*“Personal is political” has long been a rallying point for the women’s movement, and never has it been as much applicable as in the realm of sexuality. From abortion rights to the use of contraception, women’s groups have campaigned for the right to control sexuality and bodily integrity. For women, the only legitimate expression of sexuality has been within heterosexual marriage, rigidly circumscribed by caste and community. Sex for pleasure has traditionally been taboo for women, who are expected to merely “submit” to the sexual act to satisfy their husbands and produce children, preferably a son. Of course, whores/ prostitutes/sex workers are at the other end of the scale, their entire existence constructed around sex. Patriarchal control of women’s sexuality is reinforced by laws, as well as biases of the judiciary, to bolster attempts to maintain the unit of family – however oppressive or violent it may be.
Section 377 and the government’s unwillingness to repeal it sums up the historical attitude of the Anglo-Saxon legal system toward non-procreative eroticism, usually going under the broad – if inaccurate – term “sodomy”. The Indian legal system has not only taken on this perspective, but has added on its own brand of prudishness. The psychological discomfort of repressed or moralistic individuals from centuries before created a jurisprudence consigning the enjoyment of non-procreative sex to the status of criminality. While Section 377 does not refer specifically to homosexuality, the outlawed “acts” can be construed as such, and male homosexuals have borne the brunt of this archaic law, often subjected to police harassment and extortion due to their sexual preference. If “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” can invite a maximum sentence of life imprisonment and fine, a large proportion of the adult population of the country could be behind bars and taking loans to pay fines for having “sex against the order of nature”.
Sex itself has been little-talked about in the land of the Kama Sutra, and a stony silence has surrounded non-procreative eroticism and sex for pleasure. However, already rattling the cupboard doors when the government family planning propaganda in the mass media had every child talking about the relative merits of Mala-D vs. Nirodh (even blown up as balloons by children!), the AIDS scare over the past decade or so has dragged sex truly out of the closet.
Sexuality is increasingly seen as fluid and as a range of behaviours and situations that go beyond inflexible binary categories of “heterosexual” or “homosexual”. Surveys on sexuality, published in popular magazines, reveal that Indians are not as “straight” as the government would like to believe. A whole range of sexual behaviour is prevalent: oral sex (both fellatio and cunnilingus), masturbation, mutual masturbation, inter-femoral intercourse and tribadism. Thus, although it is amply clear that sex-for-procreation between one man and woman in the missionary position is not universal, all other “unnatural acts”, since they are not “procreative”, would by definition be unlawful!
Although myths, taboos and stigma around sex persist, there is a perceptible opening up about issues of sexuality in general and women’s sexuality in particular. Yet there is a large gap between social reality and legislation and judicial attitudes. Section 377 is untenable since the Indian government itself no longer supports the assumption of sex-for-procreation, given that it invests large amounts annually, promoting measures of birth control and contraception for population control.
Moreover, medical technology existing since 1978 with the birth of the first test-tube baby has made claims to heterosexuality’s social or biological “necessity” invalid. Sexual activity is no longer essential for reproduction, and healthy sexuality is being recognized as desirable. The very notions of “gender” and “sex” are being challenged, with increasing acceptance of gender and sex as shifting categories – an understanding brought about by the growing visibility of transgendered persons. The law, to be ready for the morrow like the traveller, must recognize that fact.
SEX AMONG WOMEN
Originally, sodomy referred only to two sexual acts: anal intercourse between two men or a man and a woman, and sexual intercourse between a human being and an infrahuman animal of the opposite sex. Due to the ignorance of biology in the medieval times, it was thought possible that bestiality could lead to conceiving a half-human, half-beast offspring. Sodomy was condemned because the devil was thought to engage in such activity with witches. Thus, with the fear of supernatural forces overwhelming God’s good people, harshness was considered necessary self-defense.1
The appellation “crime against nature” was coined by English jurist William Blackstone (1723-80). Male-male sex came to the attention of the law before sex between women because of differences in sexual behavior. In general, males are more likely to engage in sexual activity in public or semi-public places than are females. Moreover, sex between women was viewed as an oxymoron. In a case from Scotland, dating to 1811, the House of Lords decided, regarding a charge of cunnilingus between two women, "the crime here alleged has no existence.” In the US, in 1913, the Missouri Supreme Court refused to permit a cunnilingus conviction to stand because the Court could not conceive of sexual activity without a penis and said that sexual intercourse could not be accomplished with the mouth.
In India, lesbians and bisexual women are organizing and demanding visibility and social recognition of their relationships, demanding an end to harassment and violence. Ironically, the current marginalisation in law is also seen by some to be advantageous, since female-female sex is not specifically criminalised. Section 377 has nevertheless been used to harass lesbian women and compel them into heterosexual marriages. More and more lesbian women’s suicides coming to light are evidence of the need for social recognition and decriminalisation of non-heterosexual sexuality.
Lesbian and bisexual women have had an uphill struggle not only vis-à-vis mainstream society, but also within the women’s movement itself. Their issues have been brought squarely on the agenda of the Indian women’s movement in recent times by LGBT groups, and women’s groups as well as democratic rights groups have been forced to confront prejudices and challenge premises earlier taken for granted. Alliances are being forged, and mutual dialogue has enabled a collective understanding to develop and the struggle to move forward.
THE ISSUE OF CONSENT
The women’s movement in India has engaged far more intensely with the violent aspects of sex. About 25 years ago began the campaign to amend laws relating to rape. We articulated the understanding that sexual violence exists because of power exercised by men over women within the patriarchal societal structures, which are further graded through caste, class and religious divisions. One of the common concerns for women’s groups has been the definition of the term rape itself. We have consistently asked for a wider definition of sexual assault, which would move away from the typical penile-vaginal penetration as the ultimate crime and violation. This broadening of the notion is being attempted in all cases of sexual assault – i.e. non-consensual penetration of the vagina, anus or mouth by the penis, finger or any other object. Assault here is defined in terms of lack of consent and violation of bodily integrity rather than on grounds of morality.
It is appropriate to mention here that the government is equally reluctant to make marital rape an offence, because it would interfere with the “sacred” relationship between husband and wife. The husband is assumed to have the right to have sex with his wife by virtue of the fact of marriage, and consent is assumed for all time. This obnoxious notion has been challenged time and again, with attempts to bring marital rape into the purview of the rape law. Yet, the law has no qualms about invading the privacy of consenting adults to engage in the sexual activity of their choice. Any law that appears to threaten the institution of the family and marriage faces an uphill struggle, and the solicited repeal of Section 377, challenging notions of morality, family and heterosexual marriage, particularly so.
One of the central arguments for retaining 377 is that it protects children from sexual assault. This is not sufficient justification to uphold an oppressive law that victimizes sexual minorities. Protection for children can and must be achieved through an amendment of laws on sexual assault. Again, while it is true that Section 377 has been used (very rarely, it may be noted) in cases of forced anal or oral sex between a man and woman, this is not sufficient justification for retention of this section. Reformulating the laws on sexual assault will enable forced sexual acts (of whatever description) to come under the purview of the law. The issue here is force and lack of consent, not nature of the sexual act. Merely because the state has long interfered with sexual activity between consenting adults, there is not sufficient constitutional justification for permitting it to continue doing so.
TESTIMONIAL: POLICE HARASSMENT
On 22nd April 2000 at Bangalore, 10 men were picked up in the same area and taken to the Vidhana Soudha police station, where they were verbally abused, some were badly beaten up, all their money taken, and their addresses taken down along with threats to inform families and embarrass them.
When the Joint Commissioner of Police Dr. Ajai Kumar Singh was asked what the police view was on the subject of gay rights, he said: “Homosexuality is an offence under Section 377 of the Indian Penal Code and it is the duty of the police to prevent any kind of offence from happening. If the cop on duty questions or prevents any form of crime, he is only doing his job. Where is the question of harassment or atrocity? These are not cases of human rights violation because these groups are not legally recognised. Let them repeal the IPC Act, which bans Homosexuality”.
About extortion, Mr. Hegde admitted that policemen are not all “Satya Harishchandras” and it was possible that some of them do extort money from homosexuals but the problem was that homosexuals do not come forward to lodge a complaint due to social stigma. As regards the nature of homosexuality, Mr. Hegde was quite clear that it was an animal-like behaviour.
* There are diverse positions on how Section 377 should be handled within the women’s movement itself and this is only one of them.
1. Painter, George: The Sensibilities of Our Forefathers - The History of Sodomy Laws in the United States. Source: http://www.sodomylaws.org