Saturday, September 13, 2014

How we define 'rape'

I won't go into the question of what sexual acts should or should not be termed 'rape'. In this note, I just want to remind ourselves that Indian law and society only see it as a violent act against a woman by a man. I believe that it should include such acts against any person, by any person, man, woman, transgender....
We live in a time where gender lines are blurring and people are asserting the rights to change parts of their physical sex and to present themselves free of the limitations of birth, culture, orthodox ideas of gender identity and sexual orientation. In such a time, shouldn't our rape/sexual assault laws become fair and representative of our evolving notions of selfhood? Even the widely acclaimed Nalsa judgement on recognition of transgenders does not expand the definition of rape although it expresses concern that they are vulnerable to sexual assault.
Friends and acquaintances have told me about men who approached them claiming that they were forced to have sex by other men and even women. Such incidents may be fewer in number than rapes in the traditionally or legally understood sense, but does it mean there should not be laws against such acts? 
I acknowledge this is not the first time this question is being raised. In fact there was a proposal to amend the law in India after the well-known gang rape of a woman in Delhi in December 2012, but I believe the Congress-led government developed cold feet, ironically under pressure from women's groups
What prompted me to bring up this question again today were two recent news items. One was a report of an incident of groping of a woman by a hijra in Bombay. And the other was a report about Pinki Pramanik's exoneration of charges including rape
Some LGBT activists are unsurprisingly thrilled at the second piece of news. I am not in a position to discuss the merits of the cases against Ms Pramanik but note that as per the news report, the defence claimed that the charge of rape cannot be made because the law doesn't apply to rape by a woman. My sympathies are with Ms Pramanik with regards to the way she was treated by the media, the police, the medical establishment and many other people as a fallout of the cases against her. And I am glad the cases have now concluded. 
More importantly for the rest of us, especially lawmakers, it is time to reflect on the questions I have asked here and consider amending the law. I admit the rape of a man by another man is already within the ambit of Section 377 of the Indian Penal Code. In fact, there seem to be some Indians who think sex between men can only be an act of violence and not an expression of love. The example of such a person that immediately comes to mind is Meenakshi Lekhi, although she is a lawyer and a lawmaker, and she ought to know better. Some people will find the example of Ms Lekhi extreme and refuse to see her as someone with a belief system beyond one that is articulated by the BJP to which she belongs. But I believe she represents the tip of the metaphorical iceberg of ignorance in Indian society.
The battle against such ignorance will continue. As queer individuals, I hope we are more aware and proactive about fixing much that is wrong with our laws, not just Section 377.

PS. I am not sure why activists who have taken up this case of rape of a hijra   ( aren't insisting on application of Section 377. They seem to be relying on the rape law instead.