The only thing that’s new is the fact that the complainant is a man. But if one goes by most of the media coverage and the political discourse around the allegation, it is as if Raghavji’s crime is that of sex with a man, rather than sex against the will of someone.
Media stories have (with very few honourable exceptions) almost invariably claimed that Raghavji has been charged with ‘sodomy’. Not for the first time, we have had to wonder if the media has no obligations whatsoever towards accuracy? The media’s use of the term ‘sodomy’ is inaccurate because there is no crime of ‘sodomy’ in the IPC. ‘Sodomy’ is a term of Victorian vintage that describes anal sex, not anal rape. Section 377 of the IPC does hold sodomy to be “sex against the order of nature”, but Section 377 has been ‘read down’ by the historic Delhi High Court verdict of 2009, to cover only non-consensual acts. So, as in any crime of sexual violence, the only relevant matter in the Raghavji case is the issue of consent, not the nature of the non-consensual sexual act itself.
In sum, the use of the term ‘sodomy’ (without specifying its non-consensual nature) sensationally only serves to fan up a prurient homophobia.
Politicians are not far behind in indulging in homophobia. Rape jokes and homophobic jokes are rampant on social media – with prominent political figures leading the way. Sample a few of these ‘jokes’ in the sober light of reason. Digvijay Singh of the Congress tweeted a joke which he said was an SMS by an MP journalist: “Uttrakhand mai prakratik aapda aayee hai // Aur Madhya Pradesh mai aprakratik aapda ayi hai” (“There is a natural calamity in Uttarakhand and an unnatural one in Madhya Pradesh.”) Dr Kumar Vishvas of the Aam Aadmi Party similarly tweeted, “Raghavji ke baad ab rupaya bhi giraftar hona chahiye! Aprakritik giravat ke liye” (“After Raghavji, the rupee should also be arrested! For an unnatural fall.”)
So, the rape of a man by a man is ‘unnatural’? Would that not imply that the rape of a woman by a man is ‘natural’? How does one define ‘unnatural’ anyway? Isn't contraception ‘unnatural’? Isn't even abstinence as a method of contraception (as recommended by some religions and by MK Gandhi) ‘unnatural’? The fact is that human sexuality – in its sheer range and diversity – is not just biological, but very much social in its character. To deem some of these acts as ‘natural’ and others as ‘unnatural’ is very much an ideological act, an act of bias.
It is as though the sex of the rape complainant in this case is a license for everyone, including even public figures, to surpass all limits of crudeness, tastelessness and insensitivity. Digvijay Singh's mention of the Uttarakhand tragedy in this context competes for insensitivity with his homophobic rape joke. In another tweeted comment Kumar Vishvas had said “Twitter ka Raghavji mat karo” (Don’t do a Raghavji to Twitter – i.e. don’t sodomise Twitter). Is this kind of rape joke ‘okay’ because the complainant is a man?
In spite of all formal obeisance to the anti-rape movement and to Justice Verma, it is clear that Digvijay Singh and Kumar Vishwas, as well as print and electronic journalists, haven't bothered to read the Verma report's meticulously detailed and educative chapter on sexual violence faced by lesbian, gay, transgender and intersex people – a chapter that was inspired by the moving testimonies of activists and survivors to the Verma panel.
The Verma Committee's report discusses how discrimination and stigma on the basis of their sexual identity and orientation compound the experience of violence faced by LGBTI people. The Committee clearly upholds that Article 15 of the Indian Constitution (which prohibits discrimination on grounds of religion, race, caste, sex or place of birth) uses the word 'sex' as including sexual orientation.
If discrimination on the grounds of sexual orientation is unconstitutional, then Section 377 of the IPC is also discriminatory and against the spirit of the Constitution, because it continues to stigmatise (if no longer criminalise) non-heterosexual sexual orientations as being 'against the order of nature.' In 2009, there was no law except 377 to cover sexual violence against male children, as well as adult men, and so activists only asked for 377 to be 'read down' rather than scrapped. Now, the Prevention of Child Sexual Offences Act (POCSO) has been passed in 2012, so 377 is no longer needed to protect children.
In the movement against rape that followed the December 16th Delhi gang rape, we had felt the need for the rape law to cover violence against men, and so had asked for the victim in the rape law to be gender-neutral (while keeping the perpetrator gender-specific, i.e. male). We were acutely aware of how common the rape of men, transgenders, hijras and intersex people is, especially in jails, police custody and caste violence. The Justice Verma report also recommended the same. But the Government, initially adamant on making the entire rape law (perpetrator included) gender-neutral, agreed to make the perpetrator gender-specific, but also turned around and made the victim gender-specific as well! The consequence is before us. The only law left to cover a case like the Raghavji one is Section 377, which still uses discriminatory and unconstitutional language and concepts.
The Raghavji case is a reminder of the urgent need to amend the rape law and ensure that the ‘victim’ as defined by the law is gender-neutral.
The Delhi HC verdict on 377 has been challenged in the Supreme Court, which is yet to pronounce its verdict. The Central Government has been, predictably but shamefully, reluctant to endorse the Delhi HC verdict and protect the constitutional rights of same sex people, seeking to leave the matter to the judiciary. One can only hope that the Supreme Court will uphold the exemplary Delhi HC verdict, and that Section 377 will no longer remains on the statute books.
When a woman is raped, remarks by public figures and media about her clothes or conduct are abhorrent instances of rape culture. When a man is raped by a man, homophobic jokes about gay sex also contribute to rape culture, trivializing the crime and being thoroughly insensitive to the victim.
In Raghavji’s case, the courts will decide, based on the facts that emerge in the investigation, if he is guilty of non-consensual sex. He will not be judged on the nature of his sexual acts. Meanwhile, all of us – and especially the media, public figures and politicians – have a responsibility to desist from rape jokes and homophobic sentiments. And political leaders like Digvijay Singh and Kumar Vishvas ought to publicly retract and apologise for their remarks. If they were to do so, it would go a long way to correcting bias and sensitizing their thousands of supporters and the general public that discrimination based on sexual orientation is unconstitutional.
Kavita Krishnan is Secretary, All India Progressive Women’s Association (AIPWA). Follow her at https://twitter.com/kavita_krishnan
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