The Development of India’s Rape Laws
Rape has been recognized as a crime in India since the Penal Code was established in 1860. Over the years, the Indian Evidence Act has been revised to enhance the legal process for victims of rape.
For instance, in 1983, the law was modified to assume that a woman is truthful when she claims there was no consent. However, it has only been in the last ten years that the definitions of rape have been updated and penalties have been made more severe.
This shift followed the gang rape of a medical student in Delhi on December 16, 2012. In the wake of this incident, a prominent committee was formed to propose changes to the country’s rape laws.
The Justice Verma Committee put forth several recommendations, including expanding the definition of rape to encompass anal and oral penetration with any object. It also suggested harsher penalties for repeat offenders, gang rapists, and those involved in fatal assaults.
The report emphasized that laws should also cover sexual crimes against individuals who are not women. “Given that sexual assault against men, as well as rape involving homosexual, transgender, and transsexual individuals, is a reality, the legal provisions must reflect this,” the report stated.
**Concerns Over Gender Neutrality**
Despite these recommendations, gender neutrality was not included in the final version of the Criminal Law (Amendment) Act 2013. Judge Baruah noted that there was minimal consideration of how the law impacts transgender individuals.
“The discussion on gender neutrality was confined to the male-female binary, focusing on whether a man could be a rape victim, without addressing the needs of transgender victims,” Baruah explained.
Women’s rights advocates opposed making the law gender neutral for both victims and offenders, fearing it could increase risks for women.
“We support the idea of a gender-neutral victim definition, but complete gender neutrality could allow men to retaliate by filing counterclaims,” stated Seema Kushwaha, the attorney for the victim’s family in the Delhi gang rape case.
**The Right to Self-Identify**
In 2014, India’s transgender community celebrated a significant victory when the Supreme Court ruled that they have the right to self-identify as neither male nor female.
The court directed various government departments to include “third gender” or “transgender” as an option in all official documents. Dias highlighted the importance of self-identification for India’s diverse transgender community, as no single definition fits all.
“The transgender identity in India is incredibly varied. In some cultures, transgender or intersex individuals are thought to possess divine qualities, and depending on their region or practices, they are known by different names such as hijras, kinnars, arvaris, and jogtas,” she noted.
Last year, the government enacted the Transgender Persons (Protection of Rights) Act to safeguard the rights of transgender individuals and establish penalties for offenses against them.
However, the transgender community argues that the proposed penalties are insufficient, and a new requirement for a certificate from a district magistrate to confirm their status contradicts the Supreme Court ruling.
“The 2019 Act is excessively harsh and infringes on the fundamental rights of transgender individuals, undermining the right to self-identify established by the Supreme Court,” Baruah remarked.
To be recognized as transgender under the Act, individuals must present a psychological evaluation report from a government hospital to a district magistrate, along with proof of residing at the same address for 12 months.
**Advocacy for Gender Neutrality**
A petition submitted to the Supreme Court in October aims to equalize the punishment for sexually assaulting a transgender person with that for assaulting a woman.
“In this modern era, as we discuss equality and move beyond gender binaries, our approach cannot be patriarchal and should not be limited to just male and female,” Baruah emphasized, noting that sexual violence can occur against anyone, regardless of gender.
Nevertheless, women’s rights activists continue to resist efforts to make all sexual offenses gender neutral, asserting that perpetrators should be defined as men.
Kushwaha argued that making all sexual crimes gender neutral would undermine the laws’ purpose of protecting women from gender-based violence in a patriarchal society.
“After the 2013 amendment, the definition is no longer restricted to penetration (of vagina by penis), so we are already partway to making the victim definition gender neutral in cases of rape,” Kushwaha added.
**Empathy for All Victims**
Last year, KTS Tulsi, a member of the upper house of parliament, sought to reignite the conversation by proposing a bill to make both victims and offenders gender neutral.
“The goal of the Bill is not to diminish the experiences of women who face rape and discrimination. However, as society evolves, we must cultivate empathy for all, including male and transgender victims of sexual violence,” Tulsi stated regarding his bill.
Unfortunately, there has been no discussion on the bill, and it is unlikely to progress. According to Tulsi, private members’ bills rarely advance.
The new criminal laws introduced on July 1, 2024, under the Bhartiya Nyaya Sanhita (BNS), fail to acknowledge male rape victims, as the previous sections addressing rape specifically refer to women. A new chapter addressing crimes against women and children has been added to the updated legislation.
Under Section 375 of the Indian Penal Code, rape is defined solely as an offense against women, while Section 377 criminalizes unnatural intercourse for any individual, including men, women, and animals. However, the Supreme Court’s interpretation has limited its scope to exclude consensual adult relationships.
As a result, forced intercourse with an adult male is not recognized as a criminal offense under the Bhartiya Nyaya Sanhita, nor is intercourse with an animal. Rape of children, regardless of gender, is considered an offense under the POCSO Act 2012.
**The Push for Gender-Neutral Rape Laws: An Ongoing Discussion**
The demand for gender-neutral rape laws has gained significant momentum in recent years. Advocates argue that men and transgender individuals can be—and often are—victims of sexual violence. They also assert that the absence of legal options for male and transgender victims intensifies their trauma and fosters a culture of silence.
The Justice Verma Committee, established after the tragic 2012 Delhi gang rape, initially recommended gender-neutral laws. However, the Committee ultimately dismissed this idea, fearing that gender-neutral laws could be misused against women in the context of India’s patriarchal society.
Efforts to implement gender-neutral rape laws must also consider the intersection of gender and class. Marginalized communities are often more susceptible to sexual violence, and this vulnerability is heightened for males and transgender individuals within these groups. Therefore, it is crucial to ensure that the enforcement of gender-neutral rape laws is effective across all segments of society.
**Towards a More Inclusive Legal Framework and the Path Forward**
The conversation surrounding gender-neutral rape laws in India is intricate and multifaceted. It requires a careful balance between safeguarding women’s rights in a patriarchal society and recognizing that sexual violence can affect individuals of any gender. By extending compassion to all victims and striving for a more inclusive legal framework, India can ensure that no victim of sexual violence, regardless of gender, is overlooked or denied justice.
Establishing gender-neutral rape laws in India is a challenging yet essential endeavor. It necessitates a reevaluation of existing norms, societal attitudes, and legal structures. However, with collective effort, understanding, and a shared commitment to equality and justice, this goal is attainable. A society where all victims of sexual violence, irrespective of gender, can seek justice and support embodies the true essence of equality and fairness.
**Frequently Asked Questions (FAQs)**
**Q: Why should rape laws be gender-neutral?**
**A:** Rape laws should be gender-neutral because sexual violence affects individuals of all genders. Men, women, and transgender individuals can be victims, and the law should offer protection and recourse to everyone.
**Q: Are men and transgender people really victims of sexual violence?**
**A:** Yes, men and transgender individuals can and do experience sexual violence. Although such cases are often underreported due to societal stigma, they exist and deserve attention.
**Q: Won’t gender-neutral rape laws be misused against women?**
**A:** While there is a potential for misuse, it is important to recognize that any law can be exploited. Safeguards should be implemented to prevent misuse, but the fear of misuse should not prevent justice for genuine victims.
**Q: What can I do to support the cause of gender-neutral rape laws?**
**A:** You can help by raising awareness, encouraging open discussions about sexual violence against all genders, and advocating for legal reforms. Supporting victims of all genders and challenging societal stereotypes is also crucial.
**Q: How can male and transgender victims of sexual violence get help?**
**A:** Although the current system can be difficult for male and transgender victims, there are NGOs and helplines dedicated to assisting all victims of sexual violence. Seeking legal aid, counseling, and medical services is important. The most vital step is to speak out and break the silence.
Author:Jaya Grewal
College: University Institute of Law and Management Studies, Sec 40 Gurugram.
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