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Thoothukudi custodial deaths: A dangerous blind spot

Kaamya Sharma; Arvind Srinivasan | Updated on July 10, 2020 Published on July 09, 2020

Mass outrage: Protests raged across Tamil Nadu after the custodial deaths of Jayaraj and Bennix Sathankulam, Thoothukudi   -  B JOTHI RAMALINGAM

The brutal sexual assault that preceded the recent custodial deaths of Jayaraj and Bennix in once again reminds us that India’s rape laws fail to protect victims who are not women

* Media coverage commendably highlighted the police brutality while remaining vague on the point of sexual assault

* Sexual assault of men is covered under the highly problematic Section 377 of the Indian Penal Code

The preamble of the Indian Constitution promises “to secure to all its citizens justice”. On June 19, police officers in Thoothukudi, Tamil Nadu, tortured and sexually brutalised Jayaraj and Bennix after they were taken into custody for allegedly keeping their shop open beyond permitted hours. The two men succumbed to injuries days later.

Media coverage of the case has commendably highlighted the police brutality while remaining vague on the point of sexual assault. This despite news reports detailing how batons were inserted into their rectums, causing so much bleeding that their lungis had to be changed six times. The sexual mutilation was so severe that the post-mortem report said there was nothing left of the front and rear. While some activists and advocacy groups on social media have categorised the incident as sexual assault and gang rape, the mainstream media has stuck to descriptions such as ‘brutalised’ or ‘tortured’.

The media is not solely to blame for this discrepancy because journalists take their cues from the way laws are framed. Indian law does not consider this incident a case of sexual assault or rape because rape is legally defined as being committed by a man on a woman. For lack of any other protection, the sexual assault of men is covered under the highly problematic Section 377 of the Indian Penal Code, which does not provide safeguards or require the same evidentiary standards, such as the victim’s testimony being sufficient to establish lack of consent. Similarly, statutory protections against rape in custody are extended only to women and children, and not others. This despite ready evidence that rape under police custody is routine not only in India, but across the world.

While female victims of sexual assault face immense stigma, male victims of sexual assault suffer from emasculation as well as other forms of stigma in our deeply patriarchal society. The rape laws in India rightly prohibit disclosure of the identity of the women, a recourse which remains unavailable to male victims. After all, if we refuse to even name the crime, how can we apply suitable measures of protection or encourage victims to come forward and report?

The consequences of rape laws that are not gender-neutral are borne disproportionately by our most vulnerable populations, especially the transgender community in India. The Transgender Persons (Protection of Rights) Act 2019 treats the sexual assault of transpeople as a petty offence punishable with as little as six months in prison compared to the punishment under the rape laws — a minimum of seven years’ imprisonment. Statistics show that nearly half the trans population in India has suffered sexual assault at one point or another. It is shameful that they have little legal recourse because our laws define rape so narrowly in terms of gender.

While some advocate remedying this by the inclusion of transgender persons in our existing rape law, this is short-sighted for we do not know who may yet emerge in the future as most vulnerable to sexual assault in our country. Moreover, this ignores the complexity of power structures in India and fails to protect particularly vulnerable groups such as queer, Dalit and tribal men and members of religious minorities. For instance, the victims in Thoothukudi belonged to a backward caste, religious minority community. A better law would guarantee these protections to all of a country’s citizens, regardless of gender.

Gender-neutral rape laws are not a radical idea. Two decades ago, the 172nd Report of the Law Commission of India, after extensive deliberation, made two recommendations: Making rape laws gender-neutral and scrapping Section 377. Based on these recommendations, gender-neutral rape laws were mooted in the Criminal Law (Amendment) Bill, 2012, and Criminal Law (Amendment) Ordinance, 2013. This was vetoed by a few women’s rights groups for various reasons, all centring on the notion that gender-neutral rape laws would be detrimental to women’s rights, despite no evidence to support this claim. Extending the right to legal recourse for sexual assault to everyone in our society will not diminish its efficacy in protecting women.

In 2007, the ministry of women and child welfare conducted a study to assess the extent and nature of child sexual abuse in India. The study uncovered that boys were more likely to be sexually abused than girls. To expect that boys, on turning 18, would suddenly become invulnerable to sexual abuse is ludicrous.

The tragic fallout of the Thoothukudi police custody case is that the police officers in question cannot be prosecuted for rape even in the face of overwhelming evidence, which is not the case in most liberal democracies. While it is an important reminder that we need strong legal safeguards against police brutality, we must also remember that it is yet another example of the failure of our law to recognise and protect victims of sexual assault who are not women.

Kaamya Sharma is assistant professor of cultural studies at IIT Jodhpur; Arvind Srinivasan is an engineer-entrepreneur and works in Chennai and Jodhpur

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Published on July 09, 2020
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