Vivekananda Institute of Professional Studies, Delhi
According to the dictionary of Merriam Webster, “Rape is an unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person's will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception or an outrageous violation or an act or instance of robbing or despoiling or carrying away a person by force[i]. Rape is a criminal offence in all the countries around the world for which a rigorous punishment is given, it is considered as one of the gravest offences which is a shame for the humanity. In India, rape victims are often forced to marry the accused so as to save the dignity of the victim. But this is not the case when men are raped. In India, there is a belief that men can never be raped because in a patriarchal society like India men are considered more powerful than women and according to the society in no way can a man be raped. In a recent rape case an accused was asked by the CJI Bobde, “if he’ll marry the victim[ii]”.
The phrase ‘gender neutrality’ is ambiguous and as Arvind Narrain (2013) puts it, it “Perhaps disguises more than it communicates”. Arvind Narrain (2013) gives three dimensions of gender neutrality[iii]:
1) Gender neutrality with respect to the victim;
2) Neutrality with respect to the perpetrator;
3) Neutrality in custodial, communal, war, and conflict situations.
Most of the offences which are defined under the Indian Penal Code, 1860 are not gender neutral, the reason behind this is that the Penal Code was enacted in 1860 and at that point of time women never used to engage in any of these crimes but as the society evolved men have also become the victims. Article 14 of the constitution of India states that the state shall not deny to any person equality before the law and the equal protection of law within the territories of India. Article 14 has the spirit of equality amongst equals, but still the inequality while awarding justice to the rape victims persists. When anyone talks about the rape victims, everyone assumes it to be a girl or woman and on the other hand rape accused means “a boy or a man”. Section 375 of the Indian Penal Code 1860, also defines rape as a crime which “if a man commits” and not as “if any person commits”.
The landmark decision of partly scraping of section 377 of the Indian Penal Code, 1860 now recognises the relationship between same sex partners. But still according to the present society a rape victim can be only a woman or a girl.
Rape as a Threat to Humanity
Humanity exists in the thoughts of the people but with time humanity is deteriorating. Humans are not treating other humans with dignity. People tend to see other humans as some kind of objects especially the women. Currently songs, poems, stories etc objectifies women into various things. This makes a strong wrongful impact on the human brains. The lengthy rape trials are making people think that they can easily get away with this heinous crime. In the United Nations’ resolution, passed 19 June 2020, the Security Council noted that “women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.[iv]” In this the security council would have included men as well because rape is not a matter of comparison, as to who suffered more sexual violence, whether men or women.
Forceful dominant pleasure seems to take a disgusting place in the minds of people. The time is not very far when people will normalize rape in the society for their personal pleasures.
Why Gender-Neutral Laws for Rape Should be Enacted?
In India, reported rape cases are mostly against men that means women are getting raped at a much higher rate, which is quite shameful for any country. But this does not mean that a man never goes through sexual violence. In India, 10% of the cases are of rape against men but the society is so ignorant that they can’t accept the fact that men who stands at the position of power can be raped[v]. In India, female pleasure and men getting raped gets no consideration because gender roles are being defined since time immemorial. But people feel disgust and embarrassment while discussing these things openly because of fear of change. The study of male rape victims started only after 1980s and that too was mostly focused on child sexual assaults. The Criminal Law (Amendment) Bill, 2019 was an attempt to insert “whoever” in the place of “any man” in the provisions of rape, assault and sexual assault in the Indian Penal Code[vi].
Amendment of Section 377: Boon or Bane?
Every revolution in the society brings some drawbacks with it, for example giving equal rights to transgender after the landmark judgment of NAVTEJ JOHAR[vii] is setting good examples but on the other hand making transgenders suffer through brutal sexual violence. It is not that before the amendment, there existed no sexual harassment but now the situation has worsened. LGBTIQ+ community took a sigh of relief after recognition of the community as legal in India. On the other side of the coin, leaving all the rights and legalization of homosexuality in India, rapes of the gay community are increasing on a rapid pace. But it is important to understand the value of consent in same sex relationships.
In a recent incident, a 19 years old model was being thrashed, looted, harassed and raped on the terrace of the abandoned building in Mumbai. He was brutally harassed that he was not able to speak[viii]. In another incident, a man named Apoorv met a person on a gay dating app ‘Grindr’ and was subjected to brutal sexual violence[ix].
Decriminalisation of Section 377 is a commendable step but on the other hand, there are no laws to protect gay people from sexual violence in India. We can say, that these are vague rights without restrictions because anyone can misuse it.
Rape Trials in India
The rough and time-taking procedures of criminal trials in India adds onto the suffering of the victim. Though in-camera statements and examination has made easier certain things but on ground level it is still quite humiliating[x]. Criminal procedure code of India prescribes the procedure of trials in a women friendly manner but does not take away the vulnerability of victims of rape other than women. Even during the trial, charge-sheet can be filed only under section 377 of the Indian Penal Code, 1860 and there are no specific procedures to handle sexual violence against men or LGBTQIA in the Code of Criminal Procedure, 1860.
During trials sometimes the defence submits arguments based on mental assumptions or conditions of accused but the fact that no one considers is that how this assumption or condition takes away the mind of the accused. In our society, men are considered strong but that does not mean that they can’t be the victim of sexual assault. Thankfully, there are no prescribed standards to be a victim of rape, then it is inappropriate to say that a man cannot be sexually assaulted.
A study based in the U.K. has clarified that usually men rape victims never come forward to explain their agony[xi]. And they are being assaulted just like women starting from a very tender age.
Speedy trials for rapes are advised for the justice to be served as soon as possible. “Daily proceedings should be held for the rape trials” and NHRC has issued guidelines for the speedy disposal of child rape cases[xii]. But there exist difference between the issuance of guidelines and on ground procedures. Due to the excessive number of cases, it is quite difficult to hear any rape case on daily basis.
Future of Gender-Neutral Laws for Rape in India
Many a times the judiciary as well as the legislature forget that equality is not a women empowerment concept but that of gender equality and while India is a signatory to several international covenants on the rights of individuals, such as The Universal Declaration of Human Rights, 1948, The International Covenant on Civil and Political Rights, 1966 and The International Covenant on Economic, Social and Cultural Rights, 1966, all of which upholds the inalienable right of every person to equality and human dignity, yet when it comes to promulgated gender neutral laws, India has failed miserably.
It has been seen that people usually mould the laws according to their convenience. Gender neutral laws in India may go through same drawbacks. For example, people will start marrying each other to satisfy their lust and will engage in marital rapes more.
As noted in the Minutes of the National Consultation Meeting organized in 2001 in the aftermath of the 172nd 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[xiii].
First time the issue of gender neutrality in rape laws was dealt in the case of Sudesh Jhaku v. KC Jhaku[xiv], 1996, in which Singh J quoted the following paragraph from the California Law Journal, “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.”
Criminal Law (Amendment) Bill, 2019[xv] floated by Sr. Advocate KTS Tulsi in the Rajya Sabha is still pending. This bill seeks to amend the provisions to criminalize rape gender neutral. The major change that this bill seeks is to insert “Any person” in the place of “A man” in all the provisions which criminalizes rape in India.
Critical Analysis of Statutes who Failed to Provide Concrete Provisions for Rape of People other than Women in India
Indian law does not recognize any intercourse between human beings other than the vaginal intercourse of a man and a woman. This restricts the rights of people having various sexual orientations and on the other hand provides no protection to LGBTQIA+ community. The Amendment of Section 377 has opened new doors but people are still struggling.
In Indian Penal Code, 1860, Section 377 defines unnatural offences as “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This section does not have a wide ambit, it only criminalizes Sodomy and Bestiality and will take other offences into account on the basis of the facts of each case. Indian Penal Code does not recognize any other offence against men. In U.K., Sodomy, Lesbianism, Sapphism, Tribadism, Bestiality and Sexual Paraphilias (such as Fetishism, Transvestism, Sadism and Masochism, Exhibitionism, Paedophilia, Necrophilia) are explicitly defined but it is not so in India[xvi]. The rise in sexual offences in India is on its highest peak but there are stringent provisions to deal with the ever-evolving sexual offences here in India.
The Protection of Children from Sexual Offences Act, 2012 deals specifically with the sexual offences against children but in cases of Paedophiliacs, it is sometimes difficult to punish them according to their liability. India is far from understanding that ‘Homosexuality’ is an umbrella term, and various other terms exist under this term. Those other kinds of homosexuality should be discovered in order to make sexual offences against men criminalised.
Deepti Tadanki, while shooting for her documentary came across two appalling incidents of corrective rape wherein, “a gay girl was raped by her cousin so that she could be "cured" of homosexuality; and another, where family members forced a gay boy to have sex with his mother, in a bid to turn him 'straight'.[xvii]”
John Kelly was a student at Tufts University, who was raped by his former male partner. In 2014, he became the first person to testify before the United States Congress on the issue of same-sex sexual violence.
Conclusion and Suggestions
Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate victims about how to defend themselves and not the accused that they should not rape.
Every person in our country should have protection against rape in the law irrespective of their sexual orientation. Previously only women were the victims of rape but with the evolution in the society, many things have become bad to worse that is why it is quite important to enact laws according to the current scenario and situations of the society. Victims need not be ashamed of being a victim but the laws should be such that accused can be made punished without any delay.
The argument in favour of gender-neutral rape laws has surfaced again owing to the outrightly discriminatory provision in the 2019 Act dealing with offences against transgenders which reads as follows:
(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine.
The bill is still pending but awareness related to gender neutral laws is increasing day by day, it will take another few decades to accept the reality that people are denying currently. On another note, gender neutral laws should come with a clause to punish those people who knowingly about being sexually unwell abuses another person sexually resulting in various STDs.
Based on my research, I suggest the following:
o High level committee should be formed who can practically examine the psychology of various community of people, which would help the drafting committee to draft the gender-neutral laws in a fair manner;
o The criminal law (Amendment) Bill, 2019 should be considered again;
o Workshops should be held in the low-income group areas to spread awareness about different sexual orientations and especially for the sex education;
o Procedures should become victims friendly (irrespective of the gender of victim), so as to encourage people to come forward to file complaints.
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