PROPOSED CHANGES IN RAPE LAWS

PROPOSED CHANGES IN RAPE LAWS : SOME CRITICAL RESPONSES

Statement issued at National Level Meeting on the LCI Recommendations, Mumbai, 17th to 18th January

Newsletter Jan - Apr 2002

As women’s groups, child rights groups and groups working amongst sexual minorities, we were keen to arrive at a common understanding and plan strategies in response to the proposed changes in the existing rape law provisions. Especially because these changes seek to include all of us in its scope and purview as envisaged in the LCI report. In addition to responding to the LCI, we place before you our ideas and understanding that emerged in this three-day meeting, the ideological issues involved and the real threats posed to all of us who are engaged in creating a society free of violence.

For information, the LCI recommendations, while making changes in the interests of women, are also based on an explicit understanding of seeking legal redressal for child sexual abuse that has increasingly come into prominence and lacks any legal mechanisms whatsoever of dealing with the reality. These recommendations were an outcome of the long legal case waged since 1994 by an NGO named Sakshi in New Delhi in dealing with the sexual abuse of an 8-year old minor child at the hands of her father, a government employee. In the course of the case, the Supreme Court urged the LCI to look into the existing rape laws and give recommendations suggesting any scope for change that incorporates the interests of both women and children. Along with Sakshi, both IFSHA and AIDWA in New Delhi were also consulted. These consultations resulted in proposing the laws to be gender-neutral thereby implying both the victim and the accused to be of either sex. This will cover not only women and children as is the stated intention but will bring into the purview of the law lesbians, gays and all other sexual minorities whose struggle for identity itself continues to be fraught with obstacles.

The pitting of three socially oppressed groups in this manner by bringing us all under one umbrella legislation on sexual assault without taking our specific needs into account, raises many serious implications that were addressed in this three-day meeting. It is our endeavor to share these concerns with you and others who have always stood for the rights of women, children and sexual minorities.

WHO REPRESENTS US?

The question of representation is of paramount importance today when various oppressed and exploited groups are asserting their identities and drawing the attention of the state and society to their special needs and demands. The amended rape law in itself has been an outcome of women’s struggles ever since the Mathura rape case in the early eighties. Various deliberations and discussions over the years has clearly indicated the need of women’s groups to improve the existing rape law provisions especially to hasten the procedure of getting legal justice, to improve the CrPC as well as the Indian Evidence Act. However, at no point in these collective processes have any women’s organisations, women, or any survivors of rape indicated the need to make these laws gender-neutral. Therefore, we are concerned how the LCI has proposed these legal reforms without adequately consulting women’s organisations, child rights organisations, and sexual minorities to make the process entirely representative.

Any gender-neutral laws de facto bring into its purview the issue of lesbians, gays, bisexuals, transgendered and other sexual minorities. No process of consultation on legal reform should ever be so top-down that those who are so directly affected by these changes are not taken into consultation at all. As sexual minorities, despite our emerging as a formidable force in the struggle for visibility and our basic rights, even our existence is not taken into consideration by this heterosexist and patriarchal state and society. In the absence of recognition of our sexual identities, we are extremely cautious of any purported interest in the curbing of violence amongst us. The homophobic attack of the right wing forces on the screening of Fire and the arrests in Lucknow of social workers working with HIV positive persons under charges of IPC 377 is evidence of the intolerance of this patriarchal heterosexist society.

While we deem it necessary to make the perpetrators of child sexual abuse punishable by law, it is sacrilegious to do it at the cost of bringing in the entire lesbian and gay community into the ambit of the same law without any consultation whatsoever. Our non-inclusion as sexual minority groups is the biggest oversight of the LCI, if it can be called an oversight at all.

The emergence of lesbian and gay groups in the last decade is evident to any group or person seeking to represent the interests of sexual minorities or concerned with the question of sexual assault. Women’s groups who have struggled to voice their own needs and demands because of being marginalised in society need to be equally vigilant not to represent or patronise the interests of lesbians and gays or any other marginalised section in society. We first need anti-discrimination laws for sexual minorities before our other needs are addressed. Our other needs and demands need to be left to us for both articulating and demanding in a collective process. The fact that our struggles are interconnected in putting an end to an exploitative social order can gain strength from the democracy and space all of us give to each other instead of seeking to represent others. Any legal reform that does not take into open consultation the sections of society that it seeks to represent is highly undesirable and cannot elicit the trust of those it represents. We do not need any spokespersons for us nor do we wish to be dragged against our wishes or even by default into the existing laws. These laws in any case have precious little to offer to even children or women for whom it has ostensibly been made and which continue to be placed in an overall heteronormative and heterosexist framework.

WE OPPOSE GENDER-NEUTRALITY

The women’s movement has always demanded and worked towards reforms in the existing rape laws. However, once the issue of child sexual abuse is brought into the ambit of the same laws, the entire range of provisions has to be made gender-neutral since it includes boys also. The addition of other socially vulnerable groups increases the complexity already faced by women in rape trials and procedures, which already are biased against women. The proposed change focusing on gender-neutrality for rape laws negates the sustained struggle of the women’s movement against all forms and levels of patriarchal violence we women face in this society. We continue to bear the brunt of rape by men from the home and the street to police stations, riots, and armed conflicts. We continue to be raped in caste conflicts, raped for punishment to defy societal norms and we also come in handy to be raped in revenge when two or more conflicting groups want to get at the “honour” of the other. Our struggle for just punishment and improvement of the existing rape law procedures continues to be an uphill task. The proportion of rape conviction despite all efforts barely manages to touch 4% in this country. In this dismal scenario, the proposed changes that make the rape laws gender-neutral will in our understanding completely undermine any and all gains already made by the women’s movement.

Today, the rights won by various sections of society through struggle are under attack. In such a context, we need to be vigilant that we do not play into the hands of the state or judiciary in the guise of seemingly progressive laws. The current changes proposed in the labour laws in this era of liberalisation are completely negating the reality of class differences as the state accommodates the conditions of labour to the needs of capital and proposes to curb all existing provisions of workers organizing around their own interests. Similarly, here too the politics of patriarchy are being completely buried by recommending gender-neutrality in rape laws. Men and women being considered at par is an assumption on which gender neutrality is being posited as a positive measure. It is futuristic to assume that both women and men are subject to sexual assault in the same way or intensity. However, this is not the reality. In the present society, we oppose gender neutrality not only where rape is concerned but also in any legislation pertaining to maintenance, domestic violence or sexual harassment at the workplace.

SEPARATE LAW NEEDED AGAINST CHILD SEXUAL ABUSE

Next, as individuals and organisations working on the reality of child sexual abuse we clearly want a completely separate law dealing with child sexual abuse. We are very concerned that by conflating the question of child sexual abuse with that of violence against women, the proposed changes will not adequately deal with the problems of either children or women. Our children do need to grow up safely without the reality of violence marring their experience and innocence or even living in the threat of such violence.

However, the means to address this reality need not entail the clubbing of child abuse in a rape law meant for adult women. The conditions and circumstances that contribute to child sexual abuse necessitate the creation of very different laws, procedures and processes. Continuing to place child abuse in the archaic outrage of modesty provisions meant for women or under IPC 377 which in any case needs to be repealed for several valid reasons that we come to later is far from adequate. The conflating of consensual adult sex with the nonconsensual penetration of children compounds the problem in different ways. In addition, child-sensitive procedures of investigation and arbitration are the need of the day, which does not get addressed at all.

REPEAL OF IPC 377

The repeal of 377 is crucial as it is it is an extremely archaic and moralistic law that has nothing to do with sexual violence but is a direct means of sexual control and regulation. It makes any sexual contact beyond peno-vaginal penetration unnatural and therefore unlawful and to be penalised. The existence of IPC 377 along with the government’s open support of MSM groups and HIV/AIDS work shows the schizophrenic application of laws and policies of the Indian state.

In the absence of the repeal of IPC 377, as sexual minorities we continue to face extreme homophobia accompanied by extortion, blackmail and sexual exploitation as a means to silence us into shame and fear. Therefore, we are extremely cautious of the state and its machinery and cannot negotiate with any ostensible concern for same-sex violence. The violence inflicted by the police and homophobics and our marginalization in a heterosexual patriarchal society needs to be taken cognizance of not only by the LCI but also by NGOs like Sakshi who have become the self-appointed representatives of sexual minorities today.

What we need first and foremost is the recognition of our sexual identities by the state and society through introducing anti-discriminatory laws based on sexual orientation by amending Article 15 of the constitution. We also need some sort of concrete, positive statement from the state against the continual harassment faced by sexual minorities. Unless this protection is available, the laws against same sex violence would just result in further violation of all those who look different or identify differently.

CHALLENGES BEFORE US

We need to view these initiatives for legal reforms in the present socio-cultural and political context without engaging in only legal or literal interpretations of the same. This is happening at a time of right-wing ascendancy the world over when the model of the nuclear family is being upheld all over again in patriarchal reassertion to counter the challenges posed by the women’s movement to the state and society. The changes sought in matrimonial laws is resulting in courts, judges and the police becoming the moral guardians of women in crisis situations and imposing reconciliation whereas we want justice to be able to live in dignity.

The media is going hoarse with images of upper-class upper-caste women toeing the patriarchal line in keeping rich families intact thereby ignoring the struggles and the daily reality of the vast majority of ordinary women in the face of caste, patriarchal and class oppression. The attack on Fire, a film depicting lesbian love, and of Water showing the travails of widowhood, by the Hindu right-wing forces is evident of the intolerance of these forces in granting any other identity of woman as a social being. And it is not a coincidence that the reassertion of such patriarchal values is happening at a time of economic liberalization where the gains made by women face the danger of falling prey to the forces of consumerism and male chauvinism.

Changes in laws always reflect the interplay of various ideological forces. Therefore, we need to be cautious of the hectic pace of legal activism spurred by big NGOs that negate the history of struggles of oppressed groups and their presents needs and realities. The struggles of women along with lesbians and gays have challenged the dominant paradigms of a heterosexual patriarchal society. The real dangers of the proposed gender-neutrality of the rape laws today ignores both the problems separately faced by women and children as well as the needs of lesbians, gays, bisexuals, transgendered, eunuchs, and various other sexual minorities.

Today, more than ever we need to unite with all democratic forces to resist these top-down legal reforms in our struggle for an egalitarian society. And today more than ever, all other progressive sections need to stand by the struggles of women, children and all sexual minorities to be able to live in dignity in a society free of violence, a society of our own making.

Aawaaz-e-Niswaan, Mumbai; Anveshi Research Centre for Women’s Studies, Hyderabad; Arvanis Social Welfare Society, Mumbai; Broad MSM Organisation and Network (BAMON), New Delhi; Campaign for Lesbian Rights, New Delhi; CCDT, Mumbai; Centre for Women’s Development Studies, New Delhi; Child Rights Cell: India Centre for Human Rights and Law, Mumbai; Forum Against Oppression of Women, Mumbai; Initiatives: Women in Development, Mumbai; Lakshya, Baroda; Majlis, Mumbai; Mahila Sarvangeen Utkarsh Mandal (MASUM), Pune; Organised Lesbian Alliance for Visibility and Action, (OLAVA), Pune; Open Learning System, Bhuvaneshwar; Saathi, Hyderabad; Sahayatrika Project, Trivandrum; Saheli, New Delhi; Sahiyar, Baroda; Sama, New Delhi; Samabhavana Society, Mumbai; Sangama, Bangalore; Sangini, New Delhi; Shahna’s Safety and Traffic Supporters, Mumbai; Special Cell to help Women and Children, Mumbai; Stree Manch, Nagpur; Stree Sangam, Mumbai; Udaan Plus, Mumbai; Vacha, Mumbai; Women’s Centre, Mumbai; Women’s Rights Law Centre, Nagpur; Women’s Rights Initiative, Lawyer’s Collective, New Delhi.

In the course of these three-day deliberations, two organsations Aanchal and Humsafer Trust, expressed their disagreement with the general stand taken by the rest of the organisations and sought to strategise separately.