REPEAL SECTION 377 IPC: A PERSPECTIVE FROM THE WOMEN’S MOVEMENT

Newsletter Sep – Dec 2003

"Personal is political” has long been a rallying point for the women's movement, and never has it been as much applicable as in the realm of sexuality. From abortion rights to the use of contraception, women's groups have campaigned for the right to control sexuality and bodily integrity. For women, the only legitimate expression of sexuality has been within heterosexual marriage, rigidly circumscribed by caste and community. Sex for pleasure has traditionally been taboo for women, who are expected to merely 'submit' to the sexual act to satisfy their husbands and produce children, preferably a son. Of course, whores/prostitutes/sex workers are at the other end of the scale, their entire existence constructed around sex. Patriarchal control of women's sexuality is reinforced by laws, as well as biases of the judiciary, to bolster attempts to maintain the unit of the family - however oppressive or violent it may be.

Section 317 and the government's unwillingness to repeal it sums up the historical attitude of the Anglo-Saxon legal system toward non-procreative eroticism, usually going under the broad, if inaccurate, term "sodomy". The Indian legal system has not only taken on this perspective but has added on its own brand of prudishness. The psychological discomfort of repressed or moralistic individuals from centuries before created a jurisprudence consigning the enjoyment of non-procreative sex to the status of criminality. While Section 377 does not refer specifically to homosexuality, the outlawed 'acts' can be construed as such, and male homosexuals have borne the brunt of this archaic law, often subjected to police harassment and extortion due to their sexual preference. If "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal" can invite a maximum sentence of life imprisonment and fine, a large proportion of the adult population of the country could be behind bars and taking loans to pay fines for having "sex against the order of nature".

‘Unnatural’ Sex

Sex itself has been Iittle-talked about in the land of the Kama Sutra, and a stony silence has surrounded non-procreative eroticism and sex for pleasure. Already rattling the cupboard doors when government family planning propaganda in the mass media had every child talking about the relative merits of Mala-D v/s Nirodh (even blown up as balloons by children!),further, the AIDS scare over the past decade or so has dragged sex truly out of the closet. Sexuality is also corning to be seen as fluid and as a range of behaviour and situations that go beyond inflexible binary categories of "heterosexual" or "homosexual”. Increasingly, surveys on sexuality, published in popular magazines, are revealing that Indians are not as "straight" as the government would like to believe. A whole range of sexual behaviour is prevalent: Oral sex (both fellatio and cunnilingus), masturbation, mutual masturbation, inter-femoral intercourse and tribadism. Though it is amply clear that sex-for-procreation between one man and woman in the missionary position is not universal, all other "unnatural acts·, since they are not "procreative", would by definition be unlawful!! Although myths, taboos and stigma around sex persist, there is a perceptible opening about issues of sexuality in general and women's sexuality in particular. Yet there is a large gap between social reality and legislation and judicial attitudes. Sec 377 is untenable, since the Indian government itself no longer supports the assumption of sex-for-procreation, given that it invests large amounts annually, promoting measures of birth control and contraception for population control.

Moreover, medical technology existing since 1978 with the birth of the first test-tube baby has made claims to heterosexuality’s social or biological 'necessity' invalid. Sexual activity is no longer essential for reproduction, and healthy sexuality is being recognized as desirable. The very notions of 'gender' and 'sex' are being challenged, with increasing acceptance of gender and sex as shifting categories an understanding brought about by the growing visibility of transgendered persons. The law, in order like the traveller, to be ready for the morrow, must recognize that fact.

Sex among Women

Originally, sodomy referred only to two sexual acts: anal intercourse between two men or a man and a woman, or sexual intercourse between a human being and an infrahuman animal of the opposite sex. Due to the ignorance of biology in the medieval times, it was thought possible that bestiality could lead to the conception of half-human, half-beast offspring. Sodomy was condemned because the devil was thought to engage in such activity with witches. Thus, with the fear of supernatural forces overwhelming God's good people, harshness was considered a necessary

self-defence[i].

The appellation "crime against nature" was coined by English jurist William Blackstone (1723-80). Male-male sex came to the attention of the law before sex between women, because of differences in sexual behaviour. In general, males are more likely to engage in sexual activity in public or semi-public places than females. Moreover, sex between women was viewed as an oxymoron. In a case from Scotland, dating to 1811, the House of Lords decided, regarding a charge of cunnilingus between two women, "the crime here alleged has no existence." In the US, in 1913, the Missouri Supreme Court refused to permit a cunnilingus conviction to stand because the Court could not conceive of sexual activity without a penis and said that sexual intercourse could not be accomplished with the mouth.

In India, lesbians and bisexual women are organizing and demanding visibility and social recognition of their relationships, demanding an end to harassment and violence. Yet, ironically, the current marginalization in law is also seen by some to be advantageous, since female-female sex is not specifically criminalised. Sec 377 has nevertheless been used to harass lesbian women, and compel them into heterosexual marriages. Lesbian women's suicides, coming to light more and more are evidence of the need for social recognition and decriminalisation of non-heterosexual sexuality. Lesbian and bisexual women have had an uphill struggle not only vis a vis mainstream society, but also within the women's movement itself. Brought squarely on the agenda of the Indian women's movement in recent times by LGBT groups, women's groups and democratic rights groups have been forced to confront prejudices and challenge premises earlier taken for granted. Yet, alliances are being forged, and dialogue has enabled a collective understanding to move forward.

The issue of Consent

The women's movement in India has engaged far more intensely with the violent aspects of sex. About 25 years ago began the campaign to amend laws relating to rape. We articulated the understanding that sexual violence exists because of power exercised by men over women within the patriarchal societal structures, which are further graded through caste, class and religious divisions. One of the common concerns for women's groups has been the 'definition of the term rape itself. We have consistently asked for a wider definition of sexual assault which would move away from the typical peno-vaginal penetration as the ultimate crime and violation. This broadening of the notion is being attempted in all cases of sexual assault i.e. non-consensual penetration of the vagina, anus or mouth by the penis, finger or any other object Assault here is defined in terms of lack of consent and violation of bodily integrity rather than on grounds of morality1.

It is appropriate to mention here that the government is equally reluctant to make marital rape an offence, because it would interfere with the “sacred” relationship between husband and wife. The husband is assumed to have the right to have sex with his wife by virtue of the fact of marriage, and consent is assumed for all time. This obnoxious notion has been challenged time and again, with attempts to bring marital rape into the purview of the rape law. Yet, the law has no qualms about invading the privacy of consenting adults to engage in the sexual activity of their choice. Any law that appears to threaten the institution of the family and marriage has an uphill struggle, and the repeal of Sec 377 challenges notions of morality, family and heterosexual marriage.

One of the central arguments for retaining 377 is that it protects children from sexual assault; this is not sufficient justification to uphold an oppressive law that victimises sexual minorities. Protection for children can and must be achieved through amending laws on sexual assault. While it is true that Sec 377 has been used (very rarely, it may be noted) in cases of forced anal or oral sex between a man and woman, this is not sufficient justification for retention of this section. Reformulating the laws on sexual assault will enable forced sexual acts (of whatever description) to come under the purview of law. The issue here is force and lack of consent, not nature of the sexual act.

Merely because the state has long interfered with sexual activity between consenting adults is not sufficient constitutional justification for permitting them to continue doing so.[ii]

1[i] Painter, George: The Sensibilities of Our Forefathers: The History of sodomy laws in the United States. Source; http:www.sodomylaws.org

[ii] Written by Saheli as a Chapter for RIGHTS FOR ALL: ENDING DISCRIMINATION UNDER SECTION 377. A report by Voices against Section 377. For copies of the full report and more information, contact prism_delhi@yahoo.co.in