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GENDER NEUTRALITY OF RAPE LAWS: A LEGAL STUDY OF INDIA BY: ROHAN GOWDA H V
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GENDER NEUTRALITY OF RAPE LAWS: A
LEGAL STUDY OF INDIA
AUTHORED BY: ROHAN GOWDA H V
1. INTRODUCTION
1.1 ABSTRACT
Rape and sexual assault is a crime
which is highly prevalent in India, especially against women. However,
instances of men and people who identify as non-binary gender being victims of
this crime have been coming to light. To promote the interests and welfare of
its people, the right against discrimination on the basis of religion, race,
caste, sex or place of birth is provided to the citizens of India under article
15 of the Indian Constitution. This right plays a very important role to
maintain justice and equality in the country and to protect its citizens.
Inspite of this, instances of gender discrimination against people belonging to
the LGBTQ+ community and men can be seen as there is no law in place which
provides protection to these people against rape and sexual assault. Section
375 of the Indian Penal code clearly specifies that a victim of rape can only
be a woman and the perpetrator is always a man. Due to lack of safeguards for
men and the LGBTQ+ community, they continue to be harassed and sexually
violated. This study aims to bring to light the instances of male rape and
sexual assault against LGBTQ+ community prevalent in India and the role played
by existing provisions in safeguarding people from Sexual assault and rape. The
study also examines and assess whether the existing provisions are sufficient
and reasonable to protect people regardless of gender from instances of rape.
The paper brings to light the harsh reality of how there is no gender
neutrality of rape provisions in India and how gender roles are deeply rooted
to the Indian society. It also highlights the need for a comprehensive gender
neutral rape laws to be introduced in India to safeguard all from rape
regardless of gender. The argument here
is that rape against men and non-binary gender is continuing to increase due to
insufficient laws and legal framework and that there is a need to reform and
introduce new laws to curb rape in India.
1.2 KEYWORDS:
women perpetrators, homosexual rape,
Section 375, Rape, gender neutral rape laws, India, gender roles
1.3. RESEARCH PROBLEM
Rape is widely acknowledged as one of
the most serious crimes in India. The reality of men and other non-binary
genders, such as members of the LGBTQ+ community experiencing similar
circumstances is ignored by society as well as the laws. Rape is though to be
exclusively committed by a man against a woman. The laws that are currently in
place In India regarding rape also very clearly reflect this societies mindset.
Section 375 of the Indian Penal Code is one such law that defines rape as
having sexual relations with a woman. This provision makes it clear that a
woman is the victim of rape, disregarding the fact that anyone can fall victim
to such a horrible crime.
Although there have been many
instances of women being the victims of rape, there are also more and more
instances of men and non-binary genders falling victim of the same crimes.
There is a gap in the current laws because the provisions do not acknowledge
this. This paper emphasises on the need for gender neutral rape laws while
focusing on how anyone can be a victim of rape, irrespective of gender. The
Indian Constitution guarantees social security and equality and it forbids
discrimination based on the person's gender. The laws that are in place now
violate the constitution and infringe the rights of men and non-binary genders.
1.4. RESEARCH QUESTIONS
1.
What is the historical evolution of rape laws in India
and what amendments were brought to make the rape laws more inclusive?
2.
How does gender roles contribute to gender specific
provisions in India?
3.
Whether the current rape laws provide sufficient
safety and protection to all the genders?
4.
Whether there is a need for gender neutral rape laws
in India?
5.
What is the step forward to implement gender neutral
rape laws in India?
1.5. RESEARCH OBJECTIVES
1.
To examine the historical context of rape laws in
India
2.
To analyse the existing rape laws in India and the
impact of these laws on men and Non-Binary genders
3.
To explore the stereotypes and stigmas that influence
the reporting and prosecution of rape cases among men and Non-Binary genders
4.
To examine the arguments for and against gender
neutral rape laws
5.
To propose suggestions and recommendations that could
make rape laws In India more gender inclusive and neutral.
1.6. RESEARCH METHODOLOGY
The research methodology used for
this paper is Doctrinal in nature. Doctrinal research is a method of legal
research which focuses on analysing and interpreting existing legal sources and
materials to understand and analyse the law. This type of research includes a
study of statutes, case laws, doctrines, regulations and other legal texts to
understand legal frameworks.
2. BACKGROUND
Rape is considered to be on of the
most heinous crimes however the Indian law provisions related to rape are
currently gender specific, which means that the laws are biased towards women.
Due to the societal norms, it is considered that rape is something which is
committed against women by men and this notion is also supported by the
existing rape provisions such as section 375 of the IPC.[1]
The provision clearly defines that rape is a crime which is carried out by a
man against a woman. Hence it clearly identifies that the perpetrator is always
a man and that the victim is always a woman. This ignores the prevalence of
rape against men as well as non-binary genders. Due to this, men and the
non-binary genders continue to suffer in society. Due to the absence of an adequate
law which protects and serves justice for rape against them, many of the crimes
remain unreported and they continue to be sexually harassed and assaulted.
There can be seen an increase in the number of such cases coming to light
however many still go unreported. Hence it can be clearly seen that rape is a
crime which is not just committed against women but also against men and
non-binary genders and due to the failure of the Indian laws to recognise this,
people are continuing to suffer.[2]
3. HISTORY OF RAPE LAWS IN INDIA
The Latin word that gave rise to the
English word rape means to seize. Rape
literally means "forcible seizure." Usually, when a woman is violated
without her consent through the use of force, fear, or fraud, it is referred to
as rape. The definition of rape and the associated penalties are both outlined
in Indian legal codes. The definition of rape is found in Section 375 of the
Indian Penal Code. Both in 1983 and 2013, this provision was changed to make
India's rape laws more inclusive and comprehensive.[3]
However in spite of the provision
being amended multiple times to make it more inclusive, the law still omits to
recognise that any person regardless of their gender can be a victim or
perpetrator. It continues to follow the old, traditional gender roles and
considers only women as victims and men as perpetrators.
The meaning of rape was initially
confined only to penile-vaginal intercourse however, the mathura rape case[4] brought
significant changes in the understanding as well as the meaning of rape and led
to significant changes in the rape provisions. The court in this case, gave the
judgement that there the victim was not raped based assumption that the absence
of injuries amounted to consent and based on the record of sexual activity of
the victim. However, women activists condemned the judgement and demanded
significant changes in the rape provisions. Firstly, they demanded that the
absence of injuries cannot be considered to be proof of consent and that the
burden of proof should be shifted on the accused. Secondly, they demanded in
camera proceedings of the case and non-revelation of the name of the victim to
protect their identity. Lastly, they demanded that the history of sexual
activity of a person should be irrelevant wile deciding a case of rape. These
were accepted by the Chief Justice and led to revolutionary changes in the rape
provisions. This lead to the Criminal law (Amendment) Act, 1983 where the
demands of the activists were accepted and there rape provision were amended to
include the demands.
The Nirbhaya rape case[5] further
led to significant changes in the rape provisions. After this case, The
Criminal Law (Amendment) Act, 2013 was passed which introduced various
provisions for stalking, trafficking, acid attacks as well as sexual
harassment. This case also led to the inclusion of non penetrative rape, oral,
anal as well as usage of objects. The court made acid attacks gender neutral
however, rape was not made gender neutral.
There have been numerous instances
where people as well as law makers have tried to make the rape provisions
gender neutral but have failed. The recognition of the fact that such a crime
is gender neutral is very important and Is the need of the hour.
In the case of Sakshi v Union of
India,[6] the
supreme court of India directed the law commission to make the rape provisions
gender neutral and make it more inclusive. The law commission following the
orders, suggested changes in the provisions to be gender neutral. However this
failed due to the perspective of the society that women are not capable of
committing such a crime against a man.
In another case of Priya Patel v.
State of Madhya Pradesh, a group of women were accused of rape but the court
dismissed the case on the grounds that women cannot commit rape.[7] This shows
that even though there are cases registered which bring to light the harsh
reality of rape, it continues to be ignored of the basis of the gender roles
played by differ genders in the society. When cases of women being raped can
lead to significant changes in the rape provisions, it is difficult to
understand why the state continues to ignore the reality of men being raped
even when such cases are being brought to light.
4. GENDER ROLES AND THEIR CONTRIBUTION TO GENDER
SPECIFIC RAPE PROVISIONS
The gender roles prevalent in the
society is one of the main causes for the gender specific rape laws in India.
The society, due to history, has fixed certain roles for men and women in the
society. Women are often associated with being emotional, weak and confined to
the household while men are considered to be strong, physically as well as
emotionally, to be the breadwinners of the household and the head of the house.
Due to these established gender roles, the fact and reality of men being
victims of sexual assault is ignored and unbelievable.
One of he main arguments is that
women cannot rape men and women do not rape men. It is based on the notion that
it is physically impossible for a woman to rape a man. It is assumed that even
if a man is in that position, he has the ability to defend himself. This is due
to the gender roles rooted in the society which portrays a man as being
physically stronger than a woman. It ignores the fact that each individual is
different from that of another and that men cannot be associated with strength.
Further, various statistics and data
show that woman do commit rape and have the capacity to
commit rape and that male rape does
take place in the society. The reality and the experiences of men cannot be
ignored only on the belief in gender roles.
It is also further assumed that men
always give consent to sexual activities. This is not true. The gender roles
and the concept of masculinity force people to indulge In sexual activities and
this should be taken as a serious violation of a person. It is perceived that
male arousal is an indication of consent but arousal is not an indication of
consent.[8] It is
ignored that fear or threat can also cause such physical responses and it
should not be misunderstood to be consent.
Another important assumption made
about men due to the fixed gender roles in the society, is that there is a
presumption that men do not go through the same things that a woman goes
through when they are sexually assaulted.[9]
It is always presumed that women go through more as compared to a man. However
in reality, rape is something which
traumatises a person regardless of the gender not just physically but also
mentally and emotionally. The coping mechanism of each person is very different
and this cannot be generalised to a particular gender.
These assumptions made about men
cannot be generalised for all men and this fails to portray the true realities.
This characterisation forces men to not report crimes committed against them
and forces them to remain silent even when they want to take any action. The
absence of adequate regulations and laws to provide protection to men deters
them from reporting rape as there is not solution for the same. It is the need
of the hour for the state to recognise this issue and pass adequate laws to
help provide safety and justice to the victims.
5. LGBTQ+ COMMUNITY AND RAPE
The LGBTQ+ community has been facing
discrimination as well as marginalisation for a very long period of time. This
is due to social, cultural as well as legal biases.[10]
They are seen as different people and are excluded from society. Sexual assault
and rape are two crimes which the people belonging to the community face a lot
because of the absence of proper legal safeguards.
The fear of being labeled as outcasts
or the fear of experiencing more discrimination leads the LGBTQ+ community to
remain silent against the crimes they face on a regular basis. The absence of
laws against this further creates an environment where the perpetrators take
advantage as they are not held accountable for their acts.
Gender specific rape laws have a
negative affect on the LGBTQ+ community because in a case where both the victim
as well as the perpetrator is of the same gender, the law does not provide any
protection to the victim. This clearly is discrimination and exclusion on the
grounds of gender which violates Article 15 of the constitution. Some
jurisdictions, recognise the cases of sexual assault committed against a
transgender and provide the necessary relief, however the remaining people of
the LGBTQ+ community continue to be ignored and exploited due to gender
specific rape laws.
This further facilitates the lack of
recognition of the LGBTQ+ community among the society. Section 377 was declared
to be unconstitutional and consensual sexual intercourse among people of the
same gender is not considered to be unlawful. The state has recognised that
sexual intercourse is not unlawful, but fails to recognise that the same can be
misused and the same can be used to violate someone sexually.
The challenges that are faced by the
LGBTQ+ community and the ignorance of their experiences, clearly reflect that
there is discrimination on the grounds of gender and that adequate safeguards
should be given to all genders.
6. ARGUMENTS FOR AND AGAINST GENDER
NEUTRAL
RAPE LAWS
ARGUMENTS FOR GENDER NEUTRAL RAPE
LAWS
Protection against rape and sexual
assault is a human right and it is the states obligation to provide safety and
protect this right. the right to life is a basic human right and rape is in
direct violation of this right and its the states duty to protect the human
rights of its citizens. Article 15 of the constitution prohibits discrimination
on the grounds of gender. However, these gender specific rape laws are in clear
violation of the right as it discriminates men and LGBTQ+ community on the
grounds of gender and excludes them from the provision.[11]
Further the Universal declaration of
Human Rights clearly aims to protect the dignity of all the people regardless
of any discrimination on any grounds. Everyone should be equal before the law
and everyone should be protected equally by the law. Article 14 provides this
but the existing rape provisions are directly violating this and should be
reformed.[12] It is
important to give equal protection to all regardless of gender and prevent
discrimination.
Gender neutral rape laws can also
encourage the victims to come forward and report the crimes and can be an
attempt to change the mindset of the society and can lead to a change in the
understanding as well as implementation of gender roles in the society.
ARGUMENTS AGAINST GENDER NEUTRAL RAPE
LAWS
Firstly, India being a patriarchal
society, making the rape provisions gender neutral will attract widespread
contention as the society is of the view that such acts happen only to women.
Further the gender roles which are deeply rooted to the society will deter the
people from understanding the true realities of the crime. The rationale behind
passing such a law will be highly misunderstood by the people.
Further there is always a threat of
counter complaints as an act of revenge for the crime being reported. Making
rape provisions gender neutral can attract a lot of fake and false complaints
which will lead to a lot of money, manpower, time destruction. However at the
same time, due to the fear of counter complaints, the justice which should be
given to a person cannot be denied.
Further the main important reason for
gender specific rape laws is due to insufficient evidence and reports of rape
against men and non-binary genders. There is insufficient information as well
as evidence to prove that women can rape other people or that people who are
not women also get raped. However at the same time it is important to analyse
the reasons for the lack of evidence and reports.There is a prevalence of such
instances however they do not report it due to societal pressures and lack of
laws to protect and give remedies for such acts.
7. SUGGESTIONS
Even though there exists drawbacks of
making the rape provisions in India gender neutral, it is the need of the hour.
Every law, every act, every regulation has drawbacks but this should hinder a
person from getting justice for any crime committed against him.
The first step towards this is to
make all the sexual offences gender neutral. Currently, all the laws in place
relating to sexual offences especially rape identify only woman as victims and
men as perpetrators.[13] This
should be changed to identify that anyone, regardless of gender can be
considered a victim or perpetrator.
For instance there should be a
substitution of the word women or men in all the provisions and make it gender
neutral by mentioning any person or anyone. For example, substituting the term
any man ( while referring to the perpetrator) to any person and substituting
any woman ( while referring to the victim) to anyone in section 375 of the Indian
Penal Code.
Such substitution of words in an
attempt to make the laws gender neutral is just one facet of the aim. To
achieve gender neutral rape laws in India, it is important :
1. For the
government to conduct regular surveys, statistics in order to collect the
actual data related to sexual assault to gather information about how many
people are coming forward to report and will also help the state to know the
true gravity of the crimes
2. It is
important to conduct awareness programs for all genders to provide information
about the rights, laws and remedies available to them and to conduct gender
sensitisation programs to move away from the stringent gender roles in the
society.
3. Establishment
and encouragement of correctional as well as rehabilitation facilities for
providing help to the victims, regardless of gender and to ensure counselling
facilities are available to all.
4. Educating
children as well as adults about abuses, good touch and bad touch by all
genders.
5. Encourage
victims to come forward and report the crimes by providing them with the right
kind of support and guidance to receive justice.
6. To educate
and spread awareness and provide additional training to the police officers to
be gender sensitive and not dismiss or discriminate against anyone on the
grounds of gender.
8.CONCLUSION
The paper aims to highlight the
necessity of gender neutral rape legislation in India. In order to highlight
the fact that, despite revisions, the rape provisions still exclude men and
LGBTQ+ community, the paper discuses the history of the laws and the changes
made to them over time. The paper attempts to shed light on the realities of
rape cases involving men and the LGBTQ+ community and how the state still
disregards them using a variety of case studies. These individuals are not
currently protected from rape and sexual assault by any means.
The Priya Patel v. State of Madhya
Pradesh demonstrates the perception of male rape cases held by both the state
and the general public. The article continues by outlining how one of the
primary obstacles to gender neutral rape laws in India is the societal norms
surrounding gender roles.
It is challenging for people to see
reality and acknowledge that men are also victims of sexual assault because of
the way that people think about and towards men. Men are becoming more and more
separated from the reality due to the notions that they cannot be rapes and
that women cannot rape them, the lack of concept of consent for men and the
assumption that men react differently to sexual assault that women.
The exclusion of the LGBTQ+ community
from the rape provisions has left them in situations akin to those faced by men
. The refusal to acknowledge same-sex sexual assault is an infringement on
peoples rights and contributes to their non-recognition. Since there is no law that
forbids crimes against them, it also makes it easier for crimes against them to
be committed. It is important to acknowledge the difficulties that men and the
LGBTQ+ community face and to take proactive measures to address this problem in
order to protect all people regardless of gender.
The paper then goes on to talk about
the arguments for and against gender neutral rape laws and highlights the fact
that inspite of there being threes of misuse and counter complaints, ones right
to justice cannot be denied on these grounds. The rights given to a citizen of
India clearly states that law provides protection to all and the same must be
upheld.
Finally, recommendations are made to
guarantee the introduction of gender neutral rape laws. To effect this change,
a change in the language of the laws and provisions alone will not be enough.
For the goal of protecting everyone, regardless of gender, to be fully
realised, there must be a radical shift in the mindset of the entire society.
[1] section 375 of Indian Penal Code
[2] Flavia Agnes, Law,
Ideology and Female Sexuality: Gender Neutrality in Rape Law, 9, Economic and Political Weekly 37,844–47,
(2002)
[3] SEN, RUKMINI, Law
Commission Reports on Rape, Economic
and Political Weekly 45, 44, 81–87, (2010)
[4] Tuka Ram and Anr v. State of Maharashtra, AIR 1979 SC
185
[5] Mukesh and Anr v. State of NCT of Delhi and Ors
(2017) 6 SCC 1
[6] Sakshi v Union of India, AIR 2000 SC 3479
[7] Harsh singh & Prachie singh, Gender neutral rape laws in India need a
stricter and inclusive regime, 2, International journal of legal science
and innovation, 23-52, (2020)
[8] Md. Ali
Ibrahim, Step Towards Gender Neutral Sexual Offences in India, 8,
IInternational Journal of Creative Research Thoughts, 3234, 3240,
[9] Anshul Rana, Gender Neutral Laws- A Critical Study in
India, 2, International Journal For Research and Analysis(2022)
[10] Shubhi Verma & Alok Anand, Gender Neutral Laws -
Is India Ready?, Jus Corpus Law Journal, 718, 733 (2022)
[11] Aditya Raj, Gender Neutral Rape Laws: Not As Simple
As You Might Think, First India, Aug 28, 2022, at 11
[12] Satya Muley, GENDER NEUTRAL LAWS, India Legal, Apr 6,
2023
[13] Nikunj
Kulshreshtha, Ought The Rape/ Sexual Assault Law in India be Gender Neutral?,
SSRN Electronic Journal, 2019
Article Information
GENDER NEUTRALITY OF RAPE LAWS: A LEGAL STUDY OF INDIA BY: ROHAN GOWDA H V
Authors: ROHAN GOWDA H V
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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