New Delhi: In February 2021, a 28-year-old French woman walked into the Pernem police station in Goa with a complaint that is far too common in India: sexual violence.
What was less common was that the accused was another woman.
The survivor’s complaint met all but one criteria for rape defined by section 375 of the Indian Penal Code (IPC) 1860. Despite the amendments added in 2013, India’s rape laws do not recognise same gender sexual violence. So, the first information report (FIR) against the accused was filed for sexual harassment and wrongful confinement.
In a statement to Article 14, the French woman, who was visiting India to learn more about yoga, recalled spending seven hours at the police station.
“The police took my complaint seriously, and they arrested Divya (the accused).” However, she said, she was shocked to learn that “after a short custody, she has been released”.
The accused is Divya Dureja, a well-known queer activist. Dureja’s family has since issued a statement that she had been admitted to a psychiatric facility in Delhi. The family has also requested that police be allowed to investigate the FIR.
“Outraging a woman’s modesty”, the quaintly named section 354 of the IPC, is a non-bailable offence, but there are no records of Dureja’s bail hearing. However, wrongfully confining a person—section 342—is a bailable offence with a maximum sentence of one year and a fine of Rs 1,000.
Despite several attempts by Article 14 to seek a comment from investigating officer Reecha Bhonsle, there was no response. The Goa police filed a chargesheet against Dureja in July 2021; no date was fixed for framing charges.
India has no data on sexual violence within the gay, lesbian and bisexual people community. However, a survey conducted on the US population by the National Intimate Partner and Sexual Violence Survey in 2010 sheds some light into victimisation within the community.
The survey found 45% of lesbian women, 61% of bisexual women, 26% of gay men, 37% of bisexual men had experienced rape, physical violence, and/or stalking by an intimate partner. Forty-eight per cent of bisexual women experienced rape earlier in life compared to 28% of heterosexual women.
An October 2020 petition pending before the Supreme Court claimed that one in two transgender persons has been sexually abused or assaulted.
Community Accountability Is Not Justice
In July 2021, another sexual assault allegation rocked the LGBTQ+ (lesbian, gay, bisexual, trans, queer) world. R (name withheld to protect identity) , a transgender man who uses the pronouns they/them, accused well-known therapist Aanchal Narang of sexually assaulting them.
In their written complaint to Mumbai-based queer feminist collective LABIA, of which Narang was a part, R detailed physical assault that took place on 3 November 2019. The account included a history of emotional abuse and transphobic comments that they said Narang had made over a period of several months.
LABIA’s Internal Complaints Committee (ICC), set up 10 months after the incident, recorded that although several members of the collective had been aware of R’s allegations, it did not act, did not reach out to R and did not bring these to the attention of the others.
R’s sex at birth was female, while their gender identity is male. The ICC report describes Narang’s action as a “violent assault” of a sexual nature. It adds that she misused intimate knowledge of R “in a way that harmed R and undermined R sense of self and also undermined R trust in their (own) therapist.”
Narang issued an apology on her Instagram stories: “I have apologised (for the 2019 incident), issued a public statement... I am willing to face the consequences of my misconduct.”
Speaking to Article 14 she added: “I may not have faced legal consequences as a man but on social media I have been tried just like a man.” The incident, she said, had affected her and a number of her clients. “I’ve suffered the professional and social consequences of my actions,” she said.
Narang continues to practice as a queer-friendly, trauma specialist, who’s been widely listed and quoted on the subjects of trauma and queeerness all through the ICC process and thereafter.
Call For Genderless Rape Laws Not New
Rape is defined under section 375 of the IPC. It was amended most recently in 2013, following the December 2012 gang-rape in Delhi. After consultation with the Justice Verma Commission (JVC), Parliament expanded the meaning of rape to include violations of person including digital, anal and by objects.
Discussions by the JVC did include the possibility of a gender neutral rape law. There were two ways to look at gender neutrality. The first: Could men be victims of sexual assault? And the second, more contentious one: Could women be perpetrators of sexual assault?
While there was some support for seeing men as victims, most committee members agreed that including women as perpetrators of rape would result in the harassment of an already-oppressed group.
“Historically and statistically we need the special status of women,” said senior advocate Rebecca John. “The view was that a parallel section could be added to take care of the needs of transgender people. I believe at some stage the laws could be gender-neutral but at this time, statistically given the high numbers, the need was to not tinker with the present law.”
The JVC was not the first to raise the issue of gender neutral rape laws. In May 1996, the Delhi High Court while hearing a petition filed by the mother of a six-year-old girl (Smt Sudesh Jhaku vs KCJ), noted: “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.”
The judge, however, said it was for the Law Commission to suggest a way forward.
In 1999 the Supreme Court while hearing a petition filed by Sakshi, an organisation working in gender rights, also requested the Law Commission to consider the feasibility of an expanded definition of rape.
And in March 2000, the 172nd Law Commission report recommended ungendered rape laws, including adding a new section that would deal with unlawful sexual contact, deletion of section 377 (unnatural sexual offences) of the IPC and increasing punishment in section 509 (outraging the modesty of a woman) of the IPC.
“In order to plug the loopholes in procedural provisions, we have also recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence Act, 1872,” said the report, which was criticised by several women’s rights activists including women's rights lawyer Flavia Agnes for potentially opening a line of harrassment against women who had historically borne the brunt of sexual violence.
But others like advocate Rishi Malhotra pointed to a lacuna. “Men have no remedy in the case of sexual violations against them. This will stop men from coming forward when they are, in fact, victims of intimate assault,” he said.
In 2018, Malhotra filed a writ petition in the Supreme Court, arguing hat laws against sexual harassment, rape and stalking left men unprotected against these crimes.
The Supreme Court dismissed the petition.
The Missing Perspective Of LGBTQ+ People
The Protection of Children From Sexual Offences Act (POCSO) 2013 recognises that both boys as well as girls can be victims of sexual assault. In fact, a 2007 study by the women and child development ministry found that among the children who reported abuse, 53% were boys and 47% were girls.
In the debate around gender-neutral sexual violence laws for adults, the perspective of the LGBTQ+ community has been missing, said experts, and this includes sexual violence against queer people.
“Violence and violation are a part of daily life for an LGBTQ+ person. While the legal system is usually used against these communities, the laws need to evolve considering the fluidity of gender and how a wide variety of persons may exist who do not conform to the set gender structures,” said lawyer Saurabh Kirpal, a trustee of the Naz Foundation, a non-governmental organisation (NGO) that works on HIV/AIDS and sexual health. “The law is not only silent on this but also fails to acknowledge the existence of LGBTQ+ people.”
Kirpal noted that “our law does not recognise male rapes. Certain provisions such as rape, sexual harassment, stalking recognise only ‘women’ as victims.”
This was the case for P, sexually assaulted by an elder male worker at a gurudwara in his hometown Varanasi. P, 20, a law student, recalled that the assault “shocked and deflated” him.
“I study the law, so I already knew that since it was happening to me, there was nowhere for me to go to complain,” said P.
In September 2018, the Supreme Court read down section 377 to decriminalise consensual sexual acts between men. But for non-consensual acts of sexual violence between two men, the section continues to apply. Unlike rape laws, however, the burden of proof that an act of sexual assault was not consensual lies with the complainant.
“The presumption in section 375 [the rape law] shifts the burden of proof onto the accused to prove the act was consensual,” said lawyer Anand Grover. “In section 377, there is no such presumption.”
Section 377 only covers “male on male,” non-consensual sexual acts and ignores queer and transsexual women entirely, said Grover. The police are not required to register an FIR under section 377, as they are under section 375 on a complaint of rape.
Grover said other crimes historically gender-related are ungendered in view of the fact that perpetrators and victims can belong to any gender, for example, honour killings.
Not Isolated Incidents
K is a 27-year-old bisexual woman living in Mumbai who found herself at the receiving end of sexual advances from a queer woman who was her senior at work at an LGBTQ+ collective. In 2016, on an out-of-town work trip, not knowing anyone else in the city, K invited her senior to watch a film in her hotel room.
“From my end, at least there was no sort of intention of it being any sexual encounter,” recalled K. As the movie played on, the other woman made advances. “She started touching me,” said K. “And, it just kept getting worse. She kept touching me everywhere.”
K froze for a moment, “because there was all this power dynamic of this person being my senior at work, and then also sexually abusing me at that time.” After what she describes “felt like forever” K finally asked the woman to leave.
Though K ensured that she was never again alone with her abuser, the sexual harassment did not stop. The other woman called her, messaged her, and invited her to public spaces under the pretext of work.
“She went on to tell me that she was in love with me,” K recalled. “And then she kept sort of, you know, almost hounding me with how she feels about me. She would insist that we meet and she would tell me how deeply selfish I am.”
Eventually, K left the collective and found employment elsewhere.
Sexual Violence And Transgender People
S is a 45-year-old transgender woman living in Ahmedabad. She met G, a lesbian living in the nearby city of Baroda, on a dating app. The encounter bloomed into a casual relationship; the pair met a few times and were intimate. S said that within a couple of weeks, she decided they weren’t a good fit. G took S’s decision in stride, the latter remembered: “She said, OK we will just be friends, and I believed her.” The friendship continued till S trusted G to the extent of meeting the latter’s friends, and agreeing to go on an out-of-town trip with them.
The trip was to see a cricket match in Jaipur. G and her friends fetched S from Ahmedabad. Almost immediately, S said she felt uncomfortable: “There was this sense of possessiveness, like I’m her girlfriend that caught me off-guard.” The group of five were travelling in one car, so S sat next to G. “It was a long road trip, so once or twice when I was tired I put my head on her shoulder. It was a tight fit in the backseat.” During a road stop, G took S aside and lashed out. “She said I was giving her mixed signals and chastised me for it. All this was away from the earshot of her friends.”
The group was staying at the cricket association’s accommodations for the three-day trip, which was to celebrate G’s birthday. S immediately realised she had no option but to room with G. On the first night, the abuse was mostly verbal. G continued to chastise S for “playing with her feelings” and the vitriol was “so cruel and cold” that S felt overwhelmed and sat with her head between her hands.
What G did next really scared S.
“The next thing I know she was holding my wrists with my hands. My first reaction was that she was trying to calm me or something. But, the very next thing I remember was that she'd used her weight to restrain me with both my arms restrained,” recalled S. The aggression lasted a few minutes but the message was clear to S. “She made it a point to say that it was an act of revenge to show me she was more powerful than me.”
The next day was G’s birthday. S remembered being too anxious to tell anyone as everyone in the group was her assaulter’s friend not hers. She looked for ways to leave, but knew that any way would either cause a scene—which she did not want since she had not yet gotten her identification papers in the correct gender. That night, G forced herself on S.
“When we got back to the room I said that I'll just sleep on the sofa. And she said ‘No. You have to sleep on the bed.’ Her tone of voice and her body language that I had no choice—It was like consent under duress—because if I didn’t do what she wanted I knew force would be used.”
S said she plays these events over and again in her head. “I didn't even think I should complain legally or not. The laws are not in my favour. But at the time I didn't have the correct gender on my papers, so I knew my own identity and gender would be the first thing to be questioned.” And, she was correct.
Challenges Before the Trans Community
Going forth with genderless sexual violence laws, meaning both the perpetrator and victim can be anyone across the gender spectrum, has its challenges. This is especially highlighted in cases of violence against transgender and intersex people.
Despite a damning report by the consulting committee, widespread criticism and protests by its transgender community, India enforced the Transgender Persons (Protection of Rights) Act in December, 2019. The Act creates a legal regime separate from India’s IPC for transgender persons. Abusing transgender people attracts six months up to two years jail time, regardless of the heinousness of the crime.. Raping a cishet woman is punishable with ten years to life imprisonment; in heinous cases such as the 2012 Delhi gangrape case, convicted rapists are given the death penalty.
On 13 October 2020, the Supreme Court heard a writ petition asking for equal protection of transgender people against sexual violence. The bench comprising Justices A S Bopanna and V Ramasubramaian issued notice to Centre. The case has yet to be heard.
In 2015 Sangama prepared a report for Kerala’s government. Sixty per cent of transgender persons surveyed said they had experienced sexual assault and/or harassment. In 2015, National Aids Control Organisation (NACO) surveyed 5,000 transgender persons and a fifth of them experienced sexual violence just that year.
“When you go into gender neutrality, one must have these discussions with an understanding of the various power differential in the system itself,” said Kanmani Ray LR, a law student and transgender rights activist in Delhi University. Ray points out the inherent bias against transgender persons within society.
Transgender women are often jailed in men’s prisons, as seen in the case of Kiran Gawli who is lodged within Nagpur Central Jail—one of five transgender women among 2000 male inmates. From her experience, Ray noted that cisgender women are often as much perpetrators of violence against transgender women as are cis-gender men.
“Women in public places such as a washroom or the ladies compartment in a metro or train often rile against transgender women availing the same services,” said Ray. The same can be said for women working within the police force and also, historically, hospitals, where transgender people are often wary of being subjected to bias and assault.
As S did, Ray also said: “If there is a case of a cis-queer woman assaulting a transgender woman, who would be more likely to be believed?”
Many procedural issues, too, need ironing out. “Who will perform the medical examination on a transgender person—will they be treated according to their self-identified gender, or according to the gender of their sexual organs? The law at the moment puts many hurdles in just getting state-recognition as a transgender person,” Ray pointed out.
“After being assaulted, I downplayed everything that was going on in my head, perhaps as a coping mechanism. I finally went to a psychiatrist who diagnosed me with PTSD and helped me. It took more than a year after the incident that I was finally able to overcome the feeling of fear that pervaded every aspect of my life,” recalled S who was violated by a cisqueer woman.
Each survivor who spoke to Article 14 echoed S’s sentiments. “Whatever the gender of the sexual assaulter, the victim’s emotion—the fear, the betrayal, the feeling of being violated does not change,” points out queer activist Koninka Roy who counsels victims of sexual violence in the LGBTQ+ community.
A Way Forward
Without recognising the power differentials already set within society and open discussions that involve all stakeholders, a fair and unbiased gender neutral law won’t have much effect on the ground realities for LGBTQ+ people, Ray noted.
Her sentiment is echoed by senior advocate Anand Grover.
“The ideal goal is to have one law on sexual assault that applies to people across the gender spectrum. But to start with, 377 can be reformulated and act as a second regime of law for sex crimes against people whose sexualities are not heterosexual, ” said Grover.
Grover’s suggestion, which is actively discussed in the LGBTQ+ community, is to use two different laws for heterosexual and homosexual people. The existing rape law will apply to the rape of women by men. But alongside, Section 377 could be modified to include non-heterosexual people, including women on women, women on transgenders and men on men sexual violence. The wording of section 377 is already gender neutral for the perpetrator so only the victim’s definition needs to be expanded from ‘man, woman, or beast’ to “person and beast.” Further, the burden of proof to prove consensual sexual acts would rest on the perpetrator and not the victim, as it currently does.
The two laws, continued Grover, would serve as a conduit that allows for time for society to change and, until it does, afford justice from sexual assault for all citizens.
“The answers for these questions lie outside the ambit of law as much as within the law. It is for society to educate itself and evolve,” said Grover.
Miles To Go
India’s Constitution affords equal status to all citizens. It follows then that the laws against sexual violence—rape, stalking, assault, sexual harassment—need to protect all gender identities, including men, women and the transgender community.
However, there is justifiable fear, said experts, that changes to sexual violence laws must not be detrimental for the most vulnerable section of society: women.
“Historically, it is women who have been the subject to rape. So if we cannot make the law purely gender neutral without considering particular historical and gender stereotypes, which are actually used to perpetrate assault on women,” said Grover.
Such changes to the sexual violence laws in India would make them gender just, gender sensitive, but not gender neutral laws.
“For there to be any change in sexual violence laws against the LGBTQ+ community, we must at the very least recognise that LGBTQ+ exists and is not unnatural,” said Koninika.
Experts also suggested looking beyond the law into sexual education.
“Sexual education: the meaning of consent, and also sexual identities education in Indian schools would be a good start,” said Grover. “It would help Indian children and society at large to learn to talk openly about sexuality and sex without shame.”
(Avantika Mehta is an independent journalist based in New Delhi.)