The fairly recent development in the definition of rape under the Indian Penal Code to include non-penile vaginal acts of penetration, despite concurred to be wayward, continues to conform to a gender-specific notion of rape based on a predetermined characterization of the victim-perpetrator framework based on genders and simply results in gross injustice as it implicates a binary notion of gender instead of establishing gender neutrality. It thus becomes overbearingly important to address this inadequacy and adopt a human-rights-based approach in defining the offence of rape and negate the role of gender in identifying the victims and perpetrators of an act of rape. This argument may be pillared on a state’s obligation to not discriminate on grounds of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape laws.
It can also be said that crimes against women in India have a lot to do with centuries of patriarchy and a skewed sex ratio. However, perpetrators often enjoy impunity at the risk of women’s rights and security. In 2013, one of the most brutal and fatal gangrapes in New Delhi led to not only massive nation-wide protests but also resulted in a set of landmark reforms to the then existing rape laws. By taking into account the gender and patriarchal attitudes in Indian society, this reform of the law changed the landscape of justice for women by taking a tough stand on crimes against women. In the aftermath of the Nirbhaya gang-rape and death, the Justice Verma Committee was formed in 2013 to review sexual offence laws and it was made possible for Indian women to file a rape charge online, the police were made duty-bound to register a case immediately upon complaint and few other changes took place. However, considering the fact that rape is one of the most common crimes against women in India, these changes, despite their limitations had been long overdue and necessary.
To see the crime as merely a man violating a woman, as per the current laws, is unfair to those whose insufferable experiences do not fit this ill-defined ambit. There is thus, still a great need for further change to India’s rape laws and on a similar thought, a private members’ bill was introduced by Senior Advocate KTS Tulsi before the Rajya Sabha in 2019; the status of which, however, remains unresolved. This bill would introduce amendments in the criminal laws to make sexual offences gender-neutral. Reframed language in sexual offence laws would aim to change ‘any man’ and ‘any woman’ to ‘any person’ – a step forward to make the laws gender-neutral.
In understanding the need for this change being pitched, one must first understand what exactly constitutes rape. International law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the last legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape. It would, by current Indian legal standards as well. Yet, for instance, if there were to be such an act committed by a woman or a transgender against a man or even another woman or another transgender, it would not amount to rape. To be sure, it would be an assault-based crime of sorts, but not rape; even though the victim would have been forcefully penetrated sexually by the assailant(s).
The same result would also come about if the victim were a child, as the law would allow for a charge of sexual assault, but not one of penetrative sexual assault, which is codified as male-only. Many parliamentarians and activists seem to argue that only members of one sex can rape and only the other can be raped, for rape is only ever patriarchal and the Indian law is very limited in this regard as well, which brings to light this irrefutable shortcoming.
Statistically, with regards to the existence of both male and female survivors, the US’s Center for Disease Control in Atlanta has estimated that 18.3% of American women and 1.4% of American men have experienced rape at some point in their lives. Both percentages are likely to be underestimations due to the stigma attached to reporting the crime. Ideally, India would be able to provide its numbers for statistical comparison but given that rape, by legal definition, cannot be committed against any other gender and that there is a scourging stigma in the Indian society, there is no good way of determining just how many survivors exist in India.
Considering the argument that equity in society is cardinal to its good governance, in addition to those discussed above, such a change and broadening of the definition of rape under Indian laws may also be deemed essential. What also needs to be considered is that even though women suffer from such crimes in incomparable numbers, the law cannot turn a blind eye to the victims or the perpetrators of other genders.
In conclusion, the impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose dismal stories and sufferings simply do not fit the mould that is easiest for us to understand. As these survivors have finally found the courage to share, legislating on such an impulse is in itself an atrocious act.