This article is written by Harmanjot Kaur Kang.
Table of Contents
Introduction
The expression has stood perfect that “Changing times and their conclusions offer an insight to anything anyway of procuring something positive or negative, the prevalence of evil in progress”. Likewise, we have marked many features influential in society’s modification. One of the most contentious issues from ancient times to this contemporary world has had the provocation for the existence of gender-neutral rights. The aphorism of this bill was to make the Sexual Crimes gender-neutral.
What is Gender Neutrality Bill
The term Gender Neutral means the view where the policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, to avoid discrimination arising from the impression that there are social roles for which one gender is more suited than another. All genders should be respected. The bill was introduced in 2012 and they suspended it in 2013 when it was reported by the Ministry of Home Affairs in a PIL that only a man can be a violator and not a victim. The Indian Constitution under Article 14 and 15 talks about equality.
Alterations required
This Criminal (Amendment) Bill, 2019 would make alterations in the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act to amend the word “Man” or “Woman” to “Any person” or “other person”. It also proposes to replace the terms ‘penis’ and ‘vagina’ with “genitals”. Earlier, they held it that only a man can commit rape since they held it of the fact that only he can be the perpetrator and only the women being the victim.
Logical fallacy
Mere generalization of a bad nature is not the key, perhaps it is a logical fallacy as well. It would be wrong to say, “All men are bad.” Though in the name of positive discrimination for the need of provisions regarding women in the constitution, it is certain that through positive, but it is still discrimination.
Objectives of the Bill
Protection from false accusation
This bill emphasizes various rights of a man protecting himself from False Accusation of Rape, Preventing the Male Child Abuse, Custodial Rape, Sexual abuse against youngsters, “No one would believe that a man too can be raped and be sexually assaulted”.
Change in recent scenario
The reason for introducing the bill to be gender-neutral because after the historic judgement where consensual sexual intercourse between the individuals of the same sex or transgenders under Section 377 was decriminalised but Section 375 which is co-related to Section 377 recognizes only a woman can be a victim of rape and neither a transgender nor a man.
Provisions for protection
A petition filed by an advocate Sanjiv K Kumar challenged the constitutional validity of Section 375 and 376 IPC. The predominance of a man has been shown in many sexual crimes such as Rape, Stalking, Voyeurism and Sexual harassment. The FIR (First Information Report) for these sections can be filed only by a woman.
Male rights in Gender Neutrality Bill
False accusation of rape
Most of them claim that Section 375 of IPC is gender-biased since it does not identify where men too can be the victim. It just provides the right for a female to claim a rape suit. Few of the men’s rights groups, activists and lawyers believe that false accusation of Rape is found mostly in the cases of consensual relationships and a woman files a case where these relationships end. Certainly, a woman driven by revenge and self-interest is not making any false allegations when those relationships end.
Men also feel same emotions
The 3 out of 27 cases of sexual abuse were at its peak. The 3 children had a similar issue of irregularity in attending the school, constant fever, constipation, sleep disturbances, reduction in social interaction, academic decline, etc. Men also go through depression, trauma, psychological distress similar to women counterparts.
Resistance to gain parental rights
There can be cases where a raped woman is married to the offender to protect her stigma towards society but is there any law which protects male resisting from gaining parental rights to the offence which is not committed by him. In such case, if he lacks in proving that he is not guilty of rape, to prevent social stigma they confide the matter.
Custodial violence
Usually, there are chances that males might be tortured during police or under judicial custody when known they have committed a rape unless the same has been not proved that he is the offender of the rape. In such cases, the human and fundamental right of the male gender is violated.
Breaking the stereotypes
Generally, it is assumed that a male cannot be raped and he is not a victim as an outcome of sexual intercourse. Mostly, males are being faced with anal and oral penetration in their daily lives. Secondly, if any of the aforementioned things happen to them, few of them there are no provisions for them to an enforcement authority, they are unable to conclude whether men can be a victim of rape.
The arguments in favour of Gender Neutrality Bill, 2019
The definition of rape has been changing from time to time. Before the December Delhi’s gang rape (Nirbhaya Rape) case, it simply included penile-vaginal penetration but after the Criminal (Amendment) 2013, it included all forms of penetration in vagina, mouth, urethra, anus, etc. but the definition is gender-specific as it considers rape can be committed only by a male and not a female. The arguments in favour of male rights in gender neutrality are:
Recognizing male’s human and gender rights
When referring to the protection given to them i.e., to a particular gender of the society, the other genders (Male & Transgenders) should also be given the same safety. The provisions of Article 14 and 15 of the Indian Constitution should be respected.
Protecting a man from always not being a perpetrator
In the Indian context, it is seen that only a man possesses the ability to rape and not a female. That is why a man is always held as a perpetrator and not a victim in the eyes of law.
Protects that male gender from being sexually assaulted
The landmark judgement of Navtej Singh Johar Vs. Union of India recognized the rights of the transgenders and decriminalized consensual homosexuality. Before the insertion of Section 375A IPC, the sexual assault of males was not acknowledged which was one of the reasons why judiciary could not interpret sexual crimes as gender-neutral.
Lack of provision under law
The reason behind males was not filing a suit for their sexual assault in the past might be of the fact that no one would believe a man being raped in a patriarchal society and lack of such laws had no grounds for protecting themselves.But now, this law is going to create an impact when some population of men open up that they were sexually assaulted previously.
The arguments against the Gender Neutrality Bill, 2019
The offence of rape itself shows physicality in its definition which talks about the dominance of a specific gender and the aggrieved has an injury to her stigma. If these laws were made gender-neutral, then it would become difficult for the judges to interpret a particular case and the probability of seeking justice becomes less in number and a woman has to battle both social stigma and social mindset. The following are few of the reasons why this bill is being opposed to making the laws gender-neutral:
Female on male rape is far away from the reality
As advocate Agnes said, there are no instances where a man is raped by a woman. The lack of female on male rape in the statistics and surveys depicts that a country with no such issue needs any law in advance.
Anal and oral penetration cannot be considered rape
Most of the cases which include anal penetration are faced by children and youngsters but for them, the POCSO Act has already been made gender-neutral. Apart from that anal penetration is possible only if the offender is a male and there is it provides no ground for a female to be an offender in this situation.
Men don’t get pregnant
In a case law a boy who was performing fellatio on an elder boy who was known for his petty crimes in that area. The father refused to file a case under the POCSO Act because they didn’t have any forensic report nor they could get the video. The father has said that “he neither lost a hymen nor will he get pregnant, he is a man and not a sissy”.
Victimization of females is possible
There are chances that the offenders would easily set free rather than being put behind the bars. When a woman approaches a court, she always steps in with a mindset of how society will consider, how she is going to tackle all the situations and how she will prove her innocence to everyone.
Practical aspects
It was difficult to even when the rape laws were not gender-neutral and if at all it is made, the sufferer would be females at most of the times. It is always possible for the offender to question a woman even if she has not committed anything. There are provisions according to which there is no arrest of the women after sunset and before sunrise. Such provisions will be challenged because of this decision.
Statistics
There are instances where every 1 out of 6 in the male’s population faces sexual assault in America. John Kelly, who was a student of Tufts University was raped by his former male partner and therefore he raised the issue before the United States Congress on same-sex violence in 2014. In that case, it was questioned whether, before Criminal (Amendment), 2013 Justice Jaspal quoted the following passage from a California law review:
“Men who are sexually assaulted should have the same protection as female victims, and women who sexually assault men or other women should be as liable for conviction as conventional rapists”. In a survey conducted by the Ministry of Women and Child Welfare in 2007, it came to their notice that 53.22% of children faced one or more form of sexual abuse. Out of that, the no. of boys composed of 52.94%.
Conclusion
When establishing a sexual crime to be gender-neutral, it implies that any gender of the society can have easy access to justice and the discrimination of any specific gender in respect of sexual crimes comes to an end. When everyone is treated equally, it satisfies the very basic nature of the Constitution. Isn’t this discrimination a challenge to the basic structure?
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