Need for Gender-Neutral Laws against Rape in India

Abstract

In the social sciences, female rape receives a lot of attention, while male rape is mostly ignored by feminism, which seeks to highlight the gendered character of rape. Rape has a gender-specific definition under Indian law. Rape can be perpetrated by males, and women are the sole victims, according to Section 375 of the Indian Penal Code. This is mostly due to how men and women are seen in society, as well as a stereotyped notion of sexuality. This article answers the issue, “Does it make sense to make rape laws gender-neutral?”

Although it is vital to categorize the theoretical evolution of male rape as a social issue, there is a dearth of numerical evidence on the subject. As a result, it’s critical to study this expansion since the present trajectory of male rape research has troubling implications for how male rape is conceptualized. Male rape in the twenty-first century is an issue because men are still afraid to disclose it for a variety of reasons.

Introduction

Gender Neutrality is a concept that presumes the eradication of contrast between different sexes and the drafting and execution of the laws. It aims to make every citizen entitle to equal rights, e.g., equal protection of the law, etc. without distinguishing on sex. Though the Constitution of India has granted an equal right to the citizens of the country, the need for gender neutrality is of high requirement. From the beginning women are only considered victims and it may be due to the patriarchy prevalent in Indian society. Even due to the rise of women empowerment and feminism, the concept of gender neutrality laws was hindered. But now the time has changed and there is a requirement from the part of the lawmakers to alter these laws to make them gender neutral. Although the legislation in India has kept women’s safety a priority on rape, dowry, and adultery, huge discrimination appears to be disturbing and affecting the lives of men today.

The most important contention given in favor of gender-specific rape laws is the lack of statistical evidence in favor of male rape. This contention is completely flawed. The rationale for the scarcity of statistical evidence is simply a lack of reporting of such occurrences. This doesn’t eradicate the possibility of happening of such incidents for e.g., the persistent gender-specific nature of Indian rape laws has restricted men to file cases as they find no such legislation which penalizes male rape convicts.

Making laws gender-neutral may even give unjust powers to men to use it against women, but this shouldn’t be a ground for restricting the bringing of gender-neutral laws as it would hinder men from the opportunity to exercise their basic human rights. The state must be vigilant enough to form an effective system to address all such issues in the best possible manner.

The History of Gender-Neutral Rape Law in India

Gender neutrality in rape law emerged for the first time in the case of Sudesh Jhaku v. K.C. Jhaku[1], in which the court ruled that sexually abused men should be provided the same legal protection as female victims. The Supreme Court redirected the entire subject to the Law Commission of India in Sakshi v. Union of India[2]. Therefore, it was recommended in the 172nd Law Commission Report[3] that rape laws should be gender-neutral in nature and substance, both for victims and offenders. The Justice J.S. Verma Committee Report proposed gender-neutral rape laws for victims and gender-specific rape legislation for perpetrators. Regrettably, neither of these two were included in the nation’s legislative mode of operation.

In its 172nd report, the Law Commission of India proposed that rape laws be gender-neutral. The concepts of equality before the law and equal protection of rights, which are inscribed as fundamental rights in our constitution, are suggested to apply here as well. As a result, gender-neutral rape legislation would provide equal protection to all people.

However, it should not be overlooked that women continue to be the most susceptible group, requiring additional safeguards. Concerns have been raised that gender-neutral rape legislation, both for the offender and the victim, may open the door to inflicting greater suffering and humiliation on women, therefore defeating the aim of the law. Gender neutrality in rape legislation aims to extend the scope of rape and sexual assault perpetrators and victims. It focuses on normalizing rape and sexual assault on non-female victims and providing them with similar legal protection.

Further advancements in India’s rape legislation may be seen in the 172nd Law Commission Report and the 2013 Criminal Law Amendment[4].

Arvind Narrain presented three levels of gender neutrality in 2013. These are the following:

1. Neutrality in terms of the victim.
2. Neutrality in terms of the perpetrator.
3. Neutrality in terms of custodial, communal, war, and conflict situations.

The traditional concept of a victim is a woman since she is the most vulnerable member of society. The Indian rape laws are predicated on the same premise and hence give no protection to subsequent rape victims. This stems from the belief that rape is just an act of sex performed to satisfy the perpetrator’s sexual desire. However, with increased understanding, it is clear that sexual assault is more than simply an act of passion; it is an act of control over one’s caste, religion, gender, and community, and to exercise authority over another in order to humiliate them. If the following terms are to be believed, the victim isn’t merely a ‘female’. Human beings are presumed to be either male or female, so we turn a blind eye to the violence perpetrated by those defying the notion of what it means to be either male or female.

Demystifying ‘Consent’ in Marital Rape in India

The Male Perpetrator Paradigm: Characterizing Rape

To examine gender neutrality in rape legislation rationally, it is necessary to identify the breadth of the offence and the harm imposed on the victim. Section 375[5] of the Indian Penal Code (IPC), 1860 says unequivocally:

Rape – 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.

The definition is followed by sub-clauses enumerating the circumstances in which the rape offence may apply. The judicial decisions on Indian rape laws show a very traditional understanding in which rape is considered as an assault not just on a woman’s body, but also on her modesty, chastity, and honour. This viewpoint, however, tacitly sits on a patriarchal bedrock and weakens the sufficiency of arguments aimed at impartiality with regard to the victim’s gender, autonomy, and physical integrity.

Unfortunately, the law of rape in the Indian Penal Code predetermines the gender of both the offender and the victim, leaving little room for flexible interpretation. This type of legislative rule is not only arbitrary and ambiguous, but it is also unreasonable and discriminatory on the basis of sexual stigmatisation. Given that, only a man is capable of committing rape and only a woman may be a victim of the crime, women, as well as other male criminals who target masculine victims, have an unfair advantage. Rape is considered an explicit patriarchal crime under Section 375 of the IPC, deriving from the outrageous misuse of masculine authority and privilege. However, as the world’s greatest democracy and a constantly advancing nation, we must alter our laws to meet the demands of an ever-changing society in order to cater to the dynamicity of law.

Some of the Aspects of Rape Laws

1. A man having sexual relations with a woman against her will – There is no requirement to prove a woman’s will in this case. Even if she had consented to sex, she can still accuse him of rape with a vengeful mindset.
2. IPC 376-B/C/D[6] – A public servant or higher-up who seduces and has sex with a woman who is under their authority is liable for imprisonment. Women seeking sexual favors from men are not punished in the same way. In the same vein, men are not protected from false and frivolous accusations from women.
3. A man who has sex with a woman after promising marriage cannot break up with her. If he does, according to Indian law, he is a rapist. However, if a woman does the same, it will be interpreted as ‘woman empowerment.’

For males, there is no age of consent. If a 16-year-old boy and a 16-year-old girl have consenting sex, the boy will be charged with rape!

The facts listed above demonstrate the importance of gender-neutral rape laws.

• Section 497 (Adultery) and Section 498 (Enticing or taking away or detaining with criminal intent a married woman).

Section 497 of IPC[7] says, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Section 498 of IPC[8] says “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

Sections 497 and 498 of the IPC are no longer relevant today because:

1. Women bear responsibility for their sexual conduct.
2. Due to the presumption that men are always adulterers, and women are helpless victims, the very base of the law is shaken.

How is it logically possible to hold only one of the partners responsible for sexual encounters that involve two partners by their very nature? Can a woman also be an abettor? Articles 14 and 15 of the Constitution would be rendered meaningless if she would be protected from prosecution altogether. It is my strong belief that adultery should be decriminalized, and if not, the Justice Malimath Committee’s suggestion that Section 497 be gender-neutral, thus treating infidel spouses equally, will ensure great justice to both the sexes.

Gender-Specific Rape Laws & Human Rights

It is critical to emphasize the case for gender-neutral rape legislation based on human rights principles. Human rights are widely acknowledged to be a fundamental practice and philosophy for regulating state laws, including sexual assault standards in the criminal justice system. Some of the core human rights given to every human being, regardless of gender, include the right to equal protection under the law, the right to life, and the right to personal liberty.

In the case of Bodhisattwa v. Shubhra Chakraborty[9] and Narendra Kumar v. State (NCT of India)[10], the Apex Court of India acknowledged the notion that rape breaches the basic human rights entrenched in the Indian constitution, including the right to life and personal liberty. However, Indian rape laws continue to adhere to the conventional idea of rape, in which only females may be rape victims and thereby violate men’s human rights.

Section 375 of the Indian Penal Code, 1860, which allows the power to establish specific provisions for women and children, may be argued to be legitimate and reasonable under Article 15(3) of the Indian constitution. However, the issue is that it has been misinterpreted. This clause does not prevent the government from enacting legislation to safeguard the lawful interests of the male population, but that’s the area where the state fails to fulfill its duty to give equal legal protection to all citizens of the country.

The absence of statistical evidence in favour of male rape is the most crucial argument in favour of gender-specific rape legislation. This argument is absolutely flawed. The explanation for the scarcity of statistical evidence is simply a lack of reporting of such occurrences. This does not exclude the likelihood of such tragedies occurring. The following are the primary reasons for fewer reporting of such cases:

• Anti-masculinity stigma

It is claimed that patriarchal societal constructs prevent males from filing sexual assault reports when the offender is a woman. This stigma is also known as hegemonic masculinity, and it consists of three characteristics: males are not feminine, they are physically aggressors, and they are not heterosexual. This portrayal creates an unjustified idea that if a male sexual victim reports his case, he would be portrayed as female.

• No legislation to punish convicts of male rape

The persistent gender-specific character of Indian rape laws has limited men’s ability to bring complaints because there is no legislation that penalizes male-rape convictions. Although the POCSO Act of 2012 is gender-neutral in circumstances of child sexual assault, the adult male community continues to seek gender-neutral rape laws.

Read Also: An overview of the Indian extradition laws and the challenges in extraditing fugitives from India

Conclusion

The IPC’s whole definition of rape is focused on rape against a female, with no provision for male rape. It indicates that whether a male rapes another male or female rapes a male, there is no special regulation in India. It aims to broaden the scope of rape victims. It seeks to disassociate rape from the traditional male-female paradigm. It is widely acknowledged that adopting gender-neutral rape legislation will not be a piece of old tackiness, and it may maintain the patriarchal structure of Indian culture in mind, giving males unfair rights to employ against women. However, this should not be used to limit the passage of gender-neutral rape legislation because it would deprive the male population of essential human rights. The state must be diligent enough to create an effective mechanism to solve all such concerns as effectively as feasible.

In the words of former Associate Justice Wiley Blount Rutledge of the United States Supreme Court that in a real democracy, equality before the law is a matter of right. It cannot be a question of charity, favour, grace, or discretion.

This article is authored by Timisha Chauhan, 3rd Year Student at Manipal University Jaipur

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[1] Sudesh Jhaku v. K.C. Jhaku, 1996, retrieved from https://indiankanoon.org/doc/1525708/

[2] Sakshi v. Union of India, 2004, retrieved from https://indiankanoon.org/doc/1103956/

[3] Law Commission of India, Review of Rape Laws, Report No. 172 (Mar. 25, 2000), https://lawcommissionofindia.nic.in/rapelaws.htm

[4] The Criminal Law Amendment Act, 2013, Act. No. 13 of 2013, § 9

[5] Section 375 of IPC, 1860, retrieved from https://indiankanoon.org/doc/623254/

[6] Section 376 of IPC, 1860, retrieved from https://indiankanoon.org/doc/1279834/

[7] Section 497 of Indian Penal Code, 1860, retrieved from https://indiankanoon.org/doc/1833006/

[8] Section 498 of Indian Penal Code, 1860, retrieved from https://indiankanoon.org/doc/1868826/#:~:text=%E2%80%94Whoever%20takes%20or%20entices%20away,with%20that%20intent%20any%20such

[9] Bodhisattwa v. Shubhra Chakraborty, 1995

[10] Narendra Kumar v. State (NCT of India). 2012