Societies generally go through a series of seismic cultural changes that force individuals to come to terms with their regressive attitudes and biases. One of these changes has been the gradual positive shift in acceptance for the LGBTQIA+ community. On the other hand, India has been frustratingly slow in being inclusive and progressive when it comes to LGBTQIA+ individuals’ rights. For instance, it took almost 157 years to finally decriminalise anal sex provided under S. 377 of the IPC. The judgement of the Navtej Singh Johar case starkly divided people. Where public opinion in India’s metropolitan areas was in favour of the judgment, religious organisations and the rural populace remained firmly against the same. A sizeable population, therefore, sees homosexuality as an evil to society. There is institutionalised hatred towards this community which can come out in many forms. Instances of physical assault and other different types of violence against members of the LGBTQIA+ community is fairly common. Not to mention other ways in which members of this community continue to face social exclusion. Recently, however, there has been a concerning rise in instances of corrective rape in India.
Corrective rape or curative rape is the practice of forced sexual intercourse with an individual due to their perceived sexual orientation or gender identity. Generally, such a hate crime intends to convert the person’s sexual orientation to enforce heterosexuality or conformity to heteronormative gender stereotypes. The crime was first identified in South Africa. It was generally committed on lesbian women, mostly aided and abetted by members of their family or local community. This crime is not just restricted to South Africa and is perpetrated upon LGBTQIA+ individuals in several countries. In India, too, corrective rape is a reality that many people face. S. 375, read with S. 376 of the IPC, deal with rape. S. 375 defines different types of forced sexual intercourse by a man with a woman, while S. 376 states the punishment for rape, i.e. rigorous imprisonment, which shall not be less than ten years, but may extend to imprisonment for life. However, the act of ‘corrective rape’ is not separately defined in Indian criminal law.
Apart from being a forced sexual act, corrective rape also has different psycho-social dimensions. Corrective rape stems from the perverse notion that heterosexual impulses can be brought about, or homosexual ones can be blunted in LGBTQIA+ individuals through sexual intercourse. Female victims are told that they are being shown “what they are missing”. In contrast, male victims have related gang rape accounts where the objective is to make the experience so violent and frightening that the victim fears potential homosexual experiences afterwards.
There is another reason behind corrective rape, which seems to be that non-heterosexuality is a kind of conditioning based on one’s environment, which needs ‘fixing’. There is an outright rejection of the scientific community’s conclusions that sexual orientation flows from genetics and intrinsic biological processes rather than external environment. There is ample evidence to support that homosexuality is not a product of one’s environment. Corrective rape against lesbians, for instance, is not solely inflicted because of their perceived lack of conformity with heterosexuality but also has to do with the way we see the stark differences in representations of gender in our society. A homosexual individual is not only perceived as a deviant in relation to sexual orientation but is also seen to be deviating from the conformity to gender binary stereotypes in our society. Gay men could be perceived as more effeminate than other men. Similarly, lesbian women may be perceived as displaying more masculine character traits than their heterosexual counterparts. These illusory and subjective representations of gender that are internalised in our society, are responsible for the violence meted out to members of the LGBTQIA+ community in the form of curative or corrective rape. It seeks to submit its victims to act according to orthodox gender binary perceptions while also attempting to convert them to heterosexuality.
Corrective rape is a twisted form of conversion and submission. The Courts have taken a firm stand against conversion therapy of individuals based on their sexual orientation. The Madras High Court in S. Sushma v. Commissioner of Police, ordered a complete ban on conversion therapy and any attempts to medically cure or change the sexual orientation of LGBTQIA+ individuals to heterosexual or the gender identity of transgender people to cisgender. This was done to protect the Right to Life, Dignity, Privacy, and Freedom of Choice guaranteed by the Indian Constitution. In addition, the Court suggested that standards be implemented to provide for a framework to protect LGBTQIA+ individuals’ privacy and constitutional rights. In the case of NALSA v. The Union of India, the Supreme Court discussed the Yogyakarta Principles of the United Nations. It ultimately said that it should be a part of Indian law. Conversion therapy would then amount to a violation of Principles 17 and 18 of the Yogyakarta Principles, which state that everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility based on sexual orientation or gender identity.
Rape in itself is one of the most reprehensible and destructive acts known to us. Its implications and effects can be disastrous for its victims. Victims go through intense physical and mental trauma that can hamper their perception of themselves and their self-worth. S. 375, by definition, is narrow as it concludes that only men can commit rape. The Section also contends that only women can be victims of rape. This draconian and heteronormative definition of rape does not take into account the fact that a perpetrator of rape has no fixed sex or gender identity. Similarly, transgender and gender-fluid individuals can also be victims of rape. This definition of rape is another colonial relic that needs to be struck down to give way to our changing societal dynamics.
Since corrective rape occurs mainly to individuals not conforming to gender binary norms or heteronormative sexual orientations, an expansive and inclusive definition of rape under our criminal law could be a focal point for larger recognition that an evil like corrective rape exists. A legislative amendment to this Section that removes the words’ man’ and ‘woman’, thereby including every sex or gender, will be the first step to addressing the problem of corrective rape. Apart from this, when interpreting S. 376 of the IPC, Courts could be more stringent regarding punishment for instances of corrective rape. Justice Dipak Mishra, in the landmark Nirbhaya judgment, said, “Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime.”
A society always instinctively fears the unknown. That fear often turns to resentment and hatred, and in this case, the fear is directed at a community of individuals who are perceived to be deviants from the natural order. Corrective rape is the most sadistic and complete form of that fear. The most malformed and stunted pathologies give way to acts like corrective rape, and our society should not reward those pathologies. Instead of reaching out and being receptive to the needs of LGBTQIA+ individuals, our society often rebukes them or isolates them. And at its worst, our society treats them as lesser humans. What any marginalised community needs is a sensitive and understanding eye. There needs to be recognition and integration. Non-conformity to heteronormative gender perceptions and sexual orientations should not be considered as being different from the natural state of being. Inclusivity and acceptance is the only logical way forward for every society. We know that hate crime is not a product of the 21st century, but if we are willing enough, it can indeed be a relic of the 21st century.
The author is a 5th Year law student at Amity Law School, Delhi, affiliated with Guru Gobind Singh Indraprastha University.