The concept of Gender Neutrality has been discussed by Arvind Narrain (2013) who has divided it into two parts:
- Gender neutrality with respect to victim
- Gender neutrality with respect to perpetrator
The issue of gender neutrality in rape law was first raised in 1996 by Jaspal Singh Judge, of the Delhi High Court in Sudesh Jhaku v KC Jhaku[1].Therein, the Court was required to determine whether before 2013 definition of rape could be interpreted to include non-penetrative sexual acts. However, the court went beyond its mandate to opine on the issue of gender neutrality as well.
The judge noted that the offence of rape was the sole avenue under the Indian criminal law for dealing with heinous acts of sexual assault before quoting the following passage from California Law Review:
Men who are sexually assaulted should have the same protection as female victims ,and women who sexually assault men or other women should be as liable for conviction as conventional rapists. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and to reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.[2]
In India, section 375 of the IPC deals with the offence of rape. However, it still is base on the premise that only men can rape women thereby making the law gender specific. This poses a problem of representation of the sexual minorities and the abuse and exploitation they suffer due to this irregularity.
Neutrality with respect to victim
The word victim under the rape law has been always been associated with women. This is based on the ideology that the act of rape is done for the sexual satisfaction of the perpetrator but there have been instances where it has been found that rape has been done not only for sexual reasons but as an act to exert power or dominance by one religion or community over the other.[3]
However, the idea of association of a particular gender with a category/role, with women being a victim and men as perpetrator poses a problem for those people who do not fall within the category of the male and female like the transgender community as their sexual organs are ambiguous.[4]
Transgender aspect
Transgender refers to those people who do not conform to the traditional norms of the gender identity, appearance and expression.[5] Various studies conducted so far have shown the abuse and harassment the community faces by the police authorities under the pretence of thee section 377, as the section criminalizes the unnatural sex does making this community vulnerable to such abuse.[6]
Section 377 is a law having its origin in the colonial times, which penalises carnal intercourse going against the order of the nature but it fails to distinguish between consensual and coercive sexual intercourse.
Archaic section 377
The coercive man on man sexual intercourse in India is governed under Section 377, however there is no difference between the voluntary intercourse between the homosexuals and the non consensual coercive intercourse. But despite of penalising it, no minimum punishment has been prescribed under the law so as to constitute it as a heinous crime.[7]
Thus the current position in India is that it is not even considered as an offence rather being defined as heinous.
Verma Committee recommended the offence of the rape to be gender inclusive with respect to the victim and including the men as well as the LGBTQ community but it was contended unless the LGBTQ community is granted the right to have consensual sexual intercourse in the first place such law will only act as mean to harass and abuse them.
Neutrality with respect to Perpetrator
Since there is no consensus on the neutrality of the victim it can be very well stated that there is no such consensus on the inclusivity of the perpetrator.
Some of the reasons for not accepting the idea of gender neutrality with respect to the perpetrator involve the patriarchal idea which states that men being physically stronger than women can defend themselves as the act of the rape is manifestation of the control and power exerted by men over women.[8]
Another reason for the opposition of gender neutral rape laws is the deplorable condition of the women in the country which would only worsen if gender neutral laws are applied as it will give the offenders to file a counter complaints forcing the female victims to take back their complaints.[9]
Further, the claim that the there can be instances where older females can prey on young children but the parliament has already made a law in this respect that is the POCSO (Protection Of Children from Sexual Offences) act, under which any person below the age 18 years irrespective of their gender is protected by the law.[10]
Support for the Gender Neutrality
The rape law in India is still governed by the principle of the penile- vaginal penetration but after the 2013 amendment the scope of rape in the Indian law was extended and it included insertion of objects, oral and anal penetration as well[11]. Therefore, it can be no longer said that the women are incapable of raping men.
Further, in the case State v. Sheodayal[12], the HC was of the opinion that the modesty of a woman can be outraged by another woman under the application of section 354. Similarly in case of Priya Patel v. State of MP[13], question was raised if a woman has the capacity to commit gang rape. Under the explanation of section 376 (2) when a woman is raped by one or more person in furtherance of the common intention each person shall be considered to be have committed rape. Therefore, penetration is not necessary for constituting gang rape, and going by this reasoning the women can also covered under this section and found guilty for rape, however, in the instant case the court was of the opinion that the women cannot have the intention of committing rape and therefore cannot be held liable.
Moreover, it cannot be said that man cannot be raped Ram Singh who was one of the accused in the Delhi gang rape case committed suicide where he claimed that he was raped by the prison inmates.[14]
This concept of Gender neutral laws is not new and has been adopted by a lot of countries including Canada, Australia, England and Wales, Ireland, Finland and a majority of states in the US.[15]
Conclusion
The existence of transgender and male rape cannot be ignored and in order to protect them from such abuse and exploitation, gender neutral rape laws should be formed. The Justice Verma committee took the first step in this regard by making the victim gender inclusive, but in order for the laws to properly take shape in this regard the society including the law makers have to shun the prejudice and the patriarchal aspect regarding such an offence.
Edited by Sakshi Raje
References
[1] 1998 Cri LJ 2428.
[2] Camille E LEGRAND, “Rape and Rape Laws: Sexism in Society and the Law” (1973) 61(3) California
Law Review 919 at 941
[3] Narrain, A. (2013). Violation of bodily integrity. Economic And political weekly, 48, (No. 11).
[4] Menon, N. (2013). Seeing like a feminist. Zubaan and Penguin Books India Pvt. Ltd.
[5] Appaji, PR. The Hijra and Kothi Movement; a struggle for respect. Centre for Public Policy Research Initiative.(2014).
[6] Narrain, S. (2003) Being a Eunuch. The frontline.
[7] Gupta T.S. Child Abuse .(2014).
[8] Divya (2010). Can a woman rape a man? The times of India .
[9] Perapaddan, B.S. (2013). Wanted: Gender just rape laws, The Hindu.
[10] Tough on law on sexual offences against children comes into force, The Hindu (2012).
[11] Criminal law amendment Section 375 (2013).
[12] AIR 1956 Nagpur 8.
[13] (2006) 6 SCC 263.
[14] Kumar G.P. (2013).Ram Singh’s death: rape and ugly sexual violence in Indian jails. The First post.
[15] Rumney, P. (2007). In defence of Gender Neutrality Within Rape. Seattle Journal of Social Justice. Vol. 6 481.
