This article is written by Sankalpita Pal, from Symbiosis Law School, Pune. This article attempts to discuss the issue of gender neutrality in rape laws in India.
The concept of violation of bodily integrity is circumscribed in the term ‘Rape’. However, the definition of this term has been constrained and kept pretty simple. An age-old assumption about the characterization of who can commit this offence and who falls prey to it has been fixed by the society. The statutory definition of rape suggests that the only possible victim-perpetrator framework of this offence is the male-on-female paradigm. This offence is defined under Section 375 of the Indian Penal Code, 1860 and since its inception, it has undergone a number of amendments. Till date, the definition conforms to a traditional notion that only men can commit this offence and only women can be the victim. After all these years a progressive argument has come up advocating the fact that even the male gender, transgender and other non-confirmative fluid genders can become a victim of Rape in India.
This article will be dealing with this very ignorance on part of the Indian criminal legislation regarding the recognition of gender neutrality in Rape laws.
Historical overview of the definition of rape based on gender
The offence of rape has been in existence throughout the history of human civilization. Section 376 of the IPC, 1860 prescribes the punishment for this offence. It can be said that the definition under Section 375 has been changed fundamentally as it isn’t really keeping pace with the societal mindset despite numerous amendments since 1860.
The need for reformation in rape law has been felt since the 1980s. Before 2013 the definition of ‘rape’ was only restricted to penile-vaginal penetration only. However, all of this changed after the landmark judgment in the Mathura Rape case (Custodial rape) which is the case of Tuka Ram and Anr v. the State of Maharashtra, 1979 AIR 185. The Apex Court erred in its reasoning when it held that since there were no injuries found in the body of the victim; it shows that the victim consented to it. The defence taken by the accused (3 policemen) was that the victim’s sexual history proves her to be a ‘loose’ girl. Astonishingly, the Apex Court accepted this argument and reversed the decision of the Sessions Court. This sparked a lot of debate and protest in the country. However, after this case, a significant number of amendments took place.
- Criminal Law (Amendment) Act of 1983
The Criminal Procedure Code was amended in 1983. The major amendment made was that rape trials could be held on camera under Section 327 of CrPC. On the other hand, disclosure of the identity of a rape victim became an offence under Section 228A of the Code of Criminal Procedure, 1973. An enhanced degree of punishment was set for custodial situations under Section 376(2) of IPC. Another important amendment was the insertion of Section 114A in the Indian Evidence Act, 1872 under which presumption of the lack/absence of consent in specific situations was made.
The highlight of the 1983 amendments was the separate recognition of custodial rape as an offence. Custodial rape is considered to be a heinous offence because the accused is at an official position is associated with the violation of trust reposed in them. They hold the authority and the responsibility to prevent other offences. Another major improvement was the shift of onus of proving ‘consent’ to the accused in such cases.
- Indian Evidence (Amendment) Act of 2002
The nature of amendments was such that it prohibited the defence from placing humiliating questions to the prosecutrix while cross-examination, about her general moral character and her sexual history. Section 155(4) was omitted under the 2002 amendment as it technically stated that the victim’s sexual history is of utmost importance as it would determine the immorality of her character.
It is abundantly clear that the definition of rape/ sexual assault has changed over the years with different types of scenarios coming up and along with the society’s changing mindset. The traditional male-on-female paradigm is yet to fade. It is important to note that no such gender-based differentiation has ever been reflected through any of the amendments that have taken place so far.
Laws protecting women in India from sexual assault/rape
First and foremost the Indian Penal Code, 1860 protects the women in India from Rape and sexual assault via its provisions. Section 375 of IPC provides the definition of rape and declared it as an offence under IPC. On the other hand, Section 376 punishes the same. Section 375 lays down 6 scenarios where non-consensual and even consensual sexual intercourse would be brought under the definition of ‘rape’.
Ingredients of the offence of rape
In order to bring up the charge of rape against a man, it is necessary to establish that the “sexual intercourse” complained of was either against the will or without her consent. Where the consent is obtained under the circumstances enumerated under clauses firstly to sixthly, the same would also amount to rape.
In the case of Dileep Singh v. State of Bihar [(2005)1SCC 88], the SC held that Will and consent may connote the same meaning however the legal definition of both the terms are different. A may not have been willing but still, consent to a sexual act. Thus, the IPC, 1860 categorizes ‘will’ and ‘consent’ under 2 separate heads.
In the case of State of UP v. Chottey Lal [(2011) 2 SCC 550], the SC observed that the expressions contained in the statutory definition of ‘Rape’ “against her will” & “without her consent” may overlap in some cases. However, their dimensions are slightly different. “Against her will” ordinarily means that the sexual intercourse took place despite the victim’s resistance and opposition. On the other hand, consent can also be obtained via force and compulsion. Therefore, without consent means that will wasn’t involved at all; it’s not the same the other way round.
Section 90 of IPC has established a few tests with regard to “consent”. In this very context, State of H.P v. Mango Ram [(2000) 7 SCC 224] the Supreme Court observed that submission of one’s body under the fear or under a terror-stricken mind and even misconception cannot translate into consent. Section 375 doesn’t voluntary consent and voluntary participation into the sexual act and not just consent and participation.
Section 375 also clarifies that mere penetration is sufficient enough to constitute the offence of rape. In the case of Koppula Venkatrao v. State of AP [(2004) 3 SCC 602], the Supreme Court upheld an important clarification that penetration is enough to constitute rape, ejaculation is not a necessary ground to constitute this offence. Ejaculation without penetration is an attempt to commit the offence of rape.
What is gender-neutrality with respect to rape laws?
The collective term ‘gender-neutrality’ has been mocked as a term that disguises more than it communicates its meaning. It basically means equality in some laws which are gender-specific even if all kinds of genders have the potential to face the same kind of crimes. For example- men or even a transgender person can be forced into having sexual intercourse or exposed to sexual assault/abuse.
There can be 2 major perspectives on Gender Neutrality in Rape laws.
Neutrality with respect to the victim
It is pretty unfortunate that the Indian legislation and even society still believes that a rape victim can only be a woman (female gender). The offence of rape can be motivated due to various reasons other than the traditional assumption that perpetrators commit rape only to satisfy their sexual desires. However, there can be other reasons such as showing sexual dominance could be treated as an act of superiority amongst castes, communities, religions etc. Sexual abuse can be motivated by the need to humiliate the victim rather than just lust. Therefore, not only women but also men and the transgender community can very well be exposed to sexual abuse.
The present concept of gender is more fluid than traditionally accepted. The assumption that one’s body can have either feminine characteristics or masculine characteristics. Thus, automatically the society turns a blind eye to sexual violence suffered by those who do not conform to the normative understanding of gender and the constricted meanings of male and female characteristics. Thus, the legislature too overlooks the plight of the transgender community (includes hijras and kothis).
Historical and mythological evidence suggests that the transgender community has always existed in India. Their rights must also be recognised instead they are even denied as citizens for a long time.
- Transgender victimization
Transgender people cannot be classified under any of the traditional gender identities. This community consists of “hijras, kothis, and trans-sexuals”. Some undergo transformations via surgical operations (sex-change operations); while some just perform the traditional roles of the opposite gender. Their sexual fluidity makes them vulnerable to sexual violence.
The Peoples’ Union for Civil Liberties Karnataka (PUCL-K) studied the rights of the transgender community in Bangalore. Their studies concluded that in India, this community is very much exposed to sexual violence and physical abuse.
They are subjected to physical violence (beatings and threats) some have experienced disfigurement with acid bulbs. They also experience social ostracization. Their bodily integrity and sexual privacy also get invaded and violated. Yet transgender victimization is not even considered as a violation under any criminal statute. There have been cases where policemen and officials have assaulted them physically and sexually. The PUCL-K Report reveals that the statutory and societal ignorance is the cause behind the violation of the human rights of the transgender community.
- Male Victimization
In India, a coercive man on man carnal intercourse is considered against the order of nature and is covered under Section 377 of the IPC. There lies a colossal flaw in the reasoning behind this categorisation. “Male on male rape” is blended with voluntary carnal intercourse between homosexuals.
It must be noted that minimum punishment for rape (Section 376 of IPC) post the Criminal Amendment Act 2013, is 7 years to maximum life imprisonment (Some cases death). On the other hand, penal liability under Section 377 has no as such prescribed minimum punishment. Since a minimum of 7 years of imprisonment as punishment is prescribed as it is recognised as a heinous offence. However, male on male rape isn’t recognised with regard to such presumptions. Their sexual violation or exploitation is not considered to be of the same degree as that of a woman’s.
In 2013, a three-member Verma Committee recommended that victimisation under the purview of Section 375 must be made gender-inclusive. Rape law must recognise male and transgender victimization.
Another logical perspective placed by the committee was that non-consensual sexual intercourse regardless of gender conformations can only be criminalised if the right of the sexual minorities to have consensual sex is granted in the first place. Their sexual violation is not any lesser than that of a woman.
Neutrality with respect to the perpetrator
Another ongoing debate is whether a female can be a perpetrator if Rape laws are made gender-inclusive. If so then there are 2 possibilities:
- Female on male rape
Firstly, It has been argued that it is physically/ biologically impossible for women to rape men. Professionals and a few researchers have argued that women cannot exactly rape men due to the fact that men need to be aroused before they are ready for sexual intercourse. Thus, if at all a woman forces herself on a man he would be disoriented enough and won’t be able to non-consensually perform the act of intercourse.
Secondly, Social reality isn’t reflected. Even if it is accepted that it isn’t impossible for a woman to rape a man even if biological impossibilities are stated. No, as such cases have ever propped up before the public eye. Lack of empirical evidence proves that gender-neutral laws cannot be implemented just yet unless actual cases come up.
The above arguments are astonishing and show the ignorance of society till date and its reluctance towards change.
- Female on female rape
In the case of State Government v. Sheodayal [1956 Cri LJ 83], the Madhya Pradesh HC held that a woman can violate the modesty of another woman under Section 354 of Indian Penal Code, 1860 (use of criminal force with the intent to violate modesty of a woman). In Priya Patel v. State of MP [(2006) 6 SCC 263], the Apex Court considered the question of whether a group of female perpetrators can gang rape another woman.
Section 376(2)(g) of IPC utilises the term ‘whoever’ [gang rape]. Technically whenever a gang rape takes place the act of penetration may not be committed by each member; any act done in furtherance of the common intention deems each participant to have committed gang rape. The Court still held that it is impossible for a female to rape another female or even have the intention to rape. This judgment is definitely flawed because the act of penetration itself is not a requirement, the intention is enough even if it’s in the form of abetment.
Why aren’t male given the same protection by the law
Traditional notions of the male-on-female paradigm
We need to consider this premise as a whole. In a few aspects, men are not protected by law even though they are entitled to it. For example- gender-specific laws relating to stalking, voyeurism, sexual harassment etc there exists a statutory assumption that the perpetrator of such offences can only be a man. However, only recently the laws relating to acid attacks are gender-neutral as the term “Whoever” is used in its definition.
As mentioned above sexual assault can also be an act of proving dominance and exercise power. It can be motivated by the pure intention to humiliate the victim. Thus, the victim of such sexual assaults can be anyone regardless of gender. Presently the only question is, why gender is the only identity that is taken care of while determining the perpetrator and the victim of a sexual assault.
If it can be proved that the sexual experience of both men and women are the same then why aren’t men treated equally and governed by the same law for victims and perpetrators?
Patriarchy has an important contribution to such a notion. It is not only toxic to women but also men. Considering certain gender roles are assigned to each gender, men are expected to be strong enough to defend themselves. Therefore, men cannot get sexually violated or exploited by women.
Part III of the Indian Constitution guarantees fundamental rights. Every citizen is entitled to these rights regardless of their gender. Article 14 encompasses the fundamental Right to Equality before law and Article 15 prohibits of discrimination on the grounds of sex. Thus, it is clear that men should also be given the same treatment as women in a few gender-specific laws. It is understandable that female-on-male rape is a rare occurrence but its not an impossible scenario.
Gender neutrality is seen as a concept against feminist principles
Various feminists activists have advocated against the concept of gender neutrality. The recognition of male-victimization doesn’t curtail the value of the feminist understanding of rape. In fact, feminism means to bring men and women at the same pedestal. Both sexes must co-exist. Thus, an express recognition of either of them doesn’t necessarily undermine the position of the other.
It is very much true that female rape victims face a lot of social stigmas, but male victims also face a different set of social stigmas. Male domination has been a reality. Therefore, if a man opens up about his non-consensual sexual experience with a woman then he is considered to be weak. Men can get raped by other men then also such a victim is mocked by society.
- One of the primary criticisms is that Indian Penal Code, 1860 presupposes the perpetrator to be a man in rape cases. It doesn’t consider the instances of sexual assault where the perpetrator is a female and the victim could be any gender.
- Another important concern while defining what are the constituent genders under ‘gender-neutral’ is whether it constitutes of all categories of bodies and not just male or female. There is a notion till date that one’s body can either have male characteristics or female characteristics. What about the third gender? They also are included in the dropdown list of gender categories. Legislations in India once again overlook the need of the transgender community. The stigma is that the transgender community violates the idea of a man and a woman as normatively understood. Its high time that the ‘hijras’ and the ‘kothis’ must be given a place as its very much possible that their modesty may be violated by other cis-gender or even transgender perpetrators.
- The 172nd Law Commission report has recommended gender-neutral rape laws. The report mentioned that the fundamental rights of all citizens must be protected and denying protection from sexual assault to all genders is a gross violation of these fundamental rights. Social realities must not be forgotten. Recognizing male and transgender victimization doesn’t necessarily mean the denial of the fact that the most vulnerable women are still the most vulnerable.
- One of the main arguments against gender-neutral rape law, is both the genders (male and female) are considered as possible perpetrators who can commit the offence of rape might as well open up a way for inflicting greater trauma and humiliation on women. For example, if a man is accused he may try to prove the woman to the perpetrator instead thus inflicting upon the genuine victim with immense pain, humiliation and trauma. Therefore, the purpose of rape law would be defeated.
- Another common argument against gender neutrality is that recognition of female perpetrators will have ill-effects on the immediate society. Considering India largely follows the norms of the patriarchal society; such a society is not yet intellectually equipped to widen their mindset just yet that is it is still ill-prepared to accept a completely gender-neutral rape law. Unscrupulous “representation for accused” might as well misutilization the law. Thus, increasing the possibility of counter-complaints being filed against every bona fide female victim and once again defeating the purpose of the law to protect the identity of a sexually abused woman. The kind of questions the victims will have to face regarding their moral character will be humiliating and beyond imagination. On the contrary, it can impact their mental health as well.
- Lastly, the legislature needs to be gender-sensitive and not gender blind. In the light of a heavily gendered history, feminists only conceptualize rape as a matter of inequality as men and women and that it needs to be addressed by gender-specific laws. Therefore, their notion is that the entrenched inequalities between both genders can only be tackled by conforming to female victimization as a result of male perpetrators.
Should the system be made neutral for both genders?
The system should definitely be made gender-neutral for the various reasons discussed above. In the case of State of Himachal Pradesh v. Shree Kant Shekari, [(2004) 8 SCC 153] it was held that the offence of Rape is against the victim’s fundamental Right to Life under Article 21 of the Indian Constitution. This is an accepted truth then even men are entitled to the right to life therefore, the rape laws should be inclusive of their rights and violations too. Both men and women are entitled to Right to life and therefore, the violation of bodily integrity of both the sexes must be included in the legislation. The possibility of male rape victims must be recognised as well.
In 2012, the 167th Criminal Law (Amendment) Bill report compiled by the Parliamentary Standing Committee expressly acknowledged that public was in favour of gender-neutral rape laws and even State Governments have shown their support for the same. However, they only wanted it to be gender-neutral as far as a victim is concerned but still want perpetrator male.
The state has a fundamental obligation “to provide a safe environment, at all times, for all citizens”. Rape is definitely a human rights violation, the punishments for the violation of the same shouldn’t be selective in terms of the protection it affords. The state must abandon the method of peeking through gendered lenses and rationalise the needs of the present society.
The State’s obligation towards its citizens shouldn’t just be theoretical. The statutes it recognises must reflect their obligation.
It should be noted that the judiciary has been pretty silent regarding this issue over the years. Therefore, there are no such laws or even precedents that advocate for gender neutrality in rape laws. In 1996, in the case of Bodhisatwa v Subhra Chakraborty [(1996) 1 SCC 490], the Apex Court of India observed that “rape is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights”. Especially, Right to Life under Article 21 is grossly violated.
In 1996, Justice Jaspal Singh of Delhi High Court first recognised the need for gender neutrality. In Sudesh Jhaku v KC Jhaku [1998 Cri LJ 2428], the Court was required to determine whether the previous definition of rape (before 2013) could be interpreted to include non-penetrative sexual acts or not? However, the court went beyond its mandate to opine on the issue of gender neutrality as well. Justice Jaspal Singh clearly stated that the nature of the issue raised cannot be tackled by the judiciary as it is purely a legislative requirement. Only the legislature can successfully carve out and draft gender-neutral plans. The judge also noted that the offence of rape needs statutory reconstruction.
A Delhi-based group, Sakshi, filed a writ petition in 1997 (Sakshi v Union of India (1999) 6 SCC 591) before the Supreme Court of India requesting the reconsideration of the question that had arisen in Jhaku case. The Apex court dismissed the petition however, in 1999, the apex court framed the “precise issues” to be dealt with by the Law Commission of India.
Further in 2012, the heart wrenching Nirbhaya Rape case (Mukesh & Anr. v. State for NCT of Delhi & Ors) brought about a few amendments. After this case, there were protests throughout the country. Finally, the Criminal Law (Amendment) Act 2013 was passed. Section 375 of IPC, 1860 was amended along with the Criminal Procedure Code and the Evidence Act. The definition of rape was broadened. The degree of punishments was increased. Capital punishment was prescribed for rape cases that have to lead to the death of the victim or rendered the victim in a ‘persistent vegetative state’. Minimum of 20 years imprisonment was provisioned for gang rape.
The 2012 bill was once again criticised on various grounds such as it didn’t include any other gender in the victim category. Secondly, it didn’t recognise marital rape as a law. The male perpetrator category remained unchanged.
Men and women are made to coexist and to supplement each other for their survival as well as that of society. But this relationship that is the basic foundation of society, unfortunately, has become the most abused aspect in social life.
It can be concluded that one of the first aspects to be tackled in order to make gender equality a reality is the recognition of all kinds of genders and abandon the constricted definitions of gender.
Secondly, Gender neutrality with respect to the victim highlights the prevalence of male and transgender sexual violence in India. A gender-neutral society is truly equal and thus, the fundamental rights under the Constitution are upheld. It can be concluded that the existence of male and transgender rape in India, especially male-on-male rape cannot be denied. The supporters of complete gender neutrality rely on the argument of the right to equality and the social stigma that surrounds male rape. After analysing both the sides, it must be kept in mind that despite the absolute need for gender-neutral laws and the recognition of fluid genders, it must not create a detrimental environment for female victims for rape.
- https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/be y ond-the-binary-rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7B BD E B78CED0BC5144C0
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