A Critical Analysis on Gender biased rape laws in India
Author: Shruti Gupta
Indore Institute of Law
Current regime of Sexual offenses in India is gender-biased. As per Section 375 of the Indian Penal Code, the offenses of sexual abuse can be men and the sole victim is women. Men and transgender communities are continuing to flourish in captivity against sexual violence. The Justice J.S. Verma committee (2013) recommends gender-neutral law after the famous Nirbhaya gang-rape case however, ignoring these recommendations the government passed the Criminal Law (Amendment) Act 2019, but it has not enforced yet.
This paper intends to contemplate various issues with the scope of gender-equality in anti-sexual violence laws. It seeks to introduce to its reader the concept of sexual abuse against the male or transgender communities. Alongside, it also presents how the Sexual laws stick with the normal notion of Rape where it violates the human rights of men and transgender communities. This paper acknowledges women’s victimization but the majority focuses on male or transgender victimization that continues to thrive due to the absence of gender-neutral law. In its conclusion, the paper examines the idea of equality as well as providing justice to them.
Keywords- Gender-biased, gender-neutral law, Criminal Law (Amendment) Act, male or transgender victimization
Whenever I read the section 375 and 376 of the Indian penal code, 1860 one thing that strikes me the most is the line, “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under………….” That means the perpetrator can only be a man While the victim can only be a woman. Can a man can only be convicted of committing rape and the victim can only be a woman.
“Why sexual abuse law is gender-specific? Why can’t we have Men/transgender as Victims & women as perpetrators?
Sexual abuse is not only an act of lust and desire but also a way of conferring dominance or superiority of one caste, class, religion, community over the other, and are acts of power and humiliation. Why gender is the only identity that is to determine the victims and perpetrators.
In my point of view, Sexual Abuse affects every demographic and every community whether it was men, women, or an LGBTQ Community. According to the report of the Centers for Disease Control and prevention Men and Transgender communities experience Sexual Abuse at a similar rate.
The 172nd report of the Law Commission of India recommended that Sexual abuse law must be neutral. It must be applied to the principles of equality before the law and equal protection of the law. However, we must not forget the realities of the society we live in where the men are the most vulnerable section of society because they have always been forced to live up to the double standard expectation of society while the LGBTQ community is always betrayed in society and they also helpless from social services, law enforcement, the legal system, and medical staff.
There is no denying that a large number of Victims of Sexual Violence are women. But it should be necessary that the law should not be biased. It should also be protecting the interest of men and transgender communities.
SEXUAL ABUSE AGAINST MEN, WOMEN, AND LGBTQ COMMUNITIES
- Sexual Abuse against women
No, Doubt in India Law only women were considered as Victim and there was no law for Transgender or Men. But if we also see on the other side the abuse against women and girls is among the world is much higher than the Men/transgender community.
According to the report (CDC) centers for Disease Control and Prevention-
- Nearly 1 in 5 women have experienced Sexual abuse during her lifetime.
- 1 in 3 female Victims experienced it for the First time under age 11 to 17 years old.
- 1 in 8 female victims reported that it occurred before the age of 10
In my view, the drafter of the Indian penal code makes a specific law for women because women always fall prey to violence before they are born. It was assumed that a woman is abused every 18 minutes that was one of the reasons Sexual abuse law was gender-specific.
Now, the situation was changed men and the transgender community also faced such abuse so it should necessary for society and legislation to accept gender-neutral law.
- Sexual Abuse against Men
Sexual Abuse can happen to anyone there is no matter of gender, age, or Sexual Orientation. Men who have sexually abused may have the same feeling and reaction as other survivors of Sexual abuse. Moreover, they may face additional challenges because of social attitudes about men. They have always been forced to live up to the double standards expectations of society. Many male victims of abuse do not even dare to report since they have the fear of being judged by the Society.
According to Report of CDC-
- Nearly 1 in 38 men have experienced sexual abuse during his lifetime
- About 1 in 4 male victims experienced it for the first time between 11-17 years old
- About 1 in 4 male victims reported that it occurred before the age of 10
Women who abuse men sexually
- Sexual Abuse against LGBTQ
Sexual Abuse also affects to LGBTQ Community. According to the report of centers for Disease Control and Prevention Lesbian, gay or bisexual experience more violence other than straight people.
LGBTQ community also faces a higher rate of poverty, stigma, and marginalization which puts us at greater risk for sexual assault.
According to CDC’s-
- 44% of Lesbians and 61% of bisexual women experience sexual abuse and physical violence compared to 35 % of straight women
- 26% of gay men and 37% of bisexual men experience sexual abuse and physical violence compared to 29% of straight men
- 46% of bisexual women have been abused compared to 17 percent of straight women and 13% of lesbians
- 22% of bisexual women have been abused by an intimate partner, compared to 9% of straight women
LGBTQ Community, transgender people, and bisexual women face the most alarming rate of sexual violence.
GENDER NEUTRALITY AND ITS DIMENSION
The word gender Neutrality means ‘common one’ that means it cannot be taken to refer to one gender only. Gender-neutral also said as gender neutralism. It should avoid distinguishing roles in line with people’s sex or gender, to avoid discrimination arising from the impression that are social roles that one gender is more suited than another. It is a concept that presupposes the elimination of diction between sexes in the drafting and execution of laws.
Gender Neutrality in Laws is a bigger concern these days. Laws are one of the most important parts of every society which not only regulate the conduct and behavior of the individuals but also ensure personal liberties. But, when we talking about sexual abuse for instance rapes, we see laws as gender-specific especially concerning the victims and perpetrators
The phrase “gender-neutrality” is ambiguous and as Arvind Narrain puts it, “perhaps disguises more than it communicates”. Arvind Narrain gives three dimensions of gender Neutrality-
- Gender Neutrality for victims
- Gender Neutrality for perpetrator
- Neutrality in custodial, communal, war, and conflict situation
This present paper would deal with the first and second dimensions of gender neutrality.
- Gender Neutrality for Victims- The word ‘victim’ traditionally understood to include only ‘a women’. It is quite unfortunate that Indian Law in sexual abuse is still based on the belief that a victim of sexual abuse can only women.
Whenever we hear any case related to sexual abuse, the first thing that comes to our mind is abused against women. Women are always considered to be victims of a sexual offense but what about men and LGBTQ Community. Most of the victims of sexual abuse are indeed women but one cannot ignore the possibility of men or the transgender communities being abused.
The three-member in Verma Committee that the victim be made gender-inclusive therefore, sexual abuse on men as well as homosexuals, transgender, and transsexual person be covered by the sexual abuse law. At present, the law takes away the rights of millions of men, transgender, transsexual and sexual minorities.
- Gender Neutrality for Perpetrator- Men exclusively are treated as perpetrators of Sexual abuse. It presumes that men are stronger, therefore they can commit rape and women cannot commit rape because it is physically and biologically impossible for a woman to commit rape. According to a Victim survey of British and American males have shown that 3 to 8 percent of males reported at least one sexual abuse in their lifetimes with at least 5 to 10 percent of all victims being male.
It was true that male or transgender abuse is a less frequent occurrence than female abuse but it cannot be denied the’ right to equality’. However, the protection of male or transgender as a victim is still silent on this fact of gender neutrality.
GENDER NEUTRAL LAWS IN INDIA
The maker of the Indian constitution aimed to form equal rights for all the citizens without any discriminating on gender. As the observance of rape laws, their main aims to root out the male-female paradigm adhere to rape in Indian Laws. Section 375 of IPC has amended several times but still, the old notion attached wherein the victims are women and perpetrators are always men.
In Sudesh Jhaku V. K.C. Jhaku the first-time court dealt with the gender-neutral law where it was held that Sexually assaulted men should be given the same protection as women victims. In Sakshi V. Union of India, the apex court directed the whole issue to the Law Commission report. The 172nd report stated that sexual abuse laws are biased. This recommendation took form of legislation in Criminal Law Amendment Bill,2012 but before the bill become Act, the nation intimidate by the incident of the Nirbhaya rape case.
Afterward, the Union of India constituted the Justice Verma Committee and empowered it the task of acknowledging a report on the indispensable reform to be made in sexual offenses Law.
It also recommended making sexual abuse law as a gender-neutral. These recommendations were made in the Criminal Law Amendment Bill, 2013.
The 2nd recommendation report greeted an immense amount of critique from various women factions. They assert that the 2nd recommendation report not merely questions the spirit of the JVC committee report but also aggravates women’s vulnerability. As per them, neutrality law would increase the facility of the already powerful male community. The last development by Mr. KTS Tulsi which seeks to form a gender-neutral law hasn’t been passed and there is no update relating to this provision.
GENDER-SPECIFIC LAW IN INDIA
Before Independence India was mainly a male-dominated patriarchal society where women are there to support men. There was wide inequality for women in areas of social, political, and educational. But this mindset was changed when they participated in a freedom struggle. When India got Independent the framers of the constitution provided equal rights to both men and women. Various provisions have been enacted for women to bring them to par with men and also to weaken the roots of patriarchal society.
Section 375 of the Indian Penal Code,1860 defines rape that starting with a word a man is said to commit rape has sexual intercourse with a woman considering that rape can only be committed by man against woman. This section has been amended many times but still, it follows an old thought where the victim is always women and the perpetrator will always be men.
In the case of Sakshi v Union of India, the apex Court directed the Law Commission to consider this issue, and as a result, the 172nd Law Commission released their report. The report recommended making the rape laws unbiased and suggested changes to CrPC, Indian Evidence Act, IPC, and also in the POCSO Act. but It was rejected because of the notion in the society that females cannot commit a rape of a man and man can never become the victim of rape or any sexual crime. They are not getting a remedy against sexual crimes. In the case of Priya Patel V. State of M.P. women were accused of gang rape, but the court opposes by stating that “women cannot be said to have an objective to commit rape.” After this, many cases were registered but due to their old mindset, these cases are not taken seriously. Moreover, in Sexual harassment laws, it also provided gender-specific laws. It protects only women from sexual harassment at the Workplace. This study shows that only women laws were provided for protection. Apart from females, male and transgender counterparts are also the sufferer of sexual violence and hence it is necessary to be given protection to male or transgender communities.
THE CRIMINAL LAW (AMENDMENT) BILL, 2019
Recently, in July 2019, the Rajya Sabha introduced the bill to make sexual offenses gender-neutral in India. The main purpose of this bill to prolong the protection of the penal code, code of criminal procedure, and the evidence Act in case of sexual offenses to all genders and to eliminate any discrimination.
One of the propositions made within the bill is concerning the amendment to Section 375 of IPC wherein it’s being proposed to interchange pronouns referencing “men” and ‘women’ specifically with words like “any person” or “other person” effectively making the offense of rape gender-neutral. However, sub-clause (fourthly) in step with which consent under the impression that the person is her husband is rape isn’t be modified. The Bill also proposes to switch the words ‘penis’ and ‘vagina’ with the phrase ‘genital’ which is subsequently defined under Explanation 1 to mean the penis and vagina. However, this modification won’t apply to sub-clause (b) which states that the penetration of any object not being a penis shall amount to rape furthermore.
The Bill has not been passed yet and there is no update regarding the same.
SEXUAL ABUSE LAW AROUND THE WORLD- HOW MANY ARE GENDER NEUTRAL?
According to the 96 countries studied, 63 were found to have rape or sexual abuse written in gender-neutral, 27 had rape laws that completely gendered specific i.e., the perpetrator as male and the victim as female, and 6 had partly gender-neutral laws i.e., the perpetrator was defined as male and victims could be male or female.
From this survey, we understood how the law is general specific. Around 63 countries were found as gender-neutral and the rest of the countries are specifically gendered but if we see on the transgender group, they still face the problem. people do not conform to the notion of gender identity, appearance, and expression. Society did not accept them as victims. People must change themselves and follow gender-neutral law because they have the same feeling and emotions.
- Changes in Framing the Laws
One of the first things that needs to be done for recognizing the reality of male sexual victimization is a change in the framing of laws. That requires to be obtained not only for the Indian Penal Code, 1860 but also for other laws such as domestic violence and family laws.
- Gender Sensitization Training for the whole Legal Machinery
Alongside amending the definition of rape law, we want to sensitize the complete legal machinery to handle the 21st-century reality of the ungendered world. this can be required so victims don’t feel any hesitation in reporting violations to the police officials.
ANALYSIS AND SUGGESTION
According to the present Scenario and analysis of Various laws, there is a need for formulating legislation that should be gender-neutral due to the development of society. Sexual abuse is a crime that can happen to anyone because it is more about power and superiority.
The government tried to amend the law and make it gender-neutral & maintain the constitutional structure as well. But During this time, it is not wise to make the whole law gender-neutral. Making Whole gender-neutral law would create a harmful effect on women. At present, India is not so advanced which allows the law to make law gender-neutral. The government tries to move slowly towards achieving the feat of having gender-neutral laws. The government should try to protect all identities (Men, Women & Transgender Communities) present in society while keeping in mind the situation of Vulnerable sections of Society i.e., women.
The India Constitution guarantees all persons the right to personal life & liberty, equal protection of laws, and prohibits discrimination based on sex. Laws are meant to protect citizens as well as provide justice to them. But making a gender-specific law violates the idea of equality and equal protection of the law.
Gender identification in India has always been an enormous deal in terms of both the functioning of the Society moreover as its laws. It is needed for legislation to amend gender-specific law. In the 21st century, Indian society has progressed a lot. Victims and perpetrators mustn’t be made gender-specific. It not only perceived the third gender to exist but also analyze them as a part of society.
It is the responsibility of the Indian Justice System to safeguard the rights of men or transgender communities. Gender-neutral law only will help more victims seek help and justice and can in no way cripple the experiences of one gender.
 Section 375 of the IPC defines rape as A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —
(First) — Against her will.(Secondly) —Without her consent.(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.(Sixthly) — With or without her consent, when she is under sixteen years of age.
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 Supra Note at 2
 Sudesh Jhaku V. K.C.J. 1998 CriLJ 2428, 62 (1996) DLT 563, 1996 (38) DRJ 22
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 Supra Note at 6