Exploring the plausibility of Gender Neutral Rape Law in India

In the year 2002, the Law Commission in its 172nd report recommended for a new law on sexual assault and deletion of Section 377 of the Indian Penal Code. This shifted the discourse on the Rape Law amendment to a plea for complete gender neutrality of the rape law for the victims and violators alike. This essay is an attempt to analyze the arguments centered around this recommendation. Here, I aim to draw a trajectory of amendments, suggestions, discussions, and debates that took place in the academia and policy research institutions within the country but sadly failed to make a way in the Parliament.

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Flavia Agnes in her publication titled ‘Law, Ideology and Female Sexuality’ argues against this 172nd report given by the Law Commission. She claims that underlying this recommendation is a presumption that a crime like rape can be merely desexualized or ungendered by a stroke of a pen. She further defines rape as “a conscious process of intimidation by which all men keep all women in the state of fear”. This definition further concludes that rape is a means through which the societal hierarchy of power relations is maintained and nurtured in a gendered society. The anti-rape campaign pioneered under the Women’s Movement does not only focus on sexual violence as a crime in itself but aims to situate it in theories of dominance, subordination, and subjugation of women. However, in order to gain an understanding of the complexity of the issue, we shall summarize and trace the history of rape law reforms in India.

Tracing the history of Rape Law Reforms:

The myth that when a woman says ‘no’ it indirectly means ‘yes’ was challenged after the Mathura Rape Case, 1983 by shifting the burden regarding consent to the accused while the prosecution was burdened to discharge the proof of sexual intercourse. However, the post amendment the court procedures continued to be equally horrifying, lax, and corrupt. The courts expressed great concern and sympathy to ‘young offenders’ and ‘ first offenders’ by awarding them less than the minimum prescribed punishment of year, thus making a mockery of the ‘theory of deterrent punishment’.

Late 1990 saw the emergence of issues that pressed for legitimacy and recognition. The first being cases of sexual assault in domestic spaces on children which further became a child rights issue. In 1993, the National Commission responded to this through the bill titled ‘Sexual Violence Against Women and Children Bill’. The bill further advocated the deletion of Sections 354(violating modesty), 375 (rape), 376(punishment for rape), 377 (unnatural offenses) of the IPC, and brought them under the banner of ‘sexual assault’. The bill challenged outdated language and intent of these sections and further recognized the unique character of sexual assault on women and children as a violation of their fundamental rights.

The bill advocated for a general shift in the onus of proof in all cases on victims and challenged the reliance on tracing the sexual history of the victim as a factor to be considered for convictions. It also suggested the preventive measures necessary to evade further traumatization of minor witnesses during cross-examinations. However, nothing further came out of it and it layed dormant for almost a decade.

Understanding the ‘he’ and ‘she’ in the Indian Rape Law Reforms:

The 1990s witnessed a conflict of interest between two marginalized and vulnerable groups; both situated across the conventional gender divide, within the scope of the controversial S 377. However, it is significant to note that a voice lacking in this political debate was that of lesbians who lacked access to public domains not due to their sexual orientation but due to their female gender. Their oppression was confined more within the ‘private’ domains. In an environment where sexuality and sexual pleasures are defined in masculine terms of penetrative sex, their concerns remained at the periphery even within the radical forum of ‘sexual minorities’.

During the same period, a writ petition was filed in the Delhi High Court when a government high ranking official was charged for sexually abusing his six-year-old daughter. The acts included fingering and oral sex. However, the police failed to charge him under S356 and instead registered the complaint under S377. The mother of the child hence filed a writ petition only to be rejected by the court that insertion of anything into the vagina would only amount to ‘violation of modesty’ and imprisonment for up to two years. The court further remarked that if the law really decides to look into such matters then it should consider defining the offense in general neutral terms. They further quoted that ‘Men who are sexually assaulted shall have the same protection as that of female victims and women who are sexually assault men or other women should be liable of conviction as conventional rapists.”

This judgment further led to the 172nd report in the year 2000 wherein the Law Commission suggested making rape laws ‘gender-neutral’. This recommendation was met by strong criticisms by some of the feminist scholars and lawyers. They argued that throughout the decades of women’s struggle not a single case of reversal of gender roles, in the realm of sexual abuse has ever been surfaced. On the contrary, the core concern has been sexual violations by men, not only of women but children-both males and females and other men. This equality model has been further criticized by Martha Fineman who commented that “reformers often can and do create new and even more complex difficulties through ill-considered strategies which they seem inevitably to employ when using the law to attempt to construct a more ideal society.” Such women groups further argued that the concern is to take the rape and to take the offense beyond the patriarchal parameters of peno-vaginal rape which can be brought about without invoking the principle of gender neutrality.

Tracing it to the recent times, the recommendations of the Law Commission never translated into a legislative amendment up until 2012, when the Criminal Law (Amendment) Bill,2012 proposed a completely gender-neutral definition of rape. However, the Note of Dissent given by two members of the Council of States described the adoption of such a completely gender-neutral law as demeaning and trivializing the number of rapes conducted by men on women. Indra Jaising, a prominent Senior Advocate in India, called this move as “unacceptable since rape was always to be characterized as a crime constitutive of patriarchy and therefore, gendered”.

Further is an insight into the arguments and views presented by human rights groups, transgenders, and members of the queer font who apprehended the repealed bill. They held that a gender-specific definition of rape worded in terms of men and women reflects a binary understanding of gender. The characterization of rape is a product of a property-based positioning of women in society, wherein their chastity constitutes a valuable treasure of importance. Hence, instead of relying on the honor or chastity of the victims, rape is to be viewed as an act of sole violation of the victim’s bodily integrity; a simple denial of his/her sexual autonomy. Conceptualizing rape only as a violation of the victim’s bodily integrity lends support to its characterization as a human rights violation, which ensures that the victim’s social positioning is not contingent on the crime inflicted on one’s body but rather an entitlement to their bodies. Hence, an imperfect social structure plagued with patriarchy is no reason to disregard the idea of gender neutrality of rape laws as the entitlement of human rights is not contingent upon the cultural or legal context of a society.

Likewise, in its recommendations to the Justice Verma Committee, Alternative Law Forum recommended that the conceptualization of a rape victim be broadened from a ‘woman’ to a ‘person’. The Forum acknowledged that sexual violence is always gendered. Thus, it is not only women who are but those found transgressing the boundary of gender subjected to sexual assault that includes transsexuals, hijras, kothis, effeminate gay men, and all those who violate the social codes of gender. In the context of male victims, there is an anti-masculinity stigma attached to any form of sexual assault, discouraging them to report incidents of victimization. In a patriarchal society, this creates a popular but unfolded perception where men who are raped are rendered female by it. Thus, the social constructs of patriarchy also discourage men from registering complaints. Hence, though the instances of sexual assaults beyond the traditional notion of rape will be few in comparison to the general male-female paradigm, the potential size of such a class of victims likely to benefit such gender-neutral reforms should be irrelevant in the discourse of law. The gender-neutral reform proposed thus, according to Human Rights supporters does not undermine the gendered history of rape but transgresses the conventional binary of the male-female paradigm while addressing the victim and violator/s of the crime.

We all realize that rape is an act of power. However, we cannot fail to admit that in a single interaction power may operate in multiple, interesting, and competing ways. It becomes necessary to understand that to construct the interplay between a rape victim and a perpetrator and to identify the power differentia solely on the basis of their gender is rather too simplistic.

Contributed By- Mansi Bhalerao, Content Writer @ Mitti Ke Rang

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