Open Access Research Article
ANALYSIS ON GENDER-NEUTRAL RAPE LAWS: AN INDIAN PERSPECTIVE
Published Paper
Article Details
analysis on
gender-neutral rape laws: an indian perspectivE
AUTHORED BY
- SREEKUTTY B.
ABSTRACT
One of the most notable
manifestations of inequality in the globe is gender inequality. Despite the
fact that the IPC states that criminals cannot be discriminated, there are some
anti-male provisions like section 375 that require a man to rape someone and a
woman to be raped. Because of the female-centric conception of rape law and
men's lack of awareness of the offence, criminality against men is constantly
increasing and victims don't receive justice. The only option for male sex
victims is the anti-sodomy statute, or section 377 of the IPC. However, if a
woman is the offender, the victim is helpless to pursue retribution. Men need
to be protected from such serious crimes just as much as women do. Thus, the
necessity for gender-neutral rape legislation that provides relief for both men
and women is crucial. According to the National Human Rights Commission, sexual
abuse is one of the main causes of inmate suicide. Making rape legislation
gender-neutral is a way to argue for the protection of men, transgender people,
and homosexual people's rights to life, equality, and dignity. This paper tries
to examine the importance and need for gender-neutral rape laws in India.
KEYWORDS: Rape-laws, Gender-neutrality, Hetero-normativity,
Victimisation, Muscularity.
INTRODUCTION
One of the most notable
manifestations of inequality in the globe is gender inequality. Despite the
fact that the IPC states that criminals cannot be discriminated, there are some
anti-male provisions like section 375 that require a man to rape someone and a
woman to be raped. Because of the female-centric conception of rape law and
men's lack of awareness of the offence, criminality against men is constantly
increasing and victims don't receive justice. The only option for male sex
victims is the anti-sodomy statute, or section 377 of the IPC. However, if a
woman is the offender, the victim is helpless to pursue retribution. Men need
to be protected from such serious crimes just as much as women do. Thus, the
necessity for gender-neutral rape legislation that provides relief for both men
and women is crucial. According to the National Human Rights Commission, sexual
abuse is one of the main causes of inmate suicide. Making rape legislation
gender-neutral is a way to argue for the protection of men, transgender people,
and homosexual people's rights to life, equality, and dignity.
RESEARCH QUESTIONS
1. Why does legal discourse only permit
men to be rape perpetrators and not rape victims or survivors?
2. What are the current legal provisions
available for the protection of male rape victims?
3. Whether there is a need to consider
other Gender-community except women as victims of sexual assault or rape?
4. How is Hetero-normativity
incorporated into Indian rape laws?
5. Why is there no law pertaining to
male sexual assault in which they are regarded the perpetrators?
OBJECTIVES OF THE RESEARCH
This study aims to evaluate whether
India's rape law needs to be changed from a “gender-specific” to a
“gender-neutral” one. The following are the objectives of the study:
I.
To
examine the importance of gender-neutral rape laws.
II.
To
analyse the hetero-normative character of Indian rape laws.
III.
To
study the possibility of women as a perpetrators in sexual offences.
IV.
To
look into the myths and stigmantation relating to the victims and perpetrators.
STATEMENT OF RESEARCH PROBLEM
In this research project, the
effectiveness of a gender-neutral rape statute is explicitly examined in the
context of India. Gender neutrality is a notion that seeks to gender-neutralize
legislation that is currently gender-specific. Gender neutrality refers to the
elimination of distinctions between male and female rapists and sexual
offenders. Only a man can be found guilty of rape, according to Sections 375
and 376 of the Indian Penal Code, 1860. It is commonly agreed that state laws,
particularly those pertaining to sexual assault in its criminal justice system,
should be governed by human rights as an essential principle and practise.
Throughout history, different nations have noted the gender neutrality of rape
legislation. The traditional view that the victim is always a woman and the
offender is always a man is reflected in the rape laws in India. Despite the
Criminal Justice System's on going improvements, the concept of rape still
solely recognises female victims as the victim. A progressive defence of the
claim that victims of rape in India can include men, transgender people, as
well as other non-confirmative fluid sexes has emerged after all these years.
SIGNIFICANCE OF RESEARCH
India extended the definition of rape
when it changed its rape laws in 2013, but it kept men out of the definition's
concept of a victim. The LGBTQ and transgender groups, who are still
unprotected by the legal system, are nevertheless rampant with sexual abuse.
Rape is primarily an act performed on another person by a person or group of
people to impose control, authority, and dominance over that person or group.
Rape is not merely a sexually satisfying act for the offender. Anyone of any
gender can commit rape.
It may be true that there are fewer
males, Tran’s people, and non-binary people than women, Tran’s men, and
non-binary people who commit crimes, but this does not imply that a group in
society should not get legal protection from injustices. There are no
statistics on sexual violence against the gay, lesbian, and bisexual community
in India. The National Intimate Partner and Sexual Violence Assessment's 2010
survey of the US population, however, provides some insight into community
victimisation. .
According to the survey, rape, physical violence, or stalking by an individual
have happened to 26% of homosexual men, 37% of bisexual men, 61% of bisexual
women, and 45% of lesbian women. 48% of bisexual women reported having been
raped when they were younger, compared to 28% of heterosexual women. Therefore,
it is important to change current rape laws to be gender-neutral.
SCOPE AND LIMITATION OF RESEARCH
This study looks at the necessity for
gender-neutral rape legislation in India as well as the situations that
currently exist when gender communities other than women are the victims of
sexual assault. Women's involvement in sexual offences is also examined in the
study. The study is limited to the Indian perspective.
RESEARCH METHODOLOGY
In this study, the researchers used
the doctrine-based research methodology since their findings were based on
legal proposals, which they examined by looking at current statute provisions,
cases, and evaluating the logic in them. The researchers dug further into many
legal principles and notions when creating this research work. These sources
included cases, precedents, statutes, and more. Additionally, because the
research contains a theoretical investigation of many of the issues involved,
such as the judicial contributions etc., it was determined that the doctrinal
technique was appropriate for the current study. In the doctrinal study the
primary data include direct text and Indian Legislations. The secondary data is
collected from various books, journals and other judicial decisions.
REVIEW OF LIERATURE
This literature review is going to
deal with the opinions and finding of various researchers who has expressed
their views on Gender-neutral rape laws.
BOOKS:
- Lesbian and bisexual survivors of woman-to-woman sexual
violence, in LORI B. GIRSHICK's book are
considered to be the most solitary crime victims. Society is unable to
recognise such assaults because of complex concerns with sexual identity,
institutionalised heterosexism, shame, and oppression[1].
- In his book, MAN
RAPE IS A FEMINIST ISSUE, CLAIRE COHEN
takes a Foucauldian approach to this topic in an effort to problematize
beliefs and behaviours surrounding "male rape" and how they
relate to feminism. It is conceivable for feminist formulations of
"male rape" to assert that they function as a "regime of
truth," but one must consider whether this is actually working
against patriarchy[2].
ARTICLES:
1. According to a DEBORAH ZALESNE essay titled “WHEN
MEN HARASS MEN: IS IT SEXUAL HARASSMENT?”, the problem of workplace sexual
harassment has become more widely known and is no longer just committed against
men and women but also against other sexual minorities. Most courts have come
to the conclusion that the word "sex" in its narrow definition
relates to biological sex, which is ascertained by an individual's genitalia.
His research shows that the out-dated notion that sexual assault can only occur
between men and women, which is held by many courts, is ignorant of the variety
of ways that one person could indeed assert power over another, the existence
of power structures within sexuality, and the complex relationships between
sex, sexual orientation, and power. Neglecting the existence of a legal claim
facilitates same-sex harassment against sexual minorities, which can be just as
frequent, pervasive, threatening, harsh, embarrassing, and disruptive as
opposite-sex harassment.[3].
2. In their study THE SEXUAL HARRASSMENT OF MEN, JENNIFER L. BERDABL, VICKI J. MAGLEY,
and CRAG R. WALDO discovered that
both men and women engage in sexual harassment of others, and that men label
some behaviour as harassment while women do not. According to the findings, men
feel much less intimidated by actions that women perceive as harassing than
women do. They contend that sexual harassment frequently involves more power
than sex.[4].
3. The author of THE CASE OF GENDER NEUTRALITY IN RAPE LAWS, RISHABH CHOPRA, claims
that the definition of rape in India forbids anyone who does not identify as a
woman from seeking redress in a court of law as a rape survivor. It is a long-standing
patriarchal stereotype to think of women as the weaker sex, vulnerable to abuse
and manipulation at the hands of men. This is also a result of the legal
system's inability to recognise women as the perpetrators. India must have a
law against gender equality in rape, as do more than 60 other nations[5].
4. In an article titled HERE'S WHY INDIA NEEDS GENDER NEUTRAL RAPE
LAWS, SMITA SINGH drew attention to the statement made by Justice Mustaque
in a ruling by the Kerala High Court that “the sentence for rape under Section
376 IPC is not a gender-neutral provision”. Gender-neutral rape laws are in
place in nations including the US, Philippines, Finland, Ireland, UK, Canada
and Australia, and they recognise both men and women as offenders and survivors.
Only women are unfairly designated as survivors under Indian law, and as a
result, only women are granted protection at the expense of other genders in
our society[6].
5. In her paper NEUTRALITY OF RAPE LAWS, ANUSHKA YADAV expresses the idea that the Indian Constitution's
equalitarianism is being undermined by the inequality in the treatment of male
and female rape. There is no particular clause addressing whether a male
commits a rape of another male or a female commits one. Although there is a
POCSO for male child sexual assault, adult male rape can only be sodomised
under Section 377[7].
6. NIKUNJ KULSHRESTHA in his article "OUGHT THE RAPE/SEXUAL ASSAULT LAW IN
INDIA BE GENDER-NEUTRAL?" examine the Indian legal system's stance on
sexual assault critically. The problems, beliefs, and misconceptions
surrounding male rape are thoroughly examined. Additionally, it summarises the
necessity for India to have legislation for gender-neutral sexual assault[8].
7. In her article, PRIYA NANDAN made note of the persistent gender-role stereotypes
that perpetuate the assumption that men, and the sense of masculinity they
represent, are immune from becoming the victims of sexual violence or rape[9].
GENDER-NEUTRALITY AND HETERO-NORMATIVE
APPROACH
“These schemas constitute and are constituted by our current
gender order—the patterns of power relations between men and women that shape
norms for femininity and masculinity by defining what are gender-appropriate in
arena such as romantic partner selection, occupational choice, and parental
roles. The gender order is hierarchical, which means there is consistently a
higher value on masculinity than on femininity”
- Schilt, K. & Westbrook[10]
The words "gender,"
"sex," and "sexuality" are frequently used synonymously.
Despite academic advancements in gender and sex conceptual differentiation
theory, social policy and law rarely take this intricacy into account.
Nowadays, there is a growing call for governments to adopt a more accepting
stance on sexuality as a result of the public's increasingly outspoken
opinions. Men and women should not be treated differently in society, the
economy, or the law, according to gender neutrality.
When it comes to the concept and
definition of rape, there is a significant doctrinal issue. Indian law forbids anyone other than a man
from raping a woman. Men cannot be raped, according to the Indian Penal Code
(IPC). This serves to highlight the socio-legal problem of male rape. Even if
there have been instances of male rape, the doctrinal code of law appears to
have been greatly impacted by societal perceptions of hetero-normativity and
masculinity.[11]
In addition to being founded on ideas
of masculinity in relation to rape, India's heteronormative rape laws are also
based on gender. Accordingly, men are the only ones who can commit rape and can
only be the perpetrators; only women can be survivors or victims of rape. This
is because it is assumed that rape is a sexually motivated act carried out only
to satisfy the needs of the perpetrator.
According to Section 375 of the Indian Penal
Code, “A man is said to commit rape who, except in the case
hereinafter excepted, has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions:—
1.
Against her will.
2.
Without her consent.
3.
With her consent, when her consent
has been obtained by putting her or any person in whom she is interested in
fear of death or of hurt.
4.
With her consent, when the man knows
that he is not her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be lawfully
married.
5.
With her consent, when, at the time
of giving such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
6.
With or without her consent, when she
is under sixteen years of age.
Explanation.—Penetration is
sufficient to constitute the sexual intercourse necessary to the offence of
rape”[12]
In this definition, it is crucial to
note that woman will only be the victim; a man must always be the offender. If
men are sexually abused or raped, only the Indian Penal Code 377, "carnal
intercourse against the order of nature," may be used as legal justification.
Section 377 defines Unnatural offences as-
“Whoever voluntarily has carnal inter-course against the order of nature
with any man, woman or animal, shall be punished with 1[imprisonment for life],
or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine. Explanation.—Penetration is sufficient
to constitute the carnal intercourse necessary to the offence described in this
section”.[13]
Homosexuality and other
"unnatural offences" are made illegal in this section of the IPC,
which supports hetero-normativity. So, the law does not take gender into
account. In addition to discriminating against male rape survivors, it also
supports a legal culture that is heteronormative. This socio-legal issue needs
to be understood in the context of the hegemonic social forces that the Indian
Penal Code and theoretical law in general underwent during their development.
Rape has always been seen as a crime
that mostly affects women, especially in India. Only men are considered the
perpetrators of rape according to Indian law, as specified under section 375.
Even sexual offences like
voyeurism, stalking, and sexual harassment only involve men as the
perpetrators. The sodomy law under section 377 of the IPC is the lone exception
to the laws that are sexist against women. Even if it was done voluntarily, the
clause made actions of penetration against the natural order illegal. The
police utilised this offence as a tool to harass sexual minorities, which
significantly hampered India's efforts to recognise the rights of homosexuals.[14]
However, the Honourable Supreme Court decriminalised[15]
the clause in 2018 to the extent as it applied to consenting activities.
Male rape victims have been mainly
left out of this field of research, despite the fact that feminist explanations
of rape are solid and thorough.[16]
The Indian Penal Code, with a concentration on IPC 377[17]
and IPC 375[18],
reinforces hetero-normativity.
MYTH AND STIGMA SURROUNDING RAPE
In order to keep hegemony over
society, hetero-normativity is encouraged. A stigmatisation of extra-vaginal
sex that goes beyond penis penetrating a vagina is also connected to the
hegemonic rhetoric of promoting heteronormative interactions between men and
women. As a result, there is a strong homophobia associated with it.
Hetero-normativity is a concern since it disapproves of intersex relationships.
In our society, we are continually
reaffirming hetero-normativity, for instance, by reaffirming specific gender
relations. The stereotyped portrayal of a traditional family that is founded on
a relationship between a man and a woman, with marriage being the primary
institution, is a prime example.
Rape myths are perhaps method through
which sexual assault has been supported and excused throughout history and in
the present era. The amount of literature on rape myths involving male victims,
however, has been severely lacking. Sexual assault can happen to people of either sex, yet the
majority of adult sexual offences are committed by men against women. Rape,
which has been characterised as "prejudicial, stereotypical or erroneous
attitudes about rape, rape victims, and offenders," is substantially to
blame for the marginalisation and invisibility of male sexual assault.
Myths about rape that pertain to male
victims include:
i.
Men
cannot be raped
ii.
"Real"
males are capable of defending themselves from rape;
iii.
All rape victims and/or perpetrators are
homosexual males;
iv.
Rape
does not affect men as much (or at all) as it does women;
v.
A
man cannot be sexually harassed by a woman;
vi.
Male
rape only occurs in jails and prisons;
vii.
Due
to their immorality and deviance, bisexual and homosexual individuals deserve
to be sexually abused;
viii.
An
assault victim must have desired it if he physically reacts to it.[19]
Under a patriarchal social structure,
masculine predominance and heterosexism are prized values, but men's sexual
victimisation experiences are at odds with these principles.
MASCULARITY
AND MYTH
Our understanding of men and society
at large depends heavily on masculinity and its conceptions. Male’s fear of
femininity is rooted in "toxic masculinity," which promotes the idea
that men are superior to women and femininity, and that men are more sexually
aggressive as a result of this fear. Therefore, masculinity is linked to a
strong understanding of what it means to be "a man" through role
models. Due to social pressure to conform and their fear of "being
feminine," men are reinforced in certain behaviors.[20]
According to research, there are
widespread misconceptions and stigmas related to male rape. "Real men can
protect themselves," for instance. According to this myth about
masculinity, a guy is not considered to be a "true man" if he cannot
defend himself against sexual assault. Any male rape victim must worry about
social repercussions, as well as "victim-blaming" and
"victim-shaming", which is problematic for him. The fear of
jeopardising their representational masculinity, which society expects from a
"real man”, may prevent male survivors of "male rape" from
reporting their abuse and force them to suffer in silence as a result of toxic
masculinity ideals.[21]
The idea of masculinity is always
portrayed as being sexually active and aggressive, rather than as
"victims" in the traditional sense, as this goes against the idea of
masculinity and the fear of feminine. As a result, "men rape victims"
are rendered invisible in the socio-legal discourse due to the social
construction of masculinity.
GENDER-NEUTRALITY IN RAPE LAW
In Sudesh Jhaku v. KC Jhaku[22],
gender neutrality in Indian rape legislation was addressed for the first time.
In this instance, it was determined that male victims of sexual assault should
have the same legal protections as female victims. Making rape laws impartial
was advised in the 172nd Law Commission's Report[23].
India has seen a sharp increase in
requests to change our long-standing rules and regulations in order to reflect
the views of the public today and to address the needs of the modern world. As
a result, the government undertook some notable reforms in our socio-legal
system, including the decriminalisation of adultery, the approval of live-in
relationships, the acceptance of homosexuality, the inclusion of the Right to
Privacy as a Fundamental Right. The principles of "Equality"
cherished in the Basic Structure of the Constitution of India are not strictly
upheld, it turns out if we look at the practical realities of identifying the
concept of "Gender Neutrality in India's rape laws, as laid down under
sections 375-376[24] of the
Indian Penal Code, 1860. It
is debatable whether gender neutrality should be incorporated into any
comprehensive policy to cover rapes committed by men against men, women against
women, or transgender people. This is essential if the country is to develop into
a mature democracy with fairness, integrity, and objectivity as guiding
principles.[25]
MALE-ON-MALE RAPE
In spite of the historic ruling in Navtej Johar & Ors. v. Union of India,[26]
decriminalising Section 377 of the Indian Penal Code, there is still no easily
accessible legal remedy to address adult male to male rapes in India. The
“Protection of Children from Sexual Offenses (POSCO) Act”[27]
of 2012 provides protection for male child rape victims, however adult male
rape victims are not provided with any legal services or support because such
crimes are outside the purview of the Indian Penal Code's court system.
Male-male rapes and female-female rapes in prisons, according to a number of
studies, are common occurrences, and the vast majority of such crimes go
undetected.[28]
FEMALE-ON-FEMALE RAPE
The opinion of the High Court in State Govt. v. Sheodayal[29]
is that- “modesty of a woman can be outraged by another woman under the purview
of Section 354 of IPC”. The Supreme Court addressed the issue of whether or not
a woman can engage in gang rape in Priya
Patel v. State of M.P[30].
As per Section 376(2) (g)[31],
"whoever commits gang rape can be punished...” Each member of the group is
viewed as having committed gang rape when a woman is raped by one or even more
members while they are working toward a common goal. The act of penetration
might thus be carried out by the group as a whole without the need for each
individual member. The court did rule, however, that- “it is impossible for a
woman to rape another woman since it is inconceivable for a woman to have the
intention to do so”. Indian intellectuals and activists have mostly been silent
on this element of gender neutrality while the debate over whether a woman can
rape a man has been hotly debated in the public realm.[32]
FEMALE-ON-MALE RAPE
Comparing a female committing a rape
on male to other types of sexual assault, there is a glaring lack of study on
this crime. To determine the statistical prevalence of such crimes in India, we
lack any valid historical context or official study data. Predictably, a male
rape victim who attempts to submit a legal FIR charging a woman of rape is
likely to face ridicule from the police as well as possible extreme social
rejection and mental anguish. Regardless of caste, colour, creed, ethnicity, or
sex, a victim of a crime is nonetheless a victim. Contrarily, the shouts and protests
of male rape victims are only unspoken thoughts that are never taken seriously.
A culture where "pseudo-feminism is at its pinnacle" is finally
created as a result of such impermeable indifference between the sexes.[33]
TRANSGENDER RAPE
Gender-neutrality in rape laws
advocates for the inclusion of members of the transgender community as well as
the two genders that are most widely recognised in society. A shocking
contravention of the Supreme Court's landmark 2014 decision in the case of National Legal Service Authority v. Union
of India[34],
in which the SC took due cognizance of the "rights and remedies of the
transgender community", is the fact that India currently has no specific
laws pertaining to rapes of trans people. This blatant disregard is a violation
of the SC's landmark decision. To "eradicate ostracism and the
predispositions towards transgender and place them on an equal platform in the
eyes of the law", the Transgender Persons (Protection of Rights) Act[35],
2019 was put into effect. However, numerous important legal provisions
regarding sexual offences against transgender people were left out of the Act,
and those stubborn gaps have still not been filled. Furthermore, rather than
eradicating discriminatory attitudes, the 2019 Act contains provisions that
strangely have the opposite effect.[36]
VICTIMISATION
In India, there is always some form
of gender-based violence. Due to the significant impact that sexual assault has
on Indian women's daily lives, this has a significant negative impact on their
livelihoods. In both the public and private spheres, gender-based violence
against women is a reality. In the patriarchal culture, rape is just one
example of the numerous forms of gender-based violence that are practised.
India has earned the unflattering title "the rape capital of the
world."[37] As a
result, gender-based violence is frequently seen as being a threat to primarily
the physical and mental well-being of women, while men are rarely considered to
be at risk. In contrast to men, who are only seen as perpetrators, women and
girls are portrayed as "victims" or "survivors" more
frequently. Men are also harmed by rape in India, thus this need to be taken
seriously.[38]
India, which has a far more
conventional view of gender issues than other nations, does not accept victims
who identify as the "dominant" sex. Male was overlooked as our
nation's rape laws were being written. Male victims of rape are not included in
the definition of rape in Section 375 of the Indian Penal Code. The single part
of the Indian Penal Code, Section 377, makes any non-consensual carnal actions,
including male on male rape, illegal. The Indian government decided to change
the definition of rape in 2002 to make it gender-neutral, however this decision
drew criticism for potentially harming the rights of female rape survivors and
victims.[39]
IMPACT OF FEMINISM
The main obstacle to the introduction
of a gender-neutral rape law is seen as the feminist resistance. In general,
the laws are closely tied to heteronormative presumptions about the
relationships between men and women Men who rape men or boys can only be
punished under the sodomy-related Indian Penal Code 377, which criminalises
"unnatural offences," like homosexuality. The social conceptions of
masculinity do not "enable" men to be rape victims or survivors.
The idea that a rape victim is always
a woman and the perpetrator is always a man is the foundation of Indian law.
Gender neutrality is a notion that seeks to do away with distinctions between
the sexes in the drafting and application of laws. This idea contends that
everyone should receive the same protection from the law without gender-based
discrimination. It suggests that laws that are gender-specific are uniform. One
such law is a rape law. According to sections 375 and 376 of the Indian Penal
Code, 1860, only a man can be found guilty of rape, and only a woman can be the
victim. Gender neutrality is not present in this law, which is gender-specific.[40]
The stereotype associated with the
word "victim" assumes that a victim is a woman since she is the most
defenceless member of society. The same idea is the foundation of the Indian
rape laws, which means that they provide no safeguards to the other rape
victims. This results from the presumption that rape is solely a sexual act
performed to gratify the sexual desires of the perpetrator. But with increased
understanding, it is clear that sexual assault nowadays is not merely an act of
passion but also a sign of domination over another person's caste, religion, gender,
community, and desire to use one's position of authority over them to make them
feel inferior. The sufferer should not only be a "female" if the
statements above are to be believed.[41]
When it comes to a rape offence,
historically speaking, both India and the rest of the world have viewed women
as the victims and men as the offenders. The rape of a man, however, has long
been a contentious matter, and because we still live in a patriarchal society,
it is difficult for both society and the legal system to recognise it. This is
true despite the fact that war crimes involving the sodomization of males by
males have been recorded throughout history. The rise of female empowerment and
the introduction of feminism have also made it apparent that an increasing
number of women have indeed been found guilty of infringing on men's sexual
autonomy. In addition, there is growing worry about changing the gendered rule
on rape into a gender-neutral one in light of the recognition of homosexuality
as a normal sexual preference. There is no doubting that the majority of rape
victims are female, yet statistics on crime show that rape offenses against men
are also on the rise.[42]
CONCLUSIONS, RECOMMENTATIONS AND
SUGGESTIONS
CONCLUSION
In India, neither rape nor sexual
assault is recognised as crimes that can be perpetrated against men. Only a guy
may commit these crimes against a woman since the definition of each is so
specific. The Justice Verma Committee's[43]
recommendations on this matter have been rejected by the government. In its
findings, the Committee had unequivocally concluded that "if the human
right of freedom means anything, then India cannot deny its citizens the right
to be different". As a result, the fundamental principles of equality
guarantee that everyone has the freedom to express their sexual orientation.
The Committee agreed that gays and
transgender people should be included in laws protecting them from crimes like
sexual harassment and assault. . The Committee has openly acknowledged the
prevalence of male, gay, transgender, and transsexual assault as well as the
need for changes in this area. The Universal Declaration of Human Rights[44],
adopted in 1948, the International Covenant on Civil and Political Rights[45],
signed in 1966, and the International Covenant on Economic, Social, and
Cultural Rights[46], signed
in 1966, all reaffirm the inherent right of every person to equality and human
dignity. India is a signatory to many international covenants on human rights.
However, India has deliberately opted to ignore its duties under these.
A male cannot be sexually assaulted
by a female since "man" is thought to be stronger than a woman. The
incidence of rape and sexual assault incidents against men has been
continuously rising because the definition of rape in India is restricted to
the entry of the penis or an object into the vagina. Men have been victims of
these crimes on several occasions, but nothing has been done because there is
no legal protection.
RECOMMENTATIONS
AND SUGGESTIONS
Increased victimisation of rape and
sexual assault victims is the goal of gender neutral rape laws. It strives to
acknowledge and normalise male and other gender rape and sexual assault and to
offer equal legal protection to all people, regardless of their gender. The
gender-neutral laws have been established and adopted in about 77 nations,
including the USA, UK, Canada, Philippines, Finland, Ireland, and Australia.
"To provide a safe environment, at all times, for all citizens" is
the state's primary duty. The state's laws ought to be written in a way that
reflects its responsibility to its inhabitants. In India, rape is defined as
"a man is said to commit 'rape' if he..." in Section 375 of the
Indian Penal Code. India upholds the conventional view that men are the
perpetrators of rape and does not recognise gender neutrality in rape laws.
The Law Commission of India has
proposed that the rape law be gender neutral in its 172nd report[47].
There is a claim that the fundamental rights entrenched in our constitution,
such as equality before the law and equal protection of the rights, must also
be implemented in this situation. The Report advocated for extending the
definition of rape to cover situations in which both men and women could be
sexual assault perpetrators and victims.
A committee[48]
was formed on December 24, 2012, and Justice (Retired) J.S. Verma was elected
as its chairman. The committee recommended that a gender-neutral rape law be
adopted. Men who are raped would have benefited from the crime being
gender-neutral, and Section 377, a highly contentious law that has no place in
a democracy in the twenty-first century, would have been eliminated.
Justice A Muhamed Mustaque, Kerala
High Court while adjudicating upon a matrimonial dispute raised by a divorced
couple over the custody of their child observed[49]
that-
“Section 376 is not a
gender-neutral provision. If a woman tricks a man under false promise of
marriage, she can’t be prosecuted. But a man can be prosecuted for the same
offence. What kind of law is this? It should be gender-neutral”.
Part
III of the Indian Constitution[50],
which guarantees equality before the law and equal protection under the law[51],
also has a section that enshrines fundamental rights and forbids sex
discrimination[52].
Despite the fact that the state government is permitted by article 15(3) of the
constitution to make measures for the advancement of mankind, the government is
nonetheless free to pass legislation to safeguard the interests of other
groups. Men and members of the transgender community are more rarely the
victims of rape, but it does not mean that they should not have the same rights
as everyone else.
The
conclusions and suggestions can be summarised as:
·
The
terms "victim" and "perpetrator" should not be
gender-specific in order to create gender-neutral laws in India.
·
When
enacting legislation to safeguard the community's most vulnerable members, the
situation of other genders should not be disregarded.
·
While
protecting the weaker groups, laws should also protect the other groups that
are just as vulnerable to harm and criminal activity.
·
This
requires that laws be reasonable and not harm or ignore any groups.
Modern binary conceptions of man and
woman are still very much alive and well, even when they are dressed up in the
guise of gender-sensitivity. Under the guise of gender-neutrality, sex and
gender are mixed up in a way that minimises the severity of female
victimisation. The Indian Penal Code, 1860 contains many such misunderstandings
and needs to be carefully reviewed.
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Article Information
ANALYSIS ON GENDER-NEUTRAL RAPE LAWS: AN INDIAN PERSPECTIVE
Authors: SREEKUTTY B.
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/11
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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