GENDER RECOGNITION: LAW RELATED TO RAPE NEEDS TO BE MODIFIED IN INDIA

Introduction

According to the background of our country’s laws, ideologies, thoughts, etc. It is only assumed that rape can be committed only by a man against another woman. Even the law that deals with rape cases in India, clearly says that an offence of rape can be committed only by a man against a woman[1]. What about the people from the Transgender community and LGBTQIA+? These Abstractions are usually left unheard all the time. An offending scenario can be seen, where sexual atrocities among gay and lesbian are also common nowadays keeping apart sexual harassment of women. If there can be a law for the male child against sexual harassment[2] then why can’t there be a law for a male adult. The dimensions of this heinous crime have shunned the sound people of the society, even parents afraid to send their children outside after 8:00 PM in many places yet. It can be analyzed from various instances that generally the crime of sexual harassment has occurred only by the ones who are intoxicated or consumed alcohol.[3]

There is a need for an hour to change the word from “man” and “women” to every other “human being” in Indian Laws. Moreover, the word Carnal Intercourse[4] should be reinstated with sexual offences.

Changing Dimensions of Rape Laws in India

According to Section 375 of IPC, 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 de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — 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.

(Fourthly) —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.

(Fifthly) — 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.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

  • Mathura Rape Case[5]

The case revolves around the concept of Custodian Rape. In this case, a young girl named Mathura was raped by two policemen during her custody. She was a labourer and had sexual relations with her colleague Ashok and decided to get married. Her family members filed an FIR of kidnapping. Afterwards, all the family members including Ashok were presented at the police station. Two policemen Ganpat and Tukaram asked Mathura to stay back. After 10:30 PM, everyone stepped out and both officials raped her one by one. 

It was held that the act was a “peaceful affair”. Moreover, the session court, as well as the supreme court, used the term “Habitual to Sex” for Mathura and used the term gentlemen for both police officials. 

This shows the double standards of the judiciary against rape cases which should be solemnly criticized. As a result, the judgment has taken a pace and was criticized by the whole country which resulted in the introduction of the Criminal Law Amendment Act, 1983. This amendment has given sole materiality to the consent of the women.

  • Nirbhaya Rape Case[6]

The case revolves around a girl being raped by 6 males, one of them was a minor aged 17. 16th December 2012, one chilly night of December, a girl with her friend was waiting for the bus. Later, the girl was brutally raped, she was raped up to an unimaginable extent. Later she has died of multiple organ failure and the boy with her was beaten up badly. 

After 7 years of struggle, all three rapists were hanged till death, one attempted suicide during the proceedings and the other was presented before juvenile justice court. This led to the introduction of the Criminal Law Amendment Act, 2013 which made laws on rape more stringent. New provisions were added in section 370 which deals with the offences of stalking, acid attack, voyeurism, sexual harassment. Justified minimum punishment of 7 years and maximum punishment of life imprisonment. Moreover, the definition of rape got changed, likewise 

 Section 375 – Under the new section, a man is said to commit rape if there is:

  • Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  • Insertion of any object or any body part, not being a penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  • Manipulation of any body part to cause penetration of vagina, urethra, mouth, or anus or any body part of such person or makes the person do so with him or any other person;
  • Application of mouth to the penis, vagina, anus, urethra of another person or makes such person do so with him or any other person;
  • Lastly, touching the vagina, penis, anus, or breast of the person makes the person touch the vagina, penis, anus, or breast of that person or any other person.

All the recommendations were wholeheartedly accepted by the country but the crime didn’t stop. 

  • Kathua Rape Case[7]

The case revolves around an 8-year-old girl raped in a temple and kept there for about 11 days, raped continuously, and killed afterwards. This heinous crime led to the introduction of the Criminal Law Amendment Act, 2018. According to this, for the 1st time, the Death penalty has been introduced by measuring the gravity of the offence. This amendment has also inserted several provisions related to the punishment of the offence. The keen amendments were made in 

  • The Indian Penal Code, 1860 – Regarding punishment
  • The Code of Criminal Procedure – Regarding speedy trial, granting of Bail
  • The Protection of Children from Sexual Offenses Act, 2012 – Regarding rape against children
  • The Evidence Act, 1872
Changing dimensions of Rape Worldwide 

Firstly, rape was only be seen as a crime against women by a man, later in the years of 2000, the offence can be traced against men by another man or a woman. But there are no gender-neutral laws in our country for the offence of Rape. If a man tried to come up and showcase the offence from a different point of view, it would question his “Masculinity”. The so-called double standards of us Indians. If we look upon the rape laws of some of the developed countries like the United States of America and the United Kingdom, they have already made gender-neutral laws on rape, decades ago. The US uses the word “person” and not “women” and criminalizes every type of penetration against consent as illegal[8]. The United Kingdom changed the definition of rape as “it is an offence for a man to rape a woman or another man”[9].

Conclusion

The Indian Legislation looks upon the serious issue of Gender-neutral laws negligently. Everyone used to mock the concept of Male rape. If a male child can be raped then why can’t a male adult can be raped? The offence of rape has been classified as gender-neutral in some countries whereas women dominated in other countries. The punishment of the crime should be as brutal as the commitment of crime is, no matter, which gender belongs, which group belongs, which society belongs.  It should be on the principle proposed by AV Dicey of Rule of Law which laid down three basic principles: 

  • Equality before law
  • The predominance of Legal Spirit
  • Supremacy of Law [10]

The offence shouldn’t leave behind the people from the transgender community and LGBTQIA+ community. Because the words of Justice Krishna Iyer –  ‘a murderer kills the body, but a rapist kills the soul’[11]

Author(s) Name: Ashi Singhal (IMS Unison University)

References:

[1] Indian Penal code, 1860, s 375

[2] Protection of children from sexual offences act, 2012

[3] Antonia Abbey, Tina Zawacki & Pam Mcauslan ‘Alcohol and Sexual Assault’ 2001;25(1): 43-51 National Institute on Alcohol Abuse and Alcoholism <Alcohol and Sexual Assault (nih.gov)> accessed 15 March 2022

[4] Indian Penal Code, 1860, s 377

[5] Tuka Ram And Anr vs State Of Maharashtra 15 September 1978, AIR 185, 1979 SCR (1) 810

[6] Mukesh & Anr vs State For Nct Of Delhi & Ors 5 May 2017

[7] Mohd. Akhtar vs The State Of Jammu And Kashmir 7 May 2018

[8] Art 120 Rape and Sexual Assault Generally, (Legal Information Institute) <10 U.S. Code § 920 – Art. 120. Rape and sexual assault generally | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)> accessed 15 March 2022

[9] Rape and Sexual Offences – Chapter 7 Key Legislation and Offences(The Crown Prosecution Service, 21 May 2021) <Rape and Sexual Offences – Chapter 7: Key Legislation and Offences | The Crown Prosecution Service (cps.gov.uk)> accessed 15 March 2022

[10] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (3rd Edition, A.V. Dicey 1889) Part 2, Chapter 4, Page No. 171

[11] Rafiq vs State of  UP 14 August 1980, AIR 559, 1981 SCR (1) 402

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