In this article, Sachin Vats of RGNUL discusses the laws punishing online abuse of homosexuals in India.

Smartphones, email, social networking, online dating, chat rooms, online gaming, facebook, twitter, etc. have become an integral part of human life. Many people spend a significant part of their day interacting with others in this online world. All these online services have widened the dimension of sharing information and views with people in the global world. But, sometimes these online interactions become abusive and harmful due to many reasons. The target of online abuse most of the time is either women or LGBT people. They have experienced abuses due to their sex, gender identity or sexual orientation.

Online Abuse

When the act of someone causes harm or distress to others in any way, it is known as abuse. Any type of abuse that happens on the web, whether through social networks, playing online games or using mobile phones.

• The online abuse are done in the form of cyberbullying, grooming, sexual abuse, sexual exploitation or emotional abuse. Gay, lesbian and bisexual people face discrimination and abuse online which includes acts like revenge porn, stalking, domestic violence, blackmail, outing without consent and incitement to violence.

Cyberbullying or cyber harassment is a form of bullying or harassment using electronic forms of contact. It includes posting rumours about a person, threats, sexual remarks, disclose victim’s personal information or hate speech. Internet Trolling is a common form of bullying over the internet in an online community. The people get emotionally harassed due to some extraneous posts or messages regarding their sexual orientation by the internet trolling.  

Is Homophobia a Hate Crime

Homosexuality has not been yet accepted worldwide and illegal in many countries. Even where it is legalised, LGBT people have to face discrimination in social life. Negative attitude and feelings towards homosexuality or people who are identified or perceived as being lesbian, gay, bisexual or transgender (LGBT) is termed as “Homophobia”.

Homosexuality acts are legal in almost all western countries and any type of violence against LGBT people is classified as “hate crime”. An irrational fear or hatred of homosexuality is prevalent in both the developing and developed world. Heterosexual Psychologist George Weinberg coined the term “Homophobia” in the late 1960.

• Hate Crime is a criminal offence which includes the crimes which are motivated by homophobia, biphobia and transphobia. Hate crimes can affect people who are identified or even perceived as lesbian, gay, bisexual or transgender (LGBT). The punishment awarded in case of hate crime is very severe in many of the countries.

Laws preventing online abuse of homosexuals in the USA

The Gay, Lesbian and Straight Education Network conducted a survey regarding abuse of the LGBT youth on the online platform. It has been found in the study that the LGBT youth have experienced high levels of bullying and harassment online at greater rate than the non-LGBT peers.

• The findings in the report states that nearly 42% of LGBT youth have been harassed or bullied online. This statistics is three times more than the non-LGBT youth. It has also been seen that around 27% of LGBT youth feel unsafe and fear online.

One in every four LGBT youth said that they had been bullied or harassed online in the past year because of their sexual orientation or gender identity. One in five people have experienced similar type of harassment via text messages. One-third of LGBT youth had been sexually harassed online, four times as many as their non-LGBT friends in the community. LGBT youth also spent more time online with an average of five hours online per day which is forty five minutes more than non-LGBT.

It has also been found in the study that the grades, self-esteem and mental health of those who had experienced cyberbullying suffered significantly, especially those who faced both in person and online bullying by the people. The rights for LGBT people in the United States of America have evolved over time and considered as one of the most advanced in the world in present time. The Federal Laws have provisions for severe punishment against any case of hate crime based on the sexual orientation or gender identity.

Laws preventing online abuse of Homosexuals in the UK

The legislations regarding the rights of the LGBT people in the United Kingdom has evolved dramatically over the passage time. Today, LGBT citizens have most of the same legal rights as non-LGBT citizens and the legislations provide one of the highest degrees of liberty in the world for its LGBT communities. Online abuse has become very common on the social media across the globe. Abusive and discriminatory remarks are being made against the LGBT people. The are lot of cases regarding criminal offences which are committed by abusive action on online platforms.

The sending of messages which are grossly offensive or of indecent, obscene or menacing character using any public electronic communication network such as twitter or facebook  is a serious criminal offence under the Communication Act, 2003. Disclosing someone’s private sexual images online or offline without the consent to create distress in his or her mind is a criminal offence under the Criminal Justice and Courts Act, 2015. This is commonly known as revenge-porn.

If someone discloses the information about the gender identity or history of someone’s gender then it is a criminal offence under the Gender Recognition Act, 2004. There are a number of other offences which the police can investigate including harassments, stalking and other abuses under the Protection of Harassment Act, 1997.

• According to a report of the UK police, it has been found that  roughly 1% of sexually oriented hate crime offences are proved in the Court. The UK police recorded 7,016 homophobic and transphobic hate crimes in the year 2015-16. It was around 6,409 cases last year so there has been rise in the number of hate crimes related sexual abuse.
• England and Wales held 68 successful transphobia trials and 1009 successful homophobia trials during the year 2015-16. Northern Ireland has solved 41 successful cases of LGBT hate crime trials. Scotland solved 1020 cases related with homophobic crimes and 30 cases related with transphobic crimes.

Situation of Homosexuals in India

Homosexuals are not legally recognised in India. Same sex marriage is not legal and they cannot obtain a civil partnership under Indian Law. Section 377 of the Indian Penal Code, 1860 makes sex with persons of the same gender a punishable offence. So, any abuse against them cannot be heard by the administration as they themself are not allowed to be homosexual.

The Supreme Court in Suresh Kumar Koushal V. Naz. Foundation took the decision to criminalise homosexuality according to section 377 of the Indian Penal Code,1860 which states about Unnatural Offences.

• The supporters of the homosexuality state the decision of the government as the violation of the various rights which has been provided to them under the Constitution such as,
  • Right to Equality.
  • Right to not to be Discriminated on the basis of Sex.
  • Right to Life.
  • Right to Liberty.

Justice KS Radhakrishnan of the Supreme Court of India recognised the third gender that is neither male or female. Now, it is a class entitled to reservation in education and jobs from 15th April, 2014. It was decided in the case of National Legal Services Authority vs. Union of India and Ors. The Rajya Sabha also passed Right of Transgender Bill, 2014 which provide them reservations in education, jobs. It also provides financial aid and social inclusion of the transgenders.

The Hon’ble Supreme Court is hearing the Curative Petition on this issue and accepted the oral submissions made against it. The Apex Court is acknowledging the changing aspects of the society as it is very rare to hear the oral submission even after stating the decision over it. The Curative petition made against section 377 of the IPC is actually the last resort for the petitioners to get any fruitful and positive outcome on this issue.

Conclusion

The level of abusing of the lesbian, gay, bisexual or transgender (LGBT) community is increasing in every part of the world. The Government of Nations who are not ready to recognise them legally should think that they are also the assets or resource if the nation. The strategies and regulations against the abuse of homosexuals must be made by the respective legislative bodies of the countries. The formation of a safe environment for the LGBT youth is the need of hour. The physical and emotional safety of the LGBT youth makes them feel supported and the role of the society becomes important here. These people are part of the society but their way of life different. So, the people are free to choose the lifestyle they want to follow but it should not cross the limitations set up by the laws and regulations.

Most of the countries have not given Civil Rights to the LGBT community and hence they cannot take any legal actions against the violations of their rights. The voices are rising from different parts of the world for the safety of LGBT people and some significant changes are expected in this area.

Sexual Harassment in any form should not be acceptable. The only way to combat it is through knowledge and awareness. Know more about sexual harassment by taking up a course here or you can also learn more about sexual harassment at workplace by taking up this course by National University of Juridical Sciences.

References

Statistical Data have been taken from “ www.glsen.org”.

http://www.stoponlineabuse.org.uk

www.theguardian.com › Society › Cyberbullying

The Indian Penal Code, 1860.