INTRODUCTION
The debate surrounding gender neutrality in rape laws has gained traction in the 21st century due to the shifting gender paradigms in the society. Traditionally, society comprehends sexual crimes to be gender specific, that is, male perpetrators and women victims. So, the laws enforced against such crimes are also gender specific. However, the evolving gender dynamics in society and diverse sexual orientations necessitate rethinking laws for bringing about gender neutrality.
All sexual offences listed in Sections 63 through 70 (rape) of the Bharatiya Nyaya Sanhita, 2023 (henceforth referred to as BNS 2023) associate the term “victim” with women. According to Section 63, only men are capable of committing rape.[1] According to Section 76 of the BNS, voyeurism—that is, the act of witnessing a woman engage in a private act—is restricted to acts against women.[2] Even offences such as stalking are limited to the defence of women.[3] It appears that the rule mainly seeks to uphold and defend the modesty of women, showing a lack of consideration and understanding for other genders, including men and transgender individuals. Consequently, it does not affirm inclusivity with the changing gender parameters in society.
Society and law believe that women can only be victims and not perpetrators. The presupposition that males cannot be raped or sexually abused emerges from the stereotype that males are not vulnerable and that they can only be the exploiter, not the ‘exploitee’. This results in a culture of indifference in the minds of people regarding the protection of males from assault and rape crimes. Therefore, rape of males is often considered a taboo in the society.
THE UNSEEN STRUGGLE
The major flaw in this system is that the offences like rape are often restricted to the insertion of male genitalia into female genitalia, thus paving the way for blatant ignorance on such issues and further increment of cases of male abuse. In the past, Section 377 of the Indian Penal Code, which made unnatural sexual relations illegal, provided the only defence for a guy who was sexually assaulted by another male.[4] Nevertheless, there is no defence because it is no longer in force.[5]
In 2007, the Ministry of Women and Child Welfare, aided by the United Children’s Fund conducted a study to fathom the magnitude of child abuse in India.[6] The findings of the study state that 53.22% of children face some form of sexual abuse. Amongst this, the percentage of boys sexually abused was 52.94%, much larger than 47.06% of the girls. According to NCRB data, 204 boys faced brutal rape in 2018.[7] In 2018, a 17-year-old boy was gang-raped in Ghaziabad, and an iron rod was inserted in his private parts.[8] The case has been registered under Section 377 IPC. Suppose a 17-year-old can be a victim of gang rape then what guarantees a boy more than 18 years of age, as restricted by the law in rape cases, cannot experience such abuse. However, the law and society have concocted a misconception regarding sexual abuse and reduced it to a specific gender. So, most of the male survivors do not speak out about any abuse they might have experienced due to this stigma and shame attached to it.
In this regard, the recently brought up Bharatiya Nyaya Sanhita Bill, 2023, a replacement for the colonially drafted Indian Penal Code, has made an effort to bring forth amendments that may bring minuscule improvements towards male sex abuse. The legislators have revised section 366-A (which articulates punishment where a minor girl is induced by anyone to go from a place or to do any act for inducing illicit intercourse) to include minor boys under the bracket of victims.[9] Though the modifications will yield a beneficial outcome, the revision does little to address the issue of gender inclusivity. Moreover, there is no compelling basis on which cases of sexual assault of a male child are treated distinctly from sexual assault of an adult male.
There is a dearth of male sexual abuse cases on the internet because it is arduous to gather information on male experience since most cases remain unreported. But sexual abuse of men and boys happens in a much broader way than society can fathom. The filmmaker and activist Insia Dariwala surveyed 160 men and concluded that 71% of the men surveyed have faced abuse, and 84.9% have maintained silence about it.[10] The predominant reasons found in the research were shame, confusion, fear of being disbelieved, and societal backlash.
Rape and sexual abuse are crimes that have profound and enduring effects on the emotions, thoughts, and behaviour of a person. It may result in several mental health issues, including substance misuse issues, PTSD, depression, and psychosis.[11] For those groups that are blatantly disregarded, when it comes to the laws regarding sexual abuse, this trauma may be more severe.
Furthermore, there is a paucity of gender-neutral laws in India concerning the protection of other groups (like males and other groups) from sexual assault. Even though the Protection of Children from Sexual Offences (POCSO) Act 2012 protects children (under 18 years of age), there is no provision for adult males and other groups.
FROM EXCLUSION TO INCLUSION
Erstwhile, the Kerala High Court Judge, A. Muhamed Mustaque, had opined that the offence of rape be made gender-neutral.[12] He stated that a woman falsely inducing a man to establish a sexual relationship on pretences of marriage should also be prosecuted under this section. His opinion was widely criticised by experts, calling it a misogynistic view and flawed understanding of law.[13]
The Justice Verma Committee constituted to recommend changes to the Criminal Laws submitted its report in 2013 and advocated that rape is an expression of power and should not be limited to penetration of the vagina, mouth or anus.[14] The 3-member committee addressed the need for gender-inclusive laws relating to sexual offences. The 172nd Law Commission also proposed gender-neutral laws for safeguarding men. But none of those suggestions have yet been implemented.
Article 15(1) of the Indian Constitution prohibits gender discrimination on any grounds.[15] Even though women are more prone to sexual assault and rape crimes, both the society and the law should not neglect the fact that these crimes also happen to other groups. Besides, it is a fundamental right that they be given, by law, an equal opportunity to defend themselves and report any such crime committed against them.
Additionally, Article 14 guarantees to all the citizens of India, under the Constitution of India, equality before the law and equal protection of law, regardless of their race, religion, caste or gender.[16] According to this, the state must protect every citizen. Thus, it should frame laws that are more gender-neutral and gender-inclusive such that every citizen has the right to avail safety under the Bharatiya Nyaya Sanhita Act of 2023 (earlier known as the Indian Penal Code, 1860).
Many European countries have amended their laws to make them gender-inclusive. Countries like UK, Ireland, Scotland, and Wales have started to recognise the rape of males in their system. It is high time for India to make changes in the legal system to include other genders under the bracket of victims of sexual abuse.
CONCLUSION
The most backlash and opposition to the subject of gender neutrality arrives due to the understanding that such laws will leave women vulnerable and that the neutral laws will open up ways and loopholes for the perpetrators to file counter-cases against the victims. But, in the contemporary legal field, laws for the safety of women are framed so very one-sided that it has become a serious concern. Through these laws, so much power has been conferred to and wielded by one group such that these laws have become vulnerable to exploitation by another group. Law, as it is said, is a weighing scale where both sides must be equal for the deliverance of justice.
In this context, the amendments of law play a pivotal role in keeping the laws up to date with the changing dynamics of society and warranting justice. It is the epitome and the pinnacle of change. Many changes have been brought through the years to keep the laws parallel to the constantly changing world. Therefore, time demands to bring in such laws that guarantee equal protection of every group in society from sexual offences, thus ensuring a system where protection of law is equally provided and delivered.
Author(s) Name: Archita Agrawal (Rajiv Gandhi National University of Law, Patiala)
References:
[1] Bharatiya Nyaya Sanhita 2023, s 63.
[2] Bharatiya Nyaya Sanhita 2023, s 76.
[3] Bharatiya Nyaya Sanhita 2023, s 77.
[4] Indian Penal Code 1860, s 377.
[5] Khadija Khan, ‘Section 377 is gone, but some fear the proposed Bharatiya Nyaya Sanhita does not protect men against rape. This is why.’ The Indian Express (New Delhi, 16 August 2023) <indianexpress.com/article/explained/explained-law/section-377-bharatiya-nyaya-sanhita-men-rape-8890847/> accessed 7 June 2024.
[6] Subramaniyan VKS and others, ‘Silence of Male Child Sexual Abuse in India: Qualitative Analysis of Barriers for Seeking Psychiatric Help in a Multidisciplinary Unit in a General Hospital’ (2017) 59 (2) Indian Journal of Psychiatry <www.ncbi.nlm.nih.gov/pmc/articles/PMC5547862/> accessed 7 June 2024.
[7] Mukesh Rawat, ‘109 children sexually abused every day in India in 2018: NCRB’ Press Trust of India (New Delhi, 16 January 2020) <www.indiatoday.in/india/story/109-children-sexually-abused-every-day-india-2018-1636160-2020-01-12> accessed 7 June 2024.
[8] ‘17-Year-Old Boy Gangraped By 5 Men In Ghaziabad, Iron Rod Inserted Into Private Parts’ India Times (Ghaziabad, 17 June 2018) <www.ndtv.com/ghaziabad-news/5-men-allegedly-sodomise-teen-insert-iron-rod-in-his-rectum-robs-1600-from-him-in-ghaziabad-1868659> accessed 7 June 2024.
[9] Indian Penal Code 1860, s 366(a).
[10] Rituparna Chatterjee, ‘The mindset is that boys are not raped: India ends silence on male sex abuse’ The Guardian (New Delhi, 23 May 2018) <www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala> accessed 7 June 2024.
[11] Sian Oram, ‘Sexual violence and mental health’ (2019) 28 (6) Epidemiology and Psychiatric Sciences <www.ncbi.nlm.nih.gov/pmc/articles/PMC6998874/> accessed 7 June 2024.
[12] The Wire Staff, ‘Rape Should Be Gender-Neutral Offence: Kerala HC on Breach of Promise to Marry’ The Wire (New Delhi, 2 June 2022) <thewire.in/law/kerala-high-court-rape-offence-gender-neutral-promise-to-marry> accessed 7 June 2024.
[13] ‘Gender neutral rape law? Legal experts disagree, call it flawed understanding of law’ The Indian Express (Kochi, 12 June 2022) <indianexpress.com/article/india/gender-neutral-rape-law-legal-experts-flawed-understanding-kerala-high-court-7965675/> accessed 7 June 2024.
[14] Charvi Devprakash, ‘Legal Safeguards for Transgenders from Sexual Offences: The Need of the Hour’ SCC Online (1 October 2021) <www.scconline.com/blog/post/2021/10/01/legal-safeguards-for-transgenders-from-sexual-offences/> accessed 7 June 2024.
[15] Indian Constitution of India 1950, art 15(1).
[16] Indian Constitution of India 1950, art 14.
