[Editor’s Note: As a practice, we refer to people of all genders who have survived violence as ‘survivors’, not ‘victims’. This is unless, the person succumbed and died, whether due to injuries, suicide, or murder.]
The discourse surrounding the latest amendment to section 375 of the IPC in 2013 included questions about the reductive nature of seeing only ‘men’ as perpetrators and ‘women’ as victims. Considering the wide power imbalance between the two genders and all that it implies, the Justice Verma Commission as a whole felt that expanding these definitions would lead to an already marginalised group being made further vulnerable to false complaints and harassment. While this understanding of the power imbalances seems to accurately represent the relationship between cishet men and cishet women, it does not seem to take into account the existence of people whose identities fall in different places on the spectrums of gender and sexuality.
What about public movements like #MeToo?
Community justice is not the same thing as legal justice, because its accessibility and validity are very dependent on the socio-political factors dominating the moment. Even in India’s #MeToo wave, there were very few cases of queer trauma that came to light. According to the Human Rights Campaign, the CDC’s Intimate Partner and Sexual Violence Survey found that while 17% of straight women have been raped, for lesbians the number is 13% and for bisexual women, it is a staggering 46%. Invisibilising the power dynamics in these situations in the formulation of rape laws invisibilises the pain of these victims. A similar statistical trend follows male victims, with those who are bisexual experiencing the highest percentage of sexual assault. Of course, the visibility of the identity of those who fall on the bisexual spectrum is often denied or discriminated against not only outside the community but also within it. The stigma around bisexuality definitely contributes to the silencing of these survivors.
Public movements are also dependent on public support. In the absence of a general progressive outlook towards queer inclusion and advocacy in the country, the assumption that all queer survivors should ‘speak up’ and expose themselves to multiple layers of public scrutiny and discrimination in the path to seek justice is a very unrealistic and reductionist understanding of queer trauma.
What happens when the queer community is invisibilised in the discourse around sexual violence?
The first problem that arises when we invisibilise the community is that we give people space to fill in the gaps with their ill-informed fears and myths. For example, the book ‘Bitter Chocolate’ by Pinki Virani, hailed for bringing the problem of Child Sexual abuse (CSA) in India to the forefront, sees itself as queer-friendly but ends up villainising not only bisexual people (for not picking a side) but also queer people in general by putting forth the idea that an adult woman would seek lesbian relationships (even though they make her feel ‘unfulfilled’) because she was sexually assaulted by her aunt as a child. The author even addresses the queer community saying that they should take note of such cases of queerhood when working with the idea of support groups for queer people. This idea that there is something ‘wrong’ with queer victims, or that queer people go around converting children through abuse is not only problematic but also out of place in a book that is otherwise supposed to highlight the pain and trauma of victims.
This is not to say that queer people cannot be abusers – they absolutely can be, and should be tried as such – but this portrayal cannot exist in a vacuum disconnected from the fact that they are a lot more likely to be victims. The absence of a wider definition of ‘perpetrators’ and ‘victims’ along with the absence of even an acknowledgement of the trans spectrum further contributes to how laws around sexual violence in India do not have a clear pathway or space for queer survivors to avail justice.
But didn’t the Section 377 judgment of 2018 change things?
Yes, and no. Firstly, while that judgement decriminalised consensual sexual interaction between men, it does not even acknowledge the possibility of consensual sexual interaction between other genders. In some cases, a rape complaint by a woman has been filed as the relatively more lenient ‘sexual harassment’ complaint. Secondly, while it created space for the recognition of rape where both the perpetrator and the victim are men, there are clear distinctions between what happens when someone’s complaint falls under section 377 instead of under section 375. For starters, it is the survivor who has to bear the burden of proving that the act was not consensual instead of the accused, who would otherwise bear the burden to prove that it was. This is problematic because placing this responsibility on victims of sexual abuse or assault contributes to the culture of victim-blaming and shaming. The horrible idea of victims ‘asking for it’ is never more highlighted than in the specific moment when you ask a victim to legally prove that they were not. Not to mention the layers of trauma and distress that such a system can cause a survivor who is attempting to seek justice.
Lastly, the 377 judgement has yet to have larger ramifications on the general idea of gender and sexuality with which the legal structure operates. While there are isolated laws and judgements that are coming forth no, a holistic revamping of how the law views citizens in the light of this progress is yet to happen. Even something as basic as marriage equality is still being argued in court, and conversion therapy is still rampant in many states of India. Therefore, while the judgement has given space for more visibility than before, there is an exceptionally long way to go if we want to create an environment where the queer community feels that the law is accessible.