Thursday, March 25, 2021
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Rape laws of India are set in moulds of gender and traditional definitions of sex

Gender-biased rape laws leave out a lot of criminal offences out of their purview. Image: Pixabay

ON MARCH 11, 2021, a Hindu man thrashed a 14-year-old Muslim boy for drinking water from a temple premises inviting wide condemnation.  One aspect overlooked by everyone, however, is that the minor was also sexually assaulted.

The police booked the accused, Shringi Nandan Yadav, under IPC Sections 504 (intentional insult to provoke peace), 505 (statements conducive to public mischief), 323 (causing hurt) and 352 (assault). Nowhere do these charges acknowledge that the complainant was a minor and that he was sexually assault.

Hitting a minor in the genitals is prosecutable under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, as it states that:"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

The minor is first taken aback when the accused slapped him. As soon as the boy fell on the ground, Yadav started kicking him. After a kick on his head, he directed the next ones specifically to his genitals. The boy can be seen desperately trying to protect the area with his left hand yet the accused successfully managed to hit him.

It is tough to acknowledge this as sexual assault since we still relate sexual assault to 'lust' rather than 'power' and view it as a form of desire, not abuse of power

It is tough to acknowledge this as sexual assault since we still relate sexual assault to 'lust' rather than 'power' and view it as a form of desire, not abuse of power. Sexual assault / rape takes place in riots and wars because domination over the opponent’s private parts without their consent is the ultimate display of power.

This is precisely what happened in this case as well. In the video, one can clearly see how hitting the minor in the genitals came as a natural step in the process of domination.

Ideally, a male getting hit in his genitals should be considered sexual assault, irrespective of his age but we still do not have adequate legal provision for that as our rape law (Section 375) assumes that only 'a man can rape a woman'. 

Take the case of two Dalit men who were brutally raped in Rajasthan last year. They were allegedly caught stealing money from a two-wheeler agency. The agency staffers thrashed and sexually tortured them, which included the forceful anal penetration of one of the Dalit men with a screwdriver wrapped in a piece of cloth soaked with petrol.

The attackers were booked under Section 323 (causing hurt), Section 341 (wrongful restrain), Section 342 (wrongful confinement), Section 327 (causing hurt for purpose of extortion) , Section 355 (assault), Section 384 (punishment for extortion) and SC/ST (Prevention of Atrocities) Act. Nowhere do these provisions acknowledge rape or any kind of sexual assault. 

In 2018, the Supreme Court struck down parts of Section 377 which until then had criminalised any sexual act other than penile-vaginal intercourse. Technically, Section 377 still covers legal provision for non-consensual sexual acts against adults, all kinds of “carnal intercourse” against minors and acts of bestiality. It defines “carnal intercourse” as penetration and courts have interpreted it in the past as using the ‘body’ of the perpetrator.

Rape law remains gender specific despite many social activists and parliamentarians arguing it is regressive to say only members of one gender can be perpetrators of rape

Thus in the case of the Dalit man, even though he was forcefully penetrated by an object, it still did not legally qualify as ‘rape’ under Section 377.

The infamous Nirbhaya case in 2012 led to amendments to Section 375, expanding the definition of rape to include oral sex as well as insertion of an object or any other body part into a woman’s vagina, urethra or anus. However, it remained gender specific despite many social activists and parliamentarians arguing it is regressive to say only members of one gender can be perpetrators of rape.

In another recent case, a French woman accused a female LGBTQ activist of abducting, drugging and sexually assaulting her in Goa. The activist was booked only under Section 342 (wrongful confinement) and Section 354 (outraging the modesty of a woman), even though she allegedly forcefully penetrated the tourist with her fingers.

As the accused’s fingers were involved, a case under Section 377 could have been made, as it qualified the provision of non-consensual, non-penile-vaginal penetration by the body of the perpetrator, but the police did not think so.

Section 377 also does not cover assaults on penis/frontal genital because of the ‘requirement’ of non-penile-vaginal intercourse/penetration.

Gender-biased rape laws thus leave out a lot of criminal offences out of their purview. Our failure to not even recognise sexual assault in cases which have clear legal provision available, like in the Ghaziabad incident where a case under the POCSO Act could have been made, shows that we still have a lot to ‘unlearn’ about sexual assault. 

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