It is wrong to think that men are not sexually harassed… Injustice to such victimized youths in Indian Judicial Code

New Delhi : Netflix’s popular show ‘Baby Reindeer’ shows a horrific scene where a bisexual man is sexually assaulted and raped. It’s tough to watch but the reality is even more terrifying for male victims of sexual crimes in India. The Indian Justice Code (BNS), which replaced the IPC, does not recognise sexual crimes against men due to the removal of section 377. Transgender people now have to rely solely on the Transgender Act 2019. It provides for much lesser punishment than the law for rape of women. The rape law under both the IPC and the BNS defines the perpetrator as male and the victim as female.

This change has left male and transgender victims of sexual assault without legal protection. LGBTQ+ activists and legal experts have criticised the change, saying it discriminates against people who are not male or female. They say it underreports sexual violence against men and transgender individuals and allows perpetrators to escape punishment.

Lawyers Collective deputy director and lawyer Tripti Tandon says, ‘It is completely wrong to think that men are not sexually harassed. Section 377 has been used by men for many years in cases of sexual assault against them. The law cannot ignore the thousands of people who have done this. She says that sections like injury and aggravated circumstances can be applied during this time, but these do not reflect the sexual nature of the crime.

LGBTQ activist Harish Iyer says that when he/she came out as a survivor in the late nineties, he/she was very alone. But now, many people are coming forward and speaking up. The same old excuses no longer apply. Also, even if one argues that it rarely happens to men, such an argument is not enough to not classify it as a crime.

“If you look at the case load under 377, we find that a large number of cases are of non-consensual sex. It definitely worked as a means of intimidation and harassment. But a lot of the abuse was covert,” says Arvind Narayan, founding member of the Alternative Law Forum and co-editor of Law Like Love: Queer Perspectives on Law.

Narayan explains that sexual violence is a huge issue in the trans community. he/she says that if you look at it only under the 2019 Trans Act, where the punishment is very low, it points to how you look at two types of bodies. One with higher rights and the other with less rights. This is discriminatory.

Muskan Tibrewala, assistant director, Law and Marginalisation Clinic at Centre for Justice, Law and Society, says that the punishment is not only less, but also bailable and non-cognisable. So, this means that the police need not immediately register an FIR. Even if they catch the culprit, they can immediately get bail from the police or magistrate. This is definitely going to put the victims at risk.

The only possible exception is in the case of trans women. “If they have an identity card that says they are a woman, they may be able to file a case under Section 375,” says Tibrewala. This will depend on police discretion, she adds. Narayan argues that while Section 377 was inadequate and could be misused, leaving no recourse now is a retreat. This is why, he/she says, many gay groups requested, during the drafting process, that the rape law be made victim-neutral.

Tripti Tandon, deputy director and lawyer at Lawyers Collective, says the lack of a legal mechanism in these cases sends the wrong message. It seems it is okay to sexually abuse men and gay people. She has seen many cases of gay men turning violent after meeting on a dating app or being filmed and blackmailed without their consent. She says even when Section 377 existed, it was difficult to file a complaint. The police station is not a queer-friendly place. Tibrewala notes that there have been cases where men have been ridiculed at police stations for reporting sexual assault. But now, even that flawed recourse is gone.

Section 377 did not serve just one purpose. It was also used by women – especially in cases of marital rape. Tripti Tandon says, “Unlike Section 375, which had a clear exception that it did not apply in such cases between married couples, 377 did not have this exception. Therefore, women were able to file FIRs using it, although it depended on the specific court and their interpretation.

Iyer says we don’t even need a new law, all we need to do is change ‘woman’ to ‘person’ in the BNS. Narayan puts it simply: the state has a responsibility to protect all individuals from sexual violence, regardless of gender identity and sexual orientation. It is a constitutional obligation, and an obligation that has not been fulfilled.