Castaway: New Criminal Code Fails To Address Same-Sex And Transgender Sexual Violence

LGBT+ Representation Missing

In the debate around gender-neutral sexual violence laws for adults, the perspective of the LGBT+ community has been missing, said experts, and this includes sexual violence against queer people.

The Parliamentary Committee noted that SC had only read down section 377 as it was the only defense against rape of men, transgender persons and animals, and recommended that Centre should retain Section 377. The Centre had also put out a questionnaire for interested parties to fill and place recommendations for the law before them. Many did, and pointed out that 377 should be retained. Despite all objections, the Centre omitted the section from BNS.

“This actually shows why it’s important to do consultations with all impacted segments of society while making things like a Penal Code that will affect a billion people. This law reflects this gap. Adult men and transmen will now be vulnerable against sexual violence and sexual assault with no recourse,” advocate Vrinda Grover says.

Under BNS, in cases where sexual violence occurs, accused will likely be prosecuted under less stringent sections like assault and grievous bodily harm, but as Grover pointed out, this will happen “sexual assault is a crime in a category of its own which has always been defined separate by law.”

Higher Rate of Sexual Violence

While there are no studies of the prevalence of sexual violence against LGBT+ community in India, a 2016 US survey gives us a general picture. The National Inter-Partner and Sexual Violence survey of LGBT+ community by the CDC found that 45 per cent of lesbian women, 61 per cent of bisexual women, 26 per cent of gay men, 37 per cent of bisexual men experienced rape, physical violence, and/or stalking by an intimate partner. The survey also noted that 48 per cent of bisexual women were victims of sexual violence at a young age – double the number of straight women who experienced the same.

In 2019, a 19-year-old Delhi woman was arrested for raping a woman with a sex toy under section 377 IPC. The same year, a French national was assaulted by another woman in Goa. But, the accused was only charged under sexual harassment laws as Goa police concluded section 377 IPC did not protect against female perpetrators of sexual violence.

On June 23, in Uttar Pradesh, a 23-year-old man from Gorakhpur died by suicide, allegedly after being sexually assaulted and then blackmailed by four men who were known to him. The UP police has registered a case against the four accused under Section 377 IPC.

“To delete the entire section, it’s almost contemptuous of homosexual people. You’re erasing their experience, their existence and ignoring their plea for help. It cannot be approved of,” senior advocate Rebecca John says.

Trans Community is Particularly Vulnerable

India enforced the Transgender Persons (Protection of Rights) Act in December in 2019 amid widespread criticism of it. The Act creates a separate legal regime for transgender persons. The punishment for abusing transgender people is six months to two years jail time, regardless of the scale of the crime. In contrast, rape of a cishet woman is punishable with ten years to life imprisonment, and can also attract the death penalty in heinous cases such as the 2012 Delhi gangrape case.

In a 2015 report for Kerala government, Sangama, a Bengaluru-based NGO, found that 60 per cent of transgender persons had experienced sexual assault and/or harassment. A similar survey conducted in 2015 by National Aids Control Organisation (NACO) had questioned 5,000 transgender persons and found that one in five of them experienced sexual violence in that year alone.

A slew of petitions challenging the disparate laws under the Transgender Persons (Protection of Rights) Act are currently pending before the Supreme Court.

Are Genderless Rape Laws the Answer?

Under section 375 IPC, rape is defined as sexual violence perpetrated by a man against a woman. In the aftermath of the Delhi 2012 gangrape, the Justice Verma Commission (JVC) led the way to expanding the meaning of rape to include digital, anal rape, and rape by objects.

During its discussions, JVC did consider gender neutral rape laws. In their minutes, they discussed two possibilities: Should the definition of rape be expanded to include men? And, can women perpetrate sexual violence?

While there was some support for seeing men as victims, most committee members were of the view that allowing women to be charged as accused would result in harassment of an already vulnerable segment of our population.

The call for gender neural rape laws predates the 2013 amendments. In 1996, Justice J Singh of the Delhi High Court had observed in the case of Sudesh Jhaku vs KCJ that “men who are sexually assaulted should have the same protection as female victims, and women who are sexually assault men or other women should be liable for conviction as conventional rapists.” Justice Singh however passed the issue to the Law Commission to suggest a way forward. Similarly in 1999, while hearing another petition Sakshi vs Union of India, filed by Sakshi, a gender rights organisation, the Supreme Court bench comprising Justices GP Mathur and Ravendra Babu called on the Law Commission to consider expanding the definition of rape.

Taking on these calls, the Law Commission in its 172nd report, released in March 2000, recommended gender-neutral rape laws while simultaneously calling for the deletion of outmoded laws like 377 IPC, and increasing the punishment for sexual harassment/ outraging a woman’s modesty.

“In order to plug the loopholes in procedural provisions, we have also recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence Act, 1872,” said the report. The report was criticised by the country’s leading women’s rights activists including women’s rights lawyer Flavia Agnes for opening up an avenue by which women could be harassed.

Other advocates differ. “In the era of neutrality and equality we are still sowing the seeds of gender bias and gender specificity in case of sexual offences in India,” says SC lawyer Rishi Malhotra.

Malhotra had in 2018 filed a writ petition before the Supreme Court, asking for men to be included under the protection of laws against rape, stalking, sexual harassment and other sexual violence crime. SC dismissed the petition. He said he has plans to file another such petition soon.

In response to the new laws, the West Bengal Bar Association, and others across the country have declared July 1st a black day. Rebecca John sees this as the only path left to counter the issues with BNS. “The only way forward has to be pressure from society, citizens, particularly the legal community,” she says.

(This appeared in the print as 'Castaway')