THIS ARTICLE WAS WRITTEN BY SIDDHI SUMAN A STUDENT OF HIDAYATULLAH NATIONAL LAW UNIVERSITY.
The passing of the anti rape law, as the 2013 criminal ordinance was made out to be, brought cheers to the women throughout the country. It was a landmark change, stricter punishments, would lead to more safety of women, while the author agrees with the stand that the safety of women should be ensured at every cost, the author seeks to highlight how the present rape laws are not ensuring safety for others. The paper seeks to explore into the dimension of gender neutrality in Rape law in India, and how it is important to secure the rights of men as well.
Structurally, section 375 of the Indian penal code follows an inclusive definition of the term rape. For the purpose of analysis the section can be divided into three parts on the basis of construction of the section or the structure. They are:
The first part deals with the parties, which says “a man is said to commit “rape”, if he”, then the second part focuses on the actus reus or the acts which would constitute rape, and the third part focuses on the mens rea. This is followed by the explanations and further by exceptions to the rape clause.
The first part which deals with the parties to a rape clearly suggests that only a man in India can rape a woman. Therefore giving rise to the gender neutrality debate. Mandating that only a man can rape a woman, the lawmakers have ruled out any of the following scenarios:
Male on Male : covered by 377 (but which includes consensual act by two consenting homosexual individuals, non procreative sex and therefore much in controversy itself and is also unfair in the terms of punishment.)
Female on female : not covered (377 has a necessary condition for penile penetration)
Female on male: not covered.
Trans-genders: are not covered (In light of the NALSA judgment which recognizes them as the third gender, the rape law fails to protect them, basically they can’t be raped and they can’t rape. This amounts to violation of their fundamental rights and their gender identity.)
The section therefore stands the trial of the gender neutrality debate, however when the government sought to bring in the amendment in 2012, the gender neutral rape clause was fiercely opposed, ironically, by feminist groups, their argument was based on presumptions ranging from men cannot be raped by women, women do not rape men/other women, to unintended consequences, and also the biological impossibility of a man getting raped.
These arguments can be condensed to two basic legal arguments: the first would be chilling effect, that is women would be forced to take back complaints by filing counter claims and secondly, gender neutrality or equality is impossible when women are at such huge risks.
The fact that there have been no reported cases so far of straight men being raped by women cannot be understood to be an absolute absence of the crime, because neither is it recognized as offence (therefore even if a man goes in to report rape, there can be no FIR, no report and consequently no action) in our country and nor in a country, which is so patriarchal in societal norms, would it be seen as a crime. Most of us would end up believing that the man must have enjoyed it, or worse it happened with consent. This is a serious violation of any right to seek remedy for a wrong done, when the wrong itself Is not recognized and not considered to be reported as an offence.
Secondly, The biological argument forwarded by most groups that is often given implying that arousal means consent can be easily refuted that in case of a woman who doesn’t physically resist the act of penetration can’t be said to have given consent. So in both cases equality and presumption should be maintained.
Moving away from the gender neutrality debate, there are two more concerns that the first part has, the second exception to the Section 375, says that a sexual intercourse between a husband and his wife, wife not being under 15 years of age is not rape, thereby the negating the whole idea of consent, in relation to wives. Marital rape has been the subject of many discourses over the decades but Indian law makers have failed to make it a punishable offence.
The “actus reus” that is the acts which constitute rape, the amended section, makes an exhaustive list of acts that constitute rape but this all these acts would be rape only when any of the seven descriptions or “mens rea” apply, these being exhaustive in nature might leave out other circumstances which might arise in future.
There is another debate which arises when the rape and unnatural offences are dealt together, if the gender neutrality issue is taken into consideration, and then the section 377 would be rendered useless to the extent of humans.
Historically, the section has been used to punish sodomy, buggery and bestiality and for offences related to children, now if the rape laws are amended as to make them gender neutral then, the offences of sodomy, buggery would be covered there, the law for children has already been separated, thereby leaving only bestiality to be covered in section 377, which also affects consensual homosexual intercourse, and is therefore in courts. Now, if the section is declared unconstitutional, the offences against men and third gender would have to be necessarily considered under section 375 or it would put them hugely at risk.
Constitutionally speaking, section 375 is saved from being unconstitutional under 15(1) which prevents the state from discriminating on the grounds of sex by 15(3) which enables parliament to enact any special provision for women and children, and it is right, women do need special protection. But the intent of the legislature was to protect the exploited from being more exploited, and in this case the law often turns a blind eye towards the minority of third genders, who are a minority and who are exploited under this law and being a separate gender, who are not protected. Again since, the intent of the legislature cannot be questioned in the courts of law judiciary cannot solve the issue. However in the interests of justice it can issue directions in the regards of making penal code gender equal, so as to practice the tenet of equality which has been embedded and wedded to the constitution.
Even if we keep aside every issue on the grounds of being too technical, we cannot afford to ignore that majority of our criminal laws are gender specific to the extent that men can be harmed and punished for crimes that they have never done. The need to have gender specific rape law also stems from the feminist argument. Feminism as we know it supports and demands gender equality and not gender superiority may it be, of any gender, so how can the feminist argument pertaining to rape laws go fundamentally against feminism in itself. These laws do not just put men at risk, they go on to ingrain in us a mentality that women need to be protected which tends to grow into the thought that women cannot protect themselves and thus can be harmed, and thus the cycle continues, and it makes us more susceptible to patriarchy and gender disparity than we can think of. Thus, gender specific rape laws are not just for men they are for the whole of the society.
Rape is a heinous crime, a severe harm on the body and psyche of the survivor, and thus in that case should the gender of the survivor be an obstacle to justice? And yet India with most other nations follows laws where men cannot be raped.
Therefore the government should take a pre-emptive measure to include other genders that are at risk. In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, it is necessary that we recognize the crime, so as to have a better understanding of the heinous crime. It is also necessary to elevate the societal status of the third gender, necessary so that when a judge is called upon to deliver a judgment in a rape case, delivers it with empathy rather than sympathy.