Gender neutrality in context of rape law is a concept that demands the eradication and prevention of distinction between different sexes in the drafting and execution of laws. Human rights should become an essential practice to regulate state laws, especially sexual assault rules in its criminal justice system. Law should protect everyone equally irrespective of genders, right to life and personal liberty is for all and not for specific gender, these are some of the basic human rights guaranteed to every human being irrespective of the sex.
Rape is defined in Section 375 Indian Penal Code 1860. The first line in the definition of the crime shows its potential towards sex of the person and says “A man is said to commit rape”, therefore putting a specific gender i.e. male, at place of preparator.
The code has been amended multiple times since 1860, but it still peers with the traditional idea of rape wherein the perpetrator is always men. The sub-section (a), (b), (c), (d) of the section 375 IPC, talks about the victim of rape, and according to the sub-sections only the women can be raped, therefore again puts a specific gender i.e. female, at the place of victim.
Clause (1) and (2) of the sub-section (d) section 375 IPC, talks about “will” “consent” i.e. against her will and without her consent.
- Consent and Will: –
In order establish charge of rape against a man, “sexual intercourse” must be against the will or without consent of the women. If the consent is obtained under the circumstances laid under clauses (1) to (6) of sub-section (d) i.e. by putting her or any person in whom she is interested, in fear of death or of hurt; by reason of unsoundness of mind or intoxication, when she believe she is lawfully married to another person who is not her husband; if the women is not a major, the consent is not important (with or without her consent, both will amount to rape); when she is unable to communicate consent, would also amount to rape.
Will and Consent are overlapping sometime i.e the sexual intercourse may be without her will but with her consent, but not contrary. In the case of State of UP v. Chottey Lal [(2011) 2 SCC 550], the SC observed that the expressions contained in the statutory definition of ‘Rape’ “against her will” & “without her consent” may overlap in some cases. However, their dimensions are slightly different. “Against her will” ordinarily means that the sexual intercourse took place despite the victim’s resistance and opposition. On the other hand, consent can also be obtained via force and compulsion. Therefore, without consent means that will wasn’t involved at all; it’s not the same the other way round.
- Question of Gender Neutrality: –
Gender neutrality comes into question first time in the case Sudesh Jhaku v. K.C. Jhaku [1996 (38) DRJ 22] in which the court said that sexually assaulted men should be given the same protection of the law as given to female victims.
In Sakshi v. Union of India (1999) 6 SCC 591 the Court directed the law commission to take the question of gender neutrality into consideration. Consequentially, the 172nd Law Commission’s report recommended rape laws as in context of unbiasedness to the genders. These recommendations took form of legislation in Criminal Law Amendment Bill, 2012 but the nation was appalled by the incident of Nirbhaya Rape Case, before the bill was passed and was made law. After the Nirbhaya Rape Case, the Government of India constituted the Justice Verma Committee (JVC) and assigned it to make a report for reforms to be made in rape laws. JVC report recommended expanding the scope of the definition of rape under Section 375 IPC and not keeping it concise to penile-vaginal intercourse, also recommended to amend rape laws and make it gender-neutral. The recommendations were implemented in Criminal Law Amendment Bill 2013.
This recommendation was greatly criticised by women groups and the notion of criticism was that JVC committee report will intensify women’s vulnerability and gender-neutral rape provisions, will add on to the power of the already male dominant community. The result of such criticism is visible in the present section 375 IPC i.e. the rape law still today is biased to genders. The latest development in this regard is the bill presented by Mr. KTS Tulsi which seeks to make rape laws gender-neutral which hasn’t been passed yet and there is no such update even.
- VICTIM OF RAPE
Though the law has confined a woman at the place of victim which is actually a very narrow interpretation, in context of rape. The interpretation of victim class should also incorporate males, transgenders and other fluid sexualities. It is wrongly presumed that only men commit rapes of women for sexual pleasure, but the events in other sexuality communities e.g. LGBT, the members commit rape to humiliate the victim. A lesbian female may commit rape of another female may or may not be a lesbian but it has no legal definition. Similar is the case with a gay male who may commit rape of another male, may or may not be gay and this too is extensive from the legal definition of rape. There may also be a case where a female commit rape (motive may be anything- pleasure, to humiliate victim, to show supremacy…..and so on) and this too is out of the boundaries of the definition of rape in Indian rape law.
Concerning the question of male as rape victims, a survey was carried out among college students in which it was found that 10.5% of men were raped and there were attempts of rape on other 10.5% men.
- Different notions: – Female committing rape of a male person and female omitting rape of another female.
A survey reported that out of 28.6% of men who were victims to sexual assault, 54.8% reported females as the perpetrator.
The other notion was dealt in the case of Priya Patel v. State of M.P. Anr 12 july 2006 wherein the court found it quite inconceivable to consider that a female can rape another female because there is no penile-vaginal intercourse between them.
A survey was conducted by the Centre for Disease Control and Prevention which reported that out of 43.8% lesbians who were victims of sexual assault, 67.4% reported females as perpetrator.
Personal Observation and Opinion
The definition of rape is narrow and it should be widened. In my personal opinion, the law makers of our country were not actually wrong with the understanding of the things but to some context were very confined, may be it was the strength of males and low strength of females as well as any other sexuality (which was considered a sin and such people were denied education and thrown out of the houses because it is believed they bring shame to the family, or their existence in the family is kept hidden as long as possible) in the parliament which made an atmospheric notion of male supremacy as was in the society too, which made the rape law as well as other sexual crimes, gender biased and very confined.
In my understanding, the IPC only puts label of rape in such cases where the victim has the potential to get pregnant, though ejaculation is not important to charge an accused of rape. In case Koppula Venkatrao v. State of AP [(2004) 3 SCC 602], the Supreme Court upheld an important clarification that penetration is enough to constitute rape, ejaculation is not a necessary ground to constitute this offence. Ejaculation without penetration is an attempt to commit the offence of rape.
The potential to get pregnant in my analysis is the classification for victim of rape according to the law laid down in IPC, that is why a victim of sexual assault who is a male may or may not be gay, a female may or may not be lesbian, or, any other sexuality who is not a potential child bearer doesn’t come into the scope of section 375 IPC as victims.
The potential to get the victim pregnant in my analysis is the classification for the preparator of rape according to the law laid down in IPC, that is why a preparator of sexual assault who is a female may or may not be lesbian, a male (where victim is also male), other any other sexualities who have potential to get the victim pregnant, doesn’t come into the scope of section 375 as preparators.
|Preparator||Victim||Constitution of Rape u/s 375 IPC|
|Male (potential to make victim pregnant)||Male (no potential to get pregnant) Female (potential to get pregnant)||No Yes|
|Female (no potential to make victim pregnant)||Female (potential to get pregnant) Male (no potential to get pregnant)||No No|
|Male[gay] (potential to make victim pregnant)||Male (no potential to get pregnant) Female (potential to get pregnant)||No Yes|
|Female[lesbian] (no potential to make victim pregnant)||Male (no potential to get pregnant) Female (potential to get pregnant)||No No|
|Transgender male (potential to make victim pregnant)||Male (no potential to get pregnant) Female (potential to get pregnant)||No Yes|
|Transgender female (no potential to make victim pregnant)||Male (no potential to get pregnant) Female (potential to get pregnant)||No No|
The above illustration reveals that, only when the preparator has potential to make the victim pregnant, and the victim also has the potential to get pregnant only then it constitutes rape as per the analysed with respect to Indian rape law.
And in my opinion, it is quite justified to confine the scope of rape u/s 375 narrow, but where will the victims of sexual assault who are make or of other sexualities will go.
Sexual harassment, sexual assault and other crimes related to sexuality in Indian law need to be gender neutral because the victims who are not covered in section 375 IPC have the right to get justice, and these other sexual criminal statutes are also gender biased and put a female at the place of victim and males at the place of preparators e.g. Section 354 IPC.
The most important contention given in favour of gender-specific rape laws is the lack of statistical evidence in favour of male rape. The reason behind the lack of statistical evidence is less reporting of such cases. This doesn’t eliminate the possibility of commission of such incidents. Primary reasons behind less reporting of such cases are as follows:
Anti-masculinity/hegemonic masculinity stigma: – In patriarchal social construct men are restricted to file complaints of them getting sexually assaulted by a woman. It is a very common notion in all societies that men are not feminine, are physically aggressor and are not heterosexual. Which leads to the perception wherein if a male sexual victim would report his case, he would be rendered as female or in other words less powerful, less masculinity or heterosexual.
No Legislation for Adults: -The study of male rape victims started only after 1980s and that too was mostly focused on child sexual assaults. The POCSO Act, 2012 is gender-neutral concerning children’s sexual assault cases, adult male society still has no gender-neutral rape legislation.
- Behaviour of Government and Judiciary
- On 12th Nov 2018 the Supreme Court declined to interfere in a petition filed by NGO Criminal Justice Society of India. against Section 375 IPC on the ground that India’s rape law is not gender-neutral, saying that “this may not be the right stage to intervene in the matter.
- On 4th July 2019, in response to a PIL claiming that the existing law pertaining to rape is gender specific and protects only female, an affidavit was filed before the High Court of Delhi in which the Ministry of Home Affairs (MHA) tells the court not to alter existing definition of rape.
“Gender-neutral reforms are not designed to make gender irrelevant in our understanding of sexual violence; in fact, gender is central to any understanding of how and why sexual violence occurs. What is clear, however, is that while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law.”
- Indian Penal Code, 1860.
- Criminal Law Amendment Bill, 2013.
- Justice Verma Committee, report.
- The 172nd Law Commission’s recommendation.
Case referred: –
- State of UP v. Chottey Lal [(2011) 2 SCC 550]
- Sudesh Jhaku v. K.C. Jhaku [1996 (38) DRJ 22]
- Sakshi v. Union of India (1999) 6 SCC 591
- Priya Patel v. State of M.P. Anr 12 july 2006
- Koppula Venkatrao v. State of AP [(2004) 3 SCC 602]
Muhammad Faizan Qazi Date
3rd year Law student 03/06/2021
The Law School, University of Jammu.