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Cat, Photoblogger ([info]cat_mcdougall) wrote in [info]unfunnybusiness,
@ 2009-07-02 05:29:00


Previous Entry  Add to memories!  Tell a Friend!  Next Entry
Current mood:Candy-Coated

Well done India!
India decriminalises consensual homosexual sex

It may not seem like much, but to me, it seems like a pretty big step in the right direction.

Dear Some US States:

This is how it starts. Please take note.

NEW DELHI, India (CNN) -- An Indian court on Thursday ruled that consensual sex between adults of the same gender is legal in the country, attorneys said.

Any homosexual act without the consent of either partner remains a criminal offense, however, Indira Jaisingh, counsel for the nonprofit Naz Foundation which had challenged the law, told CNN.

The ruling means the law -- Indian penal code section 377, which had criminalized consensual homosexual acts between adults -- has been partly struck down but remains in place as far as forced homosexual acts are concerned.

Government prosecutors did not immediately oppose the judgment, Jaisingh said, but they have that option.

India's Ministry of Home Affairs opposed changes to the law on grounds that decriminalizing homosexual conduct would "open the floodgates of delinquent behavior."

Human Rights Watch called the ruling "a victory for basic rights to privacy, non-discrimination and liberty."

It was not immediately clear whether the ruling would eventually lead to legalization of gay marriages in the country.

"This, I think, will be the next level of demand from the gay community," Jaisingh said.

Jaisingh said she has fought for the legalization of homosexuality for seven years on behalf of the Naz Foundation. The group says its "primary aim is to improve the sexual health and human rights of marginalized males who have sex with males, their partners and families in South Asia and elsewhere."
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The court decision was issued amid plans for federal discussion of Section 377, which has sparked a religious outcry in conservative India.

Christian, Hindu, Muslim and Sikh leaders have warned they will oppose moves to decriminalize homosexuality.



(Post a new comment)


tree
2009-07-02 11:25 am UTC (link)

Christian, Hindu, Muslim and Sikh leaders have warned they will oppose moves to decriminalize homosexuality.


D:

(Reply to this)(Thread)


[info]red_squared
2009-07-02 11:49 am UTC (link)
Doesn't it warm your heart that something can unite these religions?

(Reply to this)(Parent)(Thread)


tree
2009-07-02 12:37 pm UTC (link)
Pretty much this.

Ecumenism: you've got it wrong.

(Reply to this)(Parent)(Thread)


[info]vorpal_blade
2009-07-02 02:47 pm UTC (link)
Ecumenism only refers to cooperation within Christian sects. The phrase you're looking for here is 'interfaith cooperation'.

But, yeah, so much wrong with this kind of religious agreement. There are also pro-gay groups inside each of those larger groups, though, and hopefully they'll get together to support each other and speak out.

(Reply to this)(Parent)(Thread)


tree
2009-07-02 03:01 pm UTC (link)
Thanks for the correction! I had a lot of Christianity in Uni but later on it was mostly written over with a good dose of Father Ted.

(Reply to this)(Parent)


[info]lady_ganesh
2009-07-02 02:15 pm UTC (link)
What I wouldn't give to be surprised, really.

(Reply to this)(Parent)(Thread)


tree
2009-07-02 02:41 pm UTC (link)
I keep thinking that I ought to become immune to this by now, but every time it gives me a punch in the gut. Hope springs eternal I guess, which is how it can be quashed over and over again.

(Reply to this)(Parent)


[info]ajatshatru
2009-07-03 01:10 am UTC (link)
Those would be the nutcake wackpot fundoo-s EWW !! Why Oh Why are there weirdoes everywhere ?

(Reply to this)(Parent)


[info]adevyish
2009-07-02 11:26 am UTC (link)
Saw this while looking at other news earlier, and cheered.

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[info]honorh
2009-07-02 12:15 pm UTC (link)
Nice to know homosexual rape is still illegal. Really, what? This does not give me great confidence in the country's attitude toward sexual assault, if that bit needs to be clarified.

(Reply to this)(Thread)


[info]bleachedclouds
2009-07-02 01:05 pm UTC (link)
This.

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[info]snarkhunter
2009-07-02 02:04 pm UTC (link)
My thoughts exactly.

Also, did you notice they seem to think that only men are gay? Lesbians? Pssh. What lesbians?

(Reply to this)(Parent)(Thread)


[info]cygnia
2009-07-02 03:48 pm UTC (link)
Saw that. I'm wondering if it's a case of discounting lesbians specifically or just discounting women still. :(

(Reply to this)(Parent)(Thread)


[info]snarkhunter
2009-07-02 04:15 pm UTC (link)
Yeah, I was wondering the same thing.

(Reply to this)(Parent)


[info]temaris
2009-07-02 10:49 pm UTC (link)
India's penal code was originally based on the law of England and Wales, and notoriously, lesbianism was never criminalised -- nothing to do with Queen Victoria (the well known story is a complete fiction from a 1973 tabloid story), they just didn't think relationships between women were important. Only people with penises could have meaningful sex (or meaningful relationships).

(Reply to this)(Parent)


[info]persona
2009-07-02 03:59 pm UTC (link)
That was the thing that jumped out at me, personally.

(But really, is it a surprise? Gay women? Hah!)

(Reply to this)(Parent)(Thread)


[info]snarkhunter
2009-07-02 04:15 pm UTC (link)
They're like bisexuals and English majors! Mythical creatures, really.

(Reply to this)(Parent)


[info]tardis
2009-07-02 05:36 pm UTC (link)
Well, with the way the statue banning homosexuality was written lesbianism has always been legal (technically) in India.

(Reply to this)(Parent)(Thread)


[info]tardis
2009-07-02 06:02 pm UTC (link)
After reading some articles on the decision, I think I might be wrong on this. Although that's what all my Indian friends told me last month.

(Reply to this)(Parent)(Thread)


[info]bobafeis
2009-07-02 08:23 pm UTC (link)
I think you might be right. My aunt rents out one of her apartments to a lesbian couple, and she's never mentioned anything along the lines of them being harassed for that, let alone any problems with the law.

(Reply to this)(Parent)


[info]lady_ganesh
2009-07-02 02:14 pm UTC (link)
Or it's just pre-empting the 'gay panic' stupidity that would no doubt ensue.

(Reply to this)(Parent)


tree
2009-07-02 02:35 pm UTC (link)
I think, eternal optimist that I am, that it's because of the mindset that puts homosexuality and rape in the same box and might otherwise be freaking out that if the gays can have sex, then surely now we'll be allowing sex with animals and whatnot. You have to hold such people by the hand in the A-B-Cs of "this is normal human behaviour, and this here is violence" even though it really gives you a headache that somebody needs to have it pointed out to them that legalising gay sex doesn't mean that legalising gay rape is next, whether they would fear this outcome or secretly hope that "everything goes" would allow them all kinds of unpunished criminal behaviour. Hell, typing this made my head and stomach hurt. :/

(Reply to this)(Parent)


[info]vorpal_blade
2009-07-02 02:49 pm UTC (link)
Since in my mind all rape should be illegal I'm afraid to ask if there are some kinds of rape that aren't illegal in India, like marital rape...

(Reply to this)(Parent)(Thread)


[info]snarkhunter
2009-07-02 04:23 pm UTC (link)
Yeah, I don't know about the actual national laws, but I'll bet you anything that marital rape, even if it's recognized in the penal code, is rarely, if ever, prosecuted.

(Reply to this)(Parent)


[info]looking_glass
2009-07-03 08:58 pm UTC (link)
I'm not a legal expert and I'm working off knowledge that's several years old, but I think the legal logic behind that part of the judgement has a specific context: in the Indian Penal Code, which India inherited from the British, defined rape solely in terms of heterosexual rape (sorry, I'm wording this badly, I think -- English isn't my first language). The wording of section 375 is something like "a man commits rape when he has sexual intercourse with a woman under these circumstances" etc.

Legally speaking, a man who rapes another man cannot be prosecuted for rape per se under existing law. But he can be prosecuted for another sexual offence: carnal intercourse against the order of nature. So when there's a rape case where the perpetrator and the victim are both male, section 377 was used to prosecute the perpetrator.

Furthermore, in other former British colonies who also inherited the Penal Code, e.g. Malaysia, rape is or was defined solely in the law as the insertion of a penis into a vagina. Any other forms of sexual assault, like oral rape? Sorry, you're out of luck.

All these have been the justification used by politicians for retaining section 377. :(

Of course, the bloody logical thing to do (as has been pointed out by many activists) is to amend the rape law so that it covers all forms of sexual assault regardless of the gender of either perpetrator or victim. But for as long as homosexuality is seen as taboo or sinful, section 377 is just too damn convenient -- and politicians eyeing another term in office don't tend to touch topics they think their constituencies won't look upon them favourably for. My god, how dare you treat gays as if they're human??!!! /sarcasm

My impression is that the court is trying to make sure that sexual assault cases that can't be prosecuted under existing laws related to rape will still be prosecuted, and cover the legislators' collective arse until they finally get around to amending the Penal Code. When or if this'll happen is something you'll have to ask activists in India.

I'm not excusing what's left still of section 377 or even suggest that the current legal situation with regards to rape laws is in any way tenable. I'm just trying to give some context.

(Reply to this)(Parent)(Thread)


[info]looking_glass
2009-07-03 09:02 pm UTC (link)
God, I should not be posting comments this late, I'm dropping words all over the place. I meant: "... the insertion of a penis into a vagina without consent", just to be clear.

(Reply to this)(Parent)


[info]looking_glass
2009-07-03 09:09 pm UTC (link)
Also, and I neglected to point this out: section 377 doesn't criminalise just homosexual sex -- it covers "carnal intercourse against the order of nature" with any man, woman or animal.

(Reply to this)(Parent)


[info]re_weird
2009-07-04 07:27 am UTC (link)
Thanks so much for the detailed reply! I was scratching my head over that but now it's more clear (though still pretty depressing.)

(Reply to this)(Parent)


[info]glossing2
2009-07-02 03:43 pm UTC (link)
It was not immediately clear whether the ruling would eventually lead to legalization of gay marriages in the country.
Oh, Western media, never stop imposing your own priorities. DDD:

(Reply to this)(Thread)


[info]arionhunter
2009-07-02 04:00 pm UTC (link)
Didn't you know? It's supposed to be "West Are The World."

(Reply to this)(Parent)(Thread)


[info]glossing2
2009-07-02 04:06 pm UTC (link)
*headsmack* Of course! Postcolonial propaganda got me all confused for a moment.

(Reply to this)(Parent)


[info]coffee_mug
2009-07-02 06:01 pm UTC (link)
So glad this happened; so sad it didn't happen earlier. Of course, the stigma is still going to be enormous. But at least there (hopefully) won't be cases of people being blackmailed that the blackmailer will out them (thus leading to a possible criminal conviction).

(Reply to this)


[info]chaootaku
2009-07-02 08:14 pm UTC (link)
"Any homosexual act without the consent of either partner remains a criminal offense"

Well I'd hope so.

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[info]nostariel
2009-07-02 08:57 pm UTC (link)
On the one hand: Yay! \o/

On the other hand: Kind of a downer that someone felt "rape is still illegal" had to be pointed out. And
Christian, Hindu, Muslim and Sikh leaders have warned they will oppose moves to decriminalize homosexuality.
is pretty effed up.

BUT I AM FOCUSING ON THE POSITIVE SO \O/

(Reply to this)


[info]the__ivorytower
2009-07-03 12:24 am UTC (link)
The ruling means the law -- Indian penal code section 377, which had criminalized consensual homosexual acts between adults -- has been partly struck down but remains in place as far as forced homosexual acts are concerned.

This is actually a good thing: it means that they acknowledge men can rape other men, or that women could rape other women. There are places that *don't*. Hopefully it will mean that victims will actually be able to seek restitution.

Sorry, barrel of sunshine here, it's been a long week.

(Reply to this)


[info]kylenne
2009-07-03 12:38 am UTC (link)
Why the "Dear US states" thing? Gay sex hasn't been a crime in any US state for six years now. Lawrence v. Texas struck voided any remaining state sodomy statutes still on the books in 2003.

Really great news about India BTW, but that comment was just a headscratcher for me.

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[info]kylenne
2009-07-03 12:39 am UTC (link)
...that should say struck down/voided.

(Reply to this)(Parent)


[info]obsidianwolf
2009-07-03 01:40 pm UTC (link)
Unfortunately there are still a few states stupid enough to try to prosecute under the old Sodomy laws.

There was a case a short while ago but well after Lawrence VS Texas that unfortunately happened in my state.

(Reply to this)(Parent)


[info]ajatshatru
2009-07-03 01:05 am UTC (link)
Took us a long while, didn't it ? :/

(Reply to this)


[info]brennalarose
2009-07-03 02:18 pm UTC (link)
It's a start! *remains hopeful*

(Reply to this)


 
   
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