OVERVIEW
Gender neutrality within rape statutes refers to the concept that criminal law should recognize the fact men, women and transgender persons can be rape victims as well as perpetrators. Such a belief system reflects a modern understanding of the nature, effects, and dynamics of nonconsensual penetrative (and non-penetrative) sex acts on the individuals involved and the society, too.
However, Sections 375 and 376 of the IPC, 1860, mentions about the conviction on the offence of rape of a woman by a man, which means only a man can be convicted of committing rape and the victim can only be a woman.
Despite expanding the definition of rape under the Indian Penal Code to include non-penile-vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of their genders. Herein, I will critique this idea of gender specificity in Indian rape law on the grounds that it reinforces a binary notion of gender, and results in gross underinclusion. Instead, it is more appropriate to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape. The argument is pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape law.
Other than the rape laws, there have been many other laws such as stalking, voyeurism and sexual harassment, the Domestic Violence Act, 2005 that is gender-specific where a perpetrator is always a man. However, the law relating to throwing acid is gender neutral as the word used is ‘whoever’.
Increased awareness about these offences in the society shows us that the main reason for committing a sexual assault of any form of violence many not just be to fulfil the desires that are sexually-oriented, but also to assert the perpetrators’ dominance.
But if that is the case, then the assertion of dominance should not be gender-specific as it could be an assertion of dominance upon a specific caste, creed, orientation, religion, or any social background. Hence, any form of sexual assault could happen to both males and females, as well as the other genders of society.
The present concept of gender is more fluid than traditionally accepted. The assumption that one’s body can have either feminine characteristics or masculine characteristics. Thus, automatically the society turns a blind eye to sexual violence suffered by those who do not conform to the normative understanding of gender and the constricted meanings of male and female characteristics. Thus, the legislature too overlooks the plight of the transgender community (includes hijras and kothis).
Due to the restricted scope of sexual offences (including but not limited to rape) in India currently, it is the members of the transgender community who suffer the most. The problems of transgender individuals being subjected to sexual violence was also highlighted by the Apex Court in its NALSA v. UOI judgement.
Transgender persons were subject to “extreme discrimination in all spheres of society” which was a violation of their right to equality. Further, it included the right to express one’s gender “through dress, words, action, or behaviour” under the ambit of freedom of expression.
Section 376 of the IPC provides for situations of aggravated rape in cases where perpetrator is in a powerful or dominant position. Section 114A of the Indian Evidence Act 1872 as after the Amendment has shifted the presumption to that of guilt if the woman in her evidence testifies that she did not consent in such a situation of aggravated rape. Again here, assuming that only women and no other identities can be dominated by persons in powerful positions is incorrect.
MEANING OF GENDER NEUTRALITY
The collective term ‘gender-neutrality’ has been mocked as a term that disguises more than it communicates its meaning. It basically means equality in some laws which are gender-specific even if all kinds of genders have the potential to face the same kind of crimes. For example- men or even a transgender person can be forced into having sexual intercourse or exposed to sexual assault/abuse.
The term ‘gender-neutrality’ gives three dimensions namely:
- Gender neutrality with respect to the victim
- Neutrality with respect to the perpetrator
- Neutrality in custodial, communal, war, and conflict situations
GENDER NEUTRALITY WITH RESPECT TO VICTIMS
It is pretty unfortunate that the Indian legislation and even society still believes that a rape victim can only be a woman (female gender). The offence of rape can be motivated due to various reasons other than the traditional assumption that perpetrators commit rape only to satisfy their sexual desires. However, there can be other reasons such as showing sexual dominance could be treated as an act of superiority amongst castes, communities, religions etc. Sexual abuse can be motivated by the need to humiliate the victim rather than just lust. Therefore, not only women but also men and the transgender community can very well be exposed to sexual abuse.
The present concept of gender is more fluid than traditionally accepted. The assumption that one’s body can have either feminine characteristics or masculine characteristics. Thus, automatically the society turns a blind eye to sexual violence suffered by those who do not conform to the normative understanding of gender and the constricted meanings of male and female characteristics. Thus, the legislature too overlooks the plight of the transgender community (includes hijras and kothis).
Historical and mythological evidence suggests that the transgender community has always existed in India. Their rights must also be recognised instead they are even denied as citizens for a long time.
RECOGNIZING RIGHTS OF TRANSGENDERS
Despite undergoing multiple amendments, the definition of rape under the IPC is still affixed to a binary notion of gender. It views rape through a male-on-female paradigm, where men and women are assigned static roles of the perpetrator and the victim respectively. While this victim-perpetrator framework may stem from a push back against the law’s tendency to disbelieve a female rape survivor, it is also under-inclusive, and therefore damaging.
Irrespective of which gender is assigned what role, an adamant fixation to a male-on-female paradigm compels members of the transgender community to suppress their actual identities, and identify themselves as either males or females. Consequently, certain victims and perpetrators are absent from theories of rape simply because they refuse to sacrifice their gender identity. The laws so framed then present a class of victims of nontraditional sexual assaults with a choice between gender identity and the pursuit of justice. As such, when the traditional notions of sex and gender are transgressed by the transgender community, every progressive society must strive to free itself from such outdated and rigid notions of human nature.
“The purpose of the social movement for transgender rights cannot be limited to the right to fail to conform to one’s gender identity by choosing to conform to the gender identity of the other sex within the [existing] gender binary.” Per contra, its purpose is to legitimize the right to determine one’s own gender. In this light, any insistence on gender specificity in rape law stands contrary to the edifice of uninhibited gender justice. It subverts the idea that the reach and promise of sexuality includes individuals without names and identities – the most conventional and privileged along with the most despised – and reinforces an understanding that only two genders are relevant to any discourse on rape law.
it is conceivable that any stubborn adherence to gender specificity in rape law not only legitimizes the social hostility towards gender non-conformity in India, but also inadvertently reinforces the heterosexual nature of the legal framework. However, it is essential to note that the mere existence of this tendency may soon become a fatal obstruction for those people who “have been marginalized, discriminated against, ridiculed, and even dehumanized. It is perhaps unsurprising, given this history of stigmatization, that transgendered people have not often found refuge in the law.”
The assertions above resonate with a recent decision of the Supreme Court of India in respect of transgender rights. In NALSA, the Supreme Court of India was concerned with the grievances of the transgender community, who sought:
A legal declaration of their gender identity [other] than the one assigned to them, male or female, at the time of birth[, their prayer being] that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.
The apex court duly acknowledged the inability of the Indian legal system to consider the members of the transgender community as belonging to a third gender, and affirmed the right of human beings to choose their own gender. The court’s reasoning is of considerable assistance not only due to its substantive content, but also the approach it adopted. Adopting a human rights approach, the apex court reasoned that:
By recognizing [transgender persons] as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition …. The issue of transgender [rights] is not merely a social or medical issue but there is [also] a need to adopt [a human-rights-based] approach towards transgender[] [persons] which may focus on functioning as an interaction between a person and their environment highlighting the role of society.
MALE ON MALE RAPE
In the US, male rape has been documented by a few organizations. Statistics show that in 2003 one in every ten rape victims was male. 2.78 million men in the U.S. have been victims of sexual assault or rape.
In India, coercive man on man sexual intercourse is covered under Section 377 of the IPC, as carnal intercourse going against the order of nature. It is indeed shocking, that in India, male on male rape is clubbed with voluntary sexual intercourse between homosexuals. There must be a distinction between coercive and consensual sexual intercourse.
The minimum punishment for rape, as after the Criminal Amendment Act 2013, is seven years while maximum is imprisonment for life. On the other hand, Section 377, which penalises coercive sexual intercourse between men, has prescribed no minimum punishment. When a minimum punishment is prescribed, it is assumed that the crime is a heinous one and, therefore, a minimum term of seven years is prescribed for rape. There is no such presumption for male on male rape. Far from being considered as heinous, it is not even recognized as rape in India.
The three member Verma Committee recommended that the victim be made gender inclusive, therefore, sexual assault on men, as well as homosexuals, transgendered and transsexual persons be covered by the rape law. Ratna Kapur (2013) advocates the deletion of section 377 for an effective gender neutral law. Criminalising non- consensual sex regardless of gender can only work if sexual minorities are granted the right to have consensual sex in the first place.
FEMALE ON FEMALE RAPE
In State Govt. v. Sheodayal (1956), Madhya Pradesh (M.P.) High court opined that modesty of a woman can be outraged by another woman under the purview of Section 354 of IPC. The question whether a woman can commit gang rape was dealt by the Supreme Court in the case of Priya Patel v. State. The language of section 376(2)(g) provides that whoever commits gang rape shall be punishable. When a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape. Therefore, technically the act of penetration is not required to be performed by each member.
Therefore, technically the act of penetration is not required to be performed by each member of the group. Rather, the presence of common intention’ is sufficient for a person to be convicted of gang rape. However, the court held that a woman cannot have an intention to commit rape. Consequently, it is inconceivable that a woman can rape another woman.” This logic is substantially flawed because the section requires the presence of common intention only. Why cannot woman have common intention to rape another woman, even if we assume that it is physically impossible for her to rape? While the issue of whether a female can rape a male has been widely discussed and debated in the public domain, scholars and activists in India have largely remained silent on this facet of gender neutrality.
INDIA’S RESPONSE TO GENDER NEUTRALITY IN RAPE LAW
India’s response to gender neutrality in rape law can be described by two words: reactionary and inconsistent. Past judicial decisions and legislative amendments on the issue do not evidence any focused deliberation assessing the contours of the competing legal principles involved. There is little to suggest that the legislature considered the legitimate interests of all stakeholders while suggesting various amendments to the offence of rape under the IPC. As noted in the Minutes of the National Consultation Meeting organized in 2001 in the aftermath of the 172 nd Report of the Law Commission of India, the opinions of various sexual minorities were never taken into consideration despite them emerging as a formidable force in the struggle for basic rights.
The issue of gender neutrality in rape law was first raised in 1996 by Jaspal Singh, J of the Delhi High Court in Sudesh Jhaku v KC Jhaku. Therein, the Court was required to determine whether the pre-2013 definition of rape could be interpreted to include non-penetrative sexual acts. However, the court went beyond its mandate to opine on the issue of gender neutrality as well. While holding that the prayed-for relief could not be granted by a judicial authority, but only by means of legislative amendment, Singh, J went on to articulate his preference for the offence of rape to be redefined in gender-neutral terms. The judge noted that the offence of rape was the sole avenue under the Indian criminal law for dealing with heinous acts of sexual assault before quoting the following passage from an article in the California Law Review:
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.
In 1997, a Delhi-based group, Sakshi, filed a writ petition before the Supreme Court of India requesting it to reconsider the question that had arisen in Jhaku. In 1999, the apex court framed the “precise issues” to be considered by the Law Commission of India. Subsequently, the 172 nd Report of the Law Commission of India recommended that the offence of rape be substituted by a completely gender-neutral offence of “sexual assault”. Interestingly, one of the key reasons for the Commission to make this suggestion was a sizeable increase in the number of instances of sexual assault against young boys that could not have been considered as acts of rape under the unamended definition. This concern, however, no longer holds much relevance after the Protection of Children from Sexual Offences Act, 2012 (POCSO), which aims to protect children from cases of sexual assault, harassment, and pornography when perpetrated by a man.
The recommendations of the Law Commission never translated into a legislative amendment up until 2012, when the Criminal Law (Amendment) Bill, 2012 proposed a completely gender-neutral definition of rape. Many found this proposal to be surprising post POCSO since the reasons for the amendment remained unclear. The 167 th Report on the 2012 Bill compiled by the Parliamentary Standing Committee does not disclose the factors considered by the Parliament before proposing a gender-neutral definition of rape. Per contra, it expressly acknowledges that the responses received from the public and State Governments favoured “[m]aking the offence of rape and sexual assault gender neutral only in so far as the victim is concerned, but making the perpetrator male.” Even the Note of Dissent given by two members of the Council of States described the adoption of a completely gender-neutral definition as trivializing the increasing number of rapes conducted by men on women. Amidst the prevailing ambiguity, this arcane proposal drew immense criticism from feminist scholars. For instance, in her opening statement to the Justice Verma Committee (JVC), Ms Indira Jaising, a prominent Senior Advocate in India, labelled this move as unacceptable since rape was to be always characterized as a crime constitutive of patriarchy, and therefore, gendered.
Before this 2012 Bill could be passed, the nation was rocked by the gang rape of a 23-year-old woman while travelling in a public bus in the capital city, Delhi, on 16 December 2012. As a consequence of the outrage that followed, the legislature constituted the JVC to look into amending the criminal law in order to provide for quicker trials and enhanced punishment for committing sexual assaults of an extreme nature against women. Unlike the 2012 Bill, the JVC Report recommended that the offence of “rape” be retained, and not be substituted by the offence of “sexual assault”, as it was widely understood as an expression of society’s strong moral condemnation. The Committee also recommended that the offence be made gender neutral; however, this was to be done only from the perspective of the victim. While the JVC Report is admirably detailed, it does not contain an account of the reasons behind this recommendation.
Despite being well received, the recommendation of partial gender neutrality did not result in the desired change. In a rather perplexing reversal, the legislature promulgated the Criminal Law (Amendment) Ordinance, 2013 to adopt a completely gender-neutral definition of rape. This decision was criticized as being hurried, violative of the letter and spirit of the JVC Report, and bearing the potential to create a chilling effect on a woman’s ability to file a rape complaint. Compelled by such criticism, and possibly motivated by political considerations, the legislature readjusted its stance after only a few months. In the next Parliamentary session, the legislature enacted the Criminal Law (Amendment) Act, 2013 to supplant the ordinance, and reverted to the gender-specific definition of rape that is presently in effect.
While this move did appease those who had criticized the Ordinance, it also led to a new line of criticism from certain members of the queer movement, who viewed the reversion as damaging the interests of the transgender community. In the words of Arvind Narrain, “[t]he [2013 Act was] a slap in the face for all those who believed that finally transgender persons too are equal citizens in India”. A gender-specific definition of the offence of rape worded in terms of men and women reflects a binary understanding of gender, creating doubts as to its suitability in the minds of gender equality proponents. The same is crucial considering that presently there is no offence under the IPC equivalent to the offence of rape that adequately protects the class of victims currently excluded. Pertinently, such criticism poses another difficult question – whether the interests of the transgender community ever featured in the entire discourse surrounding gender neutrality in Indian rape law.
A perusal of the above chronology clarifies that India’s response to gender neutrality has been far from ideal. Despite a plethora of reports and amendments, the issue has yet to receive the purposive deliberation it warrants. The fact that most of the debate on the issue is confined to the corridors of various academic institutions and policy research organizations, as opposed to the Parliament or courts, is disappointing. As such, it is both reasonable and appropriate to address the issue of gender neutrality in Indian rape law afresh, at least from a theoretical
