Author: SHRISHTI BHARDWAJ, Student at: BHARATI VIDYAPEETH,NEW LAW COLLEGE, PUNE
ABSTRACT
The subject of gender neutrality in criminal law, especially regarding rape laws, has gained significant attention in recent times. India’s existing legal framework addressing sexual offenses is inherently gendered, assuming women as the victims and men as the offenders. Under Sections 63 and 64 of the Bharatiya Nyaya Sanhita (BNS), 2023, only men can be prosecuted for rape, and only women are recognized as victims. Consequently, laws governing stalking, rape, and sexual harassment are gender-specific. Historically, this approach was justified in a patriarchal society where women disproportionately faced sexual violence, but it inadvertently excluded men, transgender individuals, and non-binary persons as potential victims. With the evolution of societal norms and increasing recognition of diverse gender identities, it is imperative to reconsider if India’s rape laws should adopt a gender-neutral framework. This article explores the need for gender neutrality in rape legislation, weighing legislative intent to protect vulnerable groups against constitutional mandates for equality and non-discrimination.
INTRODUCTION
The widespread belief that “a man is too strong to be victimized” and that victims of sexual offenses are inherently weak discourages male victims from coming forward due to societal stigma and fear of emasculation. Similarly, the perception that women are the weaker sex, needing protection, makes it difficult to imagine women as perpetrators of such crimes. These deep-seated stereotypes significantly influence the gender bias in laws addressing sexual violence. Indian rape laws, particularly Section 63 of the BNS, 2023, adhere to a gender-specific paradigm that designates women as victims and men as perpetrators. While this framework may have been justified in the past due to disproportionate victimization of women and entrenched social structures, it now conflicts with the constitutional guarantees of equality under Articles 14, 15, and 21 of the Indian Constitution.
Although the Justice Verma Committee’s recommendations following the Nirbhaya case called for substantial reforms, significant changes have yet to be implemented. This delay highlights the ongoing tension between the principles of substantive equality—recognizing the unique vulnerabilities of certain groups—and formal equality, which demands equal treatment for all. Furthermore, the gaps in the current criminal justice system fail to adequately protect male, transgender, and non-binary individuals from sexual violence. This article critically examines whether India’s rape laws require restructuring to reflect gender neutrality, balancing the legislative intent to protect vulnerable groups with constitutional obligations to ensure non-discrimination.
THE CURRENT LEGAL FRAMEWORK
Under Section 63 of the Bharatiya Nyaya Sanhita, only women can be classified as victims of rape, and only men can be classified as offenders. This provision was shaped by historical and social contexts where women were disproportionately subjected to sexual violence. The Criminal Law (Amendment) Act of 2013 reaffirmed this gender-specific approach, introducing significant reforms in response to the 2012 Delhi gang rape case. However, despite recommendations from the Justice Verma Committee to adopt a gender-neutral framework, the legislature chose to retain the traditional, gendered model.
Additional gender-specific provisions, such as Section 74 (outraging a woman’s modesty) and Sections 75 through 79 (insulting a woman’s modesty), further reinforce this approach, assuming women as the sole victims of these offenses. Male and transgender victims, on the other hand, must rely on provisions like Section 377 of the Indian Penal Code (IPC), which initially criminalized “unnatural offenses” but was later decriminalized, or the Protection of Children from Sexual Offenses (POCSO) Act for minors. However, these provisions fail to address the specific realities faced by adult male and transgender victims, leaving them inadequately protected under the current legal framework.
The exclusion of men, transgender, and non-binary individuals from rape laws undermines the principles of equality and justice enshrined in the Constitution. Although women remain disproportionately affected by sexual violence, the current laws fail to account for the complexities and nuances of victimhood in a modern, inclusive society. By maintaining a gendered approach, the legal system neglects the vulnerabilities of other groups, perpetuating systemic discrimination and inequity.
GENDER-NEUTRAL INTERNATIONAL LEGISLATION
Many countries worldwide have embraced gender-neutral rape laws, acknowledging that sexual violence is not limited to one gender and ensuring that all victims are provided with equal legal protections.
United Kingdom: The UK partially recognizes male victims of sexual violence under Section 142 of the Criminal Justice and Public Order Act, 1994, which criminalizes male-on-male rape. However, this legislation is limited as it does not fully adopt gender neutrality. The Sexual Offenses Act, 2003, provides a broader definition of rape, including penile penetration of the mouth, anus, or vagina, but still assumes that offenders are predominantly male. Although the law addresses male victimhood, it falls short of treating all genders equally.
United States of America: The USA made significant progress in 2013 when the Federal Bureau of Investigation (FBI) updated the Uniform Crime Reporting (UCR) Program’s definition of rape. The revised definition includes “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ without consent.” This expanded definition recognizes victims of all genders and types of sexual violence, including cases where victims were drugged or incapacitated. By broadening the scope of the law, the USA has set a precedent for gender-neutral rape legislation.
Canada: Canada’s Criminal Code adopts a gender-neutral approach to sexual offenses, using inclusive terminology like “person” instead of gender-specific language. This ensures that all individuals, regardless of their gender identity, are equally protected under the law. The emphasis on consent and the recognition of various forms of sexual violence make Canada’s framework one of the most progressive in the world.
Australia: In Australia, several states have adopted gender-neutral definitions of sexual assault, recognizing that victims and offenders can belong to any gender. For instance, New South Wales defines sexual assault as any sexual act performed without consent, irrespective of the genders of the victim or offender. Such inclusive legislation reflects a commitment to equality and justice for all.
REASONS TO SUPPORT GENDER-NEUTRAL LAWS ON RAPE
Recognizing Male Victims: Research and personal accounts highlight that men and boys are also vulnerable to sexual violence. However, societal stigma and misconceptions about masculinity often deter male victims from seeking justice. Gender-neutral laws would validate their experiences and provide them with the same legal protections as women.
Addressing Transgender and Non-Binary Individuals: The Transgender Persons (Protection of Rights) Act, 2019, emphasizes the rights of transgender individuals but does not address sexual violence against them. Gender-neutral rape laws would fill this gap, ensuring the dignity and autonomy of transgender and non-binary individuals.
Upholding Constitutional Equality: Articles 14, 15, and 21 of the Indian Constitution guarantee equality, non-discrimination, and the right to dignity. Gender-specific rape laws contravene these principles by excluding certain groups from legal protection. Adopting a gender-neutral approach would align the laws with constitutional mandates and promote fairness.
Learning from Global Practices: Countries like the USA, UK, Canada, and Australia have recognized the need for inclusive laws that address sexual violence against all genders. India can draw inspiration from these examples to create a more equitable legal framework that reflects modern societal realities.
JUDICIAL PERSPECTIVE
Indian judiciary has, on several occasions, recognized the need for gender-neutral laws and expanded interpretations to protect marginalized groups:
Sudesh Jhaku v. K.C. Jhaku: This case marked a turning point by recognizing that male victims of sexual assault deserve the same legal protection as female victims.
Sakshi v. Union of India (2004): Following this case, the 172nd Law Commission Report recommended broadening the scope of Section 375 of the IPC to make it gender-neutral. However, these recommendations remain unimplemented.
Justice Verma Committee Report (2012): After the Nirbhaya case, the committee suggested gender-neutral laws for victims while retaining a gender-specific approach for offenders. Despite its comprehensive nature, the report’s recommendations were not incorporated into legislation.
NALSA v. Union of India (2014): The Supreme Court’s recognition of transgender individuals as the third gender emphasized the need for inclusive legal frameworks, paving the way for discussions on gender-neutral rape laws.
SUGGESTIONS AND RECOMMENDATIONS
Achieving gender neutrality in rape laws does not mean ignoring the unique vulnerabilities faced by women. Instead, it involves creating a comprehensive framework that addresses the diverse challenges faced by all victims of sexual violence. Some recommendations include:
Separate Provisions for Male and Transgender Victims: Retain existing protections for women while introducing specific provisions to address the experiences of male, transgender, and non-binary victims.
Training Law Enforcement and Judiciary: Conduct specialized training programs to sensitively handle cases involving victims from different gender identities.
Safeguards against Misuse: Implement strict penalties for false accusations to prevent misuse of gender-neutral laws.
Awareness Campaigns: Educate the public about the realities of sexual violence across genders to reduce stigma and foster acceptance of gender-neutral legislation.
CONCLUSION
The debate over gender-neutral rape laws in India underscores the urgent need for a legal framework that ensures justice for all victims of sexual violence. While women remain disproportionately affected by such crimes, excluding male, transgender, and non-binary individuals undermines the principles of equality and dignity. By adopting gender-neutral laws supported by public awareness campaigns, judicial sensitization, and legislative reforms, India can create a more inclusive and equitable legal system. This approach would reflect the nation’s commitment to human rights and its constitutional principles, ensuring that every individual’s right to safety and justice is upheld.
FAQs
- Why India’s rape laws considered gender-specific?
India’s rape laws, particularly under Section 63 and 64 of the Bharatiya Nyaya Sanhita, 2023, define rape as a crime where only a man can be a perpetrator and only a woman can be a victim, reflecting a gender-specific approach.
- How do gender-specific laws conflict with constitutional principles?
Gender-specific rape laws contradict Articles 14, 15, and 21 of the Indian Constitution, which guarantee equality, non-discrimination, and the right to dignity for all, by excluding male, transgender, and non-binary victims from legal protections.
- What are the key international examples of gender-neutral sexual offense laws?
Countries like the UK and the USA have adopted gender-neutral definitions of rape, recognizing that victims and perpetrators can be of any gender and addressing a broader spectrum of sexual violence.
- What societal challenges could arise from implementing gender-neutral rape laws in India?
Challenges include societal resistance due to patriarchal norms, the potential misuse of such laws, and the need for sensitization of law enforcement and judiciary to handle diverse cases impartially.
- How can India ensure the effective implementation of gender-neutral rape laws?
India can achieve this through separate provisions for male, female, and transgender victims, robust safeguards against misuse, extensive public awareness campaigns, and comprehensive training for judicial and law enforcement agencies.
