2AHIFA?

JELAI
Law, Ideology groups were apprehensive that this de-
mand may pave the way for the enactment
of draconian laws, curbing civil rights.

and Female Sexuality The relevance of the victim’s moral

character and sexual history became an-
other important point of debate. Only
through humiliating and shaming the
Gender Neutrality in Rape Law victim in a packed courtroom through
crude and vulgar cross-examination, could
The Law Commission recommendations for a new law on sexual a criminal lawyer display his legal acumen
and obtain an acquittal for his client, or
assault and deletion of Section 377 has shifted the discourse on so it seemed.
rape law amendment to a plea for complete gender neutrality for The campaign met with a measurable
victims and violators alike. But while this does little to protect degree of success when the archaic pro-
vulnerable sections of the population, a gender neutral rape law visions were amended in 1983 after a gap
may open up avenues for inflicting greater trauma and humiliation of a century. Though the central concerns
regarding the moral character and sexual
on a section, already marginalised, and thereby defeat the very history of the victim had been sidetracked,
purpose of the reform. the state had acquiesced to the demand for
a deterrent punishment. The demand for
FLAVIA AGNES communities and raping them is one of the shifting the burden of proof regarding
surest ways of defiling the entire commu- consent had been conceded to partially –

T
he Law Commission of India in its
172nd report, while suggesting
sweeping reforms in the rape laws
has recommended that the rape law should
be gender neutral. Underlying this recom-
mendation is a presumption that, through
a stroke of a pen, the offence of rape will
be desexualised and the stigma attached
to the offence will vanish. By rewriting
a sexual crime located in a phalocentric
culture, the social norms and values of a
predominantly heterosexual society will
automatically change. This article aims to
question this misconception. What is
becoming increasingly apparent is that
legal reforms are not only slow, but when,
they do occur they may be injurious to
women and other marginalised sections or
they may simply hide or relocate the
fundamental problems. At this juncture,
perhaps it is relevant to trace the history
of rape law reforms in India, which spans
over two decades, before examining the
implications of gender neutrality to the
concerned segments – women, children
and sexual minorities.
The anti-rape campaign has been the
central pivot around which the Indian
women’s movement has revolved since
the 1980s. Its significance lies not just in
focusing upon sexual violence but also in
addressing theories of dominance and
subordination and construction of gender
within wider social parameters. Upon their
bodies women carry the honour of their
nity. Rape, as a weapon of terror and
subjugation in situations of caste, class
and communal conflicts, custodial and
state-sponsored rape by police, armed
forces and the paramilitary have all been
the concerns both of theoretical debates
and ground level interventions. Going
beyond the premise that “rape is a con-
scious process of intimidation by which
all men keep all women in a state of fear”,1
rape has been one of the means through
which the social hierarchy of power re-
lationships is maintained and nurtured in
a gendered society.
The Supreme Court verdict in the now
(in) famous Mathura Case2 had raised a
series of concerns. Since the court had
held that absence of injuries implies
consent, the legal indicators to determine
valid consent became the focus of the
public debate. The myth that when a woman
says ‘no’ she means ‘yes’ had to be
challenged within legal echelons. The only
way this could be achieved was through
shifting the burden of proof regarding
consent to the accused, once the prosecu-
tion had discharged its burden of proving
sexual intercourse. This demand triggered
off a heated debate between women’s rights
activists on one side and human rights
groups at the other. As per the established
tenets of the criminal justice system, the
prosecution must prove an offence ‘be-
yond reasonable doubt’ and an accused is
‘innocent till proved guilty’. Human rights
in custodial situations. The aspiration at
this time was that the initial reforms would
pave the way for substantial changes in
years to come.
But the euphoria over the success of the
campaign did not last long as the amended
law started unfolding in courtrooms in the
post-amendment phase. The procedures
continued to be long and harrowing, the
investigative machinery lax and corrupt,
cross-examinations of the victims degrad-
ing and humiliating. The courts expressed
a great concern and sympathy to ‘youth
offenders’ and ‘first offenders’ by award-
ing less than the minimum prescribed
punishment of seven years in general
rapes and ten years in situations of gang
rapes, custodial rapes and rape of minors.
This rendered the theory of deterrent
punishment a mockery. Contrary to ex-
pectations, the statistics revealed an in-
crease in reported cases and a dismal rate
of convictions.
Amendments and New Issues
By the end of the decade, it was obvious
that the amendments had failed to evoke
the desired response. Simultaneously
newer issues, which had remained unad-
dressed, began to surface. Central among
these was the patriarchal presumption that
vaginal penetration by the penis amounts
to ultimate violation ‘a state worse than
death’. A paradoxical situation prevailed

844 Economic and Political Weekly March 2, 2002

in criminal law where all assaults are
rendered grievous if a weapon is used as
the risk of bodily injury is aggravated.
Only in rape cases it is the reverse. A range
of sexual violence meted out to little girls
by inserting objects like bottles, sticks and
iron rods into their tender and as yet not
fully formed vaginas, causing multiple
injuries and risk to life, got swept away
under the nomenclature of ‘violating
modesty’ punishable with a maximum
of two years of punishment. The legal
explanation was that the male sexual
organ was not involved, however grue-
some the sexual assaults may have been
and hence the offence could not be
brought within the four corners of the
offence of rape.
Having laid out the strict parameters of
overlapping sexual offences which could
easily spill over from one category to
another, the courts went into lengthy and
circuitous discourse as to when a rape
becomes a ‘mere attempt’ or when an
attempt to rape can be reduced to ‘a mere
violation of modesty’. What then would
modesty amount to? This determination
was essential to assess whether modesty
had, in fact, been violated. The courts went
to absurd lengths to determine whether a
six-month old baby who has been sexually
assaulted by an adult male, was possessed
of ‘modesty’ capable of being violated and
whether all females are ‘born with a sense
of modesty’ and carry it with them at all
times – whether awake or asleep, in their
conscious selves as well as into the re-
cesses of their subconscious beings, from
birth to death – just so that sexual offend-
ers could be brought to book relying upon
outdated Victorian tenets of ‘female
modesty’.
Around this time, two new sets of issues
emerged in the horizon pressing for legiti-
macy and recognition. The first shattered
the myth that rape occurs only in dark
alleys, outside the intimate domains of a
loving and nurturing home. Cases of sexual
abuses by fathers, uncles, brothers, cous-
ins and grandfathers, through blatant and
vulgar usurpation of patriarchal power,
started spilling out in the public domain.
Along side was the abuse of male children
in custodial situations in children’s home
and reception centres. Sheela Barse, a child
rights activist was among the first to pierce
the shroud of silence and question the rigid
demarcations of the gender divide. Since
these offences could not be made culpable
under the conventional construction of
peno-vaginal violations, an archaic law
formulated to regulate the moral behaviour
Economic and Political Weekly March 2, 2002
by penalising unconventional sexual acts
under the title ‘unnatural offences’ 3
(S 377) had to be invoked to punish the
offenders.
By now, it was obvious that a new and
complex definition of sexual assault had
to be evolved in order to impart justice
upon these vulnerable segments whose
concerns had remained largely unarti-
culated in the first phase of the campaign.
In 1993, the National Commission for
Women responded to this felt need through
a bill titled, ‘Sexual Violence Against
Women and Children Bill’.
The bill advocated deletion of Sections
354 (violating modesty), 375 (rape), 376
(punishment for rape) and 377 (unnatural
offences) of the Indian Penal Code (IPC)
and brought them under the broad banner
of ‘sexual assault’. In its ‘Statement of
Objects and Reasons’ it proclaimed that
the existing definitions of rape and mole-
station do not adequately address the range
of violations nor do they sufficiently
recognise the gender-specific nature of
such crimes and that the law had become
outdated, in terms of language and intent.
The unique character of the offence of
sexual assault and its effects upon the lives
of women and children and violation of
their fundamental principles of human
rights was specifically set out.
The bill defined sexual assault as “in-
troduction (to any extent) by a man of his
penis into the vagina, the external geni-
talia, anus or mouth of another person and
also penalised the insertion of any object
or a part of the body into the vagina or
anus of another person”. The bill specifi-
cally made a note of incidences of child
sexual abuse and incest and prescribed
measures to ensure due care and sensitivity
in handling crimes of sexual assaults and
the need for speedy and effective justice.
The bill seemed to be introducing two
important legal principles:
(1) Repeal of S 377, which dealt with
cases of ‘unnatural sex’, and for the first
time, provided legitimacy to same sex
relationships between consenting adults.
This came as a natural corollary to the pro-
cess of redefining sexual assault. While this
was a positive move in redefining sexual
norms of a predominantly heterosexual
society, the gay rights support groups,
whose concern this provision seemed to
articulate, were excluded from the debate.
(2) Through the usage of the term ‘person’
an element of gender neutrality seem to
have cropped in, specifically to include the
violation of male children. But despite
this, it did not relocate the offence of rape
beyond the boundaries of aggressive male
sexuality. The bill seemed to indicate that
an adult victim of sexual assault is prima-
rily a woman and suggested gender spe-
cific procedural reforms. To give one
example, it stipulated that the statement of
a victim should be recorded only by a
woman police officer.
The bill advocated a general shift in onus
of proof in all cases of sexual assault and
specifically barred the reliance upon the
previous sexual history of the victim in a
rape trial. It also contained suggestions to
prevent the traumatisation of the minor
witnesses during cross-examinations.
These procedural changes were meant to
render the ordeal of a rape trial, more humane.
Although the bill invoked some debate,
nothing further came out of it and it lay
dormant for almost a decade.
Conflict of Interests
The 1990s witnessed a conflict of inter-
est between two marginalised and vulner-
able groups; both situated across the con-
ventional gender divide, within the scope
of the controversial S 377.
Groups concerned with the rights of
sexual minorities addressed the issue of
violation of human rights and enforcement
of conventional norms of sexual morality
by challenging the provisions of S 377.
The issue of homosexuality had reached
the public domain, when prevention of the
spread of AIDS became a concern of public
health and homosexual men and prosti-
tutes were marked as ‘high risk’ groups
needing interventions to spread the mes-
sage of safe sex among them. The groups
working with sexual minorities also started
questioning their marginalised existence,
lack of public space and visibility and
social stigma enforced through the appli-
cation of outmoded social norms.
The broad term ‘sexual minority’ in-
cludes groups working for the rights of and
providing support to gay men, lesbian
women, bisexuals and transgender groups
(LGBT). Significant in the transgender
category were communities of eunuchs
who were finally raising their voices against
routine police harassment, humiliation and
rape. Staking their claim to public spaces,
they questioned the role of a secular and
democratic state to defend the principles
evolved by the ecclesiastical traditions and
Victorian morality and campaigned for the
deletion of S 377. This would provide these
groups freedom from constant police vigi-
lance in public places and the freedom to
build support networks.
845
 (A voice that was sadly lacking in this
political debate was that of the lesbians.
In an environment where sexuality and
sexual pleasures are comprehended in
masculine terms of penetrative sex, their
concerns and anxieties remained at the
periphery even within this radical forum
of ‘sexual minorities’. They lacked access
to public domains, not due to their sexual
orientation, but due to their female gender.
Their oppression was confined more within
the ‘private’ domains. A general situation
of powerlessness and lack of choice from
which all women suffer, became aggra-
vated for lesbian women who could easily
be coerced into accepting conventional
sexual choices. Their existence hit the
media more in their absence than their
articulated presence – through newspaper
reports of suicides by lesbians, unable to
withstand familial pressures of forced
marriages.)
This demand was in direct conflict with
the concerns of child right groups who, in
recent times, had been entering the crimi-
nal law through the portals of S 377 by
naming sexual assaults on children as
‘unnatural offence’. Hence the deletion of
this section would leave a gaping void in
the realm of protection of male children
against adult sexual abuse. A particularly
significant litigation in this area of paedo-
philia had been the prosecution of Freddy
Peat, an European settled in Goa followed
to a logical end by Sheela Barse, which had
resulted in a conviction under the provi-
sion of S 377. The case brought into lime-
light the internationally instigated and
commercialised sex rackets involving abuse
of male children on the beaches of Goa.
The concern over the legal lacunae in
cases of incest and child abuse also sur-
faced before the Delhi High Court.4 A
high-ranking government official was
charged with sexually abusing his six-year-
old daughter. The acts included finger
penetration and oral sex. The police re-
fused to charge the father with the offence
of rape and instead registered the com-
plaint under S 377. A writ petition was
filed by the mother before the Delhi High
Court to bring the offence under the scope
of S 376. The present law minister, Arun
Jaitley who appeared for the mother and
pleaded for a realistic interpretation of the
rape law (Sections 375 and 376) and urged
that when a male penetrates a female with
any part of his body or shoves any foreign
object such as a stick or a bottle into a
woman’s vagina without her consent, it
would amount to rape within the meaning
of S 376.
846
The court rejected this argument and
held that insertion of a bottle into the
vagina would amount only to ‘violation of
modesty’, which stipulates a maximum
sentence of only two years! Dismissing the
petition, the court held, ‘Penal statutes must
be construed strictly. The court must
ensure that the thing charged is an
offence within the plain meaning of the
words used and must not strain words’. Only
the legislature could expand the provisions
of these sections, the court concluded.
Nothing much came out of the judgment
but it paved the way for advancing the
argument of gender neutrality, a concept
devoid of all social reality of sexual abuse
in our country. While suggesting changes
in the law, the conservative judge turned
radical and commented in a casual man-
ner: “And if they really decide to look into
it, what about defining the offence in
gender-neutral terms? I think the law re-
form community will have no objection to
it.” He quoted a passage from an article
in a law journal of a western university in
support of his contentions of gender neu-
trality:
Men who are sexually assaulted shall have
the same protection as female victims and
women who sexually assault men or other
women should be liable for conviction as
conventional rapists.
This judgment marks a shift in the dis-
course on rape law amendment in India
with its plea of complete gender neutrality
both for victim and violator. There seems to
be a presumption here that if women can
be framed as violators then the trauma of
rape for women as victims would be re-
duced and the stigma attached to the offence
would peel off. A strange logic indeed.
Changes in Rape Law
Ironically this judgment is less known
for its views on gender neutrality and more
for paving the way to an onward journey
to the Supreme Court, by the Delhi-based
group Sakshi, who had supported the wife
in the KCJ case. The NGO sought the
intervention of the Supreme Court for a
direction to the Law Commission (LC) to
frame a law on sexual assault. After much
persuasion, in 2000, in its 172nd Report,
the LC recommended changes to the rape
law on the lines of some ‘western coun-
tries’ and made the law gender neutral. It
seemed that the discourse in the interven-
ing period had moved from partial to
complete gender neutrality, inclusive of
both, victim and violator.
Economic and Political Weekly
The LC report applauded the efforts by
Sheela Barse regarding custodial child
sexual abuse of both male and female
children in tourist centres like Goa by
foreign tourists. While defending its stand
of gender neutrality, the Law Commission
relied upon the recommendations made by
Sakshi, Ifsha (an offshoot of Sakshi) and
AIDWA (the women’s wing of the CPM)
in this regard.
Two comments of the Law Commission
warrant special mention. While suggest-
ing deletion of S 377, the only content left
out of its purview was carnal intercourse
with an animal. “We say leave these per-
sons to their just desserts” is the recom-
mendation, made perhaps in a lighter vein.
The only arena where the LC found it
necessary to retain gender specificity, hold
your breath, is marital rape. The reasoning
here is, ‘this may amount to excessive
interference with marital relationship.’
This, despite a long struggle by women’s
groups, for gaining recognition to the
offence of rape within marriage. Here the
LC deemed it wiser not to follow the
precedent set by many western countries.
So its not that every law reform which
occurs in the west is mirrored in our country.
The choice is very selective indeed!
Alarmed with the implications of the LC
recommendations upon vulnerable sec-
tions, i e, women, children and sexual
minorities, made after consultations with
only three groups, a national level meeting
was called in December 2001 to arrive at
a consensus on this issue which was at-
tended by around 30 groups with diverse
concerns across the country. The debate
culminated in a letter to the law minister
opposing the principal of gender neutral-
ity. While the response of the law minister
is awaited, the concern today is whether
the overlapping and conflicting interests
of concerned segments could best be
served by a comprehensive law or would
it be more prudent to address these concerns
severally and introduce reforms for speci-
fic segments after wider consultations.
As far as women’s situation is concerned,
throughout the two decades of struggle,
not a single case of a reversal of gender
roles, in the realm of sexual offence, had
ever surfaced in the Indian context nor at
any time formed part of the discourse. In
this entire history, no one has ever ad-
vanced the plea of sexual violation by
women. On the contrary, the core concern
has been sexual violations by men not only
of women, but children – both male and
female and other men. The social sanction
awarded to aggressive male sexuality,
March 2, 2002
expressed through violent, penetrative sex,
both within and outside marriage, in the
closeted secrecy of bedrooms and in the
public domains of civilian spaces; and
the violations by the state in custodial
situations – these has been the central
focus of the debate. And yet, paradoxi-
cally, while addressing this concern,
women have now been posed as offenders
and have been made culpable for an of-
fence, which is far removed from the ground
reality of their social existence.
The premise of gender neutrality has
been supported by the three women’s rights
groups who had been consulted, perhaps
by adopting a western model where laws
have been rendered gender neutral through
active intervention of feminists. But sub-
sequently, this model has been criticised
by feminist legal scholars who have felt
that the equality model has had detrimental
impact on women and children. For in-
stance, Martha Fineman5 has commented
that reformers can and often do create new
and even more complex difficulties through
the ill-considered strategies which they
seem inevitably to employ when using the
law to attempt to construct a more ideal
society. The rhetoric of equality defines
and confines the reforms. She suggests
that in order to do equity one must move
away from ‘equality’ as the grand principle
of reform.
This would be even more applicable to
Indian settings where the status of
women has declined during the last two
decades and there is a marked increase in
domestic and public violence against
women. Wife murders, driving young wives
to suicide, throwing acid on girls for re-
butting sexual advances, maiming and
killing young women for choosing a sexual
partner have all become the order of the
day. A gender-neutral rape law would open
up avenues for inflicting even greater
trauma and humiliation to an already
marginalised section and hence defeat the
very purpose of reform. This premise
cannot be introduced on the pretext of
safeguarding the rights of other margi-
nalised segments.
Mindlessly aping the mistakes commit-
ted by western feminists may not be the
ideal solution to the issue at hand. The
concern of women’s groups today is to
widen the definition of rape and to take
the offence beyond the patriarchal para-
meters of peno-vaginal assaults, which can
be brought about without invoking the
principle of gender neutrality.
The engagement of child right groups is
not only with the substantive law, but also
Economic and Political Weekly March 2, 2002
with the procedural aspects. In order to
protect children, the present adversarial
system needs to be replaced with an in-
quisitorial one, where, to impart justice,
judges will have to play a greater role
than the present one of a neutral arbiter.
Children need safety and reassurance and
a congenial atmosphere in order to be able
to depose before a court of law. The rigid
code of criminal justice system must bend
to accommodate children whose articula-
tion and expression, is different from that
of an adult witness. A separate law on child
sexual abuse, with both civil and criminal
remedies written into it may best serve the
interest of children. What needs to be
contextualised even here is that the impli-
cations of sexual abuse for minor girls and
boys are not the same, as they are not
similarly situated.
Several complexities concerning this
issue have also not received due attention.
For instance paedophilia on the beaches
of Goa and sexual abuse by a father at
home would pose very different challenges
to both the civil and the criminal systems
of law. A mere prescription of a higher
sentence, which in any case would be
awarded after 10 to 20 years of litigation,
if at all, would not provide any solace to
the child who legally remains the ward of
an abusive father. My experience of deal-
ing with such cases, as a child rights lawyer,
has proved that issues of custody and access;
injunctions and alternate residence and
economic support to the child would play
a crucial role in such situations. And at a
more basic level, what needs to be evolved
is a sensitised judiciary and a radical
approach to address these concerns.
The concerns of LGBT groups are pitched
at yet another level. Compared to women’s
rights and child rights groups they are more
recent entrants to this discourse. Their
existence has been viewed as a moral threat
to the society and they carry with them
notions of shame, stigma, delinquency and
mental illness. Getting a backhand recog-
nition to same sex relationships as a con-
cession in the process of reformulation of
rape laws may not be the best way of
raising public consciousness. What is
needed is the application of principles of
equality, equal protection under the law
and an assurance of non-discrimination –
the fundamental rights enshrined in our
Constitution. The debate must also ad-
dress archaic notions of ‘natural’ and
‘unnatural’ sexual behaviour, which then
translates into violation of several funda-
mental rights including that of life and
liberty.
A concern is posed by some gay rights
groups that in absence of S 377 what
remedy would there be in law for same sex
violence. Here what needs to be examined
is whether S 377 provided any protection
for homosexuals against violent attacks
from either homosexual or heterosexual
men. The answer to this question is in the
negative. It would indeed be optimistic to
believe that such a provision would protect
the marginalised communities. There
would be more likelihood of any such
provision being invoked against them rather
than in their favour. The criminal legal
system is heavily loaded against the victim
and in a society with deep rooted biases
against unconventional sexual norms, the
sexual minority men would be exposed to
similar or even worse kind of humiliation
than women.
On the contrary, such a provision may
even open the floodgates for greater regu-
lation of sexual behaviour and greater state
control in private domains. The comments
by a British legal scholar, Carol Smart6
in the context of Canadian reforms could
be cited in support of this premise: The
rape reform proposals suggested by femi-
nists became part of a package of greater
regulation over sexual behaviour deemed
undesirable, e g, homosexuality or under-
age sex. While the feminist demand was
for a greater control over sexual behaviour,
only those provisions which gave more
powers to the state and the criminal justice
system were adopted.
In conclusion, though the move to re-
form rape laws is in the right direction and
is long overdue, unless it is fine tuned to
the specific needs of the concerned seg-
ments, its aspirations will remain at the
level of rhetoric at best or result in misery
and humiliation at worst. -29
Notes
1 Susan Brownmiller (1975): Against Our Will
– Men, Women and Rape, Penguin.
2 Tukaram vs State of Maharashtra (AIR 1978 SC).
3 S 377 (IPC) Unnatural Offences – Whoever
voluntarily has carnal intercourse against the
order of nature with any man, woman or animal,
shall be punished with imprisonment for life,
or with imprisonment of either description for
a term which may extend to 10 years, and shall
also be liable to fine.
Explanation – Penetration is sufficient to
constitute the carnal intercourse necessary to
the offence described in this section.
4 S J vs K C J and Others 62 (1996) Delhi Law
Times 563.
5 Martha Albertson Fineman, The Illusion of
Equality, The University of Chicago Press
(1999).
6 Carol Smart, Feminism and the Power of Law,
Routledge (1989).
847