A CASE FOR GENDER-NEUTRALITY: What happens in War, Caste and Prison Crimes?

The author  of this blog is Ms. Prerna Mayeya a third-year law student pursuing B.COM. LL.B (Hons.) from Institute of Law, Nirma University, Ahmedabad.

Rape has been used to spread terror and domination in wars, caste, and community conflicts. It has been a concern both of theoretical debates and ground-level intervention. A person has many identities. Apart from being a male, female or transgender, they also preach certain religions and a certain community for the cast. In a normal situation, i.e. in a situation of peace, gender is the identity based on which victim and perpetrator are determined. But in cases of war and conflicts, the gender of the person takes a secondary role and the religion or community becomes the dominant identity.^[1]    

As Arvind Narrain quotes it, “victimhood depends upon a host of circumstances including the motivation of the perpetrator. If it is indeed to humiliate the victim on account of his or her membership in a particular community, the gender of the victim is irrelevant.”^[2] In the case of armed conflicts, rape becomes a mark of victory. In ethnic wars, it becomes an act of assertion of power.

War Crimes

In some societies, the victorious soldiers were given a right to rape the defeated enemy. The act demonstrated a total control over the defeated soldier. It was believed that a man who has carnal intercourse loses his manhood and is thus incapable of becoming a ruler or soldier. Gang rape of men was awarded as a punishment for crimes like adultery in Rome and violating the sanctity of Harems in Persia and Iran.^[3] It is a global and dreadful problem. 

Lara Temple has reflected upon the sexual violence inflicted upon males during the war in countries such as Chile, Greece, Croatia, Iran, Kuwait, the former Soviet Union, and the former Yugoslavia, from the international human rights view.^[4] She also reported that warriors and soldiers had reported about the sexual abuse during the war at the torture treatment centers. The problem can, therefore, be essentially seen as global. British journalist Will Storr traveled to Congo and met a refugee who was raped three times a day, every day, for 3 years.^[5]

In the case of Prosecutor v. Dule, the International Criminal Tribunal of Yugoslavia recognized that men are victims of rape in wartime situations^[6] However, even after judicial cognizance, such matters are not redressed. The males are silenced under the fear of social stigma. 

Caste and Community Conflicts

The Khairlanji massacre in Maharashtra brings forward the situation of ferocious sexual violence against the Homage family members. The incident included 4 members of a family being dragged out and by a lob, which included women. They were then beaten inhumanly and were made to parade through the village stripped naked. The penises of the 2 boys in the family were mutilated when they refused to rape their sisters. This is a sheer act of sexual harassment and injury to the bodily integrity of both males and females.^[7] Not only have men been on the receiving end of abuse, but also the women have been the perpetrators of sexual harassment in cases of community conflicts. In 2002, women had been accomplices to serious crimes committed against the Muslim community in the Gujarat riots and Godhara incident.  

Crime in Prisons

It is found that in the majority of the cases of jail suicide, the reason behind is the rape between the same sexes done by the inmates of the jail; and this kind of act in jail was highlighted after the suicide of the accused Mr. Ram Singh, of the Delhi gang-rape case at Tihar Jail.^[8] A study was conducted to find out the reason behind the suicides during the tenure of Chief Justice of India, Justice K.G Balakrishnan and he studied the suicide cases from 2007 to 2011. He noted same-sex rape to be one of the prime reasons behind the suicides committed in jails. The average jail suicide rate of 16.9% was 1.5 times higher than the figure of 11 in the general public^.[9] The inmates interviewed that they had been raped and coerced for sexual favors. 

In a study conducted on Arthur Road jail in Mumbai, 72% of the total inmates admitted that sex between men is common. 11% said they have had sex with other men.^[10] A the report highlighted the problems of under trial prisoners in India, which mentioned the homosexual gang rapes in Indian prisons. It also highlighted the problem from the spread of HIV Aids and other infections. The traumatic experience leads them to commit suicide. In an interview with People’s Union of Civil Liberties, it was mentioned that new male inmates in jail are bided upon and traded for commodities like cigarettes, cannabis, and even soap. They noted that the trend has been prevalent all around the world. This has been used as a mechanism to create a dominant prison identity for establishing power. This experience of sexual assault for trading and satisfying sexual lust leaves the inmates traumatized which leads to life-long psychological illnesses and suicides.^[11]

Conclusion

The existence of male and transgender rape cannot be denied in the country. The law covering sexual abuse of children is a good example to display the fact that sexual offenses can be perpetrated against boys too. It is about time that such legal protection should be extended to the adult sphere as well. The purpose of gender neutrality as discussed here is not to desexualize rape, but rather to develop an understanding of the offense beyond a male-on-female paradigm. 

It can be concluded that gender identity is suppressed in cases of caste, community conflicts, and wars, and the caste, religion, and race becomes a dominant identity. It must be recognized that homosexual rape is a norm in Indian prisons and justice must be meted out to these people. Proper monitoring both physically and electronically should be done in jail. The under-trial prisoners must be kept separately from convicted prisoners. It should also be ensured that physiologically distressed people are cared for more, provided counseling at regular intervals, and receive adequate support from family. The people involved in the creation of an environment that forces others to commit suicide due to mental stress and trauma should be charged under Section 107 of IPC r/w 306 of IPC for abetment of suicide.

[1] Arvind Narrain, “The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a Gender Neutral Offence” 47  Economic and Political Weekly (2012).

[2] Arvind Narrain, “Violation of Bodily Integrity: The Delhi Rape Case Among Others”, 48 Economic and Political Weekly 17 (2013).

[3] Meghna, “Statistics, True Incidents, and Legal Insight”, Legal Drift, Available at:

http://www.legaldrift.com/male-rapes-some-myths-statistics-true-incidents-and-legal-insight/.

[4] Emily Rauhala, “Rape as a weapon of war: Men suffer, Too”, TIME, Available at https://world.time.com/2011/08/03/rape-as-a-weapon-of-war-men-suffer-too/.

[5] Will Storr, “The Rape of Men: the darkest secret of war”, The Observer, Available at https://www.theguardian.com/society/2011/jul/17/the-rape-of-men.

[6] Supra note 2.

[7] Khairlanji Massacre: A collection of reports, Available at https://www.sabrang.com/kherlanji/reports.pdf.

[8] Imran Ahmed Siddiqui, “Sodomy behind jail suicides”, The Telegraph, Available at https://www.telegraphindia.com/india/sodomy-behind-jail-suicides/cid/1511773#.VuffIkComSp.

[9] Ibid.

[10] Pyali Chatterjee, “A Critical Study to find out the causes of suicide behind bars and remedy”, 3 Law Mantra 4 (2016).

[11] G Pramod Kumar, “Ram Singh's death: Rape and ugly sexual violence in Indian jails”, Firstpost, Available at https://www.firstpost.com/india/ram-singhs-death-rape-and-ugly-sexual-violence-in-indian-jails-657071.html.