchy and men’s idea of justice.
Patriarchy has also influenced certain penal provisions. The most heinous effect of patriarchy is marital rape. In India, Section 375 of Indian Penal Code does not recognize marital rape. A woman in this country (India) can protect her right to life and liberty, but not her body, within her marriage. If the husband lays an assault on her wife, then that would constitute an offence under the IPC. If the very same husband lays an assault and forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage between the two.
In Australia marital rape is considered as an offence. Certain jurisdictions have merely removed the exception to the offence of rape and others have made a new law for the same. One of the most important cases pertaining to this issue was R v. L where the High Court of Australia deals more with whether the husband has right of sexual intercourse with his wife and not the harm caused to the woman or the deprivation of her dignity and liberty. Further, the focus is only on the rights of the husband and not the rights of the woman. Though, care perspective points out that the relationship shared by the husband and wife expects certain degrees of attachment, it also states that attachment cannot lead to harming a person and that non-consensual sex is a harm caused to the woman. Further care ethic tries to avoid the extremes of total self-sacrifice which women generally tend to adopt or rigid individualism wherein a person is viewed as an island.
Thus, when we look at the concept of marital rape from care perspective it is stated that the dialogue between fairness and care not only provides a better understanding of relations between the sexes but also gives rise to a more comprehensive portrayal of adult work and family relationships. Thus, marriage is not seen merely as a bundle of rights that each spouse has but rather it needs to be a relationship based on fairness, equality, duty towards each other and importantly care. Thus, we see that right of sexual intercourse in marriage cannot be regarded as core to the legal issue that whether a man can be convicted of raping his wife. This question should be answered from two perspectives: that a relationship should not cause any harm to any person (here wife) and the duty of the husband as another person. A man cannot have sexual intercourse with any other woman without her consent. By reason of marriage there cannot be a right of the husband for sexual intercourse. Here we see that the distinction between personal and public spaces is reduced. Just like no man can have sexual-intercourse with another woman against her consent the same rule will apply to the wife. There need not be a distinction between wife and other woman in cases of rape as the harm caused to both of them is same.
It was seen in ‘Jury of Peers’ that women’s approach towards evidence and reasoning is different than men. The importance they gave after seeing the dead bird, the attachment they felt towards Minnie Foster and the way they understood the facts of the case was not similar to the reasoning and the emotions of men.
In State of Andhra Pradesh v. Kalidindi Sahadevudu, a case pertaining to cruelty caused to a married woman by the in-laws, it was held by High Court of Andhra Pradesh that:
“The conduct of the first accused also does not attract the offence of abetment to commit suicide because by mere calling the deceased that she was not begetting children the first accused never thought that on account of those words the deceased would commit suicide.”
Eventually the Court acquitted the accused by adding a simple line that even if another view of the evidence is possible, the Court will not reverse the findings of the trial court. This shows lack of empathy and lack of attachment of the Court towards the victim. Nowhere the point was stressed that the actions of the accused in demanding dowry, calling her barren constitute a harm to the victim especially in a social construct of which victim as well as the accused are the members. The Court merely applied a straitjacket formula without even regarding the plight of the victim which eventually led to the death of her. The accused here had a duty not to harm the person which has been clearly violated. The actions of the accused itself are harmful. The aspect of ‘duty’ is never focused. Calling a woman barren was not considered to be a conduct that the deceased would commit suicide over in the estimation of the accused. However, in a similar context as to calling a women barren, the Bombay High Court in one case held that calling a man impotent amounts to defamation as it reflects adversely upon the manhood of a person and has a tendency to invite derisive opinions about such a person from others.
In Devanand Chandwani v. State of Chhattisgarh the Court the court acquitted the accused from the charge of abetment of suicide. It was alleged by the prosecution that the victim committed suicide due to excess sexual act by the husband and the husband’s illicit relationship with another woman. Here the evidence is read in the context that how the actions of the accused do not constitute abetment of suicide. When we read the same evidence from the care ethic perspective we will see the evidence from the different perspective. It will be analysed that:
The husband’s lack of attachment to the plight of the woman.
The husband’s duty of not harming his wife.
No positive actions from the husband to mend the relationship (which is usually expected from a woman in order to save a marriage)
Here I do not claim that the accused should be convicted and given a maximum sentence. I only state that the evidence can be interpreted differently. The withdrawal of care, responsibility and attachment constitute major factors which need to be analysed according to care ethic. In these cases we see that the judicial reasoning comes from a detached perspective. The provisions in order to curb violence against women are not uprooting the major problem i.e. patriarchy. Thus, the current justice system is flawed.
Interpretation of Law
In Lindsay v. Queen, decided by the High Court of Australia we come across the interpretation of the word instigation. The brief facts of the case are that: a man makes homosexual advance towards another man in presence of the latter’s wife. This led to the killing of the man who made the sexual advance. Defence put forth by the accused was that the actions amount to instigation and hence he cannot be charged with murder. The court approached this issue by stating that:
“After careful consideration of the authorities, and of some of the extensive academic literature, I have come to the firm view that in 21st century Australia, the evidence taken at its highest in favour of the appellant in the present case was such that no reasonable jury could fail to find that an ordinary man could not have so far lost his self-control as to attack the deceased in the manner that the appellant did.”
In this case we see that by applying the yardstick that what an ordinary man would have done, the court has not attacked directly the homophobia existing in the justice system. Up to what degree the accused could have reacted is looked into. Here we find that the court actually is asking the question of ‘how much retaliation is just’ rather than how the accused should have responded to such a situation and what alternative decisions he could have taken.
Now let’s read an Indian case in relation to abetment of suicide of a married woman by her husband or relatives of the husband. In Gananath Patnaik v. State of Orissa, Supreme Court stated that the concept of cruelty and its effect varies from individual to individual also depending upon the social and economic status to which such person belongs. Thus, the crime is actually viewed from the perspective that whether a reasonable woman will commit suicide in the given circumstances. It does not tackle the root of the problem that is cruelty against women must stop and not just their suicides. When we read the same law from a care ethic perspective we see that the actions of the accused will be scrutinised. The effect on the victim will be analysed. It is an unfortunate situation that actions constituting cruelty are not penalised. In order to save the marriage institution women’s pain have been objectively evaluated and that of men’s actions subjectively evaluated. Thus for a woman belonging to lower economic class and certain ‘castes’ mere slapping will not be cruelty.
I find that the judicial approach when it comes to other criminal cases the yardstick of reasonable man is used to assess the actions of the accused. This situation is reversed when it is the wife who is the victim and at that time it is the actions of the victim that are being assessed.
Care ethic can surely bring certain essential changes in the judicial system. According to the author, when we look from the perspective of duty, attachment and care we are in a better position to analyse the circumstances of the case and the issues revolving around it. It is stated by Gilligan that justice focuses more on right than on understanding. However, this is where I do not accept her thoughts. I feel rights are an integral part of the existence of every person. We cannot alienate the concept of rights. At the same time I feel that the analysis of rights can be done from a care perspective itself.
However, I understand that there are certain limitations to application of care perspective to the criminal judicial system. Firstly, it is difficult to apply the terms of attachment, duty and care to all types of criminal cases. Hence I accept the critique of Linda McClain who states that an ethic of care could be an appropriate standard in certain legal relationships but it must be supplemented by an ethic of justice when it is necessary to set a standard for widespread application. The Ethic of care however, brings the different voices into the mainstream. Its application in appreciation of evidence, interpretation of law and challenge to the existing laws will give us a more humanistic and holistic approach in the laws. Eventually, judicial space will also be a space for women.
 Susan Glaspell ‘The Jury of Her Peers’ (1927).  Carol Gilligan, ‘Moral Orientation and Moral Development’ in James P. Sterba (ed), Ethics (Oxford University Press 1999)  Ibid.  Robin West “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory” ( Wisconsin Women’s Law Journal, 1987)  Gilligan criticises Kohlberg’s research on moral development as all-male sample was the basis of his theory.  Kanchana Mahadevan, Between Feminity and Feminism (1st Edition, Indian Council of Philosophical Research and D.K. Printworld (P) Ltd. 2014)  ibid  Norlock, Kathryn, "Feminist Ethics", The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2019/entries/feminism-ethics/>.  Webster’s All-In-One Dictionary and Thesaurus (Merriam-Webster 2008)  Firstly, many criticise ethic of care and states that the principles on which the theory is based is the reason why women face discrimination. However, I perceive the ethic of care as gender neutral.  Kanchana Mahadevan, Between Feminity and Feminism (1st Edition, Indian Council of Philosophical Research and D.K. Printworld (P) Ltd. 2014)  Carol Gilligan, ‘Moral Orientation and Moral Development’ in James P. Sterba (ed), Ethics (Oxford University Press 1999)  Section 375 of Indian Penal Code consists of detailed provisions related to rape.  Nimeshbhai Bharatbhai Desai v. State of Gujarat 2018 SCC OnLine Guj 732  (1991) 174 CLR 379  See also: Simone de Beauvoir, The Second Sex (Vintage Classics, 1953)  Kanchana Mahadevan, Between Feminity and Feminism (1st Edition, Indian Council of Philosophical Research and D.K. Printworld (P) Ltd. 2014)  2012CriLJ2302  Criminal Application No. 774 of 2017   HCA 16  I acknowledge that the High Court of Australia has cited that certain jurisdictions in Australia has abolished the partial defence of provocation but as this case is from South Australia where the defence is still valid the Court had to apply the same. Hence it is not just the judiciary but a positive action from the legislature is also the need of the hour.  (2002) 2 SCC 619  In crimes against women we do not see the idea that whether a reasonable man would have acted in such a way (this statement is made just to point out the double standards in the current judicial system).  Katherine T. Barlett , Gender and Law (Little, Brown and Company 1993)
Edited by: Deveesha Tudekar (St. E), Rajmohan CV (JE) and Chirag Bhatia(SE)