Gender neutrality within rape statutes means the concept that the criminal law should recognize that men, women and transgender persons can be rape victims as well as perpetrators. Indian laws regarding rape, sexual assault, voyeurism, and stalking are gender specific. They follow gender binary attitude as they contemplate only two genders where, the victim can only be a woman while the perpetrator can only be a, man.
The issue of gender neutrality in rape law was first raised in 1996 by the Delhi High Court in Sudesh Jhaku v KC Jhaku, 1998 Cri LJ 2428. Jaspal Singh, J expressed his desire to make rape a gender neutral offence. He quoted the following passage from an article in the California Law Review for the support of his argument –
“Men who are sexually assaulted should have the same protection as female victims, and women who sexually assault men or other women should be as liable for conviction as conventional rapists. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and to reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions”.
The Criminal Law Amendment Bill in 2012, was introduced in Parliament on the recommendations of National Commission for women and the law commission’s 176th report. It sought to replace rape by the term sexual assault and made it gender neutral. The Justice Verma committee constituted after the Nirbhaya gangrape case, recommended that the offence of “rape” be retained, and not be substituted by the offence of “sexual assault”, so as not to dilute the seriousness of the crime ,as the word rape draws a stronger moral condemnation of the society. The Committee also recommended that the offence be made gender neutral from the perspective of the victim. The Criminal Law (Amendment) Ordinance, 2013 following the recommendations of the committee had made rape a gender neutral offence but it was soon repealed after huge protests by women rights groups. The Criminal Law (Amendment) Act, 2013 which is currently in practice, the law sticks to the gender binary paradigm.
Article 14 of the Constitution of India provides that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Similarly, Article 15(1) prescribes that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” As per these articles, everybody in India has an equal right of protection of the law which should make gender specific laws unconstitutional, however, these are defended on the basis of Article 15(3) which states that “nothing in this article shall prevent the State from making any special provision for women and children.”
The defense seems logical but misses an important point that the provision enables the state to make special provision for marginalized and disadvantaged sections of the society but it does not allow it to abdicate its responsibility in the case of citizens who are not generally seen as vulnerable or weak. Rape is a grave crime and leaving around 50% of the population without any remedy and redress is an inexcusable failure on the part on the Indian state.
HUMAN RIGHTS PARADIGM
Traditionally and also in modern feminist theory, rape is been regarded as an essentially patriarchal crime and a violent manifestation of toxic masculinity which is used to control and subordinate women. The perpetrator is believed to be showing dominance and power over the victim who suffers shame, indignation and humiliation. Rape is generally equated to mean the loss of a women’s chastity, modesty and honour. In Bharwada Hirjibhai v State of Gujarat 1983 3 SCC 217. , it was said that “when a woman is raped, she is likely to be ostracized by her society, her own family, relatives and friends and that she would be overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo, among other social consequences evidencing of a loss of respect in society.”.
Rape was always considered a gendered crime. It has been and is still used as a tool to create a fear and inclination to subordination in women. It’s seriousness and its effect on women was well expressed by Justice Krishna Iyer in Rafiq V State of UP 1980 4 SCC 262, where he said that when a woman is ravished in rape, what is inflicted is not merely physical injury, but the deep sense of some deathless shame.
But with developing modern constitutional and human rights jurisprudence, rape has been came to be seen as the violation of individual sexual autonomy, bodily integrity and the fundamental right to life with dignity.
The Justice Verma Committee Report, noted that:
“rape is a form of sexual assault just like any other crime against the human body under the IPC…. It is an offence against the bodily integrity of the woman as a person.”
In 1996, in Bodhisatwa v Subhra Chakraborty 1996 1 SCC 490, the Supreme Court of India held that rape “is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.”
In Vishaka v State of Rajasthan 1997 6 SCC 241, the Supreme Court of India noted that each incident of sexual harassment at the workplace results in a violation of the fundamental rights, including the right to life and liberty, protected by Article 21 of the Constitution of India.
If we subscribe to this view of the supreme Court that rape is a violation of fundamental right and a violation of individual integrity and autonomy there is no reason why only women, though being more vulnerable to it than others, should have a redressal right.
The Rights of the “Others”
The binary definition of rape completely excludes transgenders, a community possibly even more vulnerable to such crimes than woman, from the discourse of rape. It does not take into account the fact that these people are generally ostracized by society and their peculiar sexual form gives people even more reason to humiliate them through the weapon of rape.
While granting the transgender community the right to identify themselves as the third gender, the Supreme Court of India in its judgment in NALSA v Union of India AIR 2014 SC 1863, said that the “recognition of one’s gender identity lies at the heart of the fundamental right to dignity” and that “discrimination on the basis of … gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.
If we go by the letter and spirit of this judgement, we would realize that the definition of rape in binary form does not do justice to the principles enunciated by the apex court.
Their reason for this belief is that women have to face some of those consequences of rape which men don’t have to face. But, it is true that men also have to face some specific consequences like being perceived as weak and effeminate on controlled and overpowered by a woman.The principle of equality of law does not allow us to make a comparison between the position of victims, it guarantees equal protection to all victims and equal punishment for similar crimes. To compare the pain, agony and humiliation of the victims of a crime is an insensitivity no civilized society would want to commit.
The question about undoing the progress made in women empowerment is based on the fear that if the crime is made gender neutral, men will file counter complaint against their victims. It cannot be denied that it is a possibility but any accusation needs to be proved in a court of law, a man’s accusation of rape against a woman would generally be more difficult to prove. And even now accused men employ counter claims like consensual sex, fabricated allegations etc. To reduce the threat of counter complaints, provisions should be made for punishment for filing fake cases.
It is very probable that the factors which stop men from reporting actual sexual offences against them will also prevent them from registering fake counter complaints. The fear of emasculation is a huge burden that men have to carry. He will have to worry about the mockery and indignation that will follow. Also in the kind of society that we live in, it will already be very difficult for a man to make people believe that he was overpowered and raped by a woman.
Flavia Agnes writes that rape “has been one of the means through which the social hierarchy of power relationships is maintained and nurtured in a gendered society.” It is a completely right observation but it does not keep sight of the fact that the determination of the relation of domination and subordination does not depend only on gender identities but is also a manifestation of class, religious, racial and caste differences. It is a well known fact that in racial, ethnic and national conflicts, rape has been frequently used as a tool to degrade the people (men and women) of the other side and create psychological feeling of defeat and powerlessness. It is a mark of subjugation of the soul and honour of the other side. There is no reason why men would be exempted from this assertion of power.
The violation of the most fundamental right of life with dignity and bodily autonomy, the grave psychological effects of the crime and its sheer heinousness must be enough to convince us of the need to provide protection to everyone who is vulnerable. For the protection of one section of the society (women) we cannot put the rights of others (men and transgenders) on hold.