The Debate Around Making Rape Laws Gender Neutral
The Kerala High Court on Thursday made a rather strange observation: while ruling upon a marital dispute, the court noted how women are not prosecuted for reneging on a promise to marry, while men are.
“If a woman tricks a man under [the] false promise of marriage, she can’t be prosecuted, but a man can be prosecuted for the same offense. What kind of law is this? It should be gender-neutral,” said Justice A. Muhamed Mustaque, according to a Live Law report.
The debate around making sections of the Indian Penal Code, pertaining to rape gender-neutral, has been on for a while. Some argue that its gender-specificity excludes men (cis and trans) as victims of rape and women as perpetrators; others argues that gender neutrality would dilute the protections available to women. The Kerala High Court’s observations fall into an uneasy space where the systemic violence and marginalization against women is undermined, but still raises an important point, albeit unwittingly, about the other gendered forms of harm that rape can include.
The crux of the issue lies in two anxieties: one, how can the law recognize all survivors of rape (including non-heterosexual people); the second, and arguably trickier, how to legally recognize women as perpetrators of violence too.
Arguments in favor of pushing for a gender-neutral law go as far back as 2000, when the Law Commission opened up the conversation on rape laws by recommending that the offense of rape be made gender-neutral. Their recommendations included “widening the scope of the offense in section 375 and to make it gender-neutral.”
These arguments further came to a head during the Justice Verma Committee’s deliberations in 2013, after the gang-rape of Jyoti Singh, a paramedical student who succumbed to horrific injuries from the assault. The Committee then went on to recommend that the rape victim be made gender-neutral, but not the perpetrator — “who would be assumed to be male except in cases of custodial rape or rape in the context of a clear power-differentiated situation. That is, women in authority or with custody over others could be accused of sexual assault/rape.”
The legal amendment that followed didn’t adhere to this recommendation, but it did expand the scope of rape itself to include non-consensual penetration digitally, orally, or by any other object. The shift away from an overwhelming focus on the penis as essential to establishing rape was the closest we got to a law that recognizes other forms of sexual violence.
The fear around neutrality was, and continues to be, that making perpetrators gender-neutral would open up ways for counter-cases against survivors who speak up, and goes against statistics showing how men are overwhelmingly perpetrators of sexual assault against all minoritized genders and sexualities. Feminist lawyer and advocate Flavia Agnes raised concerns in response to the Commission’s recommendations that making the laws neutral would open up new avenues to harass marginalized sections and defeat the purpose of the rape law.
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“Historically and statistically we need the special status of women… The view was that a parallel section could be added to take care of the needs of transgender people. I believe at some stage the laws could be gender-neutral but at this time, statistically given the high numbers, the need was to not tinker with the present law,” senior advocate Rebecca John told Article 14.
And yet, these parallel sections were found wanting. The times when the government has claimed to include trans women as survivors of rape have gone disastrously wrong. In the Transgender Persons (Protection of Rights) Act, the government recognized rape against trans women — but imposed unequal punishments for it as compared to those for the rape of cis women.
There is also a parallel system of accountability for gay men — where Section 377 [recently read down with respect to consensual intercourse between same-sex partners] can still be applied in cases of non-consensual sex between men. This, too, however, limits the scope of justice to cis men because while the wording is gender-neutral towards perpetrators, it limits the scope of victims to “man, woman, and animal” — thereby excluding trans and gender non-conforming people. Moreover, in these cases, Section 377 shifts the onus of proof on the survivor rather than the accused. This is not the case under Section 375, where it is on the accused to prove consent.
Most recently, the National Commission for Women met to discuss gender-neutral rape laws among other issues as a way of recognizing same-sex violence and violence against trans people.
“The ideal goal is to have one law on sexual assault that applies to people across the gender spectrum,” advocate Anand Grover told Article 14. Grover joins others in advocating for parallel rape laws as a gender-sensitive solution to the conundrum: one that would adjudicate violence committed by cis men against cis women, and another that would adjudicate violence involving non-heterosexual people. This would mean modifying Section 377 to reflect greater nuance, while also retaining the law’s recognition of women as overwhelming victims of masculine violence.
Many argue, therefore, not for gender neutrality, but gender sensitivity in rape laws. They would more effectively recognize how power works without dismissing the unequal power dynamics that gender imposes upon people.