Rape, sodomy equal before law?

Dhananjay Mahapatra / TNN / Dec 24, 2006, 23:11 IST

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A significant judgment from a Delhi court on Section 377 of IPC has branded rape and sodomy as similar offences.

NEW DELHI: At a time when Jessica Lall was getting justice and Manu Sharma and his associates were getting convicted, a significant judgment from the trial court on Section 377 of Indian Penal Code went unnoticed.
It branded rape and sodomy as similar offences. "There is no reason why the instances of sexual assault on a male child should be treated differently from a similar act committed on a female child," said Delhi's additional chief metropolitan magistrate (ACMM) Kamini Lau, while sentencing the offender to seven years imprisonment.
The verdict, though from a trial court, has thrown up important questions for the Delhi High Court, which at present is examining a PIL challenging the validity of Section 377 of IPC, which punishes voluntary carnal intercourse terming it as against the order of nature.

If gay activists are seeking repeal of Section 377 citing its misuse by police to harass them, the trial court showed the flip side of the argument by bringing up the question: Under what provisions would those sexually abusing children, with or without their consent, be punished?

The ACMM went beyond the scope of Section 377, which makes voluntary carnal intercourse a punishable offence. Realising that it is futile to examine whether a child consented to such an act, she rightly equated the offence with that of rape.
Justifying the sentence against the offender, she said: "This court is aware of its obligation to impose a punishment so as to respond to the society's cry against such criminals who have committed dehumanising acts of unlawful intrusion of the right to privacy and violated the sanctity of a child."

In a similar case, the Supreme Court had last month come down heavily on Kerala High Court for acquitting a person convicted under Section 377 by the trial court for having forcible anal sex with a girl.
The high court had said that there was no corroborative evidence to sustain the statement of the victim.
The SC had rightly accept the logic provided by the HC. It had said: "The evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding."
As far as reported cases go, seldom have the police resorted to Section 377 to book gay activists. It could be true that police have intruded the privacy of gay couples and threatened them with action under this provision.
But in a majority of the instances, cases are slapped under this section against those caught sexually abusing children.
What the additional chief metropolitan magistrate did was to highlight the anomaly that could creep in if Section 377 is done away with completely.
May be, the word 'voluntarily' figuring in Section 377 could be substituted with 'forcibly' to let gay activists legally keep their preferences, but not those sexually abusing children.
The other way out is to change the definition of 'rape' to include sexual abuse of male children within its purview.
Without either of them being put in place, it would be unwise to repeal Section 377 lock, stock and barrel.

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