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RAPE: The Silent Victim

RAPE! You might have heard this word several times in your lifetime & have you ever wondered why only females are being connected with rape & only they are thought to be the victims every single time. Have you ever wondered why don't we talk about an important section of our society who face more discrimination against any other section of the society? Yes, you are thinking in the right direction I am talking about the LGBTQA+ community of our society.

Oh, sorry some members of this so-called SOCIETY don't even consider LGBTQA+ community to be a part of this society we live in. Is that because people belonging to LGBTQA+ are not humans or is it because not even a single crime is being committed against them? CRIME  the standard definition says  "ANY ACT OR OMISSION PUNISHABLE BY LAW IS A CRIME".

Whenever we hear of this word CRIME the first thing that comes to our minds is any act which is against societal norms so is this the reason people from LGBTQA+ are seen as criminals because according to the so-called SOCIETY we live in its not less than a crime if you belong to this category. I know you might be thinking that now people have started recognizing them and you are correct to some extend but does that mean every single individual living in the society has recognized them the answer is a big NO.

Just to get a very basic idea about the LGBTQA+ community these are basically the Lesbian(L) [females getting sexually attracted towards other females]; the Gay (G) [males getting sexually attracted towards other males]; the Bisexuals (B) [the people getting attracted towards both males & females]; the Transgenders (T) [these are neither classified as male nor as a female, as they have got a different sexual structure]; the Queer (Q) [an umbrella term for people who are not heterosexual or cisgender]; the Asexual (A) [those who don't get attracted towards any other person].

Lesbians & Gays are generally known as homosexuals. Now as we are clear with which group of people exactly forms LGBTQA+ community, we can now discuss about the crimes being committed against them. I would be referring the LGBTQA+ as THEM (hereinafter). Before jumping to the crimes being committed against them it is important to know that they are not born different its just that during their teenage or when they turn out to be an adult they start exploring and it is at that time when they realize that they get attracted towards the same sex or towards both the sex or towards none.

As the society recognizes them to be different from heterosexuals so is it like that no crime is being committed against them and the rapist leave them just because they are different from others, if you think in this way then I'm very sorry to say that you are damn so wrong. The criminals never see who is in front of them while committing the crime. Everyone of us is aware of the fact that heinous crimes like RAPE is being committed from a child of around 2 months to an old lady of around 90 years of age. So how can one say that the people from this community are left untouched from such a heinous crime.

The definition of RAPE provided in IPC (Indian Penal Code) under Section 375 which states, "A man is said to commit "rape" if he:
  1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Under the circumstances falling under any of the following seven descriptions:
  1. First. Against her will.
  2. Secondly. Without her consent.
  3. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
  4. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  5. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. Sixthly. With or without her consent, when she is under eighteen years of age.
  7. Seventhly. When she is unable to communicate consent.

Explanation 1. For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.A medical procedure or intervention shall not constitute rape.

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape".[i]

After looking at the definition I felt that the law is a bit biased in a sense that it presumes that the crime like rape can only be committed against woman not against any other gender. Is it because only the crime can be committed against woman the answer is NO.

We know that CONSENT plays a very vital role while having sexual intercourse what if Man doesn't give the CONSENT or withdraws the CONSENT while having sex with his partner why doesn't the law takes this scenario into consideration, why is the law silent for any other gender other than female, what about the transgenders is it they don't indulge into sexual intercourse with anyone or is it just because the society don't recognize them capable enough to indulge in such practice.

RAPE is a crime which can be committed against any gender. If one thinks that the crimes like RAPE or any other Sexual Offences can't be committed against transgenders than - According to a survey of nearly 5,000 transgender people by the National AIDS Control Organization in 2014-15, one fifth said they had experienced sexual violence in the past 12 months.[ii]

This report showed us a picture back then that the sexual offences are being committed but these cases go unreported because they fear that if they come out in front of the society than they might be misjudged they would themselves be targeted as the offenders & not as the victims. Let's take a hypothetical situation which might even be a true-life situation of someone for instance lets assume that there is a lesbian & she forcefully got married and without her VALID CONSENT her husband had the sexual intercourse then would this not amount to rape?

Yes, this would too be considered as a RAPE, now-a-days we often hear about MARITAL RAPE should be criminalized & thus it would too be considered as a RAPE because RAPE IS RAPE irrespective of the fact whoever commits it or with whomsoever it is committed. In the case of "National Legal Services Authority Vs Union Of India & Ors." it was highlighted that several sexual offences are being committed against the transgenders include that of sexual assault & rape, thus there is a need of law which protects the transgenders from being the victim of such heinous crime.

One point that is to be focused on is that if a Law is passed that doesn't ensure the safety to ensure one's safety it is to be implemented effectively & is to be followed by each and everyone in the society.

Another case of "Navtej Singh Johar & Ors Vs Uoi & Ors", here the right to sexuality, right to sexual autonomy & right to choose one's sexual partner falls under ARTICLE 21 (Right to life)[iii] & further to declare Section 377 of IPC to be Unconstitutional.[iv] The main highlight of the case was discrimination faced by the LGBTQA+ community people. Along with Sec 375 of IPC, Sec 377 of IPC was also discussed which states:

Section 377. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

This section was gender-neutral but here "against the order of nature" what does this implies is it that people belonging to the community indulging in sexual activity is against the order of nature does that mean being a homosexual is against the law of nature is it unnatural because what I can interpret from the definition is this only also the interpretation of different people varies from person to person so no one can say who is right or who is wrong.

And that is the reason our HON'BLE SC declared Sec 377 of IPC to be unconstitutional. That means again we don't have any gender-neutral law for the sexual offences committed against the LGBTQA+ community as a whole.

Every one of us knows that several rape cases go unreported due to social factors or due to societal factors like that of LKK i.e. LOG KYA KAHENGE, this sentence makes a lot of difference in our lives. If cases in which victim is a woman can go unreported then why can't we say that where the victim is a man or transgender can't get unreported. Does that mean if the case is not reported than such crimes don't happen? The answer is no that's not the case its just the factor of LKK.

In a society where the transgender doesn't have a proper representation and are yet not treated equally let it be in politics, medical, law or any other field, how can one expect that they would go ahead to report the crimes against them and even if they report such cases then what is the guarantee that they won't be misjudged or would not be seen as the offender themselves instead of victim & the case would be registered and they would be represented in the court of law, they won't be humiliated on the basis of their sexual orientation is there any guarantee.

Even while making a bill for transgender i.e. Transgender Persons (Protection Of Rights) Bill, 2014 the committee drafting the bill didn't had a proper representation of Transgender for whom the bill was being drafted, then how can one say that all the issues faced by them were taken into consideration?

Then does that mean the bill was just drafted for the namesake. If we want that every individual in the society to get a proper representation then it is very important that they get the representation in politics first so that they are decide what is good & bad for them. Having the fair representation from the community would ensure the safety of them as they would decide what is right & wrong for them they would be able to make laws for themselves. There is a need for gender neutral laws in the country like INDIA where people share different beliefs & customs.

A society can never be crime free but the rate of crime can be decreased by effective implementation of laws & if the people can stop misjudging the community, it would lead to a welfare state. Everyone has the right to life under ARTICLE 21 which is a fundamental right, here everyone is gender neutral, if the fundamental rights can be gender neutral why can't we have gender neutral laws for the offences?

  3. Article 21 of Indian Constitution
  4. Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 - SC) : MANU/SC/0947/2018

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