Even as the country is outraged by the rising instances of child rape, few spare a thought for trafficked people suffering prolonged brutal assault in forced prostitution, which is tantamount to rape-for-profit. Euphemistically label a rapist a “customer”, and neither the public nor law enforcement gives a thought for his victims.
Fourteen-year-old *Shabnam’s case attracts no outrage, though she was subjected to brutal sexual assault several times a day. Because she was raped for profit in a brothel, her rapists never faced arrest. The first of her rapists was a 50-year-old man, who inflicted brutal violence on her. Though she begged him to spare her, she was silenced on the pretext that he had paid for her. Whenever she protested loudly, alcohol was forced down her throat to make her more pliable. Long after her rescue, Shabnam continues to have nightmares of men assaulting her.
Her story is hardly an uncommon one. Sixteen-year-old *Dolly’s first rapist left her in a pool of blood. One of *Sheetal’s rapists wanted her to be tranquilised because “he was distracted” by the 20-year-old’s uncontrollable trembling and loud sobs.
Under Indian law, prostituted persons are much more likely to be prosecuted than their “customers”.
American legal scholar Catherine MacKinnon argues that the difference “between prostituted people and those who buy and sell them are that one is served, the other serves; one is bought, the other buys and sells them; one is stigmatised, the other retains respectability; one is a criminal, the others either are not, or the law against them is virtually never enforced. And the one is mostly women, the others overwhelmingly men.”
Prof Max Waltman, whose research includes ‘the politics of legal challenges to sexual exploitation’, traces this asymmetric application of law to cultural bias, which protects men who buy sex while penalising women and children, even those forced to sell themselves against their will ( Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law ).
Cultural bias aside, even when the police do attempt to hold these rapists to account, they often apply the wrong charges due to statutory ambiguity. As a result, the courts set these men free. A few weeks ago, the Karnataka High Court, despite noting that the “customer” encourages exploitation, released him because the police had applied erroneous charges. Indian law does not exempt men who pay to rape, but legislative ambiguity deters the police from prosecuting them.
However, despite the absence of legislative clarity, there have been proactive judicial measures. In S Naveen Kumar v State (2015), the Andhra Pradesh High Court rectified police error and ensured the rapist’s arrest under Section 370A, which criminalises anyone who has knowingly exploited a trafficked person. In Vinod Patel v State (2017), the Gujarat High Court upheld charges against “customers”. And again, in Raghunath Ramnath v State (2013), the Bombay High Court refused to set a rapist free, dismissing his argument that he did not know the age of the child he had assaulted.
Backing this judicial action is a measure of political will too. In 2017, Rajya Sabha MP Rajeev Chandrashekhar’s National Action Plan Against Commercial Sexual Exploitation called for the prosecution of “customers” as the best way to deter child trafficking. Similarly, a few months ago, Meerut’s Lok Sabha MP Rajendra Agarwal launched a Focused Task Unit to prosecute these men. Yet, these scattered judicial and political efforts cannot make up for the legislative vacuum.
Regrettably, the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill approved by the Cabinet early this year missed an opportunity to unequivocally penalise men who pay to rape trafficked people, thereby leaving the task to the discretion of police and judges instead.
Evidence shows that such a legislation would have a preventive impact and reduce demand. Prof Leslie Holmes, whose works include Human Trafficking and Corruption: Triple Victimization and Strategies Against Human Trafficking: The Role of the Security Sector , reports that penalisation of sex-buyers in Sweden has shrunk its market for trafficked people, as evidenced by criminal networks routing their operations to other countries. The harsher punishment for men who pay to rape children has led to a reduction in the number of minors trafficked into Sweden.
In India, on the other hand, CBI figures show that not only are there 12 lakh prostituted children in the country, another 1.5 lakh girls have been trafficked from Bangladesh.
There are child rights, women’s rights as well as security issues at stake when a country creates safe harbours for men who pay to rape. The failure to criminalise rape of trafficked people results in India becoming an attractive destination for criminal networks profiting from rape. The first and foremost step is to stop calling these men “customers” and start calling them “rapists”.
*Names changed to protect identity
Michelle Mendonca is a Delhi-based advocate and a graduate student at Oxford University