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NEED FOR GENDER-NEUTRAL RAPE LAWS IN INDIA

INTRODUCTION

The increasing number of cases of rape have shaken all our nerves. The victims are harassed very brutally by the criminal(s) and time and again our laws have been proven ineffective in protecting the victim. Rape as interpreted by our Indian Penal Code[1] is a crime that can be done only by a man on a woman. This definition[2] does not include the transgender community, men, and other sexual minorities not including women. Is it so that only women are the victim of rape and not men? Or is it that the transgender community doesn’t need any protection from such heinous crimes? Or is it so that even after years there has been no need of formulating any such legislation which will protect rape victims other than women? The definition of rape under section 375 IPC[3] begins with a man who is said to commit rape if he has sexual contact, even though rape will only be perpetrated by a man against a woman. This part has been revised numerous times, but it remains tethered to the old belief that the victim is always a woman, and the abuser is always a male. Previously, this clause only applied to acts of sexual intercourse, but due to the effects of several horrific criminal offences, it was altered to broaden its reach. As all citizens are entitled to the right to equality under article 14[4] and article 15[5] of the Constitution which also guarantees that there will not be any discrimination based on caste, class, gender etc. This legislation makes a class according to the gender of the victims and thus violating their right to equality guaranteed under the constitution.

Moreover, the Apex Court instructed the Law Commission to examine this issue in Sakshi v Union of India,[6] and the 172nd Law Commission’s report[7] was produced as a result. The research proposes reforms to the CrPC, IPC, POCSO Act and the Indian Evidence Act to make rape laws fairer. This report expanded the definition of rape by establishing that the lack of bodily resistance is non-existent whether or not it is rape. This study further broadened the reach of Section 376 of the IPC [8] to include members of the military, family, guardians, or any other person in a position of responsibility, as well as rape performed during communal strife and rape of a woman under the age of 16 years. Later, Parliament passed the Criminal Law Amendment Act, 2013,[9] which included the J. S. Verma Committee’s[10] recommendations. However, the committee’s suggestions to make rape laws gender-neutral was not included in the Criminal Law Amendment Act of 2013, rendering the Act gender-specific again, only safeguarding the interests of women, not males or transgender people.

TENTATIVE REASONS FOR ASSAULT

  1. PATRIARCHAL TENDENCIES

Most of the sexual crimes committed especially on the men go unreported because men portray themselves to be the head of the family where they are unable to display their emotions. Moreover, it is assumed in our society that men are powerful enough to save themselves from any such sexual or rape circumstances and only women are vulnerable who need protection by the legislature. [11] Patricia Novotny, who is an established lawyer who has researched gender studies, brings out the inconsistency in today’s gender-neutrality terminology.[12] It is no longer news whether women hold public office, fly planes, or participate in sports; but it is more difficult for men to be integrated into society if they begin to exhibit female qualities. Men who buy groceries are given cold looks, while men who help with household chores are ridiculed by their peers. As a result, regardless of gender, gender-neutrality offers masculinity to everyone. This concept empowers women in sexual interactions, but the negative is that men may not always be interested in sex, and if they do so unwillingly, they may injure themselves.[13]

  1. DISCRIMINATING MINDSET

In my opinion, the transgender community is the most neglected community which is needed to get recognized. They face discrimination everywhere they go, even in these laws. A survey was conducted on 5000 transgender people in which they admitted that 1 out of every 5 has witnessed discrimination, molestation and instances of sexual assault once in their lifetime.[14]  Laws are not protective enough to safeguard the interests of the transgender community. For instance, in the transgender community bill, the punishment for sexual assault on a transgender is a maximum of two years but if the same is committed on a woman, then it is a ‘minimum’ of 10 years.[15]

  1. ROLE OF THE MEDIA

There is no doubt that the media’s presentation of gender roles influences the social conditioning of our society today. Men are rarely depicted as sexual abuse victims in mainstream media. Even if they are, they are depicted as the perpetrators of their abuse. This type of social indoctrination is widespread, particularly in countries like India, where it is stated that three things affect Indians: weddings, cricket and of course ‘movies’. In 2017 research titled “The Irresistible & Oppressive Gaze,” Oxfam India argued that films have negative effects on Indian youth.[16]  According to the survey, sexist humour was used in 86 % of Indian films.[17] Misogyny and violence against women are frequently addressed through comedy. Pururience, sexual jokes (the movie “3 Idiots, 2009”), derogatory stereotypes of women and queer people (“Pyaar Ka Punchnama, 2011”), and overt sexual assault (“Kambakkht Ishq, 2009”) were amongst the things that are meant to be amusing in Indian cinema. Men are in a comparable situation, where male molestation is regarded as a hilarious thing (“Badrinath Ki Dulhania, 2017”) and a man choosing some other man as a life partner is regarded as a degradation (“Zero, 2018”).

As a result, the stereotyped picture of a patriarchal guy who is hypersexualized and without empathy is perpetuated through the representation of men in Indian films. Therefore, mass media plays a critical part in our society’s social indoctrination. There is an urgent need to train society in a way that is accommodating of all genders, as well as to educate filmmakers on how to avoid stereotyped gender depictions in films and commercials.

OPINIONS AND RECOMMENDATIONS

Firstly, according to the current situation and a review of numerous laws, it may be determined that as society evolves, there is a need to formulate gender-neutral laws. Sexual harassment is, in essence, a crime that can happen to anyone since it is more about authority or power. Sexual harassment can be perpetrated by someone who is powerful to you or who works under you and has the potential to humiliate you. The belief that only women may be victims and that males will always be attackers should be eradicated from society’s attitude. To preserve the constitutional system, the government should pass gender-neutral rape legislation. Secondly, the law is nothing more than society’s shared intents, gender sensitization of the entire criminal justice system and the updating of legal techniques for investigating agencies is a must. For a society to be open in spirit, diversity and inclusivity sensitization must be instilled not just in concept but also in behaviour. Last but not least, making legislation and equipping police officers is the most a legislature can do; meaningful reform will only occur when the people’s unified spirit reflects the same.

CONCLUSION

It is high time for the lawmakers to take cognizance of the situation because without their intervention nothing will get good rather the situation will become worse day by the day. Many assumptions about rape in society have been examined in this research, and the unavoidable consequence is that the need for gender-neutral laws of rape and sexual assault law in India is not only urgent but also essential. On the face, patriarchy appears to be beneficial to men, but in truth, it hurts them.  A crime’s penalty should be as horrific as the crime itself, and it should not be limited to a single class; it should apply to all citizens, regardless of gender. Suffering is incomparable; it affects everyone in the same way. Whether male, female, or trans, the survivor experiences the same bodily, psychological, and psychic suffering. Due to the usage of gendered language, a male cannot pursue a case of rape against a woman. The gendered terminology indicates that a man cannot claim sexual assault by a woman because the definition of rape states that it can only be done by a male, as seen by the word “his” in the definition.

Author(s) Name: Anchal Kanthed (Nirma University, Ahmedabad)

References:

[1] Section 375, Indian Penal Code, 1860

[2] Ibid.

[3] Supra at 1.

[4] Article 14, India Constitution.

[5] Article 15, India Constitution.

[6] 2004 Supp (2) SCR 723.

[7] Lawcommissionofindia.nic.in. 2021. LAW COMMISSION OF INDIA. [online] Available at: <https://lawcommissionofindia.nic.in/rapelaws.htm> [Accessed 18 September 2021].

[8] Section 376, Indian Penal Code, 1860.

[9] The criminal law (amendment) Act, 2013.

[10] J. S. Verma Committee, 2021.

[11] Gillesp ie, A., 2021. J. Temkin Rape and the legal process. 2nd edition. Oxford: Oxford University Press, 2002. ISBN 0198763557, 424 p.

[12] Patricia Novotny, Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance? (2002) 1(3) Seattle Journal for Social Justice 62

[13] The Indian Express. 2021. Crimes of exclusion. [online] Available at: <https://indianexpress.com/article/opinion/columns/crimes-of-exclusion/> [Accessed 18 September 2021].

[14] What does transgender mean and what does the law say? BBC NEWS, 10 June 2021, Available at: <https://www.bbc.com/news/explainers-53154286> [Accessed 18 September 2021].

[15] Transgender Government has passed the Transgender Persons (Protection of Rights) Bill, 2019, Available at: <http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/169_2019_LS_Eng.pdf>.

[16] Oxfam India. 2017. The Irresistible & Oppressive Gaze INDIAN CINEMA AND VIOLENCE AGAINST WOMEN & GIRLS. [online] Available at: <https://42kgab3z3i7s3rm1xf48rq44-wpengine.netdna-ssl.com/wp-content/uploads/2019/12/Creating-Spaces-Impact-of-Films-on-VAWG-Research.pdf> [Accessed 17 February 2022].

[17] Id.