Author : Saanya Singh, Bharati Vidyapeeth Institute Of Management And Research (BVIMR), New Delhi
Abstract
Sexual offence laws have traditionally been framed through a gendered lens, often perceiving women as victims and men as perpetrators. While such an approach was historically justified to address systemic oppression against women, evolving social realities challenge the adequacy of gender-specific legal frameworks. This paper critically examines the concept of gender neutrality in sexual offence laws, with a particular focus on the Indian legal system. It analyses constitutional principles, existing statutory provisions, judicial trends, and comparative international approaches. The study argues that while protection of women must remain uncompromised, a balanced and inclusive legal framework recognising all victims of sexual violence is essential to uphold equality, dignity, and justice.
INTRODUCTION
Sexual violence is a grave violation of bodily autonomy and human dignity. Legal systems across the world have criminalised sexual offences to protect individuals from such harm. However, many of these laws remain gender-specific, premised on the assumption that sexual violence is perpetrated by men against women. While statistical realities often support this assumption, the law cannot remain blind to other forms of sexual victimisation.
In India, sexual offence laws under the Bharatiya Nyaya Sanhita, 2023 and special statutes like the Protection of Children from Sexual Offences Act (POCSO) largely reflect a gendered approach. India has undertaken a significant overhaul of its criminal law regime. Despite this legislative reform, sexual offence provisions largely retain their gendered structure. TThis raises critical questions regarding constitutional equality, inclusiveness, and access to justice. Should sexual offence laws be gender-neutral? Would such neutrality undermine women-centric protections, or would it strengthen the justice system by recognising all victims?
This paper explores these questions through constitutional analysis, statutory interpretation, and comparative perspectives.
UNDERSTANDING GENDER NEUTRALITY IN SEXUAL OFFENCE LAWS
Gender neutrality in sexual offence laws refers to legal provisions that recognise any person, irrespective of gender, as a potential victim or perpetrator of sexual violence. Such laws focus on the act, absence of consent, and harm caused, rather than the gender of the individuals involved.
Gender-neutral laws do not deny the reality of gendered violence. Instead, they aim to expand legal protection to:
Male victims of sexual violence
Transgender and non-binary persons
Victims of same-sex sexual assault
The objective is not to erase women’s experiences but to ensure that the law does not exclude other victims from its protective ambit.
INDIAN LEGAL FRAMEWORK: A GENDERED STRUCTURE
Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita, which replaces the IPC, continues to define key sexual offences such as rape in a gender-specific manner. Rape is conceptualised as an offence committed by a man against a woman, thereby excluding:
Male victims of penetrative sexual assault
Transgender victims
Female perpetrators from the scope of the offence
Although the BNS introduces structural and terminological reforms, it largely preserves the traditional gendered approach to sexual offences. This continuity raises concerns regarding inclusivity and constitutional alignment.
Protection of Children from Sexual Offences Act
In contrast, the Protection of Children from Sexual Offences Act remains a progressive, gender-neutral statute. It recognises children of all genders as victims and criminalises sexual acts based on the nature of conduct and lack of consent rather than gender identity. The success of this framework demonstrates the practical viability of gender-neutral sexual offence laws in India.
Procedural and Evidentiary Dimensions
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, procedural safeguards for victims of sexual offences continue to emphasise sensitivity during investigation and trial. However, since substantive offences under the BNS remain gendered, male and transgender victims face procedural invisibility.
Similarly, the Bharatiya Sakshya Adhiniyam, 2023 governs evidentiary standards in criminal trials. While evidentiary protections relating to consent and character of the victim are applicable, their benefits remain largely confined to gender-specific offences.
Constitutional Analysis
Article 14: Equality Before Law
Article 14 mandates equal protection of laws. Gender-specific definitions under the BNS exclude certain victims solely based on gender, resulting in unequal access to legal remedies. Such exclusion lacks reasonable classification and undermines substantive equality.
Article 15: Non-Discrimination
While Article 15 permits special provisions for women, protective discrimination cannot justify complete denial of legal recognition to other victims of sexual violence. Gender neutrality would not negate special protection for women but would broaden the scope of justice.
Article 21: Right to Life and Dignity
Sexual autonomy and bodily integrity form an integral part of the right to life under Article 21. Failure to recognise certain victims of sexual violence directly infringes their dignity and personal liberty.
ARGUMENTS SUPPORTING GENDER NEUTRALITY
Inclusive Recognition of Victims
Empirical data and social realities reveal that sexual violence affects individuals across genders. Gender-neutral laws would encourage reporting and reduce stigma, particularly for male and transgender victims.
Alignment with Constitutional Values
Neutral drafting aligns criminal law with constitutional mandates of dignity, equality, and fairness. Justice must respond to harm rather than identity.
Addressing Same-Sex Sexual Violence
Gender-specific laws inadequately address sexual violence in same-sex relationships. Neutrality ensures comprehensive legal coverage without moral bias.
Comparative Jurisprudence
Several jurisdictions, including the United Kingdom and Canada, have adopted gender-neutral definitions of sexual offences while retaining aggravated provisions for abuse of power and vulnerability.
CONCERNS AND REBUTTALS
Fear of Misuse
Opponents argue that gender neutrality may lead to misuse against women. However, misuse is not exclusive to neutral laws and can be addressed through:
Strict procedural safeguards under BNSS
Rigorous evidentiary standards under BSA
Penal consequences for false complaints
Dilution of Women-Centric Protection
Gender neutrality need not weaken protections for women. Enhanced sentencing, victim-sensitive procedures, and support mechanisms can coexist with neutral definitions.
JUDICIAL TRENDS AND INTERPRETIVE SHIFTS
Indian courts have increasingly recognised the need for inclusivity and constitutional morality in criminal law. Judicial observations suggest that legal reform must reflect social realities and uphold human dignity beyond rigid gender binaries.
WAY FORWARD
India should adopt a balanced reform model, which includes:
Gender-neutral definitions of sexual offences under the BNS
Gender-sensitive sentencing based on power imbalance and vulnerability
Procedural safeguards under BNSS to prevent misuse
Judicial and police training on handling diverse victims
Inclusive victim support systems
CONCLUSION
The transition from the IPC regime to the Bharatiya Nyaya Sanhita presented an opportunity to modernise sexual offence laws. However, the continued gendered structure highlights a missed reformative moment. Gender neutrality in sexual offence laws is not a challenge to women’s rights but an affirmation of constitutional equality and human dignity.
A criminal justice system that is both gender-neutral and gender-sensitive would better serve the objectives of deterrence, protection, and justice, ensuring that no victim of sexual violence remains invisible under the law.
FAQS
1. What is gender neutrality in sexual offence laws?
Gender neutrality means that sexual offence laws recognise any individual, irrespective of gender, as a potential victim or perpetrator, focusing on lack of consent and harm caused rather than gender identity.
2. Do the Bharatiya Nyaya Sanhita, 2023 provisions on sexual offences adopt a gender-neutral approach?
No. Despite replacing the IPC, the Bharatiya Nyaya Sanhita, 2023 continues to define key sexual offences, including rape, in a gender-specific manner, recognising only women as victims and men as perpetrators.
3. Why is gender neutrality important from a constitutional perspective?
Gender neutrality upholds Articles 14, 15, and 21 of the Constitution by ensuring equality before law, preventing arbitrary exclusion, and protecting dignity and bodily autonomy of all individuals.
4. Does gender neutrality dilute protections available to women?
No. Gender neutrality does not weaken women-centric protections. Gender-neutral definitions can coexist with gender-sensitive safeguards, enhanced punishments, and victim-support mechanisms.
5. What reforms are necessary to achieve gender-neutral sexual offence laws in India?
Reforms include introducing gender-neutral definitions under the BNS, ensuring gender-sensitive sentencing, strengthening procedural safeguards under BNSS, and creating inclusive victim support systems.
REFERENCES
Statutes
The Constitution of India, Articles 14, 15 and 21.
Bharatiya Nyaya Sanhita, 2023.
Bharatiya Nagarik Suraksha Sanhita, 2023.
Bharatiya Sakshya Adhiniyam, 2023.
Protection of Children from Sexual Offences Act, 2012.
Cases Cited
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
Independent Thought v. Union of India, (2017) 10 SCC 800.
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
Law Commission & Committee Reports
Law Commission of India, 172nd Report on Review of Rape Laws (2000).
Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013).
Law Commission of India, Report on Gender Justice (various observations).
Books
K.D. Gaur, Criminal Law: Cases and Materials, LexisNexis.
V.N. Shukla, Constitution of India, Eastern Book Company.
Ratanlal & Dhirajlal, The Law of Crimes, LexisNexis.
Journal Articles
Mrinal Satish, “Gendered Justice: Rape Sentencing in India”, Economic and Political Weekly.
Flavia Agnes, “Protecting Women or Policing Sexuality?”, Economic and Political Weekly.
Aparna Chandra, “Constitutional Morality and Sexual Autonomy”, NUJS Law Review.
Saptarshi Mandal, “Reimagining Sexual Offences through Gender Neutrality”, Indian Journal of Criminal Law.
