Why perpetrators can walk free after assaulting transgender or gay men in India

During the break, Divyaroop Ananda had stepped out to the nearby chawl for cigarettes, where a drunken man molested him.
Why perpetrators can walk free after assaulting transgender or gay men in India
Why perpetrators can walk free after assaulting transgender or gay men in India
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By Makepeace Sitlhou

When Divyaroop Ananda attended an LGBTQI forum on gender binary and heteronormativity in Mumbai, he didn’t expect to be rudely reminded of its implications only a stone’s throw away from the venue. During the break, he had stepped out to the nearby chawl for cigarettes, where a drunken man molested him. When Divyaroop protested against his behavior, a gang of 5 other men came along and sexually and physically assaulted Divyaroop, nearly stripping him naked in the middle of the road. He later wrote about the incident in his blog that was widely shared on social media.

A day after the incident, Divyaroop went to the Humsafar Trust office to seek counseling after he suffered a panic attack in a crowded hospital, still traumatized from the incident. “I really wanted to see those people behind bars. So with help from Humsafar Trust and Lawyers Collective, I decided to register a case”, he said. 

An FIR was registered 9 days later at Khar police station. Since then, the media has taken a celebratory tone in commending Divyaroop for bringing his perpetrators to book and congratulating the cops who registered the FIR in a friendly and cooperative manner. But the issue goes beyond just an FIR being registered, which the cops are, anyway, duty-bound to do.

A glance through the FIR reveals that only general sections of the law pertaining to physical assault were invoked. The assault on Divyaroop was decidedly sexual in nature, but there was no section that criminalized the sexual assault he faced. That’s because there are no laws in India to protect male victims of sexual assault.

Divyaroop’s legal representative, Suraj Sanap (of Lawyers Collective) said that the 6 accused have been booked under sections 143 (unlawful assembly), 147 (rioting), 149 (every member of unlawful assembly guilty of offence commit­ted in prosecution of common object), 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapon or means), 340 (wrongful confinement), 355 (assault or criminal force with intent to dishonour person) and 506 (criminal intimidation) of the IPC.

Had Divyaroop been a woman, the police would have booked the perpetrators under IPC sections 354A (sexual harassment) and 354B (assault or criminal force with intent to disrobe). These sections attract more severe punishment than any of the sections charged in the FIR. And especially under public pressure, police are more prone to act sensitively and quickly, when a woman reports a complaint of sexual assault.

“There are no laws in India to provide a remedy to men (heterosexual, bisexual or homosexual) and transgender persons against sexual violence. The language used in 355 comes closest to the kind used in some of the sexual offence acts”, said Suraj. However, Suraj maintains that the addition of section 355 is only incidental and uncertain if the court will interpret the sexual assault on Divyaroop as constituting ‘assault or criminal force with intent to dishonour person’.

Currently, the sexual violence laws in India recognize only women as victims and men as perpetrators. Interestingly, such gender specificity of victim and perpetrator cannot be found in section 377 of the Indian Penal Code, which criminalizes carnal intercourse against the order of nature between members of the same sex, and the Protection of Children from Sexual Offences 2012 (POCSO) act, understandably.

Humsafar Trust, an LGBT support NGO in Mumbai, along with 51 other community based organizations in the states of Rajasthan, Maharashtra, Madhya Pradesh, Gujarat and Goa documented 500 reports of abuse against members of the LGBT community in 2014. Sonal Giani, Advocacy Manager at Humsafar Trust, told me that in most cases of abuse, the perpetrators were either goons or local police. “Goons in public places are violent and molest feminine looking men or transgenders in public spaces. When this is reported to the nearby constable or police, they do not take the violation seriously”, she said in an email interview.

Transgenders find themselves in an equally (if not more) precarious position in reporting sexual offences despite the 2014 Supreme Court judgment that officially recognized their right to self-identification. Earlier this year, Human Rights Watch published a report on the discrimination and abuse that transgenders in India continue to face. The report said:

“The nongovernmental organization Telangana Hijra Transgender Samiti, based in the southern city of Hyderabad, reported 40 attacks on transgender people in the last six months. In several cases, the police refused to even register complaints, the rights group told Human Rights Watch”.

Bittu, a female to male transgender and representative of the Samiti, said that they have now compiled 60 reports of attacks on transgender people.

In the absence of laws and police insensitivity, community-based support and mass media usually become the last resort for the queer community. While Humsafar Trust offers mental health counseling and legal awareness to survivors in Mumbai, Bittu says that no such support exists for the community in Hyderabad. “When we from the Samiti take up such cases, we treat trans women in the same way as cis women, and have insisted that the police also treat them this way and file cases accordingly, using the NALSA judgment as leverage to say that anyone who identifies as a woman must be treated as such by the law. We are not sure how we'd handle cases of sexual violence upon trans men though and no such have come our way in the last year”, he said.

It’s not like trans men have had it any easier. Christie Raj (29), a female to male transgender based in Bangalore, recalls an incident in 2004, when he was almost stripped down in a bus stop. “People were wondering what my gender was and they started teasing me because I didn’t have a moustache and was wearing pant shirt. They tried to strip me but I got into the bus, where they followed me. Later, when I tried to file a report, even the police were doubtful of my gender so I had to complain as a woman”.

Since last year, National Criminal Records Bureau (NCRB) has started to record cases registered under section 377. Shared by the Ministry of Home Affairs in January 2015, the ‘provisional’ data (with no data received from 3 states and 0 reports from 11 states and union territories) revealed 778 cases registered under the section and 587 persons arrested, with no break-up on how many of these involved adults or animals (as the section states). Mutual consent between adults is irrelevant and is, in fact, seen to be criminally culpable by the Supreme Court and the Government of India, as of now.

The recent Delhi Charter of Women’s Rights Bill (2015) makes the capital the first state to initiate a policy that specifies equality before the law and equal protection by all the laws for every woman, “irrespective of her sexual orientation” and “the right to exercise complete autonomy in personal relationships including with respect to her choice of partners”. The bill was drafted along the lines of the Justice Verma recommendations, which also stated the need to identify sexual orientations.

While many hope that this could pave the way for the Delhi Government to repeal section 377, it doesn’t offer any solution or solace to men with queer identity or orientation. All the activists and survivors I spoke to, unanimously were of the opinion that sexual violence laws need to be gender neutral, albeit while only referring to victims not perpetrators.

“The Parliament lost an opportunity to provide such a remedy in law by contemplating victims/survivors of sexual violence as gender-neutral in the aftermath of the Nirbhaya case, despite express recommendations to do so by The Justice Verma Committee Report on Criminal Law Amendments, 2013”, said Suraj.

By failing to recognize sexual orientation and male victims of sexual violence, India has essentially given a hall pass to police and goons to fearlessly engage in harassment or violence towards sexual and gender minorities.

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