• The Law Gazette

Gender Neutrality in Rape Laws

It was June 2014. Khushi, along with seven other transgender women, was on her way to the shrine when a policeman stopped their vehicle. Khushi says the officer, Bhawani Singh, asked for a bribe to let the vehicle pass, and when she refused, he grabbed her breast.“Are those real or fake?” he demanded. “Around 3 am the following morning, Singh woke me up, and dragged me by the arm into another room, where three policemen stood waiting. Even as I begged them to let me go, they stripped me of my clothes, and three of them – Singh and two other policemen – took turns raping me. The fourth cop, meanwhile, filmed the gang rape on his phone.”[i]


Today, an act of similar nature would be governed Section 18 (d) of the ‘Transgender Persons (Protection of rights) Act, 2019’,[ii], which lays down as follows- “Whoever harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.”


It is pertinent to accentuate here that a sexual abuse against a transgender is a petty offence under the 2019 act which penalizes the perpetrator with an imprisonment ranging from 6 months to two years only which is less grave as compared to similar offences against women. Differences and variations like these assert the growing need to widen the ambit of rape law in India. The above-mentioned example, albeit is confined to a transgender, extends to the vulnerable male segment as well and instances like these highlight the importance of reshaping the laws regarding sexual violence against any and all genders.


SOCIETY’S PARADIGM: A TRADITIONAL NOTION OF RAPE

Our rape law, i.e. Section 375 has time and again undergone amendments for good. Various amendments have only made the law stricter and has elaborately made this law encompass acts beyond penile-vaginal acts. Where one could commend the elaborateness of this law, there are some loopholes that need to be fixed as well.


The vulnerability of women is well understood and the dire need to protect them is paramount. Our rape laws are well equipped to deal with rape cases against women, but, is our rape law equipped enough to protect genders beyond women? Traditional notions of rape have overshadowed this important question. Genders other than women cannot be raped is a misconception. Male dominance and men’s relative power to that of women are major reasons for rampant female rapes. However, what one fails to acknowledge is that men can exercise the same power over other males as well as over women.


We have been caught up in a paradigm of behavior which is unhealthy. This paradigm leads us to categorize people and then assign values to those categories. One such categorization is the conventional notion of masculinity associated with men. It is important to understand that recognition of male victimization does not undermine the notion of masculinity; it merely acknowledges that sexual coercion can also, in the minority of cases, exist in other contexts.


WHAT DOES THE IPC SAY?

The recent amendment to Section 375 was the Criminal Law (Amendment) Act 2013 which was introduced after the horrific Delhi Gang rape case which shook the entire nation. The amendment now provides for stricter punishment in cases of sexual violence. The acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so), now constitutes an offence of sexual assault. Applying mouth or touching private parts are also classified as offences of sexual assault.


The punishment for commission of offence of similar nature is imprisonment of not less than seven years but it may extend to imprisonment for life, and shall also be liable to fine. Whereas, in some aggravated situations, the punishment can extend to a rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to pay fine.

LEGAL JOURNEY- A CONFLICT OF INTEREST

Gender neutrality is a concept that recognizes and accepts the fact that a person, irrespective of their gender can fall prey to the brutal act of rape. There are no provisions for adult male victims and transgender victims, or any other penal provision regarding female perpetrators. The child survivors of both sexes are covered under the Protection of Children from Sexual Offences Act 2012, current rape laws leave out a large swathe of male and transgender victims, who cannot come forward for fear of stigma and a lack of legal recourse.


Moreover, the penal law defies the idea of equality and equal protection of law enshrined under Article 14 of the Indian Constitution. Gender neutrality in respect with the Indian rape laws was dealt for the first time in Sudesh Jhaku v. K.C. Jhaku,[iii], wherein the court stated that sexually assaulted men should be given the same protection of the law as given to female victims. In 1999, the Supreme Court in Sakshi v. Union of India,[iv], directed the whole issue to the Law Commission.


The Law Commission in its 172nd report recommended making rape laws unbiased. These recommendations further took form of legislation in Criminal Law Amendment Bill, 2012 but before the bill could have become an Act, there was a nationwide outrage regarding the horrific Nirbhaya Rape Case. As a result, the Government of India constituted the Justice Verma Committee and assigned it the task of submitting report on the necessary reforms to be made in rape laws. The committee report recommended expanding the scope of the definition of rape u/s 375 of IPC, 1860 by not keeping it concise to penile-vaginal intercourse and it also recommended making rape laws gender-neutral.


RECENT DEVELOPMENTS

These recommendations were promulgated in Criminal Law Amendment Bill 2013. The next round of recommendation witnessed criticism from women groups asserting that the provisions mentioned in the report submitted by the Justice Verma Committee, would increase the power of already powerful men and also increase women’s vulnerability. The criticism led the government to adjust its stance and gender-specific nature of rape laws was kept intact in the Criminal Law Amendment Act, 2013.


The above amendment did clear the ambiguity and fulfilled the needed changes that were missing in the earlier rape law with regards to the protection of women, however, it failed to protect other vulnerable groups of society. In 2017, Advocate Sanjiv Kumar had filed a petition in the Delhi High Court challenging the constitutionality of the rape laws in the Indian Penal Code. The petition stated that ‘gender neutrality is a simple recognition of reality — men sometimes fall victim to the same or at least very similar acts to those suffered by women.


EQUALITY AS UNDER SECTION 375: NEED OF THE HOUR

Male rape is far too prevalent to be termed as an anomaly or a freak incident. By not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought[v]. The Central Government in its stark reply stated that Section 375 has been enacted to protect and keep a check on the rising levels of sexual offences against women in India. The Government believed that the definition of Section 375 should be left untouched.


However, the petition has ignited a number of heated debates amongst women groups and organizations. The most recent development in making gender neutral rape laws is the bill presented by Mr. KTS Tulsi on 12th July 2019, which seeks to make rape laws gender-neutral and unbiased. The statement of object of the bill clearly states “the intention of the bill is not to undermine the experiences of women subjected to rape and discrimination. However, as society matures, we must also develop empathy for all and this must include male as well as transgender rape victims too”[vi].

CONCLUSION

The provision laid down under section 375 blatantly violates the Universal Declaration of Human Rights (UDHR). Article 2 of UDHR asserts that everyone is entitled to all freedoms and rights and Article 7 states that every person is equal before the law and is entitled to equal protection of the law. Furthermore, the penal laws relating to sexual offences misinterpret the meaning of Article 15(3) of the Indian Constitution which grants the power to make special provisions for women and children.


The fact remains that the above provision does not restrain the government to make laws to protect the lawful interests of the other genders apart from women and that’s where the state fails to perform its obligations to provide equal protection of law to every citizen of the country. Gender neutrality in rape laws aims at widening the ambit of rape. The ideology behind gender neutral laws is to do away the traditional male-female paradigm notion attached to rape. The State should act vigilantly to protect its citizens, irrespective of their gender and form an effective system to address need of the hour, that is, gender neutral rape laws.


ENDNOTES [i] Pooja Changoiwala, “India: No Country for Transgender Women”, “This Week in Asia”, 8th July, 2018, https://www.scmp.com/week-asia/society/article/2154077/india-no-country-transgender-women [ii] The Transgender Persons (Protection of Rights) Act, 2019, “Ministry of Law and Justice”, http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf [iii] 1998 CriLJ 2428 [iv] 1999 CriLJ 5025 [v] Aayush Akar & Shubhank Suman, “Critical Analysis of Rape of Male in India”, “iPleaders”, 16th April 2020, https://blog.ipleaders.in/critical-analysis-of-rape-of-male-in-india/ [vi] Rishabh Chhabaria & Abhigyan Tripathi, “Transgenders and Rape Law: Is equal protection of law still a pipe dream”, “The Leaflet”, 23rd May 2020, https://theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a-pipe-dream/


ABOUT THE AUTHOR

This blog has been authored by Anusha Bhatt & Zahra Naqvi, both 3rd year B.L.S., LL.B. students at Government Law College, Mumbai.

[PUBLICATION NO. TLG_BLOG_20_8504]

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