This article is written by Shivani Nair, from Manipal University, Jaipur. This is an exhaustive article which deals with the topic of the need for gender-neutral laws in India and the reasons for its implication.
Table of Contents
Introduction
Sections 375 and 376 of the Indian Penal Code, 1860, mentions about the conviction on the offence of rape of a woman by a man. Other than the rape laws, there have been many other acts such as the Domestic Violence Act, 2005 that are gender-specific and related only to women, such as sexual harassment or voyeurism where a perpetrator is always a man. Increased awareness about these offences in the society shows us that the main reason for committing a sexual assault of any form of violence many not just be to fulfil the desires that are sexually-oriented, but also to assert the perpetrators’ dominance. But if that is the case, then the assertion of dominance should not be gender-specific as it could be an assertion of dominance upon a specific caste, creed, orientation, religion, or any social background. Hence, any form of sexual assault could happen to both males and females, as well as the other genders of society.
Rape Law and Its History
What we, as people, need to understand the social implications of certain movements, the society, in general, and the backlash before the occurrence of any positive outcome in society. Therefore, to understand society and make changes in society, one must know its history and development over the years, so that one could face the current challenges, and address it.
It has been taken into consideration that, historically speaking, the agenda of the women of India has always revolved around the changes in the law regarding rape. The widening definition of rape has always been a struggle for women.
The Mathura rape case was one of the most infamous decisions in the field of law, which was also the reason why so many amendments were made in the field of criminal law. It has known to be amongst the landmark cases that created history in the field of criminal law and the subject matter of rape. The Supreme Court, in this case, had held that the young woman who had been ravished by the police officers had given consent to the same as there were no marks of wounds in the given case and also the fact that the nonappearance of wounds suggests consent. After this case, there were four law instructors, who posed an open letter to the Chief Justice of India to reprimand the case. This case had started a movement where the victim would be stopped from being blamed and the blame would shift to the culprit. Another demand that was stated by the activists was to hold in-camera proceedings and the non-disclosure of the names of the victims of the rape case. The third proposal was to disregard the sexual history of the victim.
However, the case that shook India after the Mathura Case was the Nirbhaya Gang rape case. It brought about many amendments into the field of Criminal Law that has completely changed the course of law, in that field, and led to the formation of the Criminal Law Amendment Act, 2013.
Meaning of Gender Neutrality
The word gender-neutrality is ambiguous and has not been properly defined anywhere. So what covers the ambit of gender-neutrality?
To understand the question stated above, we need to understand the term “gender” first. In common sense, the term “gender” has been defined as someone who belongs to the category of either male or female. However, this definition fails to consider the third gender that is “transgender” which includes the “hijras” or the “kothis”, or the communities where they are born as “intersex” where a person has both female and male organs, or even communities that fail to identify themselves belonging to any gender.
Genders other than Female who have been the victims of assault
Transgenders or Non-binary genders
There have been various cases of assaults against the transgender communities of India. Therefore, the current laws are discriminatory, whereby it only looks at one aspect of the society; one gender of the society whilst ignoring the others.
A study conducted by PUCL in Karnataka showed that there were a large number of cases related to the assault against the transgender communities of India. But what has been the most shocking thing was the conclusions that have been derived from the report. The report had stated that the sexual form of violence that they had to face was a very common occurrence against them. They were casually beaten up for being transgender and it stated that apart from this physical violence, they also had to face a lot of mental harassment. The physical form of violence included- being beaten up, blobs of acids being thrown at them to disfigure them, and many others. These people also face lots of sexual assault when they report their cases of narratives to the police. The police try to belittle them, victim-blame them, and go to the extent of feeling their body parts to make them feel uncomfortable and rape them. With or without the form of physical violence, this still amounts to gross harassment and it has to be taken into consideration.
Idea of Male on Male Rape
In an interview given by a male assault victim, he had stated the harsh reality of the 21st century and the discrimination the homosexuals have to face in this era even after the verdict of the Supreme Court to not consider homosexuality as a crime. In this horrifying turn of events, the victim states that he was sexually assaulted and raped by six men who were allegedly drunk. They had also verbally abused the victim for being a homosexual and had taken turns in filming the entire scenario of rape. The confused victim could not even go to the police or seek medical help as he did not know how they would react to the fact that he was gay. He also stated that he thought that they would blame him for the assault that has been committed against him stating that it was for the reason that he was gay. This shows that being a homosexual is still considered as a taboo in our society even after so many activists have been campaigning for their rights.
Being avoided by the regular communities of India, the homosexuals often become easy targets for the people who wish to assault them, as one could always blame the “gay man” for coming forward and having a sexual intimation with the assaulter. There have not yet been punishments made for the cases where the victims of rape and sexual assault are males and this shows the lacuna in our system.
Idea of Women on Women Rape and other Assualt
Another aspect that we fail to consider is the fact that women can be perpetrators against women themselves. It could be the fact that women are the victims as well as the predators. This aspect has never been considered and the fact that there is no law which makes women accountable to this adds on to the injury of another form of assault against the women.
In the case of State v. Sheodayal, 1956, it had been stated by the High Court of Madhya Pradesh that, the modesty of a woman need not necessarily be outraged by a man itself. It can be outraged by another woman under the purview of the IPC section 354.
A different question that arose was whether women could be a part of a gang-rape? And the answer was given in the case of Priya Patel v. State of Madhya Pradesh, 2006. In this case, it was alleged that in the case of gangrape, there was a prerequisite condition that was required and that is “common intention”. There must be an intention to commit an assault or an act of rape in the case of gangrape. Yet, however, the court had deemed that a woman cannot possibly be deemed to have committed such a crime. Despite the widespread activism and connotations, this part of the case has still remained unsolved as a mystery and the researchers are still figuring out the solution for this problem whether women should or should not be considered as assaulters. In my opinion, given the circumstances and the clear interpretation of the law, women should be considered as a part of the team of assaulters.
Why Laws Should be Gender Neutral?
The first assumption for the fact that women can never be predators comes from the fact that even though the definition of rape given in the laws, talk about various ways by with an act would be considered as rape, they would still be assumed as penile-vaginal intercourse in the eyes of the general public. This gives the general public a belief that only men can assert dominance due to the fact that men are generally built stronger than women in biological aspects.
The second assumption comes from the very fact that men can never be victims of rape as they are aroused by any sexual act, thus, implying the consent on their behalf. However, this is to say that this sort of arousal in the male body can not only be caused due to the fact that they wanted to be a willing participant. But studies have shown that arousal can also be caused by the fact that it could be due to fear, humiliation, and anxiety which could lead to such erections.
There has now been a developing acknowledgement for the fact that male exploitation does indeed take place. There have also been a few countries such as Canada, Finland, Australia, The Republic of Ireland and most of the states of the United States of America, which are developed that have embraced the unbiased and gender-neutral laws in their countries.
Constitutional provisions and their relevance
Part III of the Constitution of India, ensures the basic rights to each and every citizen of India, regardless of their gender.
Article 14 states the right to equality in the watchful eyes of the law. This article states that everyone is equal regardless of their gender.
Article 15 talks about the preclusion of separation on the grounds of gender, that is to say, nobody can discriminate anyone on the basis of the sex of a person or case, or creed or any other form.
However, despite the fact that the assault on a male is less than the assault on females, one must understand that they cannot be excluded from the fact that they need laws to protect them too. Providing equal rights to men in the cases of sexual assault does not amount to the right of women being snatched away.
On the contrary, giving men a platform to speak up about their assault and being able to register cases, would reduce the toxic masculinity of the assertion of dominance, thereby reducing the assault on women as well, due to the fact that assertion of dominance has been the leading source of violence against women.
The reasons why men do not open up about the fact that they have been victims of the sexual assault against them is the fear of being judged by the society and the fear of facing a backlash from the society that dwells on a stigma that “men cannot be victims of assault”. They are under the impression that opening up would only cause them to be termed as “un-manly” or be told that they are “not real men.” and that too, for the sole reason that they failed to enjoy the sexual relationship advanced towards them by women.
Conclusion
From the above article and upon research we can come to the conclusion that it is not just women who require help in the cases of sexual assault, but also men and the other genders. We should move toward impartiality in the laws and the existence of the other genders apart from the two commonly known genders cannot be refuted or denied. Therefore, laws must be made in order to ensure that regardless of the sexual orientation of the victim or the accused, the perpetrators must be punished.
Reference
- http://www.legalserviceindia.com/legal/article-1853-the-desideratum-of-gender-neutral-laws-in-india.html
- http://pucl.org/sites/default/files/reports/Human_Rights_Violations_against_the_Transgender_Community.pdf
- https://link.springer.com/article/10.1007/BF01541979
- https://timesofindia.indiatimes.com/city/chennai/Lacking-support-male-rape-victims-stay-silent/articleshow/18524668.cms
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