Author: Disha Parmar, Avantika University, Ujjain
To the Point
As today, the criminal justice system in India is evolving rapidly, but some important areas are still being ignored. One of them is – Can women also rape? The Bhartiya Nyaya Sanhita, 2023 (BNS), replaced by the Indian Penal Code (IPC), states a gender specific definition of rape, wherein only men can be the perpetrator or accused and only women can be the victim. In this article, we will see what are the limitations of this approach, analyzing some real-life cases and understand whether the law should be made gender neutral, so the victims of every gender get the justice.
Abstract
Despite the new and progressive changes has been made in Bhartiya Nyaya Sanhita, 2023, the legal definition of rape is still remaining the same as the gender based. Section 63 of the BNS continues to recognizes men as perpetrators and women as victims only. But what if a women commits sexual violence against a men or a transgender person? This article explains how such specific definition creates problems, and by giving examples of laws of other countries, suggests that rape law in India should also be made gender neutral, where every victim gets justice, irrespective of his/her gender.
Use of Legal Jargon
Under the Section 63 of the Bhartiya Nyaya Sanhita, 2023, “rape” is defined as an act committed by a men against a women. The provision states: “A man is said to commit rape if he…”, this legally accepts that only a men can commit this crime and only women can be the victim. In today’s time, where gender identities and sexual dynamics have become complex, this definition seems outdated.
The key concepts such as actus reus (criminal/guilty act), mens rea (criminal/guilty mind), and victimology, these terms are seems incomplete, when the law is seen only from the male-female perspective. The question is; Can’t a women sexually assault a boy, girl, or same-sex victim? If she can, then why law is silent about her? This creates a doctrinal gap – where some victims do not get their legal rights, simply because their gender does not “fit”.
The Proof
All over the world, there have been many such cases where women have been sexually assaulted – yes, these cases are rare, but being rare does not mean that they should be ignored. Such as female teachers having sexual relations with their male students, same-sex assault in jails, and actively getting involved in or planning a gang rape in women. But Indian criminal law – whether it is IPS or the new BNS – is not designed to address such cases.
If a women commits rape, Section 63 does not cover it. But some other charges can be made: Unnatural sex (Section 64(2)), Abetment (causing hurt or injury – Section 60), and Causing hurt. But in the actual section of rape, a women cannot be accused – because the definition itself is like this.
It creates a legal vacuum in which:
Male and transgender victims do not get protection under rape laws,
It does not mean that sexual violence is not only against men,
And it also breaks the basic principles of Article 14 (Equality) and Article 15 (Non-Discrimination).
Case Laws and Legal Developments
Justice Verma Committee Report (2013)
Justice Verma Committee was formed in 2013, after the Delhi gang rape case. It recommended that rape laws should be gender-neutral – that is, both male and female can be the victim as well as the accused. But this suggestion was neither accepted in the 2013 amendment, and also not in the new BNS, 2023.
Navtej Singh Johar v. Union of India (2018)
In this case, the Supreme Court legalized same-sex relationships. The court said that everyone has the right to live their sexual identity and autonomy – regardless of their gender.
But even now the sexual offence laws of BNS are written only from a male-female viewpoint, which goes against this constitutional spirit. This clearly means that the language of the law does not match the reality of the today’s modern society.
Comparative Perspective: How other countries handle Gender-Neutral Rape Laws
Across the world, many countries recognized that sexual violence is not limited to any one gender and have made their rape laws gender-neutral.
In the United Kingdom, under the Sexual Offences Act, 2003, rape is only committed by a person with a penis, but there is another section – “assault by penetration” – which is gender-neutral and covers both women and same-sex offenders.
Some states in the United States, such as California and New York, define rape on the basis of what the act was – not who the perpetrator was a men and women. This means that anyone can be the accused.
Canada removed the word “rape” in 1983 and replaced it with “sexual assault”, which focuses on the consent and bodily autonomy, not just gender.
Australian states like Victoria and New South Wales also use the word “person” in their laws – so that male, female, transgender people can be protected equally.
All these countries have changed their laws to legally recognize all forms of sexual violence.
In contrast, in India, Section 63 of BNS, 2023 still recognizes rape as only crime by a men against a women. This approach is not only outdated but also against constitutional rights. India also needs to follow global standards and make its rape laws gender-neutral – so that every victim gets legal protection, regardless of her gender.
Conclusion
As long as the BNS 2023, rape law only considers a women as the victim and a men as perpetrator or accused, this will remain a major legal gap. Because sexual violence can happen against every gender – not only a women is the victim. This is because male and transgender victims do not get legal protection at all, and this law also violates fundamental rights like equal protection.
To rectify this issue, Indian laws must:
Reframe rape and sexual assault laws to be gender-neutral.
It should be accepted that rape is not just an issue of gender, it is an issue of power and control.
Every victim – whether male or female or transgender – should get protection and justice.
Now the time has come that we should move beyond the old male-female thinking and make a law that is truly based on empathy, equality, and justice.
FAQS
Can a woman be legally accused of rape under Indian law?
No, according to the Section 63 of Bhartiya Nyaya Sanhita, 2023, only a men can be accused for rape charges. The law is gender-specific and it does not recognize women as accused of rape. Women may be charged with other provisions like unnatural sex or abetment, but not in section for rape.
Are male and transgender victims protected under Indian rape law?
No, under Section 63 of Bhartiya Nyaya Sanhita, 2023, only acknowledges women as victims. This means males and transgender individuals does not receive any legal recognition or protection under this specific provision, even if they suffer with sexual violence.
What does gender-neutral rape law mean and why is it important?
Gender-neutral rape laws mean that anyone – be it a men, or women, or transgender – can be the victim or the accused. Such laws are important because they focus on consent and harm, not gender. Everyone should get equal justice, without gender bias.
Have Indian courts addressed this issue?
So far, Indian courts have not declared the gender-specific definition of Section 63 as unconstitutional. But this issue is being widely debated in the legal and academic communities. There lay be a constitutional challenge on this in the future.
What reforms are suggested to solve this problem?
The solution to this problem is that the law should be amended and use gender-neutral terms like “any person” instead of “men” or “women”. This would ensure equal protection to every victim, and safeguards to prevent misuse.
