By Tonoya Ghose and Shanjit Thokchom
A 22-year-old man in Pune, who said he was repeatedly raped by a man for two years only reported his case a few years ago fearing he would be judged. Sexual assault has always been regarded as a showcasing of male dominance.
The offense of rape is punishable under The Indian Penal Code (IPC) which was drafted in the 1860s based on Victorian patriarchal norms that cry out to be updated. Several amendments to the Code have broadened the definition of sexual assault to answer the plight of women in today’s society and provide a better framework to prosecute the guilty but it remains confined to ‘intentional and unlawful sexual intercourse with a woman without her consent’. The transgender and the male community are still left in the dark when it comes to sexual offenses. This anti masculinity stigma puts men in a power position and assigns them the role of perpetrator negating the idea of ever being victims of sexual assault.
A survey conducted in India shows that men are aware of male molestation and rape but are not sure as to what constitutes as molestation of their sex. A Delhi based civil society did a survey which reported that 18% of Indian adult men surveyed, reported being coerced or forced to have sex. A reputed magazine did a study on torture used in Kashmir and reported the rampant usage of rape and sodomy as torture instruments; it also highlighted 87% of all male detained face some form of sexual assault.
Rape is not only an offense against the body integrity of the victim but also a violation of their fundamental right to life as it leaves a person feeling the most violated.
The Hon’ble Supreme court in Bodhisattwa vs. Subhra Chakraborty held that: “Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It 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.”
WHY GENDER NEUTRALITY?
Gender neutrality in rape laws has been the need of the hour but India’s response to such has been far from ideal. Article 14 of The Constitution guarantees every citizen is treated equally before the law while Article 15(1) ensures every Indian citizen’s right against any form of discrimination. But the victims of sexual assault who aren’t necessarily female have not been protected under the Penal Code. The court in Vishakha held “The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse.”
The essential element to constitute rape as u/s 375 of the Code demands that the victim of rape should be a woman upon whom non-consensual penetration of any orifice by a man, OR, non-consensual touching of any orifice with the mouth. This presumption completely negates the possibility of a man or a transgender person being a victim of sexual assault.
Throughout history, rape has been used as an instrument to show domination in conflicts relating to caste, class, and community. A person apart from being a man, woman or transgender is also a member of a particular caste, class, religion, and community which oftentimes becomes their dominant identity and makes them subject to brutal assault including rape by members belonging to a ‘higher social standing’. Similarly, there are lots of cases in the armed forces where men are subjected to lots of sexual violence.
THE FIGHT FOR GENDER NEUTRAL RAPE LAWS
The need for gender neutrality in India arose in Sudesh Jhaku vs. K.C.J. wherein The Delhi High court held that sexually assaulted men should be given the same treatment of law as victims. Further, the court questioned the definition of rape, whether it should include non-penetrative sexual acts.
In 1997, a Delhi based NGO Sakshi filed a writ petition before the Hon’ble Supreme Court of India requesting it to reconsider the question arisen in Jhaku, the issue was directed for consideration by the Law Commission. Subsequently, the 172nd Law Commission’s report recommended that sexual offenses including rape be amended to be completely gender-neutral, this was based on the increasing number of sexual assaults reports of young boys which would not be considered to be rape u/s 375. However, this concern holds no relevance after The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012 to protect children from male perpetrated sexual assault, harassment, and pornography.
The recommendation by the commission took form and translated into a legislative amendment in 2012 when the criminal law amendment bill 2012 was proposed. This bill completely gender neutralizes the definition of rape. Many found this to be surprising post-POCSO and drew widespread criticism from feminist scholars who believed that gender neutralizing rape would trivialize the increasing number of female rape victims.
Before the 2012 Bill could be passed the nation was outraged by the Nirbhaya rape case which led to the constitution of the Justice Verma Committee (JVC) in order to reform existing rape laws. Upon the JVC’s report and recommendation, the 2013 Criminal Law Amendment Act was passed broadening the definition of rape from being limited to penile-vaginal penetration; furthermore, it also recommends making rape laws gender-neutral, but only from the perspective of the victim. The second recommendation was met with mass criticism as being hurried and violative, hence the government had to adjust the bill’s stand on gender-specific nature of rape laws and focuses primarily on increasing the scope and definition of rape.
In 2017, a PIL was filed at the Delhi High Court by adv. Sanjiv Kumar, which challenged the constitutionality of the rape laws under the IPC. In his petition, he stated that gender neutrality is a simple recognition of reality and by not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought
THE CRIMINAL LAW (AMENDMENT) BILL 2019
The Criminal Law Amendment Bill 2019 was introduced in the Rajya Sabha by Mr. KPS Tulsi, a senior lawyer, and Parliamentarian by way of Private member bill proposing the offense of rape to be given on gender-neutral stance. This bill seeks to recognize men and individuals who belong to the transgender community and could be victims of rape as well.
The bill proposes to amend section 375 of IPC by replacing pronouns referencing “men” and ‘women’ specifically with words such as “any person” or “other person” effectively making the offence of rape gender-neutral It also introduces a new section, Section 375A that defines the offence of sexual assault as the intentional touching of the genitals, anus or breasts or making one person touch such parts of the other person without consent or the use of unwelcome words, gestures which creates an “unwelcome threat of actionable nature” with a punishment of rigorous imprisonment of up to three years and/or fine.
Furthermore, it proposes amendments to Sections 354 & 354D of IPC redefining the offences of outraging of modesty, sexual harassment, criminal intent to disrobe, voyeurism and stalking have been modified to the extent that the sex of the perpetrator of the offence and the victim is irrelevant. This Bill proposes to make the offences listed under sections 376A, 376C & 376D gender-neutral as well. Apart from this, the appropriate sections of the Code of Criminal Procedure, 1873 and Indian Evidence Act, 1872 are to be amended to include the new proposed Section.
The bill has been under scrutiny for having drafting errors and being ambiguous on the definition of ‘modesty’ and ‘consent’ along with it being unclear on what constitutes an “unwelcomed actionable threat”. Apart from the vague terminology, the essence of the Bill is directed to revolutionize the offence of sexual assault by making it void of gender bias.
The current social movement for transgender rights and gender-neutral rights brings forward the heterosexuality of the legal framework and legitimization of social hostility towards gender nonconformity in India. Even though recent amendments have brought about important changes in the existing laws as a response to the growing public opinion demanding more stringent anti-rape laws but they remain heavily gender-biased. The proposed 2019 amendment seeks to revolutionize sexual assault laws and change the human perspective and provide a new dimension to the definition of rape keeping mind the current scenario of the country where men and people belong to the transgender have equal access to justice by enacting appropriate legislation to safeguard their interest against sexual assault.
About the authors
Tonoya Ghose and Shanjit Thokchom are 5th year students pursing B.A.LLb from Calcutta University.