By Arjit Mishra
Gender neutrality is a concept that postulates the eradication of distinction between different sexes in the drafting and execution of laws. It aims to make every citizen entitle to equal rights, for example, equal protection of the law, etc. without distinguishing on sex. As regards, rape laws, it aims to exterminate the male-female paradigm attached to rape in Indian laws. Albeit the definition of rape under Section 375 of Indian Penal Code, 1860 has been amended multiple times, it still peers with the traditional notion attached to rape wherein the victims and perpetrators are always women and men respectively.
Gender neutrality in Indian rape laws was first time dealt in Sudesh Jhaku v. K.C. Jhaku wherein 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 the Apex Court directed the whole issue to law commission. Consequentially, the 172nd Law Commission’s report recommended making rape laws unbiased. These recommendations took form of legislation in Criminal Law Amendment Bill, 2012 but before the bill could have become an Act, the nation was appalled by the incident of Nirbhaya Rape Case. After this, the Government of India constituted the Justice Verma Committee (JVC) and assigned it the task of submitting report on the necessary reforms to be made in rape laws. JVC report recommended increasing ambit of the definition of rape under Section 375 of IPC, 1860 by not keeping it concise to penile-vaginal intercourse. Interestingly, it also recommended making rape laws gender-neutral. These recommendations were promulgated in Criminal Law Amendment Bill 2013.
The second recommendation welcomed a great amount of criticism from numerous women groups. They asserted that the provisions promulgated in the bill not solely question the spirit of the JVC committee report but also intensify women’s vulnerability. Gender-neutral rape provisions, as per them, would increase the power of the already powerful male community. This 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 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.
DIMENSIONS OF GENDER NEUTRAL RAPE LAWS AND EMPIRICAL EVIDENCE
Gender neutrality in rape laws particularly has three dimensions: concerning victim; concerning perpetrator and neutrality in custodial, war and communal situation. This article would focus on the first two dimensions.
In respect to the first dimension, it is submitted that the term ‘victim’ has been wrongly interpreted by Indian lawmakers by confining it to only female victims. Victim class should also incorporate members of the male and transgender community. PUCL Karnataka surveyed to study human rights infringement in the transgender community and found sexual assault acts quite pervasive in their community. Concerning male as rape victims, a survey was carried out between 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.
The second dimension of gender neutrality has two different notions; female committing rape of a male person and a female omitting rape of another female. It is observed that there have been instances where women have been reported to commit rape against men. A survey observed that out of 28.6% of men who experienced sexual assault, 54.8% reported females as the perpetrator.
The second notion was dealt in the case of Priya Patel v. State of M.P. 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. This ground is completely flawed as there is certain empirical evidence which supports the contention of female on female rape. A survey was conducted by the Centre for Disease Control and Prevention which observed that out of 43.8% lesbians who were accounted as victims of sexual assault, 67.4% reported females as perpetrators.
GENDER SPECIFIC RAPE LAWS & HUMAN RIGHTS
It is imperative to assert the contention of making rape laws gender-neutral with a human rights approach. It is widely affirmed that human rights should become an essential practice and doctrine to regulate state laws, especially sexual assault rules in its criminal justice system. Right to equal protection of law and right to life and personal liberty are some of the basic human rights guaranteed to every human being irrespective of the sex of the person.
In the case of Bodhisattwa v. Shubhra Chakraborty and Narendra Kumar v. State (NCT of India), the Supreme Court of India accepted the contention that of rape violates the basic human rights enshrined in the Indian constitution, namely right to life and personal liberty. But Indian rape laws persist with the traditional notion of rape wherein only females can be a rape victim and henceforth, violates the human rights of men.
The most important instrument administering human rights laws in the entire world is the Universal Declaration of Human Rights (UDHR). Since it has been invoked by numerous nations, it has become binding customary international law. The Preamble of UDHR per se enunciates “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world”. Article 2 of UDHR asserts that everyone is entitled to all freedoms and rights which are enshrined in the declaration and that too, without distinction on any ground including sex. Article 7 also states that every person is equal before the law and is entitled to equal protection of the law without any differentiation. Article 8 and most important in our context stipulates that everyone has an exclusive right to avail effective remedy from any national tribunal in case any of his fundamental rights guaranteed by the constitution or by any law is violated.
One important thing to notice in the above-mentioned rights is the deliberate use of gender-neutral language, implying its uniform implementation. All the above-mentioned rights substantiate the contention of making rape laws gender-neutral.
Now, one may contend the legitimacy and reasonability of Section 375 of Indian Penal Code, 1860 under Article 15(3) of the Indian constitution which grants the power to make special provisions for women and children. But the problem lies in its misinterpretation. This provision doesn’t restrain the government to make laws to protect the lawful interests of the male community and that’s where the state fails to perform its obligations to provide equal protection of law to every citizen of the country.
The most important contention given in favour of gender-specific rape laws is the lack of statistical evidence in favour of male rape. This contention is completely flawed. The reason behind the lack of statistical evidence is simply less reporting of such cases. This doesn’t eradicate the possibility of happening of such incidents. Primary reasons behind less reporting of such cases are as follows:
- Anti-masculinity stigma
It is submitted that patriarchal social construct restricts men to file complaints of them getting sexually assaulted when the perpetrator is a woman. This stigma is also known as hegemonic masculinity which has 3 characteristics namely men are not feminine, are physically aggressor and are not heterosexual. This characterization leads to the creation of unsubstantiated perception wherein if a male sexual victim would report his case he would be rendered as female.
- No legislation to punish convicts of male rape
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. Although the POCSO Act, 2012 is gender-neutral concerning children’s sexual assault cases, adult male society is still in hope of gender-neutral rape legislation.
Gender neutrality in rape laws doesn’t aim to completely desexualize rape. Rather, it seeks to increase the ambit of victims of rape. It aims to do away the traditional male-female paradigm notion attached to rape. It is firmly recognized that the implementation of gender-neutral rape laws won’t be a piece of old tackie and it might keeping the patriarchal nature of Indian society in view, give unjust powers to men to use it against women. But this shouldn’t be a ground of restricting the bringing of gender-neutral rape laws as it would deprive the male community to avail their basic human rights. State must be vigilant enough to form an effective system to address all such issues in the best possible manner. It is also submitted that the relatively small size of potential victims who are ought to be benefitted shouldn’t become a constraint in making rape laws gender-neutral. To conclude, in the words of Phil Rumney:
“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.”
[The author is a first-year undergraduate law student at Hidayatullah National Law University, Raipur.]
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