RAPE IS UNBIASED: AN ANALYSIS ON GENDER-NEUTRAL LAWS
By: Akshita Dhawan* |
Patriarchy is revolutionised to an extent that has suppressed women as well as backfired on the men of the society. It has psychologically moulded the men in a way that they have started assuming it an impossible outcome of they being raped, molested or assaulted. Contrastingly, the truth is male rapes were in existence for a long period of time but were till now, never discussed on an open forum as that of female rapes. Historically, rapes as a crime were considered to be committed only against the females, perpetrated by the males. However, the reality is that males are exposed to sexual assault and rapes not as perpetually as females, but the repercussion and shame in the society that is faced by the victims; both males and females cannot be equated. In the Indian context, the act of rape and sexual assault against a minor is recognised as a crime whereas the same has no relevance against a major, this reasoning is based on a flawed assumption that a man cannot be raped. Furthermore, the crime of rape shall not only be restricted to a binary section of society but shall also be inclusive of and extended to a non-binary section of the society. Moreover, the Indian Penal Code, 1860, does not have gender-neutral provisions under the rape category and if new legislation based on the Criminal Amendment Bill, 2019 is introduced, it would be open to several debates and criticism. Therefore, to have an overview of the underlying issue, this article will focus on the different nuances of male rapes, Indian laws and statistics dealing with it and critical analysis of the issue if specific laws would be implemented; furthermore, will also be presenting a conclusion with some solutions against gender-specific laws.
Statistics of India cannot be analysed as there is no explicit and formulated law for the male rapes in existence and yet some questions can be answered by having a look over the personal experiences and surveys conducted by several organisations in different regions. This evidence has showcased that it is an indispensable need for the Indian Legislation to introduce gender non- binary rape laws, the reason being the same is the scenario in case of transgenders. Nevertheless, there are several instances of a man getting molested by another man in certain institutions, or while in Army or in Prisons, where the sexual activities take place in the name of culture and bonding, For instance, the sexual assault reported in the name of ragging in IIT Kanpur. Moreover, the victims recuse themselves from reporting it due to shame and prevalence of high stereotypes standards in society. Even if a ‘he’ reports it, their sexual propensity, as well as his very persona of the manly hood, would be a question titling him as an effeminate.
Taking reference of the data on child sexual abuse specifically, the Indian government did find in 2007 that, of surveyed children who reported to be experiencing severe sexual abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls. Lately, the Delhi-based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported of being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.
Considering the above-stated data, we could easily construe that the least likely perception the society has regarding the male rapes is limited to a man on man rape, but this data reveals that there are a majority of instances where the perpetrator was a woman. Moreover, this act of women being a perpetrator in the offence of rape is never considered as a situation in India- is evident from the sheer gender biases of rape laws.
The non-existence of law has created a taboo, lawlessness and also left the victim remedy less. By stating this it shall not be construed that presenting inclusive rape laws will overshadow the female victims, rather this universal approach would welcome a form of redressal for the society as a whole instead of protecting only one gender.
The only way to bring any form of justice to these male survivors has, at times, been the charges provided under Section 377 of the IPC, India’s recently reinstated anti-sodomy law. However, this law both does not consider “sodomy” as actual rape and makes no demarcation between consensual and non-consensual sexual acts between two male adults; its conviction statistics tell us very little. For those who were violated in a non-penile manner, not even this recourse works effectively.
As Section 375 of the IPC stands, rape is something that only a man can do to a woman. There is no room for adult male victims, much fewer female perpetrators. Although chil1d survivors of both sexes are covered by the Protection of Children from Sexual Offences Act 2012 (POCSO). The offence of Sodomy as mentioned under Section 377 of the IPC, criminalises only sex between men under the category of unnatural offence i.e. act considered against god but do not have any explicit criterion for it being consensual or non- consensual sexual intercourse.
Moreover, the idea of POCSO being gender-neutral but section 375 being gender-specific is clear evidence that not only society but also the legislation is based on flawed assumption that a male can neither be raped nor sexually assaulted once he attains adulthood or so-called the manly hood.
To recognise and have a discourse of gender-neutral rape laws in Indian Penal code, 1860. In July 2019, KTS Tulsi, a senior lawyer and Parliamentarian in the Rajya Sabha also brought a gender-neutral bill (“Criminal Law Amendment Bill, 2019”) before the Parliament.
The objective behind the bill is to extend the ambit of the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872 in cases of sexual offences to all genders avoiding any discrimination based on gender. In furtherance of the same, it was stated to strike the words “any man” and “any woman” referred to under various sections of the Indian Penal Code, 1860, likewise Sections 354A, 354B, 354C, 354D, 375 and 376 which are related to sexual offences against women particularly to be replaced by “any person”.
It promulgates the idea of insertion of a new Section 375A that specifically deals with “sexual assault” defined as “intentionally touches the genitals, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper hygienic or medical purposes”. This aims at increasing the scope of the act which violates the person’s privacy.
The existence of our gender-stereotypical- society is evident in the statement of the Ministry of Home Affairs which averse the very idea of gender-neutral rape laws, citing the need to protect the exuberant increase in acts of sexual violence against women and thus there is a high need to keep the law intact and gender-specific in case of rape and sexual offences. Prior to this, there are several instances when the Hon’ble Supreme Court of India such as in Sakshi v Union of India (AIR 2004 SC 3566), where Justice Rajendra Babu and Justice G.P. Mathur pressed the need for gender-neutral laws but had to face severe oppositions; quoting the fact that- women in India face sexual assault on various occasions and therefore all gender-specific laws made for the upliftment of women are well within the sphere of equality and intelligible differentia. Nevertheless, these laws were to act as a catalyst of an equal society, and with such a progressive evolution of law, the judiciary has recognized the complexities of gender and has imbibed the same in the socio-legal framework.
The very idea of gender-neutral laws is often seen as a criticism of feminism. As it generalizes the offence by including all the genders and obstructs the attention and sensitivity towards female victims. Whereas in reality, it specifically recognizes the fact that other genders may also fall prey to such inhuman crimes. However, irrefutably the ratio of rape and other sexual offences on females is more as in comparison to other genders, but it would be an injustice if they (other genders) are denied its very existence just because it is not in as much in existence as it is against women. Hence, they are often left remediless and open to disgust.
Another criticism to which this very idea of gender-neutral law is open to, is enforceability of the law to the reality, where proving the perpetrator and victim would become an arduous job because ‘shifting of blame’ would be in prevalence, leading to delay and injustice to the aggrieved, that is to say, man as well as women; (but taking the present situation into consideration) majorly men can misuse the legislations by shifting the blame over to woman for initiating the rape or sexual assault, which is prevalent even when there is no gender-neutral law in India. This misuse in turn may lead to delay and eventually to a miscarriage of justice.
The deadlock created in the vacuum of the non-existence of appropriate laws has delved into great injustice to the other gender due to absence of adequate legal recourse, which could be solved by introducing gender-neutral laws into the Indian legal forum like that of Scotland, which has the "Sexual Offenses (Scotland) Act, 2009" which says: “The intentional or reckless penetration of the penis (to any extent) into the vagina, anus or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained”. In this definition explicit term “women” was supplanted by “person” to make sure males and transgenders are also covered under the purview of definition. Likewise, the USA and Canada endeavoured to make their rape laws more sexually unbiased so it incorporates men and transgenders too. Meaning of rape according to (United States Department of Justice, 2012) is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” This idea of rape or sexual assault incorporates individuals with all sexual orientation of casualties and guilty parties and is not completely restricted to women being assaulted or raped by men.
Observing the Indian laws, it could be easily construed that; lately, Indian Judiciary decriminalised homosexuality under section 377 of IPC and the mind-set of the society is preincubated to accept the laws based on the gender- neutrality which per se would extent to LGBTQI+ community and introduction of these laws would incorporate redressal under an umbrella term. Moreover, the Indian legislation can take inspiration from the above-stated nations and the Judiciary shall prepare itself by understanding the various nuances of problems arisen after the implementation of such laws- including the dilemma to pronounce the judgement beyond all reasonable doubts.
If scrutinised, this has indirectly led to the empowerment and recognition of women as not a sole survivor and victim of gender-specific crimes. Notwithstanding anything above, the intent is not to discourage the protection of women from crimes committed against her persona and modesty but is to give everyone an equal voice to represent themselves.
As far as the applicability of the law is concerned, the experience of countries who have applied the gender-neutral laws shall be looked up to, and laws shall be formed and presented while dealing with the majority of its drawbacks by taking them into consideration to manifest a larger section of the society rather than neglecting their right to redressal.
* The author is a student at NLIU, Bhopal.