INTRODUCTION
Gender-neutral rape laws address the legal considerations for ensuring that rape laws are applicable to all individuals, irrespective of their gender. The traditional framework of rape laws in India has a gendered perspective, often conceptualising the victim as female and the perpetrator as male. This approach overlooks instances where the victim is male or where the acts are committed by individuals who may not fit into traditional gender categories; this includes transgender individuals and those who identify as non-binary.
Section 375 of the Indian Penal Code (‘IPC’) defined rape and specified that a perpetrator can only be a man and the victim a woman, clearly indicating a gender-specific law. This legislative stance does not acknowledge male victims of sexual violence nor does it cater to the LGBTQIA+ community. Even the only gender-neutral rape law in Section 377 trivialised and downplayed the gravity of the offence by relegating it to sodomy. Moreover, it failed to account for other forms of sexual offences like rape, voyeurism and stalking. Furthermore, in these instances, Section 377 places the burden of proof on the victim rather than the accused. In contrast, under Section 375, it is the responsibility of the accused to prove consent.
While the IPC has historically been gender-specific in its definitions and protections, there has been a growing movement towards gender neutrality in legislation. The Bharatiya Nyaya Sanhita (‘BNS’), aimed to address some of these issues by proposing gender-neutral language in many of its provisions. However, as it stands, the bill has not extended victim rights to men or the LGBTQIA+ community. Instead, there is concern that the removal of Section 377 could leave the community without recourse for sexual offences under the Indian penal system. The initial iteration of the bill faced widespread criticism leading to it being withdrawn and reintroduced after recommended changes. One of these was keeping Section 377, hence offering some respite to male and LGBTQIA+ victims of sexual assault. However even the reintroduced bills excluded this provision, leading to concerns over the future of legal recourse available for them (see here, here and here).
THE STRUGGLE FOR GENDER-NEUTRAL RAPE LAWS
Arguments for a gender-neutral rape law can be traced back to 1996 in the case of Sudesh Jhaku v K.C. Jhaku where Justice Jaspal Singh of the Delhi High Court said-
“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. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and to reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.”
This was the first notable case where there was a call for the offence of rape to be redefined in gender-neutral terms. The court also went on to note that such change could not be brought through judicial intervention but legislative change. Sakshi v Union of India also advocated for gender-neutral rape laws which ultimately led to the 172nd Report of the Law Commission of India which recommended the substitution of ‘rape’ for a completely gender-neutral offence of ‘sexual assault’. This culminated in the Criminal Law (Amendment) Bill, 2012 which proposed a completely gender-neutral definition of rape. The Nirbhaya rape case however threw this for a loop leading to the establishment of the Justice Verma Committee (The Committee). The Committee then went on to recommend that the rape victim be made gender-neutral, but not the perpetrator. It advocated that the perpetrator would be assumed to be male except in cases of custodial rape or rape in the context of a clear power-differentiated situation. These exceptional cases were defined as women in authority or with custody over others who could be accused of sexual assault or rape.
However, the legislature discounted this recommendation while enacting the Criminal Law (Amendment) Act, 2013. It brought into effect a gender-specific rape law only protecting women, leaving other gender communities with little to no protection. The BNS’ further removal of their only remedy leaves them stuck in an embargo. National Legal Services Authority v Union of India recognised transgender as a third gender and affirmed their fundamental rights. Unfortunately, the verdict has not been effectively translated into accessible mechanisms for transgender victims to get justice in cases of sexual assault. More recently, there have been calls for gender-neutral rape laws by judges such as the Kerala High Court where it said-
“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.”
This statement by the Court is yet another emanating from a long battle for reforms to achieve much needed gender-neutral laws. Feminist groups and activists have predominantly countered these efforts through protests citing various claims that gender-neutral laws would end up marginalising women. They would provide an avenue for countercomplaints where for every rape complaint filed by a woman, the accused would file a countercomplaint. This would create unnecessary complications and end up deterring women from filing complaints, thus defeating the ultimate object of the law. Also, it was fuelled by a long-standing, patriarchal narrative of the traditional notion of rape, showing it to be an assertion of dominance and oppression of a ‘man’ over a ‘woman’. Empirical data was cited to show that there were virtually no cases of a woman raping a man (see here, here and here).
Although these objections have their merits, the social notion and stigma of a man not being ‘capable’ of being raped coupled with a lack of legal recourse and mechanisms leaves men bot being able to file official complaints thus not contributing to official statistics. Moreover, The Committee’s proposal to make only victims gender-neutral and not perpetrators provides a solution to the problem of countercomplaints in rape cases.
Men and individuals from the LGBTQIA+ community do experience sexual violence and by not providing legal recourse or acknowledging such instances through the language of the law, a significant proportion of the population is left vulnerable and without proper legal recourse. This lack of recognition in the legal framework can lead to continued stigma and an under-reporting of such crimes, as victims may feel that the legal system does not validate their experiences. Legally recognising survivors of all genders will challenge the problematic notion that only women get raped. Male and LGBTQ survivors often lack voice and recourse. Gender-neutral laws will be inclusive of diverse sexual violence experiences that the law has ignored for a long time. It will provide validation and visibility to marginalised victims. Irrespective of gender identity, rape and sexual assault are violations of a person’s bodily autonomy and dignity. The law must prioritise equal protection for survivors across the gender spectrum. Gender-neutral provisions can enable easier reporting of sexual crimes for male, trans and non-binary victims who often fear stigma. It will build their trust in getting justice. Progressive gender-neutral legislation will shift societal attitudes and perceptions over time. It will foster an understanding that sexual violence has no gender bias and can impact anyone.
There is a tendency in society to dismiss or ridicule male sexual victimisation due to stereotypes that men cannot be overpowered or that experiencing rape makes them weak or less masculine. Such flawed attitudes deter male survivors from reporting rape. They fear shame, disbelief or humiliation if they come forward. Gender-neutral laws can help remove this barrier. Gender neutrality in law will acknowledge that sexual violence is not inherently gendered and can affect anyone. This can catalyse change by acting as a powerful lever to transform societal perceptions.
More male survivors may be encouraged to report and seek justice if they know the law recognises them equally as victims without judgement. Thus, with more male cases reported, public awareness and understanding of male sexual victimisation will increase, creating a more supportive environment. The possibility of legal recourse will embolden more male victims to come forward as they no longer need to suffer in silence due to flawed patriarchal societal notions of manhood. The current and proposed laws both overlook male and LGBTQIA+ victims, denying them legal recourse to even register cases of sexual violence. This enables impunity for perpetrators. Moreover, when the law does not recognise certain categories of survivors, it renders their trauma and experiences invisible. It implies they are unimportant and undeserving of justice.
A CALL FOR HELP
The call for gender-neutral rape laws is supported by the consideration of several factors. Philosophically, the concept of justice demands equality and non-discrimination. Legal protections afforded against rape should be available to all citizens, regardless of their gender. In light of changing societal norms and the recognition of various gender identities, the understanding of consent and sexual autonomy has also evolved. Gender-neutral laws would recognise these developments and offer protection that is in line with contemporary views on gender and sexuality.
India must also look at the success of other countries that have adopted gender-neutral rape laws. The United Kingdom amended its laws in 1994 to make rape gender-neutral. This has encouraged more male survivors to come forward and get access to justice. While laws vary from state to state in the United States of America, the federal definition of rape was updated in 2012 to be gender-neutral. It has enabled easier reporting for marginalised victims and increased awareness. Canada updated its Criminal Code in 1983 to make sexual assault laws gender-neutral. This has supported an inclusive justice system and progressive social outlook. Since 1985, New Zealand has gender-neutral rape laws. A 2005 amendment further diversified these laws. Later on, a review showed no adverse effects and instead positive impacts on reporting by male victims.
We must also consider international human rights standards, which require States to protect all individuals from sexual violence. The United Nations Declaration on the Elimination of Violence against Women, even though specifically focused on women, emphasises the broader principle of protecting individuals from violence. The principles embedded within international human rights highlight the importance of developing laws that are non-discriminatory and protect all individuals from violence.
GENDER NEUTRALITY AND SENSITIVITY IN INDIA
In crafting gender-neutral rape laws, careful drafting is required to ensure that the patriarchal biases embedded in the legal system are not further perpetuated. Sensitising lawmakers and the judiciary to gender diversity and the experiences of all victims of sexual violence is critical. This ensures that, while aiming for neutrality, the laws also consider the social realities that different genders face, including the prevalence of gender-based power imbalances. Reforming rape laws is only the first step; equally vital is transforming regressive mindsets through education and discourse. While gender-neutral laws will uphold principles of equality and signal progress, societal attitudes cannot change overnight. The only way for equitable change going forward is for gender neutrality in law to be accompanied by gender sensitivity in spirit.
There is a strong, imperative need for India to reform its rape laws to make them gender-neutral. The BNS once again overlooks male, transgender and non-binary survivors of sexual violence who are equally deserving of justice. An amendment to laws provided a chance to be inclusive of victims of all genders to challenge problematic patriarchal notions, encourage reporting, and provide much needed legal recourse to marginalised communities. However, removing the only protection available to men and LGQBTIA+ victims instead of providing them with proper legal recourse has been yet another case of taking one step forward and two steps back in India’s criminal justice system.
This Blog was edited by Ishita Nair and posted by Arav Akolkar
