Gender Neutral Laws for Rape

A crime as heinous as rape has a restrictive definition in the Indian Law. Section 375 of the Indian Penal Code,[1] defines what and what not comes under the ambit of rape with its seven coded situations. The general notion of the crime being only against women has led to it becoming gender-centric and not cause-centric. The nation has arisen to fight on several instances to protect women and bring them justice by punishing their culprits which have led to a lot of amendments in the section itself to acknowledge the grievance but somewhere in this fight to protect women, we’ve stopped addressing how crime is not gender-based.

The rape laws in India are not gender-neutral which highlights the fact that how man rape or transgender rape is not yet recognized by the legal framework. The Sexual Harassment of Women at Workplace Act came into force in the year 2013 being superseded by the Vishakha Guidelines which were promulgated by the Supreme Court in the year 1997. When Section 9 in Chapter IV of the Act describes the lodging of complaint about sexual harassment at the workplace, it writes down “any aggrieved woman”.[2] When Law talks about equality in its Constitution, is it not necessary to showcase the same promise while framing laws affecting the same citizens who expect that equality?

A fight against beliefs

India possesses a strong masculine custom wherein the patriarchy instilled in its roots negates the idea of the possibility of such heinous crime being done against men. We’ve heard some prominent lawyers remark and criticize the idea of making the rape-laws neutral proposing that ‘it may make the judge’s job difficult to find the truth in these cases and as such there have been no reported cases of women raping men. ‘A country where a boy since his birth has been trained not to deter his masculinity should not expect men to come out and report their bruises when for all they know there exists no codified law to protect them. When it comes to making the judges’ law difficult altogether by making the law gender-neutral, with more than 2.5 lakh pending cases dealing with rape, the country should not be proud of its restrictive growth in justice anyhow. We expect the learned to grow out of the social norms when it comes to justice and seek the refuge of what is right and what is wrong but when the protectors of law themselves fail to recognize the problem, the patriarchal thoughts are nowhere to be blamed. 

Vulnerability is not gender-bound. Grown-up males can fight against perpetrators is just too strong a belief to be true here. If at one point the law talks about fraud and coercion that may be imposed to get an act done against will, how can the same possibilities are ignored when it comes to abuse. The social prestige in dealing with emotional trauma has been so forced upon men that we just believe that the emotional and physical trauma is easier for men to deal with as against women. How do we not blame ourselves as a society who has somewhere doubled the trauma by constantly teaching them to be ‘strong’ and ‘fearless’, how hypocrite can we be to centralize equality only when it comes to the upliftment of women, how are the ‘feminism’ explanations justified when we demand equality selectively in this country. It’s not about against whom is the crime mainly focused or which gender forms the major part of the victims, it’s about the crime, that it exists and it’s growing.

The Preamble to the Constitution says “We the people of India” and not “We the men and women of India”. Some segregations have long formed the basis of inequality and justice should not be a part of it.

Transgender rape

Widening the crime to incorporate transgender, the punishment for rape against any citizen of the transgender community is six months to two years according to Transgender Persons (Protection of Rights) Bill as against seven years or more against cis-gender women. The Blind-folded lady of justice does not use her balance to weigh the trauma and how it differs from gender to gender.

When in 2017, a transgender woman approaches a doctor after being brutally gang-raped, she is asked, ”How is this possible?”[3] For some reason, Biology as a subject fails to address the answer in this country. Trans phobia in the medical community and ignorance of physical abuse against transgender is quite evident. The stigma that is attached to the community since their birth is not unjust enough to question their victimization in such cases. Human Rights shouldn’t belong fought for. This community had to fight to be with a person of their choice when it should have been their right from birth. Mocking at sexuality which does not correspond to the idea of being ‘normal’ is not what the Indian Culture teaches us. The term ‘gender’ itself is not limited to “male body” or “female body” and is not normative in this regard.

Conclusion

India as a society is tied in various beliefs and norms which the people try hard to be free from. The law prevalent in a country keeps in mind the situations and the general norms of the society before framing the laws. The basic requirement revolves against the fact the country can’t be divided into communities when it comes to dealing with a crime and can only be addressed against which forms the major proportion. Some laws are to be framed fighting against the roots because somewhere the same roots prevent the country to welcome advancement and change in thoughts by accepting facts. It is equality that we are dealing with here and that shouldn’t be just granted but held with pride. Again it’s more about the cause and less about the gender.


[1] Section 375 says, “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scription:

First -Against her will.

Second – Without her consent.

Third – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourth – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

Fifth – With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixth – With or without her consent, when she is under sixteen years of age.

[2]Section 9 says, ”Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within three months from the date of the incident and in case of a series of incidents, within three months from the date of the last incident.”

[3] https://www.ovc.gov/pubs/forge/sexual_numbers.html

Shailza Agarwal from Symbiosis Law School, Noida

You can find her here

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: