“The only stable state is the one in which all men are equal before the law.”― Aristotle
The constitution of India is the supreme law governing the country to provide certain Fundamental Rights to the citizens, one of them being equality before law and equal protection of law. However, on the other hand there are certain provisions of IPC which are biased and consider only male as the perpetrators and women as victims. In the 21st century when we talk about equal opportunity to every section of society why not such laws where each person ahead of their gender shall be protected.
According to Merriam-Webster ‘RAPE’ is defined as unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception. Even international law has evolved and view rape as penile-orifice and then to penetrative-orifice, all within a non-consensual context. The impulse to view the rape as exclusively that of a man violating a woman does an injustice to the male who suffer. In our society male are considered as perpetrators which makes it difficult for male victims to report any sexual assault. There is a need for the amendment to bring the law which protect everyone ahead of their gender. Gender-neutral laws are the laws that do not specify who the perpetrator is and give equal right for protecting one’s identity.
PSYCHOLOGICAL EFFECTS OF SEXUAL ASSAULT
“Unexpressed emotions will never die. They are buried alive and will come forth later in uglier ways.”
In a society we live in women are only considered as the victim of any sexual assault, not male if argued people give reasoning that men are strong and are capable of protecting themselves from such situation. Men are considered “tough” and “strong”, and the one who not displaying weakness or vulnerability. Myths are the obstacle that real men don’t get raped which makes it even more difficult for the victims to come up with it. However, it does not change the fact that they need to be protected. The people who went through the trauma of being assaulted can’t get past it and they suffer in silence. There are chances of post-traumatic stress disorder and depression; suicidal thoughts and suicide attempts; problems in intimate relationships and alcoholism and drug abuse. There is a possibility that the people who went through such situations end up doing the same to others so as to take revenge. Not being able to get justice is the pain which is beyond our understanding.
GENDER NEUTRAL LAWS IN DIFFERENT COUNTRIES
In Scotland, by “Sexual Offences (Scotland) Act, 2009” there has been changes in their rape laws and are redefined it as:
“The intentional or reckless penetration of the penis (to any extent) into the vagina, anus or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained”.
The term “women” was replaced by “person” to include the male victims in the ambit of definition. Common law countries and Civil law countries like the USA, Canada also attempted to make their rape laws gender-neutral so as to protect the rights of the males as well. Definition of rape as per (United States Department of Justice, 2012) is:
“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
Canadian government in the year 1983 passed “Bill C-127” that abolished offence of rape and provided three graded categories of sexual assault. Aligning with US laws, Canadian Law also recognizes penetration through object constitutes rape and penile penetration cannot be the sole ground for the offence of rape.
INDIAN LAWS FOR RAPE
The Justice Verma Committee Report, 2012 favored gender-neutral laws and even the Criminal Law (Amendment) Ordinance of 2013, upheld the committee’s view. However, after 58 days the bill was repealed and replaced by The Criminal Law (Amendment) Act, 2013.
In India, the laws related to rape, stalking, voyeurism and sexual harassment are gender specific i.e. the perpetrator can only be a man. Section 375 of IPC stated that “A man is said to commit Rape…” which means that men can never be a victim in case of rape. This arises from the assumption that rape is an act of sex alone to satisfy the sexual desire of the perpetrator. The only question that is to be asked is why perpetrator is gender specific in our law. On 16th June 2018, a 20-year-old boy had to endure the sexual assault by five men in Ghaziabad and a foreign object was inserted into his rectum but because our law does not account for such offence, the case was registered under section 377 of IPC rather than section 375. Article 15 states that, “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. But, Article 15 (3) states that “nothing in this article shall prevent the State from making any special provision for women and children”, we know that women in our society are the most vulnerable. But this does not change the fact that male rape victims should also be protected and be given equality to be heard. Though there’s POCSO (“Protection of Children from Sexual Offences”) for the sexual assault of male child such provision does not exist for an adult male.
When the Supreme Court of India in 2018 declared Section 377 to be outlawed, various questions remained unanswered. In India, the only way to get justice on men’s rape is through Section 377 of the IPC, which does not regard it as a rape. With the recent amendment to Section 377 of the IPC, consensual sex between men is decriminalized but non-consensual intercourse is considered to be sodomy or coercion. Rather of treating it as a heinous crime of violence, it just finds it a coercion.
“I was raped by six drunken men. They verbally abused me for being a homosexual, and took turns filming the whole thing,” he says. Confused, ashamed and angry, Vinodhan did not even seek medical help. “I thought everyone would blame me for hooking up,” he says. “I did not know how the police would treat a gay man.” (Menon, P.)
This is one of such cases which we come to but there are hundreds of others which remain unnoticed. Because of the non- availability of gender neutral laws, there is a grey area so many cases go unreported or even the offender gets minimal punishment. Even a PIL was filled in Supreme Court by Rishi Malhotra in the case Rishi Malhotra v. Union of India to make rape laws gender-neutral which was dissmissed by the court.
RESSISTANCE TO GENDER NEUTRALITY
Gender neutral laws have largely been criticized by giving various arguments. Some of them being: The society we live in is a patriarchal society which means men have the primary power and are the one who dominates. So having the same law to govern both is not possible. People consider rape to be only penile- vaginal penetration so being raped by a women is physically impossible and proving a male’s accusation against a woman, would be difficult to prove which increases the chances of registering false case. The centre has given the explanation that the legislation is there to check the increase in sexual offences against women and there is no need of alteration in section 375.
With the progressive evolution in the socio-legal framework, there is a need to evolve the law as well.
Nature has divided the human body as the male body and the female body, which has a justification for continued development and growth of nature. Justice would be served if instead of turning our heads from the victim on the basis of gender, we should give equal opportunity by keeping aside gender of the victim and perpetrator.
As the law affects the society it should be in compliance with the society. India, the world largest democracy with the lengthiest constitution provides the right to equality, provides social justice but on the other hand, there are certain provisions of IPC which are inclined toward one gender and it is a matter of concern for the judicial system. With the change in time, the law must change itself. No one can deny the fact that, although Indian society is patriarchal based there might be chances that gender-neutral law can be misused but this is not at all valid reason to not make law gender neutral. It can be concluded that the nation has arrived at a point where gender neutral laws have become a necessity.
This article has been authored by Anchal Raghuwanshi and Aashutosh Jagtap, Student of Dharmashastra National Law University, Jabalpur.
Also Read – Marriage – Is It A Licence to Rape in India