GENDER NEUTRAL RAPE LAWS IN INDIA: A STEP TOWARDS EGALITARIANISM BY - VINAYAN SINGH
GENDER NEUTRAL RAPE LAWS IN INDIA:
A STEP TOWARDS EGALITARIANISM[1]
AUTHORED BY - VINAYAN
SINGH
INTRODUCTION
"They shot me in the back. They
put a cable around my neck and began choking me. The soldiers grabbed and held
me down. They said, 'we are going to rape you. 'And they each took turns."[2]
“My name is John Kelly, and I’m a
survivor of rape and intimate partner violence. I was raped twice while in
college, but one of my experiences doesn’t fit into traditional definitions of
rape.”[3]
India has been engaged in the battle
to safeguard its female population for a considerable period of time. Given the
continually increasing rate of criminal activities, it is crucial to ensure
that the rise in such incidents is attributable solely to their occurrence and
not due to the misuse of laws. Although women are frequently the primary
victims, it is important to acknowledge the negative consequences for men
resulting from the imprudent implementation of laws designed to protect women.
Historically, the justification for enacting laws and regulations to benefit
women has been based on their subordinate status in society during previous
eras.
The Justice Verma Committee report
first appeared in 2013, providing a beacon of hope for a society that had been
engulfed by the chains of violence and power. In addition to its findings and
recommendations, the panel stressed the need of being aware of the possibilities
of sexual attack on males, as well as gay, transgender, and transsexual rape,
in its report. But the organisations that had argued against the committee
reports and recommendations came forward with unfounded objections to prevent
the introduction of such a law in the country, and so The Criminal Law
(Amendment) Act 2013 was passed without incorporating the suggestions that had
been made.
STATEMENT OF PROBLEM
The Criminal jurisprudence in India
does not recognize rape of men. At most it is covered under section 377 of the
IPC as an “unnatural offence”. We must, however, recognise that India's
constitution has evolved to recognise the inherent dignity of every individual
irrespective of gender. Being one of the bedrock values of constitutional democracies
like India's, constitutional integrity is given significant weight by the
country's judicial system. Recently, in December 2022, a man from Jalandhar
alleged that he was raped by 4 women.[4]
Legal recognition of male sexual abuse is a crying need of hour.
RESEARCH QUESTIONS
1. What are the key factors driving the
need for gender-neutral rape laws in India?
2. What are the different arguments
favouring non-criminalisation of rape on men?
3. What are the proposed changes brought
by the Criminal Law Amendment Bill, 2019?
RESEARCH OBJECTIVE
The objective of this research is to
analyse the existing rape laws in India, the need for gender neutral laws and
the legality of gender-neutral laws.
RESEARCH METHODOLOGY
This is a doctrinal research based on
primary and secondary sources to understand different aspects of gender
neutrality of rape laws in India.
SCOPE AND LIMITATION
The research only focuses on the rape
laws. It does not include other gender specific laws like Stalking, Voyeurism
etc.
CHAPTERIZATION
Chapter 1: Gender specific Rape Laws in India
Chapter 2: Arguments Against Gender Neutral
Rape laws
Chapter3: Criminal Law (Amendment) Bill,
2019; An Analysis
Chapter 4: Position of Rape Laws in Other
Countries (USA, Canada and UK)
GENDER SPECIFIC RAPE
LAWS IN INDIA
In recent years, equality between the
sexes and the promotion of women's empowerment have gained widespread
recognition as essential principles and concerns that span across all
disciplines. Abuse of any type, including sexual abuse, must be categorically
and unequivocally condemned in the strongest possible terms. If this kind of
conduct were allowed to continue, it would be a violation of people's freedom
and dignity, which are two things to which every person is inalienably entitled.
Not only do the acts of rape, sexual
assault, harassment, and cruelty cause harm to the victim's physical,
emotional, and psychological well-being, but these acts also reflect a growing
acceptance of such behaviour in a society that claims to uphold the rule of
law. As a result, these acts are considered to be serious issues.
The basic right to live with human
dignity and the right to equality naturally involve protection from
any kind of abuse or harassment. It should come as no surprise that the
Constitution of India aims to grant basic liberties to each and every person,
notwithstanding differences in gender.
SECTION 375 OF IPC
Section 375 of the Indian Penal Code,
which was enacted in 1860, specifies that rape is a crime that is committed by
a man against a woman. This section identifies only males as capable of
committing violent acts and women as potential victims of such acts. On the
other hand, it only considers the perspectives of the victim and the offender,
and it doesn't take into account other possible scenarios, such as a man being
sexually assaulted by another man, a man being sexually assaulted by a woman,
or the rape of individuals who identify as being of a third gender.[5]
If we look at the crime of rape,
there can be several forms of rape, according to the genders recognized in
India (male, female, transgender[6]):
·
Rape
of woman by man
·
Rape
of woman by transgender
·
Rape
of woman by woman
·
Rape
of man by man
·
Rape
of man by woman
·
Rape
of man by transgender
·
Rape
of transgender by man
·
Rape
of transgender by woman
·
Rape
of transgender by transgender.
In India only one form of rape has
been recognized by the Indian Penal Code i.e., Rape of woman by men.
Section 377 of the Indian Penal Code,
1860 addresses any kind of non-consensual sexual activity or intercourse
between males and is classified as carnal intercourse against the order of
nature.[7]
However, it does not define male on male sexual assault as rape, which is a
concerning issue. It is disturbing that in India, non-consensual male on male
sexual assault is treated the same as voluntary homosexual activity. Section
377 disregards the clear difference between coerced male on male rape and
consensual sexual intercourse between individuals of the same sex.
ARGUMENTS AGAINST
GENDER-NEUTRAL RAPE LAWS
Arousal
implies consent
“I have doubts whether a woman can
commit rape; the reason is that a man has to be aroused sexually to be able to
have sex with a woman. If a woman tells a man that he must have sex with her,
it won’t work because the man will be so frightened and disorientated that he
won’t really be able to do it. Under that circumstance, the man won’t be able
to be in the proper physical mood to be able to have sex with the woman.”[8]
"To presume that women can rape
men is rather outrageous. While women can sexually harass men, they can't
sexually assault them. There have been no such cases anywhere."[9]
The whole argument that men cannot be
raped is based on the trite and archaic definition of rape which only
recognizes penile-vaginal penetration as rape. The interpretation that arousal
implies consent is flawed and is not in consonance with the modern-day society.
Case studies were conducted by Sarrel
and Masters on a total of 11 male subjects who had been the victims of sexual
assault at the hands of females. Even though the males felt humiliated,
anxious, fearful, angry, and terrified, they reported experiencing physical
sexual desire despite these negative emotions. In point of fact, a few of the
males said that they had erections and ejaculated while the attack was taking
on. In other instances, the fear of castration was sufficient to evoke a
physical or sexual reaction from the subjects.[10]
According to the findings of the
study that was conducted by Levin and van Berlo (2003), various different sources
imply that just because a person feels arousal or an orgasm does not always
mean that they have provided permission to the sexual stimulation that was
experienced. The argument that the presence of evidence of genital arousal or
orgasm indicates consent is unconvincing and should not be deemed a legitimate
defence by the offender.[11]
Also, after the Criminal law
amendment of 2013, the definition of rape in India under section
375 of the IPC has been widened to include other forms of penetration including
penile-vaginal penetration. Now, the criminal law in India also includes oral
sex as rape. With such existing legal position there seems to be no rational
reason as to why men should not be included as victims of rape.
Effect
of rape is different on men and women
“The consequences of rape for a woman
are far-reaching. She has to battle social stigma, social mindset. While fixing
marriages, nobody asks a man if he is a virgin.” [12]
Another argument against gender
neutral laws is that the effect of rape is different on men and women. It is
based on the belief that the social trauma of rape is only towards women and
not men. It is argued that the social stigma of rape operates only towards
women and not men. It is also said that the mental torture of rape victim is
more for women than men. Some arguments have gone to the extent of saying that
men don’t mind non-consensual sexual intercourse.[13]
In a study conducted by Walker,
Archer, and Davies (2005)[14],
a group of 40 men who had experienced rape were interviewed, and the results
showed that the effects of rape on men included several long-term consequences
such as heightened anxiety, depression, increased feelings of anger and
vulnerability, loss of self-image, emotional detachment, self-blame, and
self-destructive behaviours.
Some studies have also concluded that
the effect of rape on male victims is more than that of female victims.
According to the findings of research conducted by Frazier (1993), which
entailed the examination of 74 male and 1,380 female rape victims, male victims
exhibited greater degrees of sadness and anger immediately after rape than did
female victims.[15]
CRIMINAL LAW AMENDMENT BILL,2019: AN ANALYSIS
On July 12, 2019, former member of
parliament KTS Tulsi presented the Criminal Law (Amendment) Bill, 2019, as a
private member bill in the Rajya Sabha. The measure seeks a change to India's
rape laws that would make them equally applicable to both sexes, an idea that has
been proposed before. The bill claims that the right to equal protection under
the law is a basic right protected by the Indian Constitution. It also
references earlier studies and legislation that dealt with the topic of gender
equality. The Supreme Court's 2015 decision in National Legal Services
Authority v. Union of India[16],
which established transgender people as a "third gender," is cited in
the bill. The case of Criminal Justice Society v. Union of India & Ors.[17]
is also mentioned, in which the Supreme Court recommended that Parliament
consider making rape legislation gender-neutral.
The major changes proposed in the
Indian Penal Code,1860 are as follows:
·
The
inclusion of the phrase "transgender" in Sections 8 and 10, which,
respectively, define the terms "gender," "man," and
"woman,"
·
The
incorporation of Section 8A, which would provide a definition of modesty that
is relevant to all genders,
·
Changing the definition of "assault"
in Section 354 to include "the use of unlawful force with the aim to offend
modesty" in a new section that would replace Section 354,
·
The
offence of sexual harassment, as defined by Section 354A, has been rendered
gender-neutral by the substitution of gender-specific phrases with
gender-neutral ones such as "anyone" and "any person,"
among others.
·
The
crime of assault or the use of unlawful force with the aim to disrobe, which
was formerly defined in Section 354 B, has been replaced by a new section, that
refers to "any person" rather than "woman" in its subject
matter. Moreover, gender-neutral versions of the definitions of voyeurism and
stalking that are specified in Sections 354 C and 354 D, respectively, have
been included.
·
Under the definition of rape that is given in
Section 375 of the bill, the terms "man" and "woman" are
suggested to be replaced with the phrase "any person." This is an
additional significant modification that is proposed in the bill. The scope of
the term will therefore expand as a result of this, and protection will also be
given to males and transgender people.
·
The
act of non-consensual handling of another person's genitalia or the use of
words or gestures that generate the fear of unwanted sexual danger is defined
as the crime of sexual assault in the bill's Section 375A, which describes the
offence of sexual assault. The specified penalty is harsh incarceration that
may last for up to three years, a fine, or all of these options together.
·
Similar
amendments have been proposed with regard to gang rape and rape committed by a
person in a position of authority, which are covered under Sections 376 C and
376 D respectively.
POSITION OF RAPE LAWS IN OTHER COUNTRIES
(USA,
CANADA AND UK)
USA
The Federal Bureau of Investigation
(FBI) revised their definition of rape for the Uniform Crime Reporting Program[18] in
the United States in 2013. the new definition encompasses any penetration
of the vagina or anus by any part of the body or object, as well as oral
penetration by a sex organ belonging to another person, regardless of how
little the penetration may be. This revised definition acknowledges that rape
is a crime that may be committed against either men or women and can entail the
use of any penetrating instrument. Moreover, it covers incidents in which the
victim was drugged and unable to put up a fight. The FBI expects that employing
this new criterion for collecting data will result in an increase in the number
of instances that are reported. Similarly, the definition of "sexual
intercourse" in the state of Washington was changed in the year 2020 to
include penetration of the vagina or anus by a person of the same sex or the
opposite sex. This change went into effect.[19]
CANADA
Instead of the word "rape,"
the Canadian Criminal Code[20]
refers to the offence of "sexual assault" under Section 271. Using
the phrase "everyone" rather than "man" or
"woman" makes this crime gender neutral. As per Section 151 of the
Code, "Sexual interference" is also a punishable offence. In addition
to being gender-neutral, the rule applies to "any individual who has
sexual contact with another person, whether by touching a body part or an
object.”
UNITED KINGDOM
Although
rape of men is recognised by Section 142 of the Criminal Justice and Public
Order Act, 1994[21],
the perpetrator under this provision is limited to men. Therefore, the position
in United Kingdom is that both, men and women can be victims of the crime of
rape but the offender can only be a man.
CONCLUSION
Law is not a static and dry topic;
rather, it is dynamic and susceptible to continual change depending on
differences in society, including new demands, altered values, and outdated
concepts. As a result of these shifts, the law is always evolving to reflect
these shifts. It is the role of the state to make, recognise, and enforce laws
in order to have an effective legal system. This provides individuals with the
ability to have trust that courts and state authorities will recognise and
enforce regulations. The rule of law is an essential component of society,
which is characterised by its complexity, fluidity, and emerging order. For
peaceful coexistence, the observance of shared standards for behaviour is
vital, and a body of laws provides the necessary framework for society. Legal
philosophers like John Austin and Jeremy Bentham have divided the law into
"what law is" and "what law ought to be." This distinction
was made in order to analyse the law more thoroughly. In the current
environment, regulations regarding rape are particularly protective of women in
situations involving sexual abuse and rape. However, in reality, there are a
variety of factors at play, and gender-neutral laws are required to ensure
equal protection for all victims, including men, gay men, lesbian women,
bisexuals, and transgender groups. This is the only way to guarantee that there
will be no discrimination against any of these groups.
Equality is the signature tune of the
Indian constitution and gender equality is amongst the most fundamental form of
equality. Existence of rape against men and transgenders cannot be denied and
it is very important to legally recognize rape of men and in furtherance make
rape laws gender neutral.
BIBLIOGRAPHY
1. Sarrel PM, Masters WH. Sexual
molestation of men by women. Arch Sex Behav. 1982
- "Gender Neutrality in Rape Laws in India: A
Critical Appraisal" by Nupur Ray, International Journal of Humanities
and Social Science Research, Vol. 4, No. 2, 2014.
- "Gender Neutral Rape Laws: A Way Forward for
India" by Shraddha A. Patil, International Journal of Humanities and
Social Science Invention, Vol. 6, Issue 7, 2017.
- "Making Rape Laws Gender Neutral in India: A Need
for Reforms" by Surabhi Chopra, Indian Journal of Gender Studies,
Vol. 23, Issue 2, 2016.
- "Gender Neutral Rape Laws: A Panacea for India's
Gender Based Violence?" by Manoj Kumar Sinha, Journal of Indian Law
and Society, Vol. 9, Issue 2, 2018.
- "Gender-Neutral Rape Laws in India: A Critical
Analysis" by Sudha Srivastava, Indian Journal of Law and Society,
Vol. 6, Issue 1, 2015.
- "Gender Neutral Rape Laws in India: A Review of the
Current Scenario" by Nishi Mittal and Nitika Goyal, Journal of Social
Welfare and Management, Vol. 11, Issue 3, 2019.
- "Rape Laws in India: The Need for Gender-Neutral
Laws" by Aarushi Gupta and Rhythm Sharma, Journal of Social Welfare
and Management, Vol. 11, Issue 3, 2019.
- "Gender Neutral Rape Laws in India: An
Analysis" by Amreen Tariq and M. C. Puri, Journal of Social Welfare
and Management, Vol. 10, Issue 4, 2018.
- "Gender-Neutral Rape Laws in India: A Step towards
Gender Equality and Justice" by Kamal Narayan Seethi and Priyanka
Tanwar, Journal of Legal Studies and Research, Vol. 7, Issue 1, 2021.
- "Gender Neutral Rape Laws in India: An
Overview" by Rameshwari Bhatia and Swati Dhingra, International
Journal of Social Science and Humanities Research, Vol. 4, Issue 4, 2016.
[1] Author, Vinayan Singh is an
Assistant Professor of Law at Chanderprabhu Jain College of Higher Studies
& School of Law.
[2] Sarah Thrust & Josh Estey,
DRC's male and female rape survivors share their stories, Aljazeera, (Apr. 15,
2020),
https://www.aljazeera.com/indepth/features/drc-male-female-rape-survivors-share-stories-200412123610
314.html
[3] KELLY, John, “I’m a Survivor
of Rape and Intimate Partner Violence–And I’m a Man” TIME (2
July 2014),
[4] “Four Women 'Rape' a Man in
Jalandhar: Gender-Neutral Laws Are Crying Need of Hour” (FirstpostDecember
4, 2022)
accessed March 15, 2023
[5] SECTION 375, IPC
[6] NALSA V. UNION OF INDIA, Writ
Petition (civil) No. 604 of 2013
[7] SECTION 377, IPC
[8] Vanguard, a Nigerian newspaper
[9] Flavia Agnes in The Times of India
[10] Sarrel PM, Masters WH. Sexual
molestation of men by women. Arch Sex Behav. 1982 Apr;11(2):117-31. doi:
10.1007/BF01541979. PMID: 7125884.
[11] Levin RJ. Sexual arousal--its
physiological roles in human reproduction. Annu Rev Sex Res. 2005; 16:154-89.
PMID: 16913291
[12] https://timesofindia.indiatimes.com/india/cabinet-nod-to-make-rape-gender-neutral-riles-womens-groups/articleshow/15049606.cms
[13] Author links open overlay panel
Pamela A Ratner a and others, “Non-Consensual Sex Experienced by Men Who Have
Sex with Men: Prevalence and Association with Mental Health” (Patient
Education and Counselling April 30, 2002)
accessed March 15, 2023
[14] Walker J, Archer J, Davies M.
Effects of rape on men: a descriptive analysis. Arch Sex Behav. 2005
Feb;34(1):69-80. doi: 10.1007/s10508-005-1001-0. PMID: 15772770.
[15] “Apa PsycNet” (American
Psychological Association)
accessed March 15, 2023
[16] National Legal Services Authority
v Union of India, (2014) 5 SCC 438.
[17] Criminal Justice Society v. Union
of India & Ors., W.P.(C) No. 1262/2018 vide its Order dated Nov. 12, 2018.
[18] “Crime in the U.S. 2013” (FBI May
14, 2014)
[19] Revised Code of Washington,
Section 9A.44.010
[20] Branch LS, “Consolidated Federal
Laws of Canada, Criminal Code” (Criminal Code March 6, 2023)
[21] Participation E, “Sexual Offences
Act 2003” (Legislation.gov.uk)
accessed March
15, 2023