The Delhi High Court has asked the central government for a response on excluding consensual same-sex conduct from criminal offenses. The bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela noted that the Indian Penal Code (IPC) has no provisions for this. The question arises, if it's not in the IPC, is it a crime?
The petitioner has requested either the restoration of provisions criminalizing non-consensual same-sex relations or making rape laws gender-neutral.
Since July 1, the Indian Penal Code has replaced the IPC. Section 377 under the IPC criminalized unnatural sexual acts without consent. However, this has been entirely excluded from the IPC.
During the hearing, the government's lawyer stated that even if there are discrepancies, the court cannot intervene or instruct Parliament to enforce a specific provision. They emphasized that this is not a new version of the law; it's an entirely new law, and courts must consider the extent of their intervention.
What Happened in the High Court?
During the hearing, the petitioner argued that if a man is sexually assaulted by another man, there are no legal remedies. They noted that no FIRs can be filed.
The court responded, 'If there is no crime, the court cannot decide the punishment. It depends on whether they want to criminalize it or not.'
Following this, the court issued a notice seeking a response from the central government. The next hearing in this matter will be on August 28.
How Concerning is the Complete Abolition of Section 377?
In August last year, the central government presented the Indian Penal Code Bill in Parliament. It was then sent to a parliamentary committee for review.
The parliamentary committee also recommended including the provisions of Section 377 in the IPC, suggesting that non-consensual same-sex relations be criminalized. Section 377 criminalized unnatural sexual relations with not just men but also women, transgenders, and animals.
However, the government did not accept this recommendation. Now, without a law criminalizing unnatural sexual relations, such acts between men and women, not just same-sex relations, are also deemed illegal.
In September 2018, the Supreme Court struck down a portion of Section 377, decriminalizing consensual same-sex relations. However, it clarified that non-consensual sexual acts remain criminal offenses under Section 377.
Experts believe that the complete abolition of Section 377 has stripped men and transgender individuals of legal guarantees against sexual harassment.
Under Section 377, offenders faced a minimum of 10 years in prison, extendable to life imprisonment, along with fines.
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What Provisions Exist in the New Law?
The IPC lacks a provision like Section 377, but certain provisions still criminalize such acts.
Section 140(4) of the IPC states that if someone abducts a person with 'unnatural lustful intent,' they can be sentenced to 10 years in prison. However, this section applies only to cases of abduction.
Similarly, Section 38 excludes self-defense killings from criminal offenses. It states that if someone kills another in defense against 'unnatural lust,' it is not considered a crime. However, 'unnatural lust' is not explicitly defined.
These provisions also existed in the IPC, but implementing them comes with challenges, as abduction must be proven in such cases.
What Do the Statistics Say?
There are no official statistics on how many men in India are raped. However, some studies and research indicate that men also fall victim to rape, not just women.
A study published last year in an American science journal estimated that 27% of men and 32% of women have faced sexual harassment at some point in their lives. The study cited in the journal indicated that out of every 33 men, 1 is either raped or subjected to attempts at rape. Furthermore, 1 in every 5 men has experienced sexual violence.
The Center for Disease Control (CDC) in the United States conducted a study from 2010 to 2012, revealing that 1 in every 17 men is forced into sexual relations.
A report by the National Alliance to End Sexual Violence indicates that boys or men are victims in 14% of the rape cases reported. Additionally, 1 in every 6 boys and 1 in every 25 men is a victim of sexual assault. Most sex offenders against men are not gay.
The American science journal claimed that 90 to 95 percent of male sexual assault cases go unreported, mainly because men fear that police will not believe them and worry about their reputation.
