You are on page 1of 4

COMMENTARY

Violation of Bodily Integrity


The Delhi Rape Case among Others
Arvind Narrain

The substantive law in India which conceptualises rape as sexual intercourse without consent is limited in its understanding of what a sex act is and sees rape as a crime of non-consensual sex only. However sexual assault is as much a crime of violation of bodily integrity and causing of grave physical harm as it is about sex. Its victims could be male, female or transgenders.

We had fed the heart on fantasies, The hearts grown brutal from the fare, More substance in our enmities Than in our love; W B Yeats, The Stares Nest by My Window

Arvind Narrain (arvind@altlawforum.org) is a lawyer with the Alternative Law Forum.


Economic & Political Weekly EPW

he brutal sexual assault on the young woman in Delhi on 16 December 2012 shocked the nation primarily because of the escalating levels of violence with which it was accompanied. To all right-thinking people the question was as to whether it presaged the birth of a new world without any moral and ethical limits? On the other hand did it make sense to look for a history of this form of brutal gang rape and see this assault as not simply a sui generis incident but rather one which is located within a broader history of sexual violence? In short, does this form of brutal gang rape which includes the use of iron rods as an instrument of penetration have a history? In Sakshi vs Union of India, the Supreme Court had decreed that rape is limited to penile vaginal intercourse without consent.1 Rape remains yoked under the age-old understanding that it is nothing more than the violation of a

womans chastity. Other brutal forms of violation remain outside the purview of rape as dened in Section 375 of the Indian Penal Code (IPC). The limitations of this legislative denition are clear in the context of the Delhi sexual assault. The fact that iron rods were used as a horric instrument of penetration underlines with grave urgency the need to broaden the denition of sexual assault beyond merely the existing one. The judicial unwillingness pays little attention to history of sexual assault. If we go back to one of the early feminist classics by Susan Brownmiller (1975: 213), namely, Against Our Will:
As I discovered during my research into wartime rape, the ramming of a stick, a bottle or some other object into a womans vagina is a not uncommon coup de grace. Just how frequently this occurs statistically remains a mystery, for it has never been studied. Police department m o [material object] sheets in Los Angeles and Denver provide blanks to be checked off next to insert object in vagina. The Denver form lists inserts foreign object into rectum as well.

Sexual Violence as War Crimes These acts of brutality are often executed in situations of armed conict; sexual assault is woven into the very fabric of military conquests. Be it the Germans in France in 1914, the Cossacks in Poland or the Pakistanis in Bangladesh, the soldiers entering civilian areas systematically rounded up the women and then raped
17

March 16, 2013

vol xlvIiI no 11

COMMENTARY

them. The systematic nature was pronounced in what is till today referred to as the rape of Nanking where over 20,000 Chinese women were raped. In conicts as diverse as in Sri Lanka, Congo, Yugoslavia and Rwanda, rape and war have been symbiotically linked. In Brownmillers analysis, silence and secrecy have often shrouded the war crime of rape, with not many contemporary journalists even paying heed to this form of violation. In her understanding the rst time this silence around war and rape was comprehensively broken was the detailing of the acts of rape by Pakistani forces in Bangladesh. To take just one micro description of the way rape was done by gangs of soldiers in Bangladesh in 1971 as provided by Brownmiller (ibid: 79):
A stream of victims and eyewitnesses tell how truckloads of Pakistani soldiers and their hireling razakars swooped down on villages in the night, rounding up women by force. Some were raped on the spot. Others were carried off to military compounds.Weeping survivors of villages razed because they were suspected of siding with the Mukthi Bahini freedom ghters told of how wives were raped before the eyes of their bound husbands who were then put to death.

to the sex of the victim. Is it only women who are victims of rape which is understood as a systematic politics of humiliation and degradation or are men victims as well? The judgment in Prosecutor vs Du[ko tadi] a/k/a/Dule graphically describes how males were subjected to brutal sexual assault and violence. In a separate indictment issued in July 1995, in connection with atrocities committed in the town of Bosanki Samac, Serbian soldiers were charged with forcing two male prisoners to perform sexual acts upon each other in the presence of several other prisoners and guards (Franke 2002: 314). The same indictment also charges that
During the beating, the other Serb men who accompanied Milan SIMIC repeatedly pulled down the victims pants and threatened to cut off his penis (para 26). Milan SIMIC kicked Hasan Bicic, Muhamed Bicic, Perica Misic, and Ibrahim Salkic in their genitals (para 24).3

competitive excess, the issue is not sexual pleasure but sexual humiliation. The gang may come together for many reasons, sometimes it is bonding of racial superiority, at others the gang is formed for the sole purpose of acting out communal or caste hatred. In the so-called normal times the incident which most closely evokes the horrors of the Delhi gang rape was the vicious sexual assault of a black Haitian immigrant, Abner Louima by the New York Police Department. Louima was arrested by the NYPD and taken to the station house. As he put it:
My pants were down at my ankles, in full view of the other cops. They walked me over to the bathroom and closed the door. There were two cops. One said, You niggers have to learn to respect police ofcers. The other one said, if you yell or make any noise, I will kill you. Then one held me and the other one stuck the [wooden handle of a toilet] plunger up my behind. He pulled it out and shoved it in my mouth, broke my teeth and said, Thats yours s..t, n*****.5 What they said to me Ill never forget You n****** have to learn how to respect police ofcers.6

The silence on women as victims of brutal gang rape in international law was nally broken by the International Criminal Tribunal of Rwanda which in Akayasus case saw the acts of rape as constituting both genocide as well as a crime against humanity. What was important was the understanding of rape which was developed by the Court.
The Tribunal notes that while rape has been historically dened in national jurisdictions as non-consensual sexual intercourse, variations on the form of rape may include acts which involve the insertion of objects and/or the use of bodily orices not considered to be intrinsically sexual. An act such as that described by Witness KK in her testimony the Interahamwes thrusting a piece of wood into the sexual organs of a woman as she lay dying constitutes rape in the Tribunals view.2

There is a commonality to these forms of brutal sexual assault during wartime committed on both men and women. The assaults are not acts of sex alone but acts of power and humiliation. They involve what Susan Brownmiller described as gratuitous acts and extravagant delements committed on bodies which are both male and female. How does one go from these acts of war to what Kalpana Kannabiran (2005) described as the violence of normal times?4 In Brownmillers (1975: 205) analysis there is an analogy between the rape by men in groups and what is referred to as gang rape.
As we have seen in Bangladesh and Vietnam, men in war tend to rape in groups in which they are anonymous and secure and against the backdrop of an all male army to which they have a strong male allegiance. In domestic group rape, male bonding is similarly operative, whether the young men have loosely gotten together of an evening or whether their relationship has been previously formalised into a bona de gang. The act of group rape forges an alliance among men against the female victim who becomes, for their purposes Anonymous Woman.

In Akayasus case (ibid, para 597), rape is understood as a form of aggression and Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. The other silence which is decisively broken by the International Criminal Tribunal for Yugoslavia is with respect
18

Gang Rape To understand gang rape, one must take the group seriously as a space for a competitive masculinity with each member daring the other to outdo him. In this
March 16, 2013

The attack left the victim, Abner Louima, in critical condition with a punctured bladder, tears to his lower intestine and smashed teeth. Louima required surgery to repair a pierced lower intestine and a torn bladder.7 As in the Delhi rape incident, the vicious sexual assault against Louima was followed by the outpouring of public outrage when 7,000 marchers demonstrated and voiced their distaste of the NYPDs treatment of Louima at New York City Hall and at the 70th Precinct station house. The march was known as the day of outrage against police brutality and harassment.8 In India, gangs have often been motivated by a hatred based on religion or caste and pogroms on communal and caste lines have accounted for similar brutalities. The Gujarat pogroms in 2002 were an example. In the recent judgment by Gujarat sessions court judge, Jyotsna Yagnik on the massacre at Naroda Patiya, the extrajudicial confession by Suresh which is cited by the judge provides evidence of this mentality:
Rape was committed by 2-4 of them. About 2000 of Chhara went inside the Muslim
vol xlvIiI no 11
EPW Economic & Political Weekly

COMMENTARY
Chawl, some drunkard or hungry men might have committed rape. If fruits (saying for girls) were lying, the hungry would eat it. In any case, she (the Muslim girl) was to be burnt; hence somebody might have ate the fruit. 2 to 4 rapes or may be more, might have been committed. Who would not eat fruit ? In whatever number Muslims are killed, it is still less. I would not leave them. I have too much of rancor (malice) against them (Muslims). Even I had also raped one girl, who was daughter of a scrap man (one who is in business of scrap) named Nasimo, she was fat. I raped her on roof and then thrown her from there. I smashed her, cut her to pieces like achar (pickle) (Para 771).9

Similarly when it comes to the caste violence, the Khairlanji massacre which involved brutal sexual violence against members of the Bhotmange family provided similar evidence:
Four members of the households Surekha (44, the mother), Priyanka (18, daughter), Roshan and Sudhir (23, 21, sons, one of whom was blind) were dragged out of their household by a mob of about 40 people, which included women. They were beaten mercilessly, were stripped naked and paraded through the village streets to the main choupal of the village. As can be imagined, both the women were gang raped by all the men of the village. Brutality saw its height when the brothers were asked to do the same to their sister. The stunned boys refused to do this and as a punishment, their penises were cut off. Punishment for the women was insertion of bamboo rods into the private parts.10

on those who violate the normative understanding of what it means to be a man or a woman. Thus while women have been victims of sexual assault, recent documentation indicates that sexual assault is not limited to the category of those born as women. The transgender community in particular has been subject to brutal assault by goondas, policeman and other vigilante elements. The Peoples Union for Civil Liberties Karnataka (PUCL-K) in a recent report elaborated upon some egregious cases of sexual assault against transgenders.12 The PUCL-K report (ibid: 40) concludes that,
Sexual violence is a constant, pervasive theme in all these narratives. Along with subjection to physical violence such as beatings and threats of disgurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the very least and brutal violence as its most extreme manifestation. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feeling up their breasts, stripping them, and in some cases raping them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person. The police attitude seems to be that since kothis and hijras engage in sex work, they are not entitled to any rights of sexual citizenship.

While Jyotsna Yagnik was one of the few judges to take on board the issue of sexual assault, both the sessions court as well as the high court in the case of Khairlanji did not even invoke the provisions related to rape, or the provisions of the SC/ST Act thereby rendering the sexual violence on both male and female members of the Bhotmange family, invisible.11 Transgenders These brutal forms of sexual assault are thus linked to the humiliation and degradation of minority communities as well as dalit communities. There is however another axis on which the logic of sexual humiliation and sexual assault plays out. That is the axis of gender identity. It visits grave violence
Economic & Political Weekly EPW

When one refers to the transgender community and their experience of sexual violence it includes hijras, kothis, female to male transsexuals and male to female transsexuals. It includes a diversity of identities which fall on a continuum of gender with some having gone in for sex reassignment operations and hence considered to have transitioned to the opposite gender while others have no intention of doing so but perform the role of the opposite gender. What is common to this diverse range of transgender persons is that their gender identity is visible and the very visibility of their gender identity means that they become vulnerable to sexual assault. While this is an aspect of the reality of the daily interface of the transgender community with the law enforcement machinery these experiences have been
vol xlvIiI no 11

shrouded in silence. As the PUCL-K notes, Disturbing as these narratives are, they have yet to be picked up by mainstream human rights community in India. It is important that these narratives become part of our understanding of human suffering.13 The victims of sexual violence can be men, women as well as transgender persons. Victimhood depends upon a host of circumstances including the motivation of the perpetrator. If it is indeed to humiliate the victim on account of his or her membership in a particular community, the gender of the victim is irrelevant. Clearly such gratuitous acts and extravagant delements insertion of objects including toilet plungers, bamboo rods and most brutally iron rods, anal penetration, oral penetration, mutilation of sexual organs and stripping could be committed on male, female or transgender bodies. The substantive law which conceptualises rape as sexual intercourse without consent is limited by the concept of what a sex act is. The law sees rape as a crime of non-consensual sex only. However the documentation above shows that sexual assault is as much a crime of violation of bodily integrity and causing of grave physical harm as it is about sex. The mentality of the numerous perpetrators cited above is to see sexual assault within the continuum of violence. Just as there is enough evidence that the perpetrator is male, there is equally compelling evidence that the victim can be both male, female and transgender. As such any reform of the substantive law must include the range of acts mentioned above and must guarantee protection to all persons who

available at

K C Enterprises
3-6-136/6, Street No 17 Himayathnagar Hyderabad 500 029 Andhra Pradesh Ph: 66465549
19

March 16, 2013

COMMENTARY

could be victims of the offence regardless of gender.


Notes
1 The wide denition which the petitioner wants to be given to rape as dened in Section 375 IPC so that the same may become an offence punishable under Section 376 IPC has neither been considered nor accepted by any court in India so far, http://www.indiankanoon.org/ doc/11 03956/ 2 Prosecutor vs Akayesu, Case No ICTR-96-4, Judgment (2 September 1998) at para 686. http://www1.umn.edu/humanrts/instree/ ICTR/AKAYESU_ICTR-96-4/Judgment_ICTR96-4-T.html accessed on 14 January 2013. 3 Prosecutor of the Tribunal vs Blagoje Simic and Others, http://sim.law.uu.nl/sim/caselaw/tribunalen.nsf/eea9364f4188dcc0c12571b500379

4 5 6

8 9

10

d39/385630a682897645c12571fe004d3161?Op enDocument , accessed on 12 January 2012. See Kalpana Kannabiran, ed., The Violence of Normal Times, Women Unlimited, 2005. Katherine Franke, Putting Sex to Work, op cit, p 302. http://www.nydailynews.com/news/crime/ victim-city-deeply-scarred-article-1.235522, accessed on 12 January 2013. http://www.nydailynews.com/news/crime/mikemcalary-1997-pulitzer-prize-winning-abnerlouima-columns-article-1.238109, accessed on 12 January 2013. http://newsone.com/2029939/abner-louimacase/, accessed on 15 January 2013. State of Gujarat vs Naresh Agarinh Chara and Others, Session Court judgment in case 235 of 2009 along with others. http://www.sabrang.com/kherlanji/reports.pdf, accessed on 12 January 2013.

11 http://articles.timesondia.indiatimes.com/ 2010-08-01/all-that-matters/28309828_1_surekha-bhotmange-khairlanji-sudhir-and-roshan, accessed on 12 January 2013. 12 Peoples Union for Civil Liberties Karnataka, Human Rights Violations Against the Transgender Community, 2003, pp 29, 37 and 40, http:// ai.eecs.umich.edu/people/conway/TS/PUCL/ PUCL%20Report.html, accessed on 27 April 2010. 13 Ibid.

References
Brownmiller, Susan (1975): Against Our Will, Bantam, New York. Franke, Katherine (2002): Putting Sex to Work, cf Wendy Brown and Janet Haley, Left Legalism/ Left Critique, Duke University Press, p 314. Kannabiran, Kalpana, ed. (2005): The Violence of Normal Times, Women Unlimited.

20

March 16, 2013

vol xlvIiI no 11

EPW

Economic & Political Weekly

You might also like