This Alien Legacy

prohibiting an adult male from having sexual relations with a male child. That
offense, too, was contained in 377 without distinction. 55
As a result, India—along with other countries from Zambia to Fiji with legal systems
affected by the Indian Penal Code—was left without laws fully covering rape or child
protection. To the drafters, the act of “sodomy” itself was so horrible that the harm
seemed uniform: regardless of the other party’s age, and regardless of whether he
consented or not. Section 377 appeared in a Penal Code section on “Offenses
Affecting the Human Body.” The fiction that “carnal knowledge against the order of
nature” violated one’s own physical integrity, even if consented to, seems to have
been powerful. (As the next chapter notes, it found fodder in medical myths that
supposed the “habitual” sodomite prone to literal physical deformation).
Section 377 was exported to, and modified in other British colonies, and
reinterpreted by their courts. Two themes emerge. They show again how colonial law
was a field for exploring the meaning of an old British standard.
o By defining “carnal knowledge” in terms of penetration, the Indian
Penal Code language limited the act and left open the possibility that
only the penetrating party might be guilty. As the law was applied in
British colonies in subsequent years, one project was to redefine the
scope of “penetration”—and ensure the provision would criminalize as
broad a range of acts, and partners, “against the order of nature” as
possible.
o The absence of the factors of age or of consent in the law meant that
consensual homosexual conduct was legally indistinguishable from
rape or pedophilia. Thus the figure of the “homosexual” could easily
be linked and assimilated—in popular thinking as well as before the
law—to violent sexual criminals.
55
Meanwhile, a man who had sexual relations with a girl under 10 was guilty of statutory rape; the age was raised to 12 in
1891, 14 in 1925 and 16 in 1940. “Experts for Raising Statutory Rape Age to 16,” One India, February 6, 2008,
http://news.oneindia.in/2008/02/06/experts-for-raising-statutory-rape-age-to-16-1202306730.html (accessed August 8,
2008).
19
Human Rights Watch December 2008