TIME TO MAKE GENDER NEUTRAL RAPE LAWS

INTRODUCTION
Rape laws in India is governed by Indian Penal Code, section 375 which provides the
definition of rape and section 376 is for punishment of this offence. Provisions related to rape
in Indian Penal Code is made in 19th century and since then society has evolved and
undergone a massive social, economic and political change. We need to change the
stereotypical stance that rape is an act of sex committed by a person having penis upon one
having vagina to satisfy their sexual desire.
In India, we need to introduce the rape laws that are more gender-neutral as it has been
realized over the time that rape is not committed only out of lust or sexual desire and it is not
merely related to any specific sex or gender1. The commission of rape is to show one’s
dominance on the basis of race, class, caste and ethnicity. It is an act of sexual nature to
manifest the sense of control and humiliation in others. 2 By this reason people not belonging
to ‘woman’ community can also be the victim of the rape. If so, then why the punishment for
the offence of rape is based upon the gender of particular victim? Isn’t it the clear violation of
right to equality which is granted to everyone regardless of their sex or gender?
This essay is written to highlights the need for gender neutral rape laws in India.

MEANING OF GENDER NEUTRALITY

Gender neutrality means that every person regardless of which gender they belongs to have
equal protection under law. Gender neutral laws are the laws in which no specific gender is
given preference over others and all the genders are provided with equal rights and protection
under law. There are some gender specific laws to which even other genders are possible
victims. For instance, person belonging to male or trans-gender community can also face
sexual violence or forced sexual intercourse. But law which governs the offence of rape in
India, only activate in case where a woman is the victim.
Gender parity can be attained if interests, needs and priorities of men, woman, girls and boys
are equally considered3. Women centric laws on any issue to which even other genders are
subjected to, needs to be amended to make these laws gender neutral in order to achieve

1
Feminist Perspectives on Rape, Stanford Encyclopedia of Philosophy
2
Shashwat Bhutani, The Lacuna in Law: Desideratum of Gender-Neutral Rape Laws, Indian Journal of Law and
Public Policy, https://ijlpp.com/the-lacuna-in-law-desideratum-of-gender-neutral-rape-laws/
3
UNICEF Regional Office for South Asia, Glossary of Terms and Concepts, November 2017
‘equality for all’ in true sense.

WHY GENDER NEUTRAL RAPE LAW?

Section 375 of IPC defines the rape as “a man is said to commit rape if he…….” This
provision of IPC clearly states female gender as victim and male gender as perpetrator
always, which is true in most of the cases. But, sexual assault can be committed by a woman
on a man or trans-gender people as well. Although in miniscule number of cases, but could
not be ignored. There are certain incidents where an adult male undergoes sexual abuse in the
way defined in section 375 of IPC but because of paucity of law in his favour, proper legal
remedies are not granted4. To mention a case of 2018, sexual assault has been committed by 5
men on a boy of 20 years of age by inserting an object in his anus 5. But this incident could
not be booked under section 375 of IPC, as it do not recognize any male victim. Although
child survivors of both sexes are covered by the POCSO Act 2012, but current rape laws
leave out a large swathe of male victims, who cannot come forward out of fear of stigma and
a lack of specific legal recourse.

Justice JS Verma committee report6 has favoured gender-neutral rape laws. To address the
loop-holes of section 375, it was recommended by Justice JS Verma committee that, rape law
in India to be amended to the extent that perpetrator is male but victim of the offence can be
any gender. This was recommended considering the fact that there are sexual offences against
male gender and trans-genders as well.
In its 172nd report on ‘review of rape laws’ Law Commission of India 7 has made some
recommendation on gender neutral rape laws. It was stated in that report that equality before
law and equal protection of laws as mentioned in article 14 of Indian Constitution must be
applied to rape laws as well. Every person have right to be protected from any kind of sexual
violence denying which, would amounts to gross violation of Fundamental Rights of
equality8.

4
Patrizia Riccardi, Male Rape: The Silent Victim and the Gender of the Listener, 12 Prim. Care Companion J.
Clin. Psychiatry (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3067991/
5
Anchal Raghuwanshi and Aashutosh Jagtap, Indian law for Rape,July 5 2020 https://lawcorner.in/gender-
neutral-laws-way-to-equality/#INDIAN_LAWS_FOR_RAPE
6
Justice J S Verma, Justice Leila Seth & Gopal Subramaniam, Report Of The Committee On Amendments To
Criminal Law, 2013
7
Law Commission of India, 172nd report, Review of Rape Laws, march 2000
8
ibid
In 2017, a PIL is filed by advocate Sanjiv Kumar in the High Court of Delhi to challenge the
constitutionality of Rape laws under section 375 of IPC 9. While putting forward the need of
recognizing male rights, it was contended in the petition that gender neutrality is a basic
recognition of reality: men are occasionally subjected to the same or very comparable
behaviours that women are subjected to. Male rape is far too common to be considered an
outlier or a rare occurrence. We are depriving a lot more men of justice than is widely
imagined by not having gender-neutral rape laws.

Recognition of all Sexual Victimization

The case where woman is victim, it is defined as rape and provisions for stringent punishment
has been provided for that, but similar offence with a male is called sodomy which is
nowhere defined in Indian laws. While unnatural and immoral sex against a woman is
defined in specific section but that very offence against a male is termed as sodomy in
common. As per the data records of Delhi Police More than 543 cases of sodomy 10 have been
registered in three years (2016- 2018).
Trans-genders rape- India recognise only consensual sex between trans-genders not the
forceful intercourse. A child under the age of 18 years has right to be protected from sexual
offences under POCSO act11 but once they cross this age, this right is snatched from them.
Supreme Court of India, in the case of National Human Rights Commission v. State of
Arunachal Pradesh12 has remarked that people belonging to homosexuals, trans-gender and
trans-sexual community should also be granted protection under rape laws.
In the year 2014, a survey was conducted by National AIDS Control Organization on about
5,000 people from transgender community. It was discovered that 20% of them has suffered
sexual violence in one year, 201313. Trans right activist Daina Dias, who herself has been a
transgender victim of rape has rightly mentioned that it is merely impossible for trans-gender
victims to get justice despite having such a clear stats because Indian rape laws recognize

9
India.com News Desk, Delhi High Court Issues Notice to Centre on PIL Seeking ‘Gender-Neutral’ Rape Laws,
updated sept, 27, 2017 https://www.india.com/news/india/delhi-high-court-issues-notice-to-centre-on-pil-
seeking-gender-neutral-rape-laws-2502155/
10
Chayyanika Nigam, Cruelty in rape cases raises concern among Delhi Police, April 16, 2018,
https://www.indiatoday.in/mail-today/story/cruelty-in-rape-cases-raises-concern-among-delhi-police-1212975-
2018-04-16
11
Protection of Children from Sexual Offences Act, 2012
12
1996 AIR 1234
13
National AIDS Control Organization (2016). National Integrated Biological and Behavioural Surveillance
(IBBS), Hijras/Transgender People, India 2014-15. New Delhi: NACO, Ministry of Health and Family Welfare,
Government of India.
only female rape victim and male rape perpetrator14.

Gender neutrality from women’s perspective

Opponents of gender-neutral rape laws, it is being contended that gender neutrality in rape
laws would be devastating for women condition.
Section 375 of IPC in a way discriminatory towards women as well, as it depict only “a man’
as perpetrator. So, in case a woman is ‘raped’ by another woman, the offence didn’t came in
the ambit of section 375 of IPC. In a recent case of February 2021 a French woman was
raped by another woman in Goa under the guise of a shaman performing rites 15. Because the
existing legislation is gender-specific and does not recognise the criminal act of rape by a
women, the accused woman could not be charged under Section 375 of IPC.

Preventing the misuse/abuse of women-centric laws

Law is a mean to regulate the society; to provide a sense of safety and security to all the
people but sometimes it is been used as an edged weapon to target innocents i.e. use the law
to have advantage over others. Gender laws are made to protect the oppressed gender from
further oppression and uplifting them to satisfy the principle of equality in true sense. But
these laws are certain times misused. So, it become the responsibility of the state and law
making agencies to amend the laws in order to meet the requirement of society & thus to
tackle misuse of the law against the innocents and to protect other genders who are the
possible victim of the same offence.
There have to be a separate provision for punishment in case of false cases or misuse of law.
There are no statute or provision that protect a man from false rape allegation other than file a
suit seeking damages from the complainant on account of defamation. Specific provisions are
needed to protect falsely alleged people in the situations where a woman takes the advantage
of rape laws on any other women centric law to derive some advantage by threatening the
person from other gender.
While discarding the need of gender neutral rape laws, Flavia Agnes, a woman rights activist
said, “In a situation of deep-seated patriarchy and hatred towards women, making laws
gender neutral will only add to the problem since men have more power, they will be able to
14
Esha Mitra, CNN, India's rape laws don't cover transgender people. They say it's putting them at risk, Dec. 9
2020, https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html
15
Mythreyee Ramesh, LGBT Activist Divya Dureja Booked For Sexual Assault, Out On Bail, updated Mar 3
2021, https://www.thequint.com/neon/gender/lgbt-activist-divya-dureja-booked-for-sexual-assault-goa
use these against women out of sheer vengeance” 16. But the same can be said in reverse
manner as well, women have always upper-hand as false allegation can be easily made or
threatension to file rape case. Justice Subromonium Prasad, while hearing a rape case has
expressed his concern on alarming increase in false rape case and remarked that now-days
certain rape cases are filed “only to arm-twist the accused and make them succumb to the
demands of the complainant”17. In this situation, only people belonging to male or trans-
gender category cannot be subject to discrimination just because, enacting legislation in their
favour would increase the misuse of it. If there is a law, evil minded people will definitely go
for finding loopholes in it. But it does not mean that we will put a stay on law making.
For this law needs to be balanced. “All sexual offences should be gender-neutral. Be it a man,
woman, or other gender, anybody can be perpetrators of sexual assault and also victims of the
same. Everyone needs to be protected, not only women” 18. Misuse of law can be tackled by
different provision/ legislation. Fear of misuse cannot halt the protection of rights granted to
peoples.

RIGHT TO EQALITY
Indian Constitution guarantee a set of fundamental rights 19 to all the citizen of India. Article
14 describes equality for all before law and article 15 is about prohibition of discrimination
on certain grounds including sex. As per these constitutional provisions even if rape cases of
a male or trans-gender is not comparably rampant as female rape, right of equal protection
under law cannot be denied to them.
While dealing with fundamental right of equality enshrined in article 14 of Indian
Constitution, apex court, in the case of Subramanian Swamy vs. Director of Central Bureau
of Investigation & Anr20 has held that “article 14 is declaration of right of equality and equal
protection of law to all the persons out there in the territory of India. Every person is
privileged to enjoy their rights and liberty without any prejudice or discrimination”. Apex
Court in the case of Bodhistawa vs. Subhra Chakraborty21 has remarked that, “rape is a crime
against basic human rights and is also violative of the victim’s most cherished of the

16
JILS Blog, Conversation with Flavia Agnes, Director, Majlis Legal Centre, Aug. 6 2015,
https://www.legallyindia.com/Blogs/conversation-with-flavia-agnes-director-majlis-legal-centre
17
Soibam Rocky Singh, Delhi High Court expresses worry over ‘alarming increase’ of false rape cases, Aug. 22
2021, https://www.thehindu.com/news/national/delhi-high-court-expresses-worry-over-alarming-increase-of-
false-rape-cases/article36042093.ece
18
KTS Tulsi, The Criminal Law (Amendment) bill, 2019, as introduced in the Rajya Sabha, July 12 2019
19
INDIA CONST. part III, refer https://www.mea.gov.in/Images/pdf1/Part3.pdf
20
(2014) 8 SCC 682
21
(1996) 1 SCC 490
Fundamental Rights i.e. right to life.”
Article 15 of Indian Constitution states that, “the state shall not discriminate against any
citizen on the grounds only of religion, race, caste, sex, place of birth or any of them”.
Opponents of gender neutral rape laws in India claims that since women are the most
vulnerable part of society therefore gender neutral laws will be a blow to them as false cases
will increase to oppress them more. Even if this concern is true to some extent, but is does not
change the reality of male and trans-gender sexual assault victims and their right of being
equally treated by law.

CONCLUSION
Male gender faces significant legal discrimination, and their basic human rights are being
violated on a daily basis in the name of ever-increasing legislative measures that purport to
empower and protect women. It's not that laws to empower women are bad; in India, women
endure a variety of violence, including rape, sexual harassment, domestic violence, acid
attack, custodial violence, unfavourable sex ratio, dowry-related deaths of young brides, and
molestation. But this should not be looked that, in empowering the oppressed gender, we
should neglect the others.
The provision of rape laws in IPC can be said to be violative of Articles 14 and 15(1) of the
Indian constitution since this is discriminatory on the basis of sex of victim and undermine
fundamental rights of people from other gender. If POCSO act could showcase gender
neutrality then why not the rape laws under IPC. Male rape or trans-gender rape is not
something which is prevalent in society. There are comparatively less number of such cases,
many of which go unreported and unrecognized as well because in Indian society, male rape
is not considered as reality but a taboo 22. It is perceived as blow to one’s manliness and
masculinity. Laws makes great impact on thought processes of society and it makes the easy
adaptation of changes related to something which was previously considered as taboo 23.
There is strong need of gender neutral rape laws, which could recognize male and trans-
gender victims of rape as well.
Gender neutrality is a simple recognition of reality. Men sometimes fall victim to the same or
at least very similar acts to those suffered by women. ‘Male rape is far too prevalent to be

22
Robert T. Muller, Taboo of Male Rape Keeps Victims Silent, June 25, 2015
https://www.psychologytoday.com/us/blog/talking-about-trauma/201506/taboo-male-rape-keeps-victims-silent-
0
23
Career Launcher, Importance of law in the society,
https://www.careerlauncher.com/center-microsite/blog.jsp?id=mVyliTpiJzg%3D
termed as an anomaly or a freak incident’. Justice is almost being denied to the male gender
by not having gender-neutral rape laws.