The Case for Gender Neutrality in Rape Laws

Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age".

The exception is marital rape – any such sexual intercourse between a man and his adult wife cannot be construed as rape. Besides this exception, the definition in the law itself stands in clear violation of the right to equality before law and equal protection of laws, and the right of non-discrimination on grounds of religion, race, caste, sex or place of birth.

India's rape definition denies anyone who does not identify as a woman the right to seek justice in a court of law as a survivor of rape. In times when conversation has moved so far beyond gender binaries, and to be gender fluid is an accepted social norm, it is an utter shock that the above law completely ignores any potential rape victim not identifying as a woman.

In that sense it is reflective of age-old patriarchal notion of "women" being the weaker sex, who can be molested and twisted around as per the whims and fancies of a "man".

The inability of the legal system to even consider women as perpetrators of rape is also reflective how the society views a sexual relationship, where it is always the (and only one) man who is viewed as the more dominant entity, rather viewing individuals as equal partners in sexual intercourse.

Moreover, the legal protection provided to marital rapists again reinforces age-old gender stereotypes, and enforces a violent regressive idea of what marriage ought to be.

In complete disregard of gender rights, the law does not acknowledge rape incidents involving individuals from LGTBQI+ community, who are segregated instead into relying on Section 377. The Supreme Court partially struck down this section, decriminalising consensual homosexual acts, but it continues to apply to cases of forced sexual intercourse involving two men. Unlike Section 375 however, the burden of proof lies with the complainant and not with the accused.

And, both sections completely ignore instances of rape in the trans community. This coupled with the recently implemented Transgender Persons (Protection of Rights) Act, 2019, which only permits light punishments for crimes of physical and sexual assault against trans people (unlike the protections won by cisgender, heterosexual women) and also disallows a self-perception of gender identity, reflects a rather crude and insensitive understanding of gender in the country.

There are three common arguments often presented by activists against the issue of gender neutrality in rape laws. The first is the historical oppression of women which makes it necessary to provide them with compensatory special protection as far as laws against rape are concerned. The second is based on statistics, where it is often heterosexual men who are perpetrators of sexual violence against heterosexual women. The third is that amending rape laws to be gender neutral would leave them open to misuse against women, who are more often than not the targets of rape.

Firstly, historical oppression and statistical analysis can be a valid argument as far as affirmative actions are concerned, wherein the marginalised groups are granted reservations in employment, education and legislature. But they cannot be a reason for non-recognition of crimes – however small in number they may be – committed by an individual from a historically oppressed community against a historically oppressive one. Proponents of this argument are also oblivious to crimes against trans people, who have suffered historical oppression and ostracization as well.

The argument regarding misuse and filing of counter false cases is a serious one as it can be used as an avenue to harass the victim and arm twist them to withdraw their complaint. But false accusations are not exclusive to this section, and in themselves are dealt with under the relevant sections of the IPC or as required through a separate legal or executive action. Even in the present gendered context, a false rape allegation can be filed. In false allegations, it is often the process that becomes the punishment for the accused. The need of the hour is to strengthen the mechanism to detect and dismiss all false cases at the very outset, also reducing the courts' burden.

Gender neutrality in rape laws was one the recommendations of the 172nd Law Commission in 2000. The committee chaired by Justice Verma, constituted after the Nirbhaya gangrape, also recommended various amendments to make rape/sexual assault laws gender neutral. However, the Criminal Law (Amendment) Act 2013, enacted on the basis of the committee's report, did not incorporate these recommendations.

More than 60 countries in the world have gender neutral rape laws, and it's imperative for the world's largest democracy to have them too. A single law that applies to all genders and describes rape as a crime by one human against another, and not just by a man against a woman, will surely lead to a more just and egalitarian society.