GENDER-NEUTRAL LAWS: A STEP TOWARDS EQUAL JUSTICE by - Ishika Ishanvi

GENDER-NEUTRAL LAWS: A STEP TOWARDS EQUAL JUSTICE

Authored by - Ishika Ishanvi

INTRODUCTION

In order for a community to function, it must be governed, order must be upheld, norms must be established, and conflicts must be settled. There should be a code of conduct outlining what is right and what is incorrect. Human nature is unpredictable and occasionally, people adopt a non-conventional outlook on life. Crime can be defined as an action that is forbidden by the law. There are many reasons why someone might commit such acts, but they typically have to do with social issues like inequality, a lack of support, an unfavourable environment, peer pressure, poor parenting techniques, etc. or personal issues like a lack of love and care, a lack of value placed on wellbeing, an abusive childhood, etc. Criminal laws like the Criminal Procedure Code of 1974 and the Indian Penal Code of 1860 are in place to protect society from such horrible tragedies. While the CrPC offers procedural law, the IPC deals with substantive law. The goal of the penal laws is to reform the offender so that they won't commit similar crimes in the future. But it is unfortunate that the provisions covering sexual offences are not yet neutral to gender and are subjected to discriminations merely because of an individual’s gender identity.

BACKGROUND

Women have been subjected to oppression since antiquity, and society today views them as weak, inferior, and defenceless individuals. Female new-borns have been killed since years just because they are women. Women didn’t have any rights or power. They merely existed to work for the family in the home. Contrary to the usual, a variety of activists strove for improving the standing of women in our society which has greatly suppressed them since centuries, and now, it can be considered that they were largely successful. Feminism has been successful to a great extent for granting equal status to women as men. Women are now protected by the law, given chances, and encouraged to participate. Despite our Constitution, which guarantees equality to all people, the laws in the IPC in some circumstances only protect women. There is no question that women deserve protection, but at the same time, we shouldn't ignore the prospect that men could also be impacted by these crimes. Crimes can affect anyone. Women are no longer the only gender individuals to be affected by the sexual offences. No gender identity or sexual orientation should act as a barrier for preventing the access to law for any human.

There are many laws in India that are gender-biased. Some of such provisions are listed below:

Maintenance under s.125[1] of the Code of Criminal Procedure, 1973: The maintenance as described under the s.125 of the CrPC, 1973, as well as by several state legislations is the granted as a right not only to the wife but also to her parents and children.

Section 375 & 376 of the IPC: Male dominance has been observed in a number of sexual offences, including rape, stalking, voyeurism, and sexual harassment. Only women are eligible to submit a First Information Report (FIR) under these sections. It is supposed that the above-mentioned offences can only be committed by men so in order to fit in the criteria of being the criminal under these crimes, one has to be a man first. In India, rape as described by the provisions of the IPC is, “a man is said to commit 'rape' if he...," as stated under the Section 375 of the IPC so again, one has to be a “man”. India upholds the conventional belief that men are the perpetrators of rape and does not recognise gender neutrality in rape legislation.  So, in legal sense, rape is committed “by a man” and “on a woman”. This is the notion and in order to charge officially someone with rape under section 375 of the IPC, it should be followed.

Section 354 of IPC: It protects the women from an assault with an intention to outrage their modesty. But no such provision is known protecting a man’s modesty or addressing the possible concern to a person’s modesty of any other gender.

Section 498A[2] of IPC: If a husband or a husband's relative treats his wife cruelly, it is punishable by a fine and a prison sentence of up to three years, according to the law. Even while this does happen and is conceivable, it is surprising that there is no law in India that specifies any punishment for women who commits any act of cruelty on males. This can be regarded as a grey area.

THE NEED FOR GENDER-NEUTRAL LAWS

There is a persistent misconception that only women experience sexual assault as victims, and that males are always the perpetrators. However, it is also possible that all genders may experience sexual assault as well. In order to ensure that justice is served, the provisions protecting against sexual offences must be revised to cover all the genders without any discrimination. For the reason that rape victims and offenders might include men, women, and people from other genders, laws pertaining to rape and sexual assault should be gender neutral. Several nations have established laws that are gender neutral when it comes to sexual assault, yet there has been very less understanding of the victims and compassion for victims of male and transgender sexual abuse. More surveys and studies should be conducted to investigate on the same and appropriate steps should be taken to prevent injustice.

The Kerala High Court recently noted the need for changes to the punitive provisions to make them gender neutral. However, several legal professionals have harshly criticised the action, stating the observation as "a flawed understanding of the law" or maybe "displayed a patriarchal mind-set."[3] What would happen if a female did something similar? The concern mentioned earlier reportedly voiced by the HC of Kerala recently, which also stated orally that s.376 of the IPC, 1860 that specifies the punishment in case of the crime of rape, should be considered to be gender-neutral. Recently, there have been reportedly many cases in which men trick women into a sexual relationship on the pretext of marriage, allegedly and this has been increasing day by day. The issue was reportedly brought up by a court panel led by Justice A Muhamed Mustaque during a hearing on a divorced couple's dispute over child custody after the woman claimed that the father was unfit to care for their child because he had been charged with rape. The man was accused of having sex with a woman under the false pretence of getting married, according to the accusation. There have been various views and concerns regarding the observation since but it has to be understood that it was a genuine concern and not some misogynistic approach.

There have been a lot of situations that don't fit the "typical" description of males as the perpetrators and females as the victims. A year ago, there was a case involving a Delhi lady who describes herself as a queer rights activist who was charged with "sexual assault" as well as "wrongful imprisonment" of a French woman in Goa who identified as queer.[4] A 2010 assessment on the US population by the National Intimate Partner and Sexual Violence Survey provides some insight on community victimisation. According to the survey, 45 per cent lesbian women, 61per cent of bisexual women, 26 per cent homosexual men, & 37 per cent of bisexual men reported having been the victim of rape, stalking, or physical abuse by any former or current intimate partner. Especially in comparison to 28% of heterosexual women, 48% of bisexual women had been raped at some point in their lives. In a 2013 report, the UK's Ministry of Justice estimated that 85,000 women and 12,000 men had been assaulted sexually in the year prior. One in 17 males (or 5.9%) reported having their bodies penetrated at some point in their lives, according to a 2010–12 research by the Centres for Disease Control and Prevention. Sarah Crome, a psychologist, claims that fewer than 1 in 10 prison rapes are recorded. The majority of rape victims who were men claimed a lack of assistance and support, and court institutions are frequently not able for handling these sorts of crime. In a study that was conducted recently, it was discovered that 16.1% of the 222 Indian men who were polled had been forced into having sex. Because males are afraid of being made fun of by those around them, there are no records, surveys, statistics or documented instances of men being the victims of sexual harassment. In 2007, while explicitly examining child sexual abuse in India, the Government discovered that around 57.3 per cent of the kinds who reported that they experience serious sexual abuse were boys and 42.7% of them were girls. According to research by the Centre for Civil Society that is based in Delhi, almost 18 per cent of Indian adult men who responded to the poll said they had been forced or pressured into having sex. 16 per cent of individuals said that a female perpetrator was involved, & 2 per cent a male perpetrator. A rape has occurred in the lives of almost 1 in 5 women (18.3%) and 1 in 71 men (1.4%), whether it was an  forced attempted penetration, a complete forced penetration, or a forced penetration made possible by drink or drugs. Though the proportion for women is larger at 1 in 5, or almost 20%, it should not be overlooked that the proportion for men is by no means insignificant. The proportion for women is 1 in 5, or nearly 20%. 2.78 million males in the United States had been the targets, as of 1998, of attempted or actual rape. At some or the other point in their lives, one in thirty-three American males, or roughly 3% of them, have been the target of a successful or attempted rape.

An LGBTQIA+ individual has to deal with violence and mistreatment on a daily basis which is not fair at all. Even though the legal system is typically utilised against these communities, the rules need to change in order to account for gender fluidity and the fact that many different people may exist who do not correspond to the established gender frameworks. The ideal situation would be to have sexual assault provisions that cover all the gender identities. All citizens of India have equal status under the Constitution and everyone is equal before law. Therefore, all gender identities, including men, women, and the transgender community, need to be protected by the laws against sexual violence, including rape, stalking, assault, and sexual harassment. Sexual violence can affect everyone, no matter what the individual’s gender identity or sexual orientation is. The hardships faced by them cannot be imagined. Opening up about the violence is harder and they might not find support. There can be cases of intimate partner violence but they might not be understood or the ones they’ve reached out to might not be educated enough to consider and empathise with them.

Men also experience domestic violence, as unusual as it may sound. People tend to live in denial after learning that men can experience domestic violence as well. Consequently, it might be said that nobody ever truly wants to talk about it. 52.4% of men reported experiencing gender-based violence, according to another study done in 2019. Males who reported experiencing violence because of their wife’s or intimate partners made up 51.5 per cent of the 1000 men who reported such incidents, with 10.5 per cent of the incidents happening during the past 12 months. Physical violence (6%) was reported as the 2nd most frequent type of spousal abuse; the most reported is mental abuse (51.6%).[5] In surveys performed by the My Nation Foundation and Save Family Foundation between April of 2005 and April of 2015, about 1,000,000 men were polled over the internet. It revealed that 98.2 per cent of the men had experienced severe domestic violence from their spouses and their in-laws. Men experience a variety of forms of violence, including physical assault, verbal abuse, financial abuse, sexual assault, and emotional, mental, and psychological abuse. Domestic violence is a problem that affects both sexes equally and that should be kept in mind while making provisions for protection against such offences. 52.4 per cent of Indian males, according to a study[6] involving one thousand married men from the age range of 21 to 49 who live in rural Haryana villages, have encountered gender-based violence. Over the course of their lifetimes, 51.5% of men have been subjected to some form of abuse or violence by their wives or other close friends. In the previous 12 months, 10.5% of men reported being the victims of gender-based violence from their wives or other close partners. Physical abuse against men is second most common in cases of marital or domestic violence, with emotional abuse being the most common.

It is stated that only a man can be held for committing any act of cruelty on his wife, according to s 498A of the IPC of 1860. There is no clause or provision in the law that holds a woman accountable for domestic abuse caused on men. Every time a man attempts to speak out about the torment they endure, no one pays them any attention mainly because it is thought that these are false accusations as men can never be dominated. In Indian society, complaining about domestic violence by a man is frequently interpreted as being "effeminate" or "feeble." Women are more likely than males to consider suicide, whereas men are observed to die of suicides more frequently, according to a World Health Organization report from 2002.

It is important to realise that anyone, and not just men, can commit rape, and anyone, and not just women, can become the victim. It is completely possible that the offence is committed by an individual of some other gender and on an individual of some other gender. After the age of 18, people of genders other than females have no recourse in the event of any sexual offence (children below 18 years of age are protected by POCSO Act). Every individual should be protected under law and hence changes have to be made.

STEREOTYPES ARE THE HURDLES

The argument generally used against enacting gender neutral laws is that India is and has always been a society that is dominated by males and hence it is women, and not men, who need protection. It seems fair but to only to a certain extent. Our society is evolving and so are the people. It can be said that women have overcome that stereotypical inferior status to an extent. Moreover, it is not just men who can commit sexual offences on women. It is definitely possible that the one committing such atrocious act might be someone from a gender other than man; anyone can violate a woman's sexual integrity. But once more, the fallacy that only men are capable of being predators and only women can be the victims is at work.

There are a number of myths about men. Men are supposed to be unbreakable. They are strong and can only dominate but never be dominated. Men always want sex. They are insensitive, indifferent, and they don’t have emotions and hence can commit all the heinous crimes. The societal and family pressure on most of the Indian men is a factor that men feel ashamed of opening up and reporting about such offences against them.

The traditional thinking of the populace makes it difficult to understand that people from other genders, including men, can suffer harm as well. Men are also impacted by patriarchy and prejudices in culture. The stereotype holds that men are superior, unbreakable, and strong, and as a result, they cannot be tamed by someone weak and inferior. However, if there are no safeguards in place to protect them from sexual offences, serious problems may result. Men are increasingly the targets of harassment by their more senior female co-workers, yet due to presumptions, these incidents never come to light. Modern scholarly and judicial debates have largely ignored, and frequently criticise, the idea of male and transgender sexual victimisation. The attitude that has existed for ages that views males as the aggressors is clearly reflected in laws. Some guidelines were established in the Vishakha and others v State of Rajasthan[7] case that initially appeared to be gender neutral, but the qualifying phrase prevented this from happening. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[8], was introduced by the Parliament and it contributes in protecting the working women from the offences in workplace. The IPC amendments to s.354 (it deals with assault on women with the intention to outrage her modesty), s.354A (it deals with sexual harassment and its punishment), s.509 (any act, word, or gesture with an intention for insulting a woman’s modesty), and s.375 & s.376 (Rape & Punishment for Rape) seem to be women-centric and don’t do a lot to protect a male victim from a female aggressor.[9]

DEVELOPMENTS

The 172nd Report[10] of the Law Commission of India, which was published following the conclusion of Sakshi v. Union of India[11] (2004), included recommendations for gender-neutral sexual crime laws and to expand the application of s.375 of the Indian Penal Code. Such a recommendation was drowned out by the controversy surrounding the Nirbhaya Case[12], which introduced a new comprehensive set of laws for women's safety. The Justice Verma Committee reaffirmed the requirement of gender-neutral laws covering sexual offences in 2013. This was done in recognition of the complexity of Indian criminal law and its dynamic nature.

In Criminal Justice Society of India v. UoI[13] (2018), the SC of India acknowledged the validity of the petitioner's argument for rape laws to be gender-neutral and asked the Parliament to take it into account. The Criminal (Amendment) Bill, 2019[14], recognised these proposals and represented a step toward including gender neutrality in these laws.

A private member's bill to change the IPC to make the sexual offences covered by it gender neutral was introduced in the upper house in 2019 by senior advocate and member of Rajya Sabha, K T S Tulsi.[15] By criminalising sexual offences committed by anybody, regardless of sex or gender, the Bill aims to protect all vulnerable people—including males and transgender people in addition to women—from sexual exploitation. In this situation, this is an interesting and also essential development. One hundred and seventy-seven nations, including the USA, the UK, Australia, and Denmark, have enacted and ratified gender-neutral laws.[16] The essential responsibility of the state is to "always provide a safe environment for all citizens." The state shouldn’t discriminate with the people according to their identities. Justice should be available for all. Everyone should be equal before the eyes of law. Therefore, it is important to give every citizen the opportunity to speak up and seek redress for offences that are committed against them. There would be a sizable portion of the population who would be deprived of justice if the legal laws remained prejudiced as it is in today’s date. The purpose of the bill is not to look down upon the suffering endured by women who have experienced any sexual offence. But as culture changes, it's crucial for us to learn to sympathise with everyone, even male and transgender rape victims. By speaking out about the problem of rapes of individuals from other gender identities, we must challenge societal preconceptions that valorize machismo, confine persons of other genders to stereotypes, and force them not to open up about their feelings and hide them. With this initiative, lawmakers hope to reflect changing social standards by updating laws against sexual abuse, harassment, and exploitation. It is crucial to understand that just because an issue isn't being talked about in the popular culture doesn't mean it doesn't exist. Additionally, gender-neutrality aims to provide safety to those who have experienced similar abuse and suffering rather than minimise the experiences of women. With the society evolving and developing the laws should also be reformed accordingly for meeting the needs of the people or else serving justice would be faced with a hindrance.

CONCLUSION

Gender and other prejudices that we as humans may have are not the only aspects of humanity. We can create a just environment for people of all genders once we begin to see through the biases. So let's start by acting like people. Consider people as a whole, not only as members of one gender. In addition to being crucial for achieving a sense of equality in society, the gender-neutral laws also give all people a sense of security. When used in its purest form, gender neutrality helps to balance society and destroys the sense of superiority or inferiority that frequently inspires crimes. Women need to be protected and given privileges, no doubt, but at the same time the privileges should be modified a bit in order to allow the men to be safeguarded too. The members of LGBTQIA+ should be also considered while making laws as everyone should be protected equally. What we need right now is a mechanism that protects women while also preventing false accusations against males. The nation must find a balance between the rising crimes committed by women and the high rate of crimes committed against women in order to prevent disturbing equality and also at the same time ensuring that it is accurately defined by fusing with humanism. It is imperative that the government introduce gender-neutral sexual harassment regulations in order to end any unintentional gender discrimination and to guarantee equal protection for all the genders. The laws need to be in sync with the developing world and reforms should be made. There is a very urgent need for performing gender sensitization workshops for the nation, especially for law enforcement officials. Those are urgent requirements which would allow the victims to not be hesitant to approach police officers with complaints. The police are frequently approached by victims as their initial point of contact with the legal system. We cannot continue to practise law from the Victorian era in a 21st-century judicial system. As was already mentioned, there is a requirement to switch from a gender-centric approach to law making to one that is gender-neutral. A gradual but sure and deliberate change should be sought for the transition towards gender-neutral laws for rooting out all the injustice that is present in the current society. The only agenda under the Constitution should be justice and justice should be served no matter what.

[1] The Code of Criminal Procedure, 1973 (2 of 1974) s 125.

[2] The Indian Penal Code, 1860 (45 of 1860) s 498A.

[3] PTI, “Gender Neutral Rape Law? Legal Experts Disagree, Call It Flawed Understanding of Law” (The Indian Express, June 12, 2022) accessed December 1, 2022.

[4]Das M, “Goa Police Book Delhi Woman for Sexual Assault on French Woman | Delhi News - Times of India” (The Times of India, March 3, 2021) accessed December 2, 2022.

[5] Malik, J.S. and Nadda, A. (2019) “A Cross-sectional Study of Gender-Based Violence against Men in the Rural Area of Haryana, India,” Indian journal of community medicine, 44(1) accessed December 7, 2022.

[6] Ibid.

[7] Vishakha v State of Rajastha AIR 1997 SC 3011.

[8] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (14 of 2013).

[9] The Indian Penal Code, 1860 (45 of 1860) ss 354, 354A, 509, 375 and 376.

[10]Law Commission of India, Review of Rape Laws (Law Com No 172, 2000).

[11]Sakshi v Union of India AIR 2000 SC 3479.

[12]Mukesh v State for NCT of Delhi (2017) 6 SCC 1.

[13]Criminal Justice Society of India v. Union of India AIR 2010 Del 194.

[14]The Criminal Law (Amendment) Bill, 2019, Bill No. XVI of 2019.

[15]LiveLaw News Network, “SR ADV KTS Tulsi Introduces Bill in Rs to Make Sexual Crimes Gender Neutral [Read Bill]” (Live LawJuly 12, 2019) accessed December 7, 2022.

[16] Yadav A, “Gender Neutrality of Rape Laws” (2021) 4(4) IJLMH accessed December 7, 2022.