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Crimes of Exclusion: Siddharth Narrain

March 30, 2013

Guest post by Siddharth Narrain.

It is anger on the streets that brought back to the forefront the neglected issue of sexual violence, energized a government appointed Committee to put together clear and well reasoned recommendations on law reform, and forced the government to table the Criminal Law Amendment Bill (2013).  It is public pressure and years of struggle by the women’s movement that is reflected in the more progressive parts of the Bill, passed recently by both Houses of Parliament.  Unfortunately, despite unanimity from a large cross section of society, that the definition of rape cannot be restricted to an outdated understanding of rape as perpetrated by men on women, the version of the Criminal Law Amendment Bill that was finally passed by Parliament retains this language. The law, if passed in this form will be a betrayal of the rights of millions of transgender persons, intersex persons and sexual minorities not born women.

The current Bill is contrary to the Justice Verma Committee report, the most comprehensive document on rape law reform in recent times. The Justice Verma Committee had heard a number of women’s rights and Lesbian Gay Bisexual Transgender rights (LGBT) activists before framing their nuanced recommendation that the law on sexual assault and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned except for specific offences like custodial rape, where the traditional gendered power dynamics could be overturned. Based on this understanding, the Committee suggested that the term ‘person’ be used for the victim/survivor of rape and sexual assault replacing the term ‘woman’, and term ‘man’ be retained for the perpetrator of sexual assault except in few specified offences.

This simple change in language would have brought under the purview of the law the numerous cases of transgender persons and men who are raped and sexually assaulted by men. This move would have recognized decades of struggle by the transgender community in documenting these abuses, including the pioneering 2003 report of the People’s Union for Civil Liberties (PUCL) Karnataka on Human Rights Violations against the Transgender Community. The report documented horrific and widespread instances of sexual violence against the transgender community in Bangalore. The report observed that the brutal stories of abuse and sexual violence documented in it were really narratives of cruelty, leading to the trauma of entire community and negating the constitutional claim of equal citizenship and protection for all.

It is the claim to equality that the Justice Verma Committee relied on when it stated that all sexual identities, including transgender communities are entitled to be totally protected. The Committee observed that the Constitution enables change of beliefs, greater understanding and is an instrument to secure the rights of sexually despised minorities. This followed from the Committee’s understanding that the problem of sexual violence is not just one of penology, but is related to the constitutional guarantee of the right to equality. It is this same claim of equality that the Delhi High Court recognized in 2009 when it decriminalized homosexuality. Keeping in mind the violence faced by LGBT persons by both the police and non state actors like goondas, the court read the right to non discrimination in Article 15 of the Constitution widely, holding that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalisation concerning “normal” and “natural” gender roles.

It is deeply disturbing then, that the government, ignoring the Justice Verma Committee recommendations on this point, has deemed it fit to retain the gender specificity of the victim/survivor, thus excluding the lived experience of violence of all those who are not born women. The pioneering feminist Susan Brown Miller, in her groundbreaking work on sexual violence, “Against Our Will”, written in the early eighties recognized that sexual assault could hardly restricted to forced genital copulation, nor was it excessively a male-on-female offence.  More than thirty years later, we must ask this question of our law makers and those reluctant to equate sexual violence experienced by women with that experienced by transgender persons, men and sexual minorities not born women: Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?

This piece also appeared in the Indian Express.

3 Comments leave one →
  1. March 31, 2013 3:11 AM

    “Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?”
    Another question: who is to say it is the very same?
    While we could look for abstract answers for both these rhetorical questions the simpler answer, if we ignore the rhetoric, is the police. A police force who most probably believes that a hijra is by her very presence a sexual offender, as is seen in the way that they are routinely picked up on the streets and stripped and sexually assaulted to ‘reform’ them.
    Which is how most urban middle class and elite ‘gay’ identified men also see hijras and we all know how easily we are willing to identify public soliciting by hijra sex-workers or hijras begging ‘by shamelessly touching us’ on the street as violating our ‘inner space” and causing “injury to the mind, spirit and sense of self.”
    The only public demand made for gender neutrality in the mainstream media in connection to a specific case has been in the case of a hijra who is said to have sexually assaulted a gay man working for a well known ‘sexuality rights’ NGO in bangalore. yes, she probably touched his cock and made him very very uncomfortable in the time that it took for his boyfriend (the NGO boss against whom the same boy had privately said he wanted to complain of sexual harassment untill of course he started dating him with the blessings of all who worked in the organisation!) to rescue him from this violation.
    Where are these cases where even a simple case of assault on a hijra has been taken seriously by the police and perpetrators prosecuted. Before they would get arrested for causing public nuisance now they can get arrested as men who sexually assault other men! Gender neutrality makes little or no sense to a hijra on the street. I see laws specific to violations against hijras as one way out but a lot more thought has to go into this. At least half as much as the women’s movement put into looking at everyday battles that women encounter to register and prosecute rapists and other sexually specific crimes for the last three decades before they came up with specific amendments to the rape laws.

    • April 1, 2013 3:03 PM

      I agree that a crucial question here is the role of the police. This only buttresses the point that we a separate law for transgenders and other lgbti persons makes no sense. If all persons are covered by the rape law, the police have less reason to focus on the identity of the victim. If the law is separate for women survivors/victims and ‘persons who are not women’, including hijras, we risk legitimising invasive procedures by the police who will then be within their rights to find out whether the victim/survivor is a woman or a transgender. When the expectations of the protection of the law from sexual assault is fundamentally at par, it makes no sense, legal or otherwise, to ask for a separate provisions in the law, or separate laws. Further this is a plea not for gender neutrality, but gender inclusivity as far as the victim/survivor is concerned, a plea that the official statement of women’s rights groups who have been involved in campaigning for a more comprehensive rape law, have recognised. See http://www.indiaresists.com/next-steps-after-anti-rape-bill-implement-justice-verma-report-revoke-impunity-to-armed-forces-politicians/
      The law in its current form is a negation of the right to live with dignity and the right to be protected from sexual violence of hijras, kothis, homosexuals, intersex persons, and women who have surgically transitioned to becoming men.

  2. April 1, 2013 12:42 AM

    I agree with every word of yours… well written and well said mate..

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