Gender Neutral Rape Laws: Need For An Inclusive Regime
Through a variety of laws and provisions, the Indian Constitution aims to
eliminate disparities between different socioeconomic groups and provide
everyone with equality of status and opportunity. The authors of our
constitution were aware of the difficult circumstances facing these less
fortunate groups in society. They endeavoured to promote the progress of the
most vulnerable segments of society by incorporating lucky clauses in the
constitution, such as those that forbade discrimination under article 14 and
equality under article 15. Through a variety of laws and provisions, the Indian
Constitution aims to eliminate disparities between different socioeconomic
groups and provide everyone with equality of status and opportunity.
The current sexual crime laws in India are biassed towards women, believing that they are the victims and males are the perpetrators. After societal change, it is imperative to broaden the definitions of the terms used to describe various forms of sexual orientation. Offences, such as the identification of women as accomplices to sexual offenders and homosexual sexual assaults. Therefore, sodomy is not entirely successful because it only criminalises some gay offences.
Although the Criminal Law Amendment Bill, 2019 is a positive step towards gender neutrality for sexual offences, it has not yet been implemented. Gender-neutral sexual offences require both substantive and procedural changes to be appropriately handled. However, modifying the criminal code is merely the initial measure towards achieving gender parity in sexual offences. Effective change can result from cooperation between the legal system and judges who acknowledge non-penetrative rape, the elimination of social stigma, awareness-raising, and the provision of adequate sex education.
A nation cannot develop if a significant portion of its people falls behind in the pursuit of advancement and, as a result, is unable to benefit from the equality of opportunity that is a fundamental right accorded to all Indian citizens.
Introduction
A particular class of people has continuously endured all types of exploitation and oppression for a very long period. Social inequality crippled the impoverished and oppressed classes so severely that it took years for them to recover economically for generations. The authors of our constitution were cognizant of the precarious situation these socially excluded groups found themselves in.
They endeavoured to promote the progress of the most vulnerable segments of society by incorporating lucky clauses in the constitution, such as those that forbade discrimination under article 14 and equality under article 15. In many of its articles, the framers of our constitution also gave certain rights to the less fortunate and more traditional parts of society. The objective of the founding fathers of the Constitution was an egalitarian society free from prejudice and discrimination.
The constitution guarantees equality to all Indian citizens. However, given the differences in Indian society's geography, culture, language, and religion, among other aspects, absolute equality is not possible. Consequently, the framers of the Constitution applied their judicial expertise to contemplate a constructive measure that would accomplish the desired outcome. Stated differently, it suggests that the writers of our constitution incorporated clauses pertaining to protection discrimination. There are several exceptions to the general rule in our constitution that deal with protective discrimination, even though it stipulates that all Indian citizens are equal and cannot be subjected to discrimination on the grounds of race, caste, sex, or place of birth.
If something is usable by persons of any gender, it is deemed "Gender Neutral," according to The Oxford Dictionary. Gender neutrality refers to the concept of nondiscriminatory policies that treat all genders equally. Every individual should be treated equally under all laws, policies, and other restrictions, regardless of gender. The idea of gender-neutral laws implies that the law treats each gender equally[1]. The concept of equality in the respect of each person's rights, regardless of gender, is known as gender neutrality in the legal domain[2].
India's stance on the issue of gender neutrality in rape legislation is both reflexive and steadfast. However, no evidence from earlier judicial or legislative amendments supports the same. Few indications exist that the legislature considered the justifiable apprehensions of all stakeholders when it put forth multiple modifications to the definition of rape in the Indian Penal Code[3]. The minutes of the national consultative meeting held in 2001 in response to the Law Commission of India's 172nd Report state that the interest of varied sexual minorities was never given meaningful consideration due of immense pressure from opposing interests.
As is the situation in India and most other developing or developed countries, men are only included on the perpetrator side of rape legislation, not the victim side. There is already a drive in India for gender-neutral rape laws. While the absence of these laws has been acknowledged, but not much has been done about it, which is unfair to the gender that is being left out. Laws against rape that are gender-neutral safeguard people of all genders, enhancing rather than diminishing their rights. The law may need to be fully implemented before it can be put into effect.
The core tenet of Indian law is the belief that the victim can only be a woman. This gives the impression that rape is only a sexual act committed by the offender to satiate an instantaneous desire. On the other hand, another perspective maintains that the act can be interpreted as a power play that includes dehumanising actions as well as actions meant to prove the superiority of a particular caste, group, religion, or class over the victimii. As a result, some people who uphold traditional or patriarchal views think that employing sexual assault as a tactic will enable them to dominate others. But progress has also resulted in alterations to the times. Despite the fact that the basic principle of our judicial system is "innocent until proven guilty," males are considered guilty unless proven innocent and women are deemed innocent under the rules pertaining to rape.
It's crucial to keep in mind that gender-neutral language is used to characterise the fundamental rights protected by Part III of the Indian Constitution. That being stated, even while everyone is entitled to the protection of their constitutional rights, there are gender-specific legislation in our country. Given the status of women in our country, gender-specific legislation are still required in this day and age. However, it is unacceptable to ignore the pain experienced by all other genders. Consequently, gender neutrality is necessary to guarantee fairness for all genders.
Despite the fact that they are less likely to be raped, men and transgender people still have a right to equality. As a result, gender-neutral laws have been implemented in roughly 77 different nations. Nonetheless, gender-neutral legislation has long been rejected by the Indian Parliament. While some countries are making progress towards gender equality, gender inequality persists in India and affects every facet of daily life. The Justice Verma Committee was founded in 2013 with the belief that victimisation under section 375 of the Indian Penal Code ought to be gender-neutral and encompass all individuals, including transgender persons.
Gender neutrality and its Dimensions
It is considered "Gender Neutral," according to The Oxford Dictionary, if it can be used by people of any gender. The idea of nondiscriminatory laws that treat both genders equally is known as gender neutrality. Regardless of gender, every person should be treated equally in accordance with all laws, regulations, and other constraints. The concept of gender-neutral legislation suggests that each gender is treated equally by the law. In the legal field, gender neutrality refers to the idea of equality in the respect of every person's rights, regardless of gender.
Gender neutrality has been found to consist of three elements: impartiality towards the victim, impartiality towards the perpetrator, and impartiality towards caste, community, wars, custodial, community, and conflictual circumstances.[4] This study only addresses the first two dimensions.
Gender Neutrality pertaining to the Victim
In India, the victim-perpetrator paradigm is defined by gender. Lawmakers mistakenly believe that victims can only be female. Sections 375 and 376 of the Indian Penal Code declare that rape is solely prohibited against men. The idea that rape and other sexual assaults are only committed by women is still upheld by Indian law. Women's security was rendered even more crucial by the fact that laws protecting them were created in reaction to the atrocities they had previously encountered. Things have drastically altered over time, and men are now victims of sexual assault. The preset characterisation of the victim-perpetrator paradigm poses legal issues. It is necessary to include men and those who identify as third gender in the concept of victim.
The 2013 study by the Justice Verma Committee advocates for a gender-inclusive law for victims of rape. The effects of rape on men are rarely acknowledged.[5] Not even the topic of men being victimised is discussed. This is due to the societal perception that rape is only the domain of women. India has no laws that address mistreatment of men.
"There are no known instances of women committing sexual assault upon men in India," states Arvind Narrain, "and the proposal to make sexual assault gender neutral in non-custodial situation is not based on any empirical evidence." It's true that not many men have reported being raped, but this is because they have no other choices in terms of legal action. The social stigma associated with being the victim of sexual assault keeps the victim from reporting the crime they were subjected to.
This leads to the fact that some rape victims choose not to file a lawsuit, which means that their experiences go unrecorded. Despite the fact that what happened to them may appear to be a sexual offence, society has defined rape as an offence that exclusively affects women, thus what happened to them is not recognised as rape under the law. Men are therefore not even allowed to report that they have been sexually assaulted. These characteristics can be ascribed to the lack of empirical evidence. Its inability to ignore masculine or transgender victims in the current situation stems from the dearth of empirical data.
Gender neutrality pertaining to perpetrator
Regarding the offender, there are essentially two arguments in favour of gender neutrality.
The adage "no criminal should go unpunished" doesn't appear to apply to laws that discriminate against certain genders. Laws that presume a criminal's gender ignore all other genders involved in criminal activity. Laws that expose the gender of the offender provide a means of escape for other offenders. Therefore, a gender-specific regulation for the offender is inconsistent with the previously described premise, which is the cornerstone of our nation's criminal justice system.
Second, renowned feminist scholars like Laxmi Murthy agree that "women are capable of abusing men sexually" and that "men too can be sexually assaulted - by men, as well as by women (in rare cases)."[6]The Justice Verma Committee urged the preservation of the gender-specific law for the offender and suggested a statute that would be inclusive of all genders for the victim. Ayesha Kidwai, Farah Naqvi, Vrinda Grover, and Nivedita Menon are among the proponents of gender parity solely for victims. They support laws that are "gender just and gender sensitive, not gender-neutral.".
Nevertheless, I disagree with their opinions as they back laws that pick out criminals according to their gender. Even while there may not be many instances of women raping males, it is undeniable that they are capable of committing these crimes. Men are frequently threatened or pressured by women to grant sexual favours, particularly in official situations. Similar to legislation prohibiting sexual harassment in India, these regulations presented males as harassers and women as the harassed.
Despite the fact that women are less prone to commit crimes, it is undeniably true that men have experienced sexual harassment at work from both male and female peers. In a similar vein women are capable of committing a variety of crimes. I think it's absurd to release criminals based only on their gender. Gender-specific laws contravene Article 14 of the Indian Constitution, which guarantees the right to equality, because it is unfair to infer the gender of a criminal.
The Evolution of India's Gender-Specific Rape Laws
The history of sexual assault in India from the 1870s to the present may be factually traced.
For years, Indian women have been fighting sexual assault by organising to have the country's definition of rape changed. When the Indian Penal Code was being written in the 1860s, the term "rape" was first employed in the legal system in India. However, up until 2004, the penile-vaginal phrase was the only accepted legal definition of rape. [7]
In 1972, the country was shocked by the Mathura Rape Case[8]. The young tribal girl was sexually raped by two police officers when she was being detained at the Maharashtra police station. As of right now, this episode is acknowledged as one of the most well-known instances of rape in Indian prisons. She reported these two officers for rape after feeling pressure from her family, and the matter ultimately reached the Supreme Court.
In this case, the SC contended that the victim didn't even raise an alarm during the rape and didn't show any outward symptoms of pain or struggle on her body because she was most likely used to having sex and may have even asked the police to have sex with her. When it was determined that there had been voluntary sexual relations rather than sexual assault, the victim was determined to be non-virgin.
In the wake of this case in 1979, several protests took place around the nation, and four academicians wrote an open letter of complaint to India's chief judge. Everyone said that the woman should have to provide documentation proving the sexual interaction was not based on permission. The term "Custodial rape" was consequently added to the definition of rape. The amendment further stipulates that the victim's identity must be kept secret and forbids the "character assassination" of rape victims in court. This has a significant impact on the history of rape legislation. The 1983[9] criminal code change resulted from the Mathura rape case.
The history of rape legislation has been shown to have been significantly influenced by the Nirbhaya rape case[10]. It sparked a public outcry, calling for more severe punishments for those who commit traditional rapes and bringing attention to the safety of women. The Justice J.S. Verma Committee was founded in December 2012 in response to the incident mentioned above. This committee was entrusted with amending the criminal code to provide speedy trials and severe punishments for those convicted of sexual assault against women.
The study's recommendations, which were made public on January 23, 2013, mostly addressed sexual assault and rape. The Committee highlighted the necessity for gender-neutral rape laws in its conclusion and recommendation, noting that sexual assault against men, gay men, and transgender people is a reality that the law must respect. Because of the circumstances at the time, the government decided to keep the Criminal bill (Amendment) Act, 2013 gender-specific.
Nevertheless, the bill was still adopted. It introduces never-before-seen provisions making sexual voyeurism and stalking offences under the Indian Penal Code and amends the law to protect people's privacy. Furthermore, the Criminal Law Amendment 2018xvii was prompted by two unfortunate rape cases: one in 2017 in Unnao, Uttar Pradesh[11]xviii, and another in 2018 in Kathua, Jammu, and Kashmir[12]xix. The Criminal Law saw a number of changes, but one of the biggest ones was the doubling of the punishment for rape under section 376 from seven to ten years.
A private member bill was introduced in 2019 by Rajya Sabha member KTS Tulsi with the intention of amending several sections of the current Indian Penal Code. The bill is titled the 2019 Criminal Law (Amendment) Bill. It goes on to suggest that sexual assaults against males and transgender people be criminalised. Its goal is to punish criminals according to their gender or sexual orientation. Moreover, it illustrates the suffering endured by victims of many sexual orientations, who find it challenging to recognise their own victimizationxx.
Background criminal amendment bill, 2019
On July 12, 2019, KTS Tulsi, a parliamentarian at the time, introduced the Criminal Law (Amendment) Bill, 2019[13]xxi in the Rajya Sabha. It was a private member's bill. The bill, which has previously been proposed in the past, would make the laws against rape gender-neutral. The Indian Constitution's fundamental provisions of equality and the right to life serve as the foundation for the bill's concepts. It makes references to the gender neutrality amendment statute and the prior statute Commission study. The plan places a strong emphasis on changing the law to protect people of all sexes, genders, and sexual orientations while also enabling them to seek justice and fair compensation.
The following are the main modifications that have been suggested for the Indian Penal Code, 1860:
In addition, certain changes have been proposed to the relevant sections of the 1873 Code of Criminal Procedure and the Indian Evidence Act of 1872. It cites the well-known Criminal Justice Society v. Union of India & Ors.[14] to bolster its opinion on the argument. In its decision, the Supreme Court acknowledged the petitioner's wish for gender-neutral rape statutes and expressed its opinion that Parliament ought to adopt a similar position.
Finally, in order to put the aforementioned provisions-which uphold the right to equality and prohibit discrimination-into effect, Parliament must modify the current criminal code to make it gender-neutral in light of the fact that India adopted the 1948 Universal Declaration of Human Rights[15].
Analysis of the bill
The Bill has avoided any issues that might have arisen with the concept of transgender by not characterising transgender in any way, particularly in light of potential conflicts with the proposed Transgender Bill. Rather, transgender individuals are now placed in the relatively new "other" classification. Therefore, under the modified IPC, any individual who does not relate to one of the pairings can have response under any circumstance, regardless of the prohibited definition of transgender that may be supplied in other enactments.
This Bill's attempt to define modesty is its most troublesome feature. The commonly used definition of "modesty" is very subjective and dependent on preconceived ideas. It's hard to defend this description's inclusion because it muddies the distinction between what constitutes unobtrusiveness and intensely personal views about acceptability.
In Tarkeshwar Sahu v. State of Bihar[16], the Supreme Court defined a woman's modesty in relation to Section 354 of the IPC and held that a woman's sex is essential to her modesty. This norm states that any act of disobedience against a woman that interferes with her significant reliability solely on account of her gender is illegal under Section 354. It would have been reasonable to follow a similar, clear-cut standard.
There are various issues with the phrasing employed in the recently proposed Section 375A, even though the way the crime of rape is presented must be honoured. It is instantly impossible to discern what constitutes a "unwanted noteworthy danger" from the arrangement. Unfortunately, confusing wording has been utilised to identify the commission of an act since someone who fears being explicitly ambushed may see a "significant danger" very differently.
Furthermore, it conveys a willingness to take part in the particular demonstration even if it adopts the concept of "assent" provided in Explanation 2 of Section 375, which also defines an agreement to encompass any form of non-verbal communication. However, it has not embraced the full interpretation of Section 375, which said that agreement will not be established only by not obstructing infiltration.
In the present day, there seems to be no compelling reason to intentionally leave a legal loophole. As a result, it's imperative to include a condition regarding the outcome here as well, ensuring that nonproduction from those in contact will not be deemed consent.
Furthermore, under Explanation 3, "contacts" refer to any sexual activity that occurs without the subject's consent or a reasonable belief that the victim has given it. We have now reached our third point. The meaning of the segment is entirely undermined by the use of the phrase "sensible conviction" and the previously mentioned dubious interpretation of assent. The new region defines acquiescence as an empty definition, and a kind of guardrail that justifies any kind of ambush is provided by the phrase "sensible conviction that..." By all means, though, the Bill ought to have removed Explanation 3 and included a clause that is almost exactly the same as Explanation 2 quite recently.
Given the Supreme Court's unwillingness to declare assault an impartial offence, claiming that it is the purview of Parliament, the proposal to educate oneself with a Bill having such an impact is an encouraging approach.
To prevent passing laws that are insufficient to handle the variety of rape acts or that forbid particular behaviours, it is crucial that these improvements be applied with caution and thoroughness. It should be noted that because a revision to Section 375 of the IPC was being proposed, spousal violence may also have been penalised. It is only appropriate that the Legislature work harder and proceed wisely while adopting these revolutionary changes to criminal law, given the growing discourse surrounding these issues.
Arguments in favor of gender neutral rape laws a step towards incluive regime
The victim's gender neutrality highlights the scope and frequency of sexual violence against men and transgender people in India. So, it is undeniable that rape happens often in India, particularly when men and transgender individuals are involved. The most common arguments against complete gender neutrality are the patriarchal nature of Indian society and the potential harm it could inflict to those who are its victims. Conversely, proponents of complete gender neutrality base their case on the societal stigma attached to male rape as well as the right to equality.
The researcher concluded that although sexual violence against transgender people and men has to be addressed, it shouldn't endanger women who have been raped. We must attempt to create an equitable society in addition to pushing for anti-sexist laws. However, given the current state of affairs and the treatment of women in India, it would be misguided to substantially reform rape laws to gender-neutral legislation. We must move carefully forward.
For laws pertaining to sexual assault to be deemed as "gender neutral," they must recognise that transgender individuals and men are equally capable of perpetrating acts of sexual assault against one another. This is consistent with current viewpoints of the characteristics, processes, and outcomes of both penetrative and non-penetrative sexual acts. This definition states that rape is only regarded as illegal when the victim's human rights are violated. This viewpoint, meanwhile, would conflict with the numerous laws that target gender-based rape specifically.
If an offence violates someone's human rights, the offender's gender shouldn't determine how serious the punishment is or how much protection they receive. Everyone has the fundamental rights to equality, life, personal liberty, and dignity simply by virtue of being a human. Everyone has the right to it, regardless of gender identity or expression[17].
There is a tonne of evidence to back this claim. The preamble of the Universal Declaration of Human Rights states that every member of the human family has equal and unalienable rights, which are the cornerstones of freedom, justice, and world peace. Article 2[18] of the UDHR states that no one is denied any of the freedoms enumerated in this Declaration because of their gender or any other status.
Substantial legal protection is granted under Article 7[19]. Article 8 states that persons who have their fundamental rights violated by acts that are protected by the law and the constitution may legitimately seek appropriate remedies from competent national tribunals. These sections are purposefully and expressly gender-neutral to make it obvious that everyone is entitled to these rights without any distinction based on characteristics like sex or gender. Formal equality is distinguished by the terms outlined above from substantive equality. While substantive equality recognises that sometimes treating a class of people differently is necessary to provide equal treatment, formal equality promotes consistency in treatment.
Human rights theory and practice must consider the rationale for the state's use of the legal system, particularly the criminal code, to control sexuality. It may take some time for regulations to catch up, despite the fact that during the past century, sexual ideas and behaviours have undergone significant change in many countries. Sexual law reform is a notoriously challenging endeavour.
Constitutional Perspective:
The fact that the Constitution provides for both substantive and formal equality raises the possibility that its framers realised that enforcing formal equality on a regular basis would only help to exacerbate structural inequality. In actuality, India's equality law has consistently displayed indications of the limitations, underlying issues, obstinacy, and potential backlash that come with legal equality. It also demonstrates a strong belief that a deeper comprehension of equality is necessary.
The State "shall not refuse to any person inside Indian territory, either equality before the law or equal protection of the laws," as stated in Article 14[20]. "State is not allowed to discriminate against someone on the basis of their race, caste, sex, place of birth, or any combination of these factors alone," according to Article 15(1)[21]. But as mentioned, Article 15(3) makes it quite clear that the State may pass particular laws protecting women and children.[22] This is how the concept of positive discrimination has been embedded in the Indian Constitution.
This implies that, among many other things, it expressly gives the State the authority to take any action necessary to support women and children, even if that action violates the fundamental prohibition against discriminating against people solely on the basis of their gender. It would be tempting to use Article 15 to support Section 375 of the IPC. Notwithstanding its intention to promote equality, Article 15(3) may be seen as only allowing the state to provide women and children with higher levels of protection while upholding its constitutional duty to protect its citizens from violations of human rights.
Moreover, in the absence of any other suitable legal remedy, cases of serious sexual assault that endanger a victim's physical integrity are prosecuted as rape under Section 375 of Indian criminal law. More people seem to be in favour of treating crimes of similar heinousness the same way, regardless of the offender's gender, than they are of distinguishing between crimes involving penetration of the female and male bodies.
In this regard, the State is legally obligated to ensure that the aforementioned duties are fulfilled. It is well known that states are required to ensure that human rights are sufficiently protected inside their boundaries. Similarly, the National Human Rights Commission ruled that protecting each person's right to "life, liberty, equality, and dignity" is the State's first and most important responsibility. Furthermore, any deliberate or inadvertent breach of basic rights resulting from negligence or cooperation must be stopped by the State[23].
Human rights jurisprudence argues that the State is responsible for the actions of both its employees and outside companies that operate within its borders. Any inaction on the part of the State that encourages the violation of human rights is also its fault. The validity of gender specificity in Indian rape laws is seriously questioned by the lack of an equivalent choice in the penal code. Thus, it would seem that the concept of gendered protection of the same is incompatible with the duty of a state to guarantee the protection of the fundamental human rights of its inhabitants while they are within its boundaries.
Evidence to Back Up Arguments:
There is a presumption that people always see men as the criminals and women as the victims, much as the IPC perpetuates the idea that only men are fit to hold positions of leadership because they are stronger than women. Both the perpetrator and the victim can be considered within the current paradigm of gender neutrality. We've looked at the existing court system's inaccurate and biassed perception of women as the victims of sexual assault in great detail before.
The total number of transgender and male rape victims is not formally recorded. Sexual activities against men that are compelled or performed against their will are not illegal under any law. The Apex Court took longer than expected in 2019 to recognise transgender people as members of the "third gender," for these two reasons.
The National Intimate Partner and Sexual Violence Survey, which was released in 2013 by the Atlanta, Georgia-based National Centre for Injury Prevention and Control, including a section on victimisation due to sexual orientation. [24]In contrast to 54.8% of women and 16.6% of men and women who had suffered sexual violence other than rape in their lives, just 28.6% of heterosexual men reported having male attackers.
Furthermore, 43.8% of lesbians reported having been the victim of rape or other physical violence; of these, 67.4% believed that the assault was the only fault of women. An investigation conducted in 2008 by India's National Crime Record Bureau revealed that married males commit suicide at a rate of one every nine minutes, which is significantly higher than the rate for women.
xxxiii Many suicides are the result of social and economical stressors.
These particulars suggest two things: First of all, the idea that women are physiologically incapable of committing rape is refuted by the reality that they are capable of perpetrating any other type of sexual offence against men. The broad definition of rape in India, which did not limit it to penile-vaginal penetration, made this argument unconvincing from the beginning. Second, women are able to abuse other people sexually.
The Supreme Court ruled in Bodhisattwa v. Shubha Chakraborty[25] that despite the established custom that the crime of rape violates the fundamental rights of men and women to life, liberty, and the right to privacy, Indian rape laws continue to support the status quo and their stigmatised stereotype of masculinity, which results in men being expected to be independent so they cannot be sexually abused or exploited by women.
This debate centres on the landmark decision in Priya Patel v. State of M.P. & Anr.,[26] which answered the issue of whether a woman could face charges of gang rape. The argument was dismissed by the court, which decided that a woman cannot commit rape. Although the Criminal Law (Amendment) Act of 2013 has brought about major changes to the law regarding rape, the finding appears to be reasonable considering the narrow scope of Section 375, IPC at the time it was made. Still, it was important to talk about it because there hadn't been a decision on the topic recently. Now that the legislation has changed and the previously revealed data has surfaced, it is feasible that women may rape both men and women.
Laws that benefit women and the lack of a system of legal support for males can often be the primary causes of women making up accusations of rape against men. Male rapes are frequent and reliable, but they are rarely reported because they are socially stigmatised.
The US Supreme Court observed that laws that target specific genders typically result from cultural assumptions rather than intentional attempts to accomplish legislative objectives.[27]
Judicial precedents
However, an Indian court must review or the Parliament must debate the previously mentioned proposition in favour of gender neutrality in rape laws. On a global basis, however, the same is unquestionably no longer excellent.
The Court of Appeals of New York Court considered the constitutionality of Section 130.35 of the New York Penal Code, which states that "a male is accountable of rape inside the first degree while he engages in sexual intercourse with a girl... By technique of forcible compulsion," in the People v. Liberta[28] case from 1984. The defendant claimed that because the clause violated the constitutionally protected right to equality before the law for all men and women, it ceased to be gender neutral. The jury came to the conclusion that the defendant had a valid point.
"Section 130.35 of the Penal Law violates equal protection since it punishes men for raping women against their will while absolving women of criminal culpability for raping men against their will. The gender exemption no longer passes the constitutional test, undermining the notion that a gender-neutral law will discourage and punish forcible sexual attacks, even though it may be more difficult or uncommon for a woman to rape a man.
The court upheld the gender neutrality principle in rape law, noting that a statute can be amended to include individuals who were previously excluded or it can be knocked down if it is unconstitutional because it excludes certain groups. In addition, rather than just abolishing the statute, the court has the authority to direct the legislature to draft inclusive laws.
This wish was unanticipated because it became a process after the US Supreme Court ruled in Michael M. v. Superior Court of Sonoma County[29], a case from 1980. The Court investigated the adequacy of the California Rape Act, which penalised the violation of a male. The Court found that the Constitution prohibits discrimination against men.
It continued to make sense, Legislators responsibly use their authority to penalise the offending player who, by definition, bears the least brunt of the consequences of their actions, since younger girls suffer the most from the extremely harmful and inevitable consequences of childbearing. It is often the case that lawmakers standing up for young women are right to exempt them from punishment. Moreover, the mere possibility of becoming pregnant acts as a powerful deterrent for younger women. The same herbal penalties do not deter men. Thus, a crook sentence that primarily impacts men contributes to the "equalisation" of the deterrents for the sexes.
Though preventing teenage pregnancies is a noble goal, Justice Brennan correctly pointed out in his dissenting opinion that it can also be accomplished by passing a gender-neutral law that does not discriminate based on the sexual orientation of the offender. Finally, he came to the conclusion that it was difficult to square the gender-specific safeguards offered by the California Act with the previous decision made by the California Supreme Court in the case of Orr v. Orr.
In Orr v. Orr, the Supreme Court decided that a statute requiring husbands to pay alimony, but not upper halves, was unconstitutional because it violated the equal protection principle. The following reveals the court's reasoning:
"The State cannot be content to categorise the concept of sexual activity; its compensatory and ameliorative goals are best served by a splendour that is gender-independent, as opposed to one that gender classifies and, thus, carries the burden of sexual stereotypes with it."[30]The European Court of Human Rights (ECtHR) examined states' responsibilities with relation to gender-neutral rape laws in 1985.
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states, among other things, that "anybody has the proper to realise for his non-public and circle of relatives life, his home and his correspondence." The European Court of Human Rights (ECtHR) determined that the Netherlands had violated this provision. This decision was made in the Netherlands v. X & Y case.[31]
According to the ECtHR, Article 8 does not actually force the State to refrain from interfering in an arbitrary manner because, aside from this generally awful project, there may also be enormous responsibilities that come with effectively recognising private or individual family life. These duties may also involve taking actions intended to ease respect for private life even within the circle of the human family," the prosecutor stated, pointing out that the prosecution declined to bring charges against an individual suspected of sexually abusing a mentally ill girl and accepted the girl's father as a substitute complainant.
In the 1994 case of Nicholas Toonen v Australia [32], the petitioner contested the validity of Sections 122(a)–(c) and 123 of the Tasmanian Criminal Code. These sections criminalised certain forms of sexual contact between men and were in violation of Articles 2, 17, and 26 of the International Covenant on Civil and Political Rights. In the course of those legal proceedings, the State of Tasmania acknowledged that Section 123 of the Criminal Code, which forbids men from engaging in sexual actions, unquestionably attracts a different interpretation of sex.
However, the UN Human Rights Committee found that the disputed clauses violated ICCPR Articles 2 and 17. Consequently, the committee concluded that it was no longer essential to debate whether the Act violates Article 26 by discriminating against individuals based on their sexual orientation. To bolster my argument, though, is the State of Tasmania's crucial factor concession in this area.
The point of bringing up these possibilities is not to suggest that a gender-specific definition of rape is always correct, even though, as mentioned previously, it is not completely ruled out.. Rather, it is to state that it is the duty of a rustic to ensure that human rights are upheld inside its borders for parents of all sexes, even as it formulates its own set of laws. A selective or differential protection of human rights based on the gender of either the rapist or the victim could be incompatible with both gender justice and the concept of human rights themselves in the absence of the same.
The following points are made clear by the Supreme Court of India's ruling in NALSA[33]: "recognition of one's gender identity lies at the heart of the crucial right to dignity" and "discrimination on the basis of... gender identification consists of any discrimination, exclusion, restriction or preference, which has the impact of nullifying or transposing equality with the aid of the law or the equal safety of laws confident below our Constitution."
However, the gender neutrality argument in the rape regulation will serve as sufficient gift to remove gender from the human rights protection act's jurisdiction. If there are no laws against sexual assault that go beyond popular belief and support the equality principle of pre-regulation, the gender neutrality argument supports a flexible definition of rape that puts rights first. any rape victim who does not belong to the ruling gender. As will be discussed below, the disclosure of gender neutrality actually makes it easy to investigate out-of-date gender binary data.
Conclusion and suggestion
Though it sounds like a great idea, gender neutrality cannot be fully applied in the Indian context. Several concerns surface when we consider this situation. The Supreme Court rejected a PIL that sought to gender-neutralize laws against rape, sexual harassment, stalking, voyeurism, sexual assault, and other offences, referring to it as a "imaginative petition" for the modern day. It is crucial to look at the issues preventing India from enacting gender-neutral legislation.
It is regrettable but true that women are viewed as the most vulnerable group in India. In India, there are numerous instances of crimes, assaults, torture, and other forms of discrimination against women. While it is true that men and transgender people experience prejudice and are targeted for crimes, the data indicates that women are disproportionately affected. It becomes necessary to defend their rights, and that should be permitted if they need special legislation to help them along the way.
Indian civilization and the potential harm it can cause to women who are its victims. Conversely, proponents of complete gender neutrality base their case on the societal stigma attached to male rape as well as the right to equality. The researcher came to the conclusion that while sexual violence against men and transgender individuals needs to be addressed, it shouldn't put women who have already been raped in jeopardy.
In addition to promoting anti-sexist legislation, we also need to work towards establishing an egalitarian society. However, it would be foolish to significantly change rape laws to gender-neutral legislation given the existing situation and how women are treated in India. We have to go cautiously.
Therefore, as recommended by the Verma Committee47, the rape statute needs to be modified to include the victim's gender while maintaining the perpetrator's gender specific. Gender identity becomes irrelevant in certain contexts of sexual assault, such as prisons, war crimes, caste, and intergroup disputes, because other identities-such as race, religion, and caste-take primacy. Therefore, in cases of caste, communal strife, and war crimes, at the very least, women must be recognised as perpetrators in gang rape and abetment to rape.
Consequently, the following recommendations are made for the formulation of laws that are gender-neutral:
End Notes:
The current sexual crime laws in India are biassed towards women, believing that they are the victims and males are the perpetrators. After societal change, it is imperative to broaden the definitions of the terms used to describe various forms of sexual orientation. Offences, such as the identification of women as accomplices to sexual offenders and homosexual sexual assaults. Therefore, sodomy is not entirely successful because it only criminalises some gay offences.
Although the Criminal Law Amendment Bill, 2019 is a positive step towards gender neutrality for sexual offences, it has not yet been implemented. Gender-neutral sexual offences require both substantive and procedural changes to be appropriately handled. However, modifying the criminal code is merely the initial measure towards achieving gender parity in sexual offences. Effective change can result from cooperation between the legal system and judges who acknowledge non-penetrative rape, the elimination of social stigma, awareness-raising, and the provision of adequate sex education.
A nation cannot develop if a significant portion of its people falls behind in the pursuit of advancement and, as a result, is unable to benefit from the equality of opportunity that is a fundamental right accorded to all Indian citizens.
Introduction
A particular class of people has continuously endured all types of exploitation and oppression for a very long period. Social inequality crippled the impoverished and oppressed classes so severely that it took years for them to recover economically for generations. The authors of our constitution were cognizant of the precarious situation these socially excluded groups found themselves in.
They endeavoured to promote the progress of the most vulnerable segments of society by incorporating lucky clauses in the constitution, such as those that forbade discrimination under article 14 and equality under article 15. In many of its articles, the framers of our constitution also gave certain rights to the less fortunate and more traditional parts of society. The objective of the founding fathers of the Constitution was an egalitarian society free from prejudice and discrimination.
The constitution guarantees equality to all Indian citizens. However, given the differences in Indian society's geography, culture, language, and religion, among other aspects, absolute equality is not possible. Consequently, the framers of the Constitution applied their judicial expertise to contemplate a constructive measure that would accomplish the desired outcome. Stated differently, it suggests that the writers of our constitution incorporated clauses pertaining to protection discrimination. There are several exceptions to the general rule in our constitution that deal with protective discrimination, even though it stipulates that all Indian citizens are equal and cannot be subjected to discrimination on the grounds of race, caste, sex, or place of birth.
If something is usable by persons of any gender, it is deemed "Gender Neutral," according to The Oxford Dictionary. Gender neutrality refers to the concept of nondiscriminatory policies that treat all genders equally. Every individual should be treated equally under all laws, policies, and other restrictions, regardless of gender. The idea of gender-neutral laws implies that the law treats each gender equally[1]. The concept of equality in the respect of each person's rights, regardless of gender, is known as gender neutrality in the legal domain[2].
India's stance on the issue of gender neutrality in rape legislation is both reflexive and steadfast. However, no evidence from earlier judicial or legislative amendments supports the same. Few indications exist that the legislature considered the justifiable apprehensions of all stakeholders when it put forth multiple modifications to the definition of rape in the Indian Penal Code[3]. The minutes of the national consultative meeting held in 2001 in response to the Law Commission of India's 172nd Report state that the interest of varied sexual minorities was never given meaningful consideration due of immense pressure from opposing interests.
As is the situation in India and most other developing or developed countries, men are only included on the perpetrator side of rape legislation, not the victim side. There is already a drive in India for gender-neutral rape laws. While the absence of these laws has been acknowledged, but not much has been done about it, which is unfair to the gender that is being left out. Laws against rape that are gender-neutral safeguard people of all genders, enhancing rather than diminishing their rights. The law may need to be fully implemented before it can be put into effect.
The core tenet of Indian law is the belief that the victim can only be a woman. This gives the impression that rape is only a sexual act committed by the offender to satiate an instantaneous desire. On the other hand, another perspective maintains that the act can be interpreted as a power play that includes dehumanising actions as well as actions meant to prove the superiority of a particular caste, group, religion, or class over the victimii. As a result, some people who uphold traditional or patriarchal views think that employing sexual assault as a tactic will enable them to dominate others. But progress has also resulted in alterations to the times. Despite the fact that the basic principle of our judicial system is "innocent until proven guilty," males are considered guilty unless proven innocent and women are deemed innocent under the rules pertaining to rape.
It's crucial to keep in mind that gender-neutral language is used to characterise the fundamental rights protected by Part III of the Indian Constitution. That being stated, even while everyone is entitled to the protection of their constitutional rights, there are gender-specific legislation in our country. Given the status of women in our country, gender-specific legislation are still required in this day and age. However, it is unacceptable to ignore the pain experienced by all other genders. Consequently, gender neutrality is necessary to guarantee fairness for all genders.
Despite the fact that they are less likely to be raped, men and transgender people still have a right to equality. As a result, gender-neutral laws have been implemented in roughly 77 different nations. Nonetheless, gender-neutral legislation has long been rejected by the Indian Parliament. While some countries are making progress towards gender equality, gender inequality persists in India and affects every facet of daily life. The Justice Verma Committee was founded in 2013 with the belief that victimisation under section 375 of the Indian Penal Code ought to be gender-neutral and encompass all individuals, including transgender persons.
Gender neutrality and its Dimensions
It is considered "Gender Neutral," according to The Oxford Dictionary, if it can be used by people of any gender. The idea of nondiscriminatory laws that treat both genders equally is known as gender neutrality. Regardless of gender, every person should be treated equally in accordance with all laws, regulations, and other constraints. The concept of gender-neutral legislation suggests that each gender is treated equally by the law. In the legal field, gender neutrality refers to the idea of equality in the respect of every person's rights, regardless of gender.
Gender neutrality has been found to consist of three elements: impartiality towards the victim, impartiality towards the perpetrator, and impartiality towards caste, community, wars, custodial, community, and conflictual circumstances.[4] This study only addresses the first two dimensions.
Gender Neutrality pertaining to the Victim
In India, the victim-perpetrator paradigm is defined by gender. Lawmakers mistakenly believe that victims can only be female. Sections 375 and 376 of the Indian Penal Code declare that rape is solely prohibited against men. The idea that rape and other sexual assaults are only committed by women is still upheld by Indian law. Women's security was rendered even more crucial by the fact that laws protecting them were created in reaction to the atrocities they had previously encountered. Things have drastically altered over time, and men are now victims of sexual assault. The preset characterisation of the victim-perpetrator paradigm poses legal issues. It is necessary to include men and those who identify as third gender in the concept of victim.
The 2013 study by the Justice Verma Committee advocates for a gender-inclusive law for victims of rape. The effects of rape on men are rarely acknowledged.[5] Not even the topic of men being victimised is discussed. This is due to the societal perception that rape is only the domain of women. India has no laws that address mistreatment of men.
"There are no known instances of women committing sexual assault upon men in India," states Arvind Narrain, "and the proposal to make sexual assault gender neutral in non-custodial situation is not based on any empirical evidence." It's true that not many men have reported being raped, but this is because they have no other choices in terms of legal action. The social stigma associated with being the victim of sexual assault keeps the victim from reporting the crime they were subjected to.
This leads to the fact that some rape victims choose not to file a lawsuit, which means that their experiences go unrecorded. Despite the fact that what happened to them may appear to be a sexual offence, society has defined rape as an offence that exclusively affects women, thus what happened to them is not recognised as rape under the law. Men are therefore not even allowed to report that they have been sexually assaulted. These characteristics can be ascribed to the lack of empirical evidence. Its inability to ignore masculine or transgender victims in the current situation stems from the dearth of empirical data.
Gender neutrality pertaining to perpetrator
Regarding the offender, there are essentially two arguments in favour of gender neutrality.
The adage "no criminal should go unpunished" doesn't appear to apply to laws that discriminate against certain genders. Laws that presume a criminal's gender ignore all other genders involved in criminal activity. Laws that expose the gender of the offender provide a means of escape for other offenders. Therefore, a gender-specific regulation for the offender is inconsistent with the previously described premise, which is the cornerstone of our nation's criminal justice system.
Second, renowned feminist scholars like Laxmi Murthy agree that "women are capable of abusing men sexually" and that "men too can be sexually assaulted - by men, as well as by women (in rare cases)."[6]The Justice Verma Committee urged the preservation of the gender-specific law for the offender and suggested a statute that would be inclusive of all genders for the victim. Ayesha Kidwai, Farah Naqvi, Vrinda Grover, and Nivedita Menon are among the proponents of gender parity solely for victims. They support laws that are "gender just and gender sensitive, not gender-neutral.".
Nevertheless, I disagree with their opinions as they back laws that pick out criminals according to their gender. Even while there may not be many instances of women raping males, it is undeniable that they are capable of committing these crimes. Men are frequently threatened or pressured by women to grant sexual favours, particularly in official situations. Similar to legislation prohibiting sexual harassment in India, these regulations presented males as harassers and women as the harassed.
Despite the fact that women are less prone to commit crimes, it is undeniably true that men have experienced sexual harassment at work from both male and female peers. In a similar vein women are capable of committing a variety of crimes. I think it's absurd to release criminals based only on their gender. Gender-specific laws contravene Article 14 of the Indian Constitution, which guarantees the right to equality, because it is unfair to infer the gender of a criminal.
The Evolution of India's Gender-Specific Rape Laws
The history of sexual assault in India from the 1870s to the present may be factually traced.
For years, Indian women have been fighting sexual assault by organising to have the country's definition of rape changed. When the Indian Penal Code was being written in the 1860s, the term "rape" was first employed in the legal system in India. However, up until 2004, the penile-vaginal phrase was the only accepted legal definition of rape. [7]
In 1972, the country was shocked by the Mathura Rape Case[8]. The young tribal girl was sexually raped by two police officers when she was being detained at the Maharashtra police station. As of right now, this episode is acknowledged as one of the most well-known instances of rape in Indian prisons. She reported these two officers for rape after feeling pressure from her family, and the matter ultimately reached the Supreme Court.
In this case, the SC contended that the victim didn't even raise an alarm during the rape and didn't show any outward symptoms of pain or struggle on her body because she was most likely used to having sex and may have even asked the police to have sex with her. When it was determined that there had been voluntary sexual relations rather than sexual assault, the victim was determined to be non-virgin.
In the wake of this case in 1979, several protests took place around the nation, and four academicians wrote an open letter of complaint to India's chief judge. Everyone said that the woman should have to provide documentation proving the sexual interaction was not based on permission. The term "Custodial rape" was consequently added to the definition of rape. The amendment further stipulates that the victim's identity must be kept secret and forbids the "character assassination" of rape victims in court. This has a significant impact on the history of rape legislation. The 1983[9] criminal code change resulted from the Mathura rape case.
The history of rape legislation has been shown to have been significantly influenced by the Nirbhaya rape case[10]. It sparked a public outcry, calling for more severe punishments for those who commit traditional rapes and bringing attention to the safety of women. The Justice J.S. Verma Committee was founded in December 2012 in response to the incident mentioned above. This committee was entrusted with amending the criminal code to provide speedy trials and severe punishments for those convicted of sexual assault against women.
The study's recommendations, which were made public on January 23, 2013, mostly addressed sexual assault and rape. The Committee highlighted the necessity for gender-neutral rape laws in its conclusion and recommendation, noting that sexual assault against men, gay men, and transgender people is a reality that the law must respect. Because of the circumstances at the time, the government decided to keep the Criminal bill (Amendment) Act, 2013 gender-specific.
Nevertheless, the bill was still adopted. It introduces never-before-seen provisions making sexual voyeurism and stalking offences under the Indian Penal Code and amends the law to protect people's privacy. Furthermore, the Criminal Law Amendment 2018xvii was prompted by two unfortunate rape cases: one in 2017 in Unnao, Uttar Pradesh[11]xviii, and another in 2018 in Kathua, Jammu, and Kashmir[12]xix. The Criminal Law saw a number of changes, but one of the biggest ones was the doubling of the punishment for rape under section 376 from seven to ten years.
A private member bill was introduced in 2019 by Rajya Sabha member KTS Tulsi with the intention of amending several sections of the current Indian Penal Code. The bill is titled the 2019 Criminal Law (Amendment) Bill. It goes on to suggest that sexual assaults against males and transgender people be criminalised. Its goal is to punish criminals according to their gender or sexual orientation. Moreover, it illustrates the suffering endured by victims of many sexual orientations, who find it challenging to recognise their own victimizationxx.
Background criminal amendment bill, 2019
On July 12, 2019, KTS Tulsi, a parliamentarian at the time, introduced the Criminal Law (Amendment) Bill, 2019[13]xxi in the Rajya Sabha. It was a private member's bill. The bill, which has previously been proposed in the past, would make the laws against rape gender-neutral. The Indian Constitution's fundamental provisions of equality and the right to life serve as the foundation for the bill's concepts. It makes references to the gender neutrality amendment statute and the prior statute Commission study. The plan places a strong emphasis on changing the law to protect people of all sexes, genders, and sexual orientations while also enabling them to seek justice and fair compensation.
The following are the main modifications that have been suggested for the Indian Penal Code, 1860:
- Including Section 8A, which defines modesty in a way that is appropriate for all genders, and adding the term "transgender" to Sections 8 and 10, which describe "gender," "man," and "woman," respectively.
- The proposed law would define "modesty" as "an attribute that attaches to the personality with regard to the commonly held belief of morality, decency and integrity of speech, behaviour, in any man, woman or transgender," and it would add this definition to Section 2 of the Indian Penal Code, 1860.
- A new law that criminalises assault and the use of force intended to violate someone's modesty — Section 354 should be repealed and replaced with a gender-neutral policy.
- The word "anyone" and "any individual" should be used in place of gender-specific expressions in Section 354A's definition of sexual harassment in order to adopt gender-neutral terminology.
- An additional provision to Section 354B will define "any person" as the victim of an attack or use of criminal force meant to cause disrobing, rather than merely "women."
- Gender-neutral definitions of voyeurism and stalking have been proposed for Sections 354C and 354D.
- Furthermore, the proposal proposes to replace the terms "man" and "woman" in Section 375's definition of rape with the term "any person." That's a significant shift. By doing this, the definition will cover more ground and give transgender people and men the same level of protection. Sections 376C and 376D — which address "gang rape" and "rape by a person in authority" — have also been proposed to be amended.
- It is suggested to include a new clause that regulates sexual assault. Under Section 375A of the Act, sexual assault is defined as "any non-consensual act of groping another person's genital area or the use of words or acts that create fear of an unwanted sexual risk". The recommended penalty is a harsh maximum sentence of three years in prison, a fine, or both.
In addition, certain changes have been proposed to the relevant sections of the 1873 Code of Criminal Procedure and the Indian Evidence Act of 1872. It cites the well-known Criminal Justice Society v. Union of India & Ors.[14] to bolster its opinion on the argument. In its decision, the Supreme Court acknowledged the petitioner's wish for gender-neutral rape statutes and expressed its opinion that Parliament ought to adopt a similar position.
Finally, in order to put the aforementioned provisions-which uphold the right to equality and prohibit discrimination-into effect, Parliament must modify the current criminal code to make it gender-neutral in light of the fact that India adopted the 1948 Universal Declaration of Human Rights[15].
Analysis of the bill
The Bill has avoided any issues that might have arisen with the concept of transgender by not characterising transgender in any way, particularly in light of potential conflicts with the proposed Transgender Bill. Rather, transgender individuals are now placed in the relatively new "other" classification. Therefore, under the modified IPC, any individual who does not relate to one of the pairings can have response under any circumstance, regardless of the prohibited definition of transgender that may be supplied in other enactments.
This Bill's attempt to define modesty is its most troublesome feature. The commonly used definition of "modesty" is very subjective and dependent on preconceived ideas. It's hard to defend this description's inclusion because it muddies the distinction between what constitutes unobtrusiveness and intensely personal views about acceptability.
In Tarkeshwar Sahu v. State of Bihar[16], the Supreme Court defined a woman's modesty in relation to Section 354 of the IPC and held that a woman's sex is essential to her modesty. This norm states that any act of disobedience against a woman that interferes with her significant reliability solely on account of her gender is illegal under Section 354. It would have been reasonable to follow a similar, clear-cut standard.
There are various issues with the phrasing employed in the recently proposed Section 375A, even though the way the crime of rape is presented must be honoured. It is instantly impossible to discern what constitutes a "unwanted noteworthy danger" from the arrangement. Unfortunately, confusing wording has been utilised to identify the commission of an act since someone who fears being explicitly ambushed may see a "significant danger" very differently.
Furthermore, it conveys a willingness to take part in the particular demonstration even if it adopts the concept of "assent" provided in Explanation 2 of Section 375, which also defines an agreement to encompass any form of non-verbal communication. However, it has not embraced the full interpretation of Section 375, which said that agreement will not be established only by not obstructing infiltration.
In the present day, there seems to be no compelling reason to intentionally leave a legal loophole. As a result, it's imperative to include a condition regarding the outcome here as well, ensuring that nonproduction from those in contact will not be deemed consent.
Furthermore, under Explanation 3, "contacts" refer to any sexual activity that occurs without the subject's consent or a reasonable belief that the victim has given it. We have now reached our third point. The meaning of the segment is entirely undermined by the use of the phrase "sensible conviction" and the previously mentioned dubious interpretation of assent. The new region defines acquiescence as an empty definition, and a kind of guardrail that justifies any kind of ambush is provided by the phrase "sensible conviction that..." By all means, though, the Bill ought to have removed Explanation 3 and included a clause that is almost exactly the same as Explanation 2 quite recently.
Given the Supreme Court's unwillingness to declare assault an impartial offence, claiming that it is the purview of Parliament, the proposal to educate oneself with a Bill having such an impact is an encouraging approach.
To prevent passing laws that are insufficient to handle the variety of rape acts or that forbid particular behaviours, it is crucial that these improvements be applied with caution and thoroughness. It should be noted that because a revision to Section 375 of the IPC was being proposed, spousal violence may also have been penalised. It is only appropriate that the Legislature work harder and proceed wisely while adopting these revolutionary changes to criminal law, given the growing discourse surrounding these issues.
Arguments in favor of gender neutral rape laws a step towards incluive regime
The victim's gender neutrality highlights the scope and frequency of sexual violence against men and transgender people in India. So, it is undeniable that rape happens often in India, particularly when men and transgender individuals are involved. The most common arguments against complete gender neutrality are the patriarchal nature of Indian society and the potential harm it could inflict to those who are its victims. Conversely, proponents of complete gender neutrality base their case on the societal stigma attached to male rape as well as the right to equality.
The researcher concluded that although sexual violence against transgender people and men has to be addressed, it shouldn't endanger women who have been raped. We must attempt to create an equitable society in addition to pushing for anti-sexist laws. However, given the current state of affairs and the treatment of women in India, it would be misguided to substantially reform rape laws to gender-neutral legislation. We must move carefully forward.
For laws pertaining to sexual assault to be deemed as "gender neutral," they must recognise that transgender individuals and men are equally capable of perpetrating acts of sexual assault against one another. This is consistent with current viewpoints of the characteristics, processes, and outcomes of both penetrative and non-penetrative sexual acts. This definition states that rape is only regarded as illegal when the victim's human rights are violated. This viewpoint, meanwhile, would conflict with the numerous laws that target gender-based rape specifically.
If an offence violates someone's human rights, the offender's gender shouldn't determine how serious the punishment is or how much protection they receive. Everyone has the fundamental rights to equality, life, personal liberty, and dignity simply by virtue of being a human. Everyone has the right to it, regardless of gender identity or expression[17].
There is a tonne of evidence to back this claim. The preamble of the Universal Declaration of Human Rights states that every member of the human family has equal and unalienable rights, which are the cornerstones of freedom, justice, and world peace. Article 2[18] of the UDHR states that no one is denied any of the freedoms enumerated in this Declaration because of their gender or any other status.
Substantial legal protection is granted under Article 7[19]. Article 8 states that persons who have their fundamental rights violated by acts that are protected by the law and the constitution may legitimately seek appropriate remedies from competent national tribunals. These sections are purposefully and expressly gender-neutral to make it obvious that everyone is entitled to these rights without any distinction based on characteristics like sex or gender. Formal equality is distinguished by the terms outlined above from substantive equality. While substantive equality recognises that sometimes treating a class of people differently is necessary to provide equal treatment, formal equality promotes consistency in treatment.
Human rights theory and practice must consider the rationale for the state's use of the legal system, particularly the criminal code, to control sexuality. It may take some time for regulations to catch up, despite the fact that during the past century, sexual ideas and behaviours have undergone significant change in many countries. Sexual law reform is a notoriously challenging endeavour.
Constitutional Perspective:
The fact that the Constitution provides for both substantive and formal equality raises the possibility that its framers realised that enforcing formal equality on a regular basis would only help to exacerbate structural inequality. In actuality, India's equality law has consistently displayed indications of the limitations, underlying issues, obstinacy, and potential backlash that come with legal equality. It also demonstrates a strong belief that a deeper comprehension of equality is necessary.
The State "shall not refuse to any person inside Indian territory, either equality before the law or equal protection of the laws," as stated in Article 14[20]. "State is not allowed to discriminate against someone on the basis of their race, caste, sex, place of birth, or any combination of these factors alone," according to Article 15(1)[21]. But as mentioned, Article 15(3) makes it quite clear that the State may pass particular laws protecting women and children.[22] This is how the concept of positive discrimination has been embedded in the Indian Constitution.
This implies that, among many other things, it expressly gives the State the authority to take any action necessary to support women and children, even if that action violates the fundamental prohibition against discriminating against people solely on the basis of their gender. It would be tempting to use Article 15 to support Section 375 of the IPC. Notwithstanding its intention to promote equality, Article 15(3) may be seen as only allowing the state to provide women and children with higher levels of protection while upholding its constitutional duty to protect its citizens from violations of human rights.
Moreover, in the absence of any other suitable legal remedy, cases of serious sexual assault that endanger a victim's physical integrity are prosecuted as rape under Section 375 of Indian criminal law. More people seem to be in favour of treating crimes of similar heinousness the same way, regardless of the offender's gender, than they are of distinguishing between crimes involving penetration of the female and male bodies.
In this regard, the State is legally obligated to ensure that the aforementioned duties are fulfilled. It is well known that states are required to ensure that human rights are sufficiently protected inside their boundaries. Similarly, the National Human Rights Commission ruled that protecting each person's right to "life, liberty, equality, and dignity" is the State's first and most important responsibility. Furthermore, any deliberate or inadvertent breach of basic rights resulting from negligence or cooperation must be stopped by the State[23].
Human rights jurisprudence argues that the State is responsible for the actions of both its employees and outside companies that operate within its borders. Any inaction on the part of the State that encourages the violation of human rights is also its fault. The validity of gender specificity in Indian rape laws is seriously questioned by the lack of an equivalent choice in the penal code. Thus, it would seem that the concept of gendered protection of the same is incompatible with the duty of a state to guarantee the protection of the fundamental human rights of its inhabitants while they are within its boundaries.
Evidence to Back Up Arguments:
There is a presumption that people always see men as the criminals and women as the victims, much as the IPC perpetuates the idea that only men are fit to hold positions of leadership because they are stronger than women. Both the perpetrator and the victim can be considered within the current paradigm of gender neutrality. We've looked at the existing court system's inaccurate and biassed perception of women as the victims of sexual assault in great detail before.
The total number of transgender and male rape victims is not formally recorded. Sexual activities against men that are compelled or performed against their will are not illegal under any law. The Apex Court took longer than expected in 2019 to recognise transgender people as members of the "third gender," for these two reasons.
The National Intimate Partner and Sexual Violence Survey, which was released in 2013 by the Atlanta, Georgia-based National Centre for Injury Prevention and Control, including a section on victimisation due to sexual orientation. [24]In contrast to 54.8% of women and 16.6% of men and women who had suffered sexual violence other than rape in their lives, just 28.6% of heterosexual men reported having male attackers.
Furthermore, 43.8% of lesbians reported having been the victim of rape or other physical violence; of these, 67.4% believed that the assault was the only fault of women. An investigation conducted in 2008 by India's National Crime Record Bureau revealed that married males commit suicide at a rate of one every nine minutes, which is significantly higher than the rate for women.
xxxiii Many suicides are the result of social and economical stressors.
These particulars suggest two things: First of all, the idea that women are physiologically incapable of committing rape is refuted by the reality that they are capable of perpetrating any other type of sexual offence against men. The broad definition of rape in India, which did not limit it to penile-vaginal penetration, made this argument unconvincing from the beginning. Second, women are able to abuse other people sexually.
The Supreme Court ruled in Bodhisattwa v. Shubha Chakraborty[25] that despite the established custom that the crime of rape violates the fundamental rights of men and women to life, liberty, and the right to privacy, Indian rape laws continue to support the status quo and their stigmatised stereotype of masculinity, which results in men being expected to be independent so they cannot be sexually abused or exploited by women.
This debate centres on the landmark decision in Priya Patel v. State of M.P. & Anr.,[26] which answered the issue of whether a woman could face charges of gang rape. The argument was dismissed by the court, which decided that a woman cannot commit rape. Although the Criminal Law (Amendment) Act of 2013 has brought about major changes to the law regarding rape, the finding appears to be reasonable considering the narrow scope of Section 375, IPC at the time it was made. Still, it was important to talk about it because there hadn't been a decision on the topic recently. Now that the legislation has changed and the previously revealed data has surfaced, it is feasible that women may rape both men and women.
Laws that benefit women and the lack of a system of legal support for males can often be the primary causes of women making up accusations of rape against men. Male rapes are frequent and reliable, but they are rarely reported because they are socially stigmatised.
The US Supreme Court observed that laws that target specific genders typically result from cultural assumptions rather than intentional attempts to accomplish legislative objectives.[27]
Judicial precedents
However, an Indian court must review or the Parliament must debate the previously mentioned proposition in favour of gender neutrality in rape laws. On a global basis, however, the same is unquestionably no longer excellent.
The Court of Appeals of New York Court considered the constitutionality of Section 130.35 of the New York Penal Code, which states that "a male is accountable of rape inside the first degree while he engages in sexual intercourse with a girl... By technique of forcible compulsion," in the People v. Liberta[28] case from 1984. The defendant claimed that because the clause violated the constitutionally protected right to equality before the law for all men and women, it ceased to be gender neutral. The jury came to the conclusion that the defendant had a valid point.
"Section 130.35 of the Penal Law violates equal protection since it punishes men for raping women against their will while absolving women of criminal culpability for raping men against their will. The gender exemption no longer passes the constitutional test, undermining the notion that a gender-neutral law will discourage and punish forcible sexual attacks, even though it may be more difficult or uncommon for a woman to rape a man.
The court upheld the gender neutrality principle in rape law, noting that a statute can be amended to include individuals who were previously excluded or it can be knocked down if it is unconstitutional because it excludes certain groups. In addition, rather than just abolishing the statute, the court has the authority to direct the legislature to draft inclusive laws.
This wish was unanticipated because it became a process after the US Supreme Court ruled in Michael M. v. Superior Court of Sonoma County[29], a case from 1980. The Court investigated the adequacy of the California Rape Act, which penalised the violation of a male. The Court found that the Constitution prohibits discrimination against men.
It continued to make sense, Legislators responsibly use their authority to penalise the offending player who, by definition, bears the least brunt of the consequences of their actions, since younger girls suffer the most from the extremely harmful and inevitable consequences of childbearing. It is often the case that lawmakers standing up for young women are right to exempt them from punishment. Moreover, the mere possibility of becoming pregnant acts as a powerful deterrent for younger women. The same herbal penalties do not deter men. Thus, a crook sentence that primarily impacts men contributes to the "equalisation" of the deterrents for the sexes.
Though preventing teenage pregnancies is a noble goal, Justice Brennan correctly pointed out in his dissenting opinion that it can also be accomplished by passing a gender-neutral law that does not discriminate based on the sexual orientation of the offender. Finally, he came to the conclusion that it was difficult to square the gender-specific safeguards offered by the California Act with the previous decision made by the California Supreme Court in the case of Orr v. Orr.
In Orr v. Orr, the Supreme Court decided that a statute requiring husbands to pay alimony, but not upper halves, was unconstitutional because it violated the equal protection principle. The following reveals the court's reasoning:
"The State cannot be content to categorise the concept of sexual activity; its compensatory and ameliorative goals are best served by a splendour that is gender-independent, as opposed to one that gender classifies and, thus, carries the burden of sexual stereotypes with it."[30]The European Court of Human Rights (ECtHR) examined states' responsibilities with relation to gender-neutral rape laws in 1985.
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states, among other things, that "anybody has the proper to realise for his non-public and circle of relatives life, his home and his correspondence." The European Court of Human Rights (ECtHR) determined that the Netherlands had violated this provision. This decision was made in the Netherlands v. X & Y case.[31]
According to the ECtHR, Article 8 does not actually force the State to refrain from interfering in an arbitrary manner because, aside from this generally awful project, there may also be enormous responsibilities that come with effectively recognising private or individual family life. These duties may also involve taking actions intended to ease respect for private life even within the circle of the human family," the prosecutor stated, pointing out that the prosecution declined to bring charges against an individual suspected of sexually abusing a mentally ill girl and accepted the girl's father as a substitute complainant.
In the 1994 case of Nicholas Toonen v Australia [32], the petitioner contested the validity of Sections 122(a)–(c) and 123 of the Tasmanian Criminal Code. These sections criminalised certain forms of sexual contact between men and were in violation of Articles 2, 17, and 26 of the International Covenant on Civil and Political Rights. In the course of those legal proceedings, the State of Tasmania acknowledged that Section 123 of the Criminal Code, which forbids men from engaging in sexual actions, unquestionably attracts a different interpretation of sex.
However, the UN Human Rights Committee found that the disputed clauses violated ICCPR Articles 2 and 17. Consequently, the committee concluded that it was no longer essential to debate whether the Act violates Article 26 by discriminating against individuals based on their sexual orientation. To bolster my argument, though, is the State of Tasmania's crucial factor concession in this area.
The point of bringing up these possibilities is not to suggest that a gender-specific definition of rape is always correct, even though, as mentioned previously, it is not completely ruled out.. Rather, it is to state that it is the duty of a rustic to ensure that human rights are upheld inside its borders for parents of all sexes, even as it formulates its own set of laws. A selective or differential protection of human rights based on the gender of either the rapist or the victim could be incompatible with both gender justice and the concept of human rights themselves in the absence of the same.
The following points are made clear by the Supreme Court of India's ruling in NALSA[33]: "recognition of one's gender identity lies at the heart of the crucial right to dignity" and "discrimination on the basis of... gender identification consists of any discrimination, exclusion, restriction or preference, which has the impact of nullifying or transposing equality with the aid of the law or the equal safety of laws confident below our Constitution."
However, the gender neutrality argument in the rape regulation will serve as sufficient gift to remove gender from the human rights protection act's jurisdiction. If there are no laws against sexual assault that go beyond popular belief and support the equality principle of pre-regulation, the gender neutrality argument supports a flexible definition of rape that puts rights first. any rape victim who does not belong to the ruling gender. As will be discussed below, the disclosure of gender neutrality actually makes it easy to investigate out-of-date gender binary data.
Conclusion and suggestion
Though it sounds like a great idea, gender neutrality cannot be fully applied in the Indian context. Several concerns surface when we consider this situation. The Supreme Court rejected a PIL that sought to gender-neutralize laws against rape, sexual harassment, stalking, voyeurism, sexual assault, and other offences, referring to it as a "imaginative petition" for the modern day. It is crucial to look at the issues preventing India from enacting gender-neutral legislation.
It is regrettable but true that women are viewed as the most vulnerable group in India. In India, there are numerous instances of crimes, assaults, torture, and other forms of discrimination against women. While it is true that men and transgender people experience prejudice and are targeted for crimes, the data indicates that women are disproportionately affected. It becomes necessary to defend their rights, and that should be permitted if they need special legislation to help them along the way.
Indian civilization and the potential harm it can cause to women who are its victims. Conversely, proponents of complete gender neutrality base their case on the societal stigma attached to male rape as well as the right to equality. The researcher came to the conclusion that while sexual violence against men and transgender individuals needs to be addressed, it shouldn't put women who have already been raped in jeopardy.
In addition to promoting anti-sexist legislation, we also need to work towards establishing an egalitarian society. However, it would be foolish to significantly change rape laws to gender-neutral legislation given the existing situation and how women are treated in India. We have to go cautiously.
Therefore, as recommended by the Verma Committee47, the rape statute needs to be modified to include the victim's gender while maintaining the perpetrator's gender specific. Gender identity becomes irrelevant in certain contexts of sexual assault, such as prisons, war crimes, caste, and intergroup disputes, because other identities-such as race, religion, and caste-take primacy. Therefore, in cases of caste, communal strife, and war crimes, at the very least, women must be recognised as perpetrators in gang rape and abetment to rape.
Consequently, the following recommendations are made for the formulation of laws that are gender-neutral:
- There is no denying that transgender and men can be sexually assaulted; therefore, legislation addressing this issue is desperately needed to punish those who commit these crimes.
- In order to prevent the abuse of the legal system, efforts must be made to balance the rights of all identities. Legislation that strikes a balance between safeguarding the identities of men, women, and transgender individuals and avoiding harm to one population as a result of the criminalization of another is vital.
- According to the Justice Verma Committee Report, the most fair course of action is to treat the victim equally while keeping the perpetrator's gender distinct. The optimum course of action for India is this. This ensures the protection of transgender people as well as male victims from homosexual rape. It doesn't matter if there is prejudice against women or if you are afraid of countercomplaints.
- There is an immediate need for gender-neutral legislation regulating caste and community disputes. A person's gender identification is subservient to all other identities to which they are affiliated under these conditions. It's critical to recognise that homosexual rape occurs frequently in Indian jails and that victims receive just compensation when it comes to inmate sexual abuse.
- The perpetrator needs to include the victim if the lady is the victim of gang rape or if she helps and abets in rape. Women should, at the absolute least, be held accountable for rapes committed in gang situations and for aiding and abetting rapes in situations involving more serious forms of rape, such as war crimes, caste, and intergroup conflicts.
End Notes:
- Sonakshi Awasthi, Is India ready for gender-neutral laws? - article, INDIAN EXPRESS
- Taniya Tuli, Gender Neutrality- Rights of one, abrogation of? ACADEMIKE, https://www.lawctopus.com/academike/gender-neutrality-rights-of-one-abrogation-of-another/
- Section 375 of the IPC now stands amended by the Criminal Law (Amendment) Act, 1983
- https://www.epw.in/journal/2012/35/web-exclusives/criminal-law-amendment-bill-2012-sexual-assault-gender-neutral, Arvind Narrain, The Criminal Law (Amendment) Bill 2012: Sexual Assault as a Gender-Neutral Offence
- P. Rumney, "Defending Gender Neutrality in Sexual Assault" Seattle Journal of Social Justice, Volume 6, Issue 4, Pages 481–481, 2007.
- Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000, PARTNERS FOR LAW IN DEVELOPMENT (PLD), http://pldindia.org/wp-content/uploads/2013/04/Comments-by-LaxmiMurthy-toCriminal-Law-Amendment-Bill-2000.pdf
- Sakshi vs Union of India, (1999) S.C.C. 591 (India)
- Tuka Ram and Anr vs State of Maharashtra, 1978 A.I.R 185 (India)
- The Criminal Law (Amendment) Act, 1983, No. 43, Acts of Parliament, 1983 (India)
- Nirbhaya case: Four Indian men were put to death in 2012 for raping and killing a bus in Delhi (2020) News from BBC. ABC News / World / Asia / India / 51969961
- According to S. 376 IPC and Ss. 5(c) and 6 of POCSO, former BJP MLA Kuldeep Singh Sengar was found guilty in the Unnao Rape case at Tis Hazari Court (Indulia, B. 2019). The verdict may be found at https://www.scconline.com/blog/post/2019/12/16/delhi-hc-verdict-to-pronounced-in-the-unnao-rape-case/
- Indulia, B. (2019a) Breaking | Kathua Rape Case Verdict | 6 out of 7 accused found guilty; 3 convicts sentenced to life imprisonment and 3 with 5 years imprisonment... https://www.scconline.com/blog/post/2019/06/10/breaking-kathua-rape-case-verdict-6-out-of-7-accused-foundguilty-quantum-of-sentence-yet-to-be-pronounced/
- http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf
- By its Order dated November 12, 2018, Criminal Justice Society v. Union of India & Ors., W.P.(C) No. 1262/2018
- United Nations. https://www.un.org/en/about-us/universaldeclaration-of-human-rights
- Tarkeshwar Sahu v State of Bihar Appeal (CRL.) 1036 of 2005
- "Gender Neutrality in Rape Laws: Examining Beyond the Gender Binary," Nath, A. (2020), Supremo Amicus, 21
- Universal Declaration of Human Rights, (1948) 71, art 2
- Id, art. 7
- Indian Constitution. art. 14
- Article 15, Indian Constitution
- 15(3), Indian Constitution
- Asian Journal of Comparative Law, [Preprint], Pathak, H. (2016), "Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law" doi:10.1017/asjcl.2016.8
- https://www.cdc.gov/violenceprevention/pdf/nisvs_sofindings.pdf
- On December 15, 1995, Shri Bodhisattwa Gautam faced off against Miss Subhra Chakraborty. https://indiankanoon.org/doc/642436/ A.I.R. 1996, SC 922
- State of M.P. & Anr. v. Priya Patel, Appeal (crl.) 754 of 2006
- Mishra, A. (2020) "Need of the Hour: Gender Neutral Rape Laws," The Criminal Law Blog, NLUJ, May 1. https://criminallawstudiesnluj.wordpress.com/2020/05/01/
- Liberta v. People, 64 NY 2d 152 (1984)
- Michael M. v. Sonoma County Superior Court, 1980 Cal LEXIS 2
- Orr v Orr 440 US 268 (1979)
- Article 8, European Convention on Human Rights, Rome, 4.XI.1950 (1)
- UN Doc CCPR/C/50/D/488/1992, Nicholas Toonen v. Australia Communication No. 488/1992 (1994)
- Union of India v. National Legal Services Authority (Nalsa), AIR 2014 SC 1863
- R. Kapur (2013). The recently implemented system of sexual security. The Hindu. http://www.thehindu.com/opinion/op-ed/the-new-sexual-security-regime/article4379317.ece
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