Author: Dhivya Santhamoorthy pursuing BBA LLB from Symbiosis Law School.
As society changes from time to time, new issues and challenges arise, new perceptions evolve and new interpretations of existing concepts of the society are deduced. This has become an inevitable process. With such a dynamic nature attached to humans and in a broader view, to the society, aspects such as the definition of crime, inclusion of what constitutes a crime and what does not; undergo a constant process of transformation to suit the contemporary needs and likes of the society. With increasing crimes of sexual violence, there arises a need to redefine and deal differently with such crimes to understand and prevent them. Criminal law has undergone significant amendments in the recent few years.
Dimensions of gender neutral rape laws
Gender neutrality of rape laws is an often debated topic. It is obvious that female victims are grossly higher in quantum than male victims, but the fact that male and transgender victims exist also puts forward that their suffering cannot be undermined. Our current Indian laws provides for conviction of a man who commits rape on a woman (Section 375 and 376, Indian Penal Code). Other crimes such as voyeurism, stalking, sexual harassment are again defined and provided for in a manner such that the perpetrator can only be a man and the victim can only be a woman. It is often presumed that sexual violence is committed only to satisfy the perpetrator’s lust (Bashar, “Rape in England between 1550 and 1700). However, widespread awareness has made us realise it is much more than that. It could be a violent act to exert dominance – dominance could be that of a caste, religion or any community. However, this leads to a very logical question that if that be the case, why men are excluded from being victims in a legal sense. Does the identity of gender alone overshadow the other identities in the form of divisions in the society?
The plausible reasoning to this is that the identity of gender is a natural biological categorisation of people while other classifications are human-made. The next question that arises is that so what if it is a natural classification? Why should gender be the quality that defines who can be a victim and who can be an offender? This article aims to provide various dimensions of a gender-neutral law, its effects and consequences.
It is pertinent to note that the 172nd Law Commission Report recommended that rape law must be gender neutral based on the principle of equality before law and equal protection of rights as provided by our Constitution. The Justice Verma Committee Report of 2013 had recommended a gender neutral law for the victim but a gender specific law for the offender. However, none of these recommendations were incorporated in the law.
Gender neutrality of rape laws can be discussed in two dimensions - neutrality with respect to the victim and to that of the offender.
The Criminal Law Amendment Act, 2013 had done away with the penile-vaginal penetration as the only form of rape, and broadened the term to include insertion of any object into the vagina, urethra or anus of a woman as well (Section 375, IPC). This makes that the law is gender specific and does not cover the instances where a man is sexually assaulted. Further, a blind eye is turned towards transgender community when such violence is struck against them. Several studies reveal that there have been gross human rights violations against such persons, stripping them of their integrity and invading their privacy.
It is also noted that there high rates of sexual crimes committed against men in scenarios of war crimes, under trial imprisonment, caste and communal conflicts. The recent decriminalisation of Section 377 to the extent of consensual sexual activity between homosexuals has paved way for distinguishing between coercive and consensual sexual activity. This implies that such acts of a coercive nature are subject to be penalised. However, what is to be noted is that there is no minimum punishment period prescribed for such an offence, weakening the seriousness with which the crime has to be dealt with. The same offence committed on a woman would make the perpetrator undergo a minimum of 7 years of imprisonment.
This leads to a serious question as to why sufferings of males and transgender persons as a result of sexual humiliation could not be voiced out to attain justice and make the perpetrators pay for their crimes. How can there not be an equal amount of respect given to the feelings of such persons and how can that not be a treated as a serious violation, equivalent to that suffered by a female victim?
The next aspect that is to be dealt with is gender neutrality with respect to the perpetrators. A very common belief that women cannot be perpetrators is based on the belief that it is biologically impossible. This is to say that penetration is possible only when the man is ready for the sexual intercourse, which cannot happen in circumstances where he is frightened or disoriented. However, on the contrary, certain studies prove that anxiety and fear may cause erection. This proves that mere arousal cannot be taken to be implied as consent. In addition to this, certain theories believe that men are ultimately stronger and that a man cannot defend himself is an absolute impossibility. Another main concern why rape laws cannot be made gender neutral is that it will have negative consequences for female victims. It is opined that neutralisation of rape laws will create an enormous pressure on the female complainants to withdraw their complaints because filing of counter complaints by the male accused will be easy. This would discourage women to come out and fight for themselves. The contrary opinion to this is that gender neutralisation of such laws is not to undermine the rights of female victims but to acknowledge the existence of male victimisation, recognise their pain and empower them to fight for their rights as well.
With respect to the question of whether a woman can perpetrate sexual crimes on other women, the Madhya Pradesh High Court has opined that a woman can outrage the modesty of another woman in the case of State Government v. Sheodayal (1956). However, the Supreme Court had laid down that a woman cannot have an intention to rape in the case of Priya Patel v. State of Madhya Pradesh (2006). Though held that the act of penetration by every offender of a gang rape is not necessary and that the essential factor to be proved is ‘common intention’ to hold all the persons involved guilty, this logic does not seem to follow if a woman is involved in such an act. This is because of the belief that it is physically impossible for her to rape another woman. However, the question that arises at this juncture is whether physical impossibility completely negates the concept of intention.
The existence of crimes against men cannot be denied. Gender neutral laws have their own consequential challenges. However, justice has to be meted out accordingly and these challenges cannot be cited as reasons for not recognising such crimes. As a first step, making laws gender neutral at least to the extent of providing relief to the victims, will acknowledge the sufferings of males and transgender persons in this progressing society. This has to be done in a harmonious way, not conflicting the rights of female victims.