Should Sexual Offences be Gender Neutral

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This article is written by Rishav Raj, 4th semester RNB Global University.

ABSTRACT:

Sexual assault is a pervasive issue that affects individuals regardless of their gender. However, the current rape laws in India are gender-specific, defining victims as women and perpetrators as men. This article explores the question of whether sexual offenses should be gender neutral in India. It examines the legal framework and societal implications of gender-specific rape laws, highlighting the need for gender neutrality to ensure equal protection under the law. The article also discusses the meaning of gender neutrality, citing examples from countries such as the USA, UK, Canada, and Australia that have implemented gender-neutral rape laws. It addresses the challenges faced by male and LGBTQ+ survivors of sexual assault and presents arguments both for and against gender-neutral rape laws. The article emphasizes the importance of recognizing the occurrence of rape against men and individuals within the transgender community. It also provides statistical data on sexual violence against different genders and highlights relevant case laws. The conclusion asserts that denying men and transgender individuals equal protection before the law is a violation of their fundamental rights, and calls for the establishment of gender-neutral rape laws in India to ensure justice and support for all survivors of sexual violence, regardless of their gender identity.

KEYWORDS:

sexual assault, rape laws, gender neutrality, societal implications, equal protection, LGBTQ+ survivors, transgender community, statistical data, case laws, Indian Penal Code, gender-specific law, gender-neutral rape laws, LGBTQ community

INTRODUCTION

Sexual assault can occur irrespective of age, sexual orientation, or gender identity. Male survivors of sexual assault may experience similar emotions and responses as other survivors, but they might also encounter additional obstacles due to societal perceptions and stereotypes surrounding men and masculinity.

The issue of gender neutrality in Indian rape laws was addressed for the first time in 1996 when the Delhi High Court examined it in a petition case involving Smt. Sudesh Jhaku vs K.C.J. And Others.[1] it was recognized that men who are sexually assaulted should be afforded equal legal protection as female victims. Furthermore, the court stated that women who commit sexual assault against men or other women should be held accountable and treated as conventional rapists. The 172nd Law Commission’s Report proposed the elimination of bias in rape laws, suggesting that they should be made impartial.

Under Article 14 of the Indian Constitution, it is stated that every person within the territory of India should be granted equality before the law and equal protection of the laws, regardless of religion, race, caste, sex, or place of birth.[2] However, the definition and punishment for rape in India are currently gender-specific. Sections 375 and 376 of the Indian Penal Code (IPC) define the victims as women and the perpetrators as men.

The current provision in the Indian Penal Code, Section 375, defines rape as a crime committed by a man against a woman. However, the Protection of Children from Sexual Offenses Act of 2012 includes both male and female child survivors. Unfortunately, the existing rape laws exclude a significant number of male victims who are unable to seek justice due to fear of shame and a lack of legal remedies available to them.

Activists and members of the LGBTQ+ community in India have increasingly called for the enactment of a rape law that is inclusive and does not discriminate based on gender. This proposed law would acknowledge that individuals of all genders can be both victims and perpetrators of rape. The United Nations has also endorsed this demand, urging India to amend its laws to ensure that all victims of sexual violence, regardless of gender, have equal access to justice.

National Human Right Commission has observed that sexual abuse is one of the primary reasons why prison inmates commit suicide. It is crucial to acknowledge that incidents of sexual assault and harassment in India continue to be underreported and carry social stigma. Further action is necessary to provide support to survivors and tackle the deep-rooted societal and cultural issues that contribute to these offenses.

We must acknowledge that both the victim and the perpetrator of rape can be any gender. This type of assault can occur in various places, including schools, offices, prisons, workplaces, coaching center, colleges, and other location.

MEANING OF GENDER NEUTRALITY

The notion that only women can be victims of rape reinforces harmful stereotypes of masculinity and hinders India’s progress towards gender equality.

Gender neutrality is a principle that seeks to remove distinctions between genders in the formulation and enforcement of laws. It strives for equal legal protection without any gender-based discrimination. This entails bringing uniformity to certain laws that are currently gender-specific, including laws related to rape. Section 375 and Section 376 of the Indian Penal Code, 1860 specify that only males can be held accountable for committing rape, while the victim is restricted to being female. This gender-specific law does not incorporate the principle of gender neutrality.

Gender neutrality is a concept that aims at making the gender specific laws gender neutral also remove the difference between female and male perpetrators of rape and sexual offences. If any individual, regardless of their gender, does not give consent to a sexual act, it should be recognized as rape, and our legal framework should reflect this understanding.

There are some Countries that have gender neutralized rape laws are the USA, UK, Canada, Philippines, Finland, Ireland, and Australia. In some countries, both males and females are recognized as both perpetrators and victims of rape. The issue of gender neutrality in Indian rape laws was addressed for the first time in the Sudesh Jhaku v KC Jhaku case. The court ruled that male victims of sexual assault should receive equal legal protection as female victims.

RAPE LAWS IN INDIA

According to Section 375 of the Indian Penal Code (IPC) in India, the term “rape” is legally defined as- A man is said to commit “rape” if he: ––[3]

a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

under the circumstances falling under any of the following 7 descriptions: —

First. —against her will.
Secondly. —without her consent.
Thirdly. —with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. —with her consent, when the man knows that he is not her husband and that

her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. —with or without her consent, when she is under eighteen years of age.
Seventhly. —when she is unable to communicate consent.

Based on the definition provided in Section 375 of the Indian Penal Code, it is evident that rape is specifically described as an act committed by a man against a woman. It is important to note that if a woman coerces a man to engage in sexual intercourse, it is not legally recognized as rape. However, if the same act is perpetrated by a man against a woman, it is considered as rape.

Consequently, it can be concluded that in India, there is no specific law addressing male victims of rape.

GENDER NEUTRAL RAPE LAW OUTSIDE INDIA

Approximately 77 countries worldwide have implemented and embraced gender-neutral laws. Among these countries are the United States, United Kingdom, Australia, and Denmark, which have incorporated gender-neutral laws within their jurisdictions.

In the United Kingdom, the Sexual Offences Act 2003 defines rape as sexual intercourse without the consent of the person and does not specify the gender of the victim or the perpetrator.[4]

Similarly, in Sweden, the law recognizes rape as a crime that can be committed against any person and defines it as sexual intercourse or another sexual act that is carried out against a person’s will by means of violence, threat, or coercion.[5]

In some other countries, the law specifically recognizes that men can be victims of rape and sexual assault. For instance, in the United States, many states have laws that recognize rape as a crime that can be committed against any person, regardless of gender. The definition of rape varies across different states, but many states recognize that men can be victims of rape and sexual assault.[6]

Scotland, in 2009 redefined their rape laws.” The international 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”” women “was replace by “person” [7]

Overall, many countries around this world start recognizing rape and sexual assault as a gender-neutral crime that can be committed against any people regardless of their gender.

RAPE MAY HAPPEN TO MALE AND LGBTQ

Sexual violence impacts all communities, including LGBTQ individuals. According to the Centers for Disease Control and Prevention (CDC), lesbian, gay and bisexual people experience sexual violence at similar or higher rates than straight people.

The National Coalition of Anti-Violence Projects (NCAVP) estimates that nearly one in ten LGBTQ survivors of intimate partner violence (IPV) has experienced sexual assault from those partners. Studies suggest that around half of transgender people and bisexual women will experience sexual violence at some point in their lifetimes [8]

In today’s society, male survivors of sexual assault face challenges in reporting their sexual assault. our belief is that men possess inherent strength and ability to protect themselves from others and making it difficult for them to come forward. There is a fear that speaking out about sexual assault may lead to questioning their masculinity or being labelled as homosexual if the perpetrator is male.

The Centers for Disease Control and Prevention (CDC) in the United States (US) conducted a study in 2010-2012 and found that one in 17 men reported being forced to penetrate at some point in their lives. Among male victims who were raped by being penetrated, 86.5 percent reported that the perpetrators were male.[9]

Transgender people and bisexual women experience disproportionately high rates of sexual violence within the LGBTQ community. Disturbingly, both of these groups often become victims of sexual violence at an early age, frequently during childhood.

ARGUMENTS AGAINST GENDER NEUTRAL RAPE LAWS

An argument commonly raised against gender-neutral rape laws is the claim that it is physically and biologically impossible for women to commit rape. This viewpoint is based on the belief that men are inherently stronger than women and therefore cannot be subjected to rape.

One more argument against gender-neutral rape laws is that such legislation would further empower an already dominant male community while potentially increasing the vulnerability of women.

Instances of male rape are seldom reported, and the number of reported cases involving men and transgender individuals is significantly lower compared to those involving women. Consequently, due to limited reporting, there is a lack of awareness regarding the occurrence of rape against men and individuals within the transgender community.

STATISTICS

The legal definition of rape excludes Mens and it is challenging to accurately determine the number of male survivors in India, in 2007, the Indian government conducted a study on child sexual abuse and found that among surveyed children who reported severe sexual abuse, including rape or assault, 57.3% were boys and 42.7% were girls. A more recent study by the Centre for Civil Society, based in Delhi, revealed that approximately 18% of surveyed adult Indian men reported being coerced or forced into sex. Out of these cases, 16% involved female offenders, while 2% involved male offenders.[10]

The CDC’s National Intimate Partner and Sexual Violence Survey found for LGB people:[11]

44 percent of lesbians and 61 percent of bisexual women experience rape, physical violence, or stalking by an intimate partner, compared to 35 percent of straight women
26 percent of gay men and 37 percent of bisexual men experience rape, physical violence, or stalking by an intimate partner, compared to 29 percent of straight men
46 percent of bisexual women have been raped, compared to 17 percent of straight women and 13 percent of lesbians
22 percent of bisexual women have been raped by an intimate partner, compared to 9 percent of straight women
40 percent of gay men and 47 percent of bisexual men have experienced sexual violence other than rape, compared to 21 percent of straight men

For those who have experienced sexual assault or know someone who has, here are some LGBTQ-inclusive support options provided:

LGBT National Help Center [12]

National Hotline (1-888-843-4564) or National Youth Talkline (1-800-246-7743)

Online Peer Support Chat (https://www.lgbthotline.org/chat)

or Weekly Youth Chatrooms (https://www.lgbthotline.org/yo…)

National Domestic Violence Hotline [13]

1-800-799-7233

Text LOVEIS to 22522

The Anti-Violence Project– serves people who are LGBTQ [14]

Hotline 212-714-1124 Bilingual 24/7

CASE LAWS

Smt. Sudesh Jhaku vs K.C.J. And Others [15]

In this case, the Court examined whether the previous definition of rape (prior to 2013) could be interpreted to encompass non-penetrative sexual acts. However, the Court exceeded its jurisdiction by expressing views on gender neutrality. Justice Jaspal Singh explicitly stated that addressing the nature of the raised issue falls within the purview of the legislative branch, not the judiciary. It was emphasized that only the legislature has the authority to effectively establish and formulate gender-neutral provisions. The judge also observed that the offense of rape necessitates statutory reconstruction.

Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty [16]

In this case Hon’ble Supreme Court held that “rape is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights”. Especially, Right to Life under Article 21 is grossly violated.

In a case Kerala High Court Held that-

“While there are an increasing number of cases of men allegedly tricking women into a sexual relationship on false promise of marriage, what happens if a woman does the same, this was the concern reportedly raised by the Kerala High Court recently which further orally observed that section 376 of the IPC — which lays down the punishment for the offence of rape — should be gender neutral” [17]

Mukesh v. state for NCT of Delhi (Nirbhaya case) [18]

This case brought few amendments in section 375 of IPC, the definition of rape was broadened. The degree of punishments was increased. But the 2012 bill was once again criticised on various grounds such as it didn’t include any other gender in the victim category. Secondly, it didn’t recognise marital rape as a law. The male perpetrator category remained unchanged.

CONCLUSION

we are denying men and transgender right the right to equal protection before the law administered under article 14 of the constitution on India, 1950. The severity of punishment for a crime should match the gravity of the offense, without being limited to any particular group. It should be applicable to all individuals, regardless of their gender. Suffering is universally profound and equal for everyone. Regardless of being male, female, transgender, or homosexual, survivors endure the same physical, mental, and emotional anguish. But a male cannot file a case of rape against women because the whole definition of rape in IPC is focused on rape of women, with no provision for rape of males.

The absence of a rape law that is inclusive of all genders in India is a significant issue, and it is crucial for the Indian government to proactively tackle this matter. Establishing a rape law that is unbiased towards gender is of utmost importance in India, as it guarantees equal access to justice and legal remedies for all victims of sexual violence, irrespective of their gender identity. It is imperative for the Indian government to proactively address this matter, ensuring that the law is comprehensive, inclusive, and offers sufficient protection for every individual.

REFERENCE

1 https://indiankanoon.org/doc/1525708/

2 The Constitution of India 1950, Article- 14

3 Indian Penal Code,1860, Section 375.

4 https://www.vidhikarya.com/legal-blog/is-it-hightime-for-genderneutral-rape-laws

5 https://www.vidhikarya.com/legal-blog/is-it-hightime-for-genderneutral-rape-laws

6 https://www.vidhikarya.com/legal-blog/is-it-hightime-for-genderneutral-rape-laws

7 https://legalvidhiya.com/should-rape-laws-be-gender-neutral/#_ftn1

8 https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community

9 https://theaseanpost.com/article/taking-male-rape-seriously

10 https://scroll.in/article/676510/indias-law-should-recognise-that-men-can-be-raped-too

11 https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community