Addressing Sexual Offenses: Promoting Justice and Equality

   “Women don’t do such things.”

Introduction

Statistics from the National Crime Records Bureau (NCRB) report for 2021 are alarming and reflective of the profound social malaise. There were 65,025 rape cases reported in India during the year 2021. The accused were known to the victims in 96.8% of the cases^[1]. The report also shows a 19.34% increase in rape cases last year compared to 2020^[2]. While the rise in reported rape cases in India may suggest that victims are becoming more aware and willing to come forward with their experiences of sexual violence, it is essential to note that underreporting such incidents remains a significant concern.

In contrast to the reported rape vase, the number of rape incidents in the country could be much higher than registered officially. Understandably, this is because of several factors such as fear of stigma, lack of trust in the criminal justice system, and social pressure on victims to remain silent about their abuse. S.375 of the Indian Penal Code1860 defines what is ‘Rape’. It starts by saying, “A man is said to have committed rape if he-” There is an emphasis on the gender committing the act to be a man.

The Oxford Dictionary defines rape as the crime of forcing somebody to have sex when they do not want it or are not able to agree to it. But the dictionary judges refer to, commonly known as the “black letter law,” should be authorized by the appropriate authority. This authority is usually the government or legal institutions responsible for creating and enforcing laws.

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Illustrations

Let us take you through three tales, and you be the judge.

A group of three is hanging out at a party, having the time of their young life, immersing themselves in everything a 20-something indulges in for recreation and subsequently loses control over his senses. Come morning, all three of them find themselves in a precarious situation, which is considered a nightmare for half the world’s population.

The friends are lying astray all through the party spot, and as they wake up, they find themselves at the behest of a stranger who is forcing himself on them and taking advantage of their compromised state.

The first friend is enraged and aghast and rattles at the stranger and threatens to pursue criminal charges.

The second friend is more amused than concerned and doesn’t pay much thought to what has conspired.

The third friend is in a predicament; is scared of what has occurred but is also confused about the recourse that ought to be pursued if at all one is available.

Let us fill in the details if it has not occurred to you yet.

The first friend, a woman, woke up to find a man penetrating her as she lay unconscious. She felt violated and threatened the man with the well-known recourse available to her.

The second friend, a man, woke up to find a woman forcing herself on him. However, he perceived it as an amusing rather than a heinous violation of his body because his social conditioning directs one to presuppose a woman’s sexual advances as only positive without having an iota of regard for consent.

The third friend, a woman, woke up to find a woman taking advantage of her insentient state. She felt violated and wished to take action but felt absolutely defenceless. The law of her land doesn’t acknowledge her situation as requiring redressal.

The irony of this tale is that though all three friends are similarly circumstanced, only the first friend is relatively fortunate. She is the only one with a silver lining in the form of a legal remedy, and society recognizes her plight as legitimate.

 Four strangers drag a woman off her path to her home and take her to a dingy place. Unfortunately, her fate is apparent, and she is subjected to unimaginable tribulation and suffering.

• The first stranger forces her to perform fellatio on him.
• The second stranger inserts a wooden stick in her anal cavity.
• The third stranger forces her to penetrate one of the other strangers with her fingers.
• The last stranger violates her by applying his mouth to her private parts.

The woman ultimately, escapes the ordeal and files charges against the four strangers. Subsequently, they are convicted, however, distinctly.

As per the law, the four acts done by the perpetrators all manifest as the sub-clauses of Section 375 of the Indian Penal Code, 1860, which deals with what constitutes rape in India. The only factor that makes the charges vary is that the last stranger is a woman and hence, according to law, “incapable” of rape.

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A man strolling about on his way home after a hard day at work is stopped by four strangers in a car seeking his assistance in determining directions. Under the garb of haplessness, the strangers overpower the man and take him to an abode where he is tied up to prevent him from slipping away. He is drugged to keep him sexually useful. The strangers rape him for hours, and when they contend, they dump him by the side of a dark road.

The man feels violated but was conditioned against verbalizing it. 

I deem it pertinent to call attention to the issue that, more often than not, lurks in disregard owing to its uncommonness.

In this discussion, we will explore the issue of female sexual offenders and the challenges they pose to the legal system. Due to gender-biased laws, such offenders often escape the punishment for committing heinous sexual crimes.

In the case of Navtej Singh Johar v. Union of India through Secretary to the Ministry of Law and Justice, the Supreme Court ruled that consensual sexual intercourse between adults of the same gender is no longer a criminal offence. However, the Court did not classify homosexual non-consensual intercourse as sexual assault and instead labelled it as an unnatural offence. Therefore, the law must provide a remedy. While some may argue that such cases can be filed under sexual assault, that may not be sufficient to address the issue. Therefore, it is essential to recognize the severity of non-consensual sexual intercourse and ensure that adequate measures are in place to address it, regardless of the sexual orientation or gender of the individuals involved.

While some argue that increasing the severity of punishment for sexual assault in those cases where the offender is a woman would offer a potential redressal, others insist that it would be as good as a chocolate teapot given the marginal victim base and the ancillary nature of remedy provided for upon the charge of sexual assault.

Advocates of severe punishment for female offenders insist that if a crime has a marginal victim base, that is no justification for not having an equitable punishment.

Besides that, even though a case of sexual assault is fairly made out in such instances, that provides no alternative to a rape charge, even though it entails every element of rape under the I.P.C. but the requisite gender of the offender.

Those who consider women to be incapable of committing rape offer a four-pronged argument.

First, that rape is an offence that attenuates the dignity of a woman, and it is a far cry that any degeneration of that kind will ever occur with men.

Second, forced penetration done to someone is graver when compared to being forced to penetrate someone. Hence, a woman suffers more in a non-consensual sexual act than a man.

Third, a woman can’t commit rape as the man will presumably not show signs of sexual arousal for penetrative intercourse if his intention to participate in the sexual act is absent.

Lastly, India has had a history of women being considered chattel of their male next of kin and have been systematically suppressed. As a result, it is hard to conceive a woman as a cold-blooded offender. Additionally, it is presumed that a man is physically more powerful than a woman.

Let us deconstruct the aforementioned arguments.

First, the argument about the degeneration of the purity and dignity of a woman when rape is committed on her has misogynistic undertones, which implies that a woman loses a significant part of her being permanently whenever she is urged to undergo the ineffable ordeal. However, it must be noted that her dignity as a person will always remain regardless of her getting raped because otherwise, it would suggest that women have little value beyond their sexuality. If the latter view is taken, we will also have to acknowledge that women are sufficiently capable of committing sexual offences in the exercise, even though illegal and for the sake of their pleasure, of their agency and autonomy.

Second, rape is not only a physical violation but also a mental violation and, in most cases, the mental trauma is far more than any physical injury. Thus, even though a male might not go through as much physical trauma as his female counterpart would ordinarily do when in a similar circumstance, he cannot be taken not to go through, if not more, at least the same measure of mental trauma as his female counterpart would in a similar situation. In fact, when dealing with sexual offences at large, the focal point should be determining the presence of consent instead of the gender-based capability of the potential offender. 

Third, medical science has proven that sexual ‘arousal’ has little to do with the willingness to indulge in intercourse, as it is a biological response to stimulation and therefore cannot be taken as conclusive proof of consent (not even implied) in cases where the victim demonstrates physical signs of arousal. For instance, regardless of female orgasm after intercourse, it was held to be rape owing to the victim’s lack of free and voluntary consent. Therefore, the argument of sexual arousal as a cushion against the offence of rape is hardly tenable.

Lastly, it is an anachronistic view that women are incapable of meeting atrocities. It is an egregious form of gender-based stereotyping, which, among other things, is also equivalent to turning a blind eye towards the suffering of male victims. Additionally, it is an ableist presumption that a man will, no matter what, always be physically more robust than a woman and will never be overtaken by the administration of intoxicants and psychotropic substances.

Amendment 

Since it was enacted in 1860, Article 375 of the Indian Penal Code (I.P.C.) has undergone several revisions defining the crime of rape. In addition, over time, the legislation has undergone amendments to broaden its application, tighten it up, and consider shifting society’s attitudes and conventions around sexual assault.

Current status: Section 375 of the Indian Penal Code (I.P.C.) criminalizes sexual intercourse by a man with a woman against her will or without her consent. The definition of rape under this section also includes instances where the woman’s consent was obtained by putting her or someone she cares about in fear of death or hurt. Sexual intercourse with a girl under 18, with or without her consent, is also considered rape. However, there is an exception to this law which states that sexual intercourse or sexual acts by a man with his wife is not considered rape if the wife is not under 15 years of age.

In 1972, a significant incident led to the revision of criminal law relating to rape and sexual assault cases that had remained unchanged for over a century since 1860. The Mathura custodial rape case (Tukaram & Anr v. State of Maharashtra)^[3] involved the alleged rape of a young Adivasi girl named Mathura by police officers at the Desai Guni Police Station in Maharashtra on March 26, 1972.

During the trial, the court acquitted both policemen, citing that while the girl had sexual intercourse at the police station, rape had not been proven and that she was habituated to intercourse. However, the High Court overturned the acquittal order, and the case reached the Supreme Court. The Supreme Court, in its verdict on September 15, 1978, overturned the High Court’s decision, stating that the intercourse in question was not proved to be rape. Furthermore, the Court noted no injury marks on the girl after the incident, indicating that the sexual encounter was peaceful. Nevertheless, this case led to significant public outrage and resulted in amendments to the criminal law relating to rape cases in India.

The Law Commission’s 172nd report was initiated following a P.I.L. by a non-governmental organization, in which the Supreme Court directed the widening of the definition of sexual intercourse in Section 375 of the I.P.C. to make it gender-neutral. Although the perpetrator of the offence in India’s rape law remains gender-specific and limited to men, the 172nd report resulted in significant amendments to the Indian Evidence Act in 2002.

One such amendment was the introduction of a provision that prohibited questions about a victim’s general “immoral character” during cross-examination in rape or attempted rape cases. This amendment was a crucial step towards protecting the victim’s dignity and privacy, reducing the victim’s trauma, and ensuring a fair trial. Yet, despite these legal protections, challenges still exist in effectively implementing the law, including underreporting of sexual assault cases and societal stigma.

The Criminal Law (Amendment) Act of 1983 brought significant changes to Article 375 of the Indian Penal Code (I.P.C.) by replacing the gender-specific word “woman” with “person.” This amendment aimed to make the law more inclusive and recognize that rape can happen to individuals of any gender.

Despite the progress made by the 1983 amendment, there are still challenges in effectively implementing the law. For example, many cases of sexual assault and rape continue to be underreported due to societal stigma, victim-blaming, and a lack of awareness about legal protections.

In 2013, the Criminal Law (Amendment) Act was passed in reaction to the Nirbhaya case, which raised awareness of sexual assault against women across the country by extending the definition of rape to non-peno-vaginal acts, including oral and anal penetration as well as penetration with any object, the act. The act also made adjustments to the law to make it stricter, such as acknowledging that consent is not the absence of bodily resistance and that consent gained by coercion, fraud, or misrepresentation is invalid.

The 2018 amendments to Article 375 were tested in the State of Madhya Pradesh v. Mohan Lal case. In this case, the Supreme Court of India held that the amendment to Section 376 IPC, which increased the minimum punishment for rape to ten years, was mandatory and that the Court had no discretion to award a lesser sentence. The Court also held that the amendments to the law were in line with the constitutional mandate to protect the rights of women and children. In 2019, the Protection of Children from Sexual Offences (POCSO) Act was amended to make the definition of rape consistent with the POCSO Act. In addition, the amendment increased the age of consent from 16 to 18 years. It made the punishment for rape of a child more stringent, with the minimum sentence increased from seven to ten years and the maximum sentence increased from life imprisonment to death penalty.

Interpretation of the Courts

In the case of Priya Patel vs the State of Madhya Pradesh (2006),  ^[4]it was observed that a woman could not be charged or convicted for the offence of gang rape under Section 376(2)(g) of the Indian Penal Code. Explanation 1 the Section suggests that —”Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each person shall be deemed to have committed gang rape within the meaning of this sub-section.” Critics claim that the interpretation is based on a restricted and literal reading of the provision, disregarding the factual context and legislative intent. Furthermore, the judgment has been seen as perpetuating harmful gender stereotypes that undermine women’s agency and responsibility, reinforcing a culture of impunity for women who commit sexual offences.

This case had not only offered a poor decision. Still, it had also set a poor precedent until a ray of fairness appeared in Suneeta Pandey v. State of U.P. and Others ^[5] when the Allahabad High Court observed that “The term ‘person’ used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines ‘person’ as any company, association, or body of persons, whether incorporated or not. The word ‘person’ is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as ‘an individual human being’ or a man, woman, or child; and, secondly, as ‘the living body of a human being’. As such, a woman can not commit rape, but if she facilitated the act of rape with a group of people, she might be prosecuted for Gang Rape given the amended provisions. Unlike a man, a woman can also be held guilty of sexual offences, including gang rape, if she facilitates the act of rape with a group of persons.

Gender neutrality concerning the victim/ perpetrator

California Law Review states, “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 addition, considering rape as a sexual assault rather than a certain crime against women might do much to place rape law in a healthier perspective and reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions”.^[6]

In the 1996 case of Sudesh Jhaku v. KC Jhaku^[7], the Delhi High Court was tasked with determining whether the definition of rape, before its amendment in 2013, could be interpreted to include non-penetrative sexual acts. However, the Court went beyond this issue’s scope and discussed the concept of gender neutrality in rape law.

In the case of State Government vs Sheodayal ^[8], the Madhya Pradesh High Court opined that the “Modesty of a woman could be outraged by another woman under section 354 of I.P.C., which is a good step forward. However, there is currently no legal recourse available for a more serious offence, where a woman violates the sexual autonomy of another woman in such a way that, if gender is not the factor, the perpetrator will face the possibility of capital punishment.”

When one woman violates the sexual autonomy of another woman, the victim may feel that they only have two options available to them: either to report the violation as sexual assault, which may not fully capture the extent of the harm done or to proceed under “unnatural offence.”

The term transgender is used to describe individuals who do not conform to traditional gender norms when it comes to their identity, appearance, and expression. However, studies have shown that members of this community often face harassment and abuse by police authorities under the guise of Section 377, which criminalizes “unnatural” sex and leaves the community vulnerable to abuse.

Section 377 is an archaic law that originated during colonial times, which penalizes sexual intercourse that goes against the “order of nature.”. Moreover, no minimum punishment has been prescribed under the law to classify it as a heinous crime.

Currently, India does not even consider homosexuality a crime, let alone a heinous one. Therefore, the Verma Committee recommended making the offence of rape gender-inclusive concerning the victim and including men and the LGBTQ community. However, it was argued that unless the LGBTQ community is granted the right to engage in consensual sexual intercourse in the first place, such laws would only serve as a tool to harass and abuse them.

 However, it is essential to ponder if using the term “unnatural” to describe such offences is appropriate, as it can perpetuate harmful stereotypes and stigmatize individuals based on their sexual orientation. In other words, we need to be mindful of the language we use when discussing these issues, as it can have scaling implications for how people are perceived and subsequently treated.

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Rape should not be considered a gendered crime

Under English law, rape is defined more precisely and comprehensively. For example, the Sexual Offences Act 2003, which came into force in April 2004, redefined rape in England and Wales from non-consensual vaginal or anal intercourse to include non-consensual penile penetration of the vagina, anus, or mouth of another person. These changes also made rape punishable with a maximum sentence of life imprisonment.

It is worth noting that a woman who forces a man to have sex cannot be prosecuted for rape under English law. However, if she assists a man in committing rape, she can be charged and convicted of the crime. Additionally, a woman can be accused of causing a man to engage in sexual activity without his consent, carrying the same maximum life sentence as rape if it involves mouth, anus, or vagina penetration. The statute also introduced a new sexual crime called “assault by penetration,” which is punishable by a maximum life sentence. This offence occurs when someone sexually penetrates the anus or vagina of another person with a part of their body or an object without that person’s consent.

The revised definition of rape under English law reflects a more inclusive and comprehensive approach to the crime of rape. It recognizes that rape can be committed by anyone, regardless of gender, and that any form of non-consensual sexual activity is a serious crime. In addition, the introduction of the offence of “assault by penetration” further strengthens the law’s ability to prosecute sexual violations and protect victims of sexual violence.

 The law of rape in India remains governed by the principle of penile-vaginal penetration. Still, with the 2013 amendment, the scope of rape in Indian law was expanded to include object insertion, oral and anal penetration, and so on^[9]. As a result, it is no longer possible to assert that women are incapable of raping males.

Conclusion

Justice must ultimately prevail, and no one shall be subjected to discrimination based on their gender. The idea that a rape victim is always a woman and a perpetrator is always a man is ingrained in Indian law. The concept of gender neutrality in law aims to eliminate sex-based disparities in the creation and administration of legislation. According to this viewpoint, no one should be subjected to gender-based discrimination and should receive equal protection under the law. However, regulations frequently overlook the potential for using rape to exert control over persons of the same gender, and binary and trans people—another significant segment of society—are not considered in this discussion. Rape is not merely a sexually motivated act. People also utilize it as a means of displaying their control and power. It makes no difference if the individuals whose rights are being violated only make up a small portion of society; in the eyes of the law, every Indian citizen is equal. They shouldn’t be denied their fundamental rights and shouldn’t have their right to legal redress restricted. Therefore, gender-neutral laws are necessary to protect the dignity of males and trans people and the welfare of women and to create a safe environment for Indian residents to live in.

The notion that a woman is incapable of raping a man can be both a product and a reflection of pernicious gender stereotypes. Though changes to rape laws might not eliminate these beliefs, it would at least indicate that the government recognizes the significance of respecting the sexual autonomy and integrity of both men and women; and that women can also be sexually aggressive and dominant. Such recognition would not diminish the reality that rape has been and continues to be a tool of oppression that men wield against women, nor would it suggest that the impact of rape is the same for men and women. However, it could go a long way in questioning the entrenched gendered stereotypes around sex that harm women and obscure the importance of sexual autonomy and integrity for all individuals.

Furthermore, this review highlights the need for continued advancement in understanding female sexual offenders (F.S.O.s), including their behaviour, the processes leading up to their sexual offences, and their post-offence characteristics. This includes investigating F.S.O.s as a part of larger groups composed mostly of men. There is still a long way to go as far as understanding F.S.O.s, their propensities and the ways to devise a panacea for weeding out the evil of sexual offences.

This article is authored by Sujal Garg and Manjari Tripathi, who are 3rd and 2nd year students respectively at NLU Jabalpur

References and links

• https://www.indiatimes.com/explainers/news/can-women-be-charged-for-rape-in-india-556642.html
• https://blog.ipleaders.in/can-woman-charged-gang-rape/
• https://lawtimesjournal.in/gender-neutrality-in-rape-laws-in-india/
• Rape Laws In India-Appropriate or Not? (legalservicesindia.com)
• Budd, Kristen. (2018). Female sexual offenders. 10.1007/978-3-319-61625-4_17.
• Adler, Zsuzsanna. ‘Male Victims of Sexual Assault – Legal Issues,’ in Gillian Mezey, and Michael King (eds.) Male Victims of Sexual Assault (2nd Edition). Oxford: Oxford University Press, 2000.
• Archard, David. ‘The Wrong of Rape.’ Philosophical Quarterly Vol. 57, Issue 228, 2007.
• Baber, H.E., ‘How Bad Is Rape?’ Hypatia Vol. 2, Issue 2, 1987. Baker, Robert. ‘“Pricks” and “Chicks”: A Plea for “Persons,”’ in Robert B. Baker, Frederick A. Ellis- ton, and Kathleen J. Winninger (eds.) Philosophy and Sex. New York: Prometheus Books, 1998.
• Brison, Susan. Aftermath: Violence and the Remaking of a Self. Princeton: Princeton University Press, 2002.
• Brownmiller, Susan. Against Our Will. Men, Women and Rape. New York: Ballantine Books, 1975.
• Burgess-Jackson, Keith. ‘A History of Rape Law,’ in Keith Burgess-Jackson (ed.) A Most Detestable Crime: New Philosophical Essays on Rape. Oxford: Oxford University Press, 1999.
• Hattenstone, Simon, and Helen Pidd. ‘Gayle Newland found guilty at the retrial of tricking female friend into sex,’ in The Guardian, June 29 2017.
• https://www.theguardian.com/uk-news/2017/jun/29/gayle​-newland-found​-guilty-at-retrial-of-tricking-female-friend-into-sex

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^[1] India.com News Desk. (2022, September 5)

^[2]  (2022, September 6)

^[3]  1979 AIR 185

^[4] 6 SCC 263

^[5] APPLICATION U/S 482 No. – 39234 of 2022

^[6] Camille E LEGRAND, “Rape and Rape Laws: Sexism in Society and the Law” (1973) 61(3) California

Law Review 919 at 941

^[7] [62 (1996) dlt 563 : 1998 crilj 2428]

^[8] ( 1956 CrLJ 83 M.P)

^[9] Criminal law amendment  Section 375 (2013)