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The Need Of Gender Neutral Laws In India By - Devansh Gupta

The Need Of Gender Neutral

 Laws In India


Authored By - Devansh Gupta



True equality is where society views you as an individual irrespective of your gender. 

Indian law has a gender-determined approach toward various crimes. According to section 375[1] of the Indian penal code, only men can commit the offence of rape, whereas the sole victim can only be a woman. Further laws related to, stalking, domestic violence attacks and voyeurism sexual harassment[2] , and many more have the same approach where the culprit can be male only, but laws related to acid attacks[3]  are gender neutral as the word ‘whoever’ is used. There is an assumption that rape is an act done alone just to satisfy the sexual desire of the perpetrator. Rape, on the other hand, is used not only for lust but also to assert dominance over a person, sex, religion, caste, and even for revenge. And if this is the scenario then there is no reason that the male gender is excluded from being a victim of rape.in India, there is a stereotype that if a man cannot defend himself against women then he is not a man. Man rape goes largely unreported as a result of public opinion and legislation. There is a belief that females are less powerful than a man so a woman can’t rape a man but this fact is not correct. Rape of male, rape of transgender, and rape of a female by female are all not included in current Indian law


What is gender neutrality?

The word gender neutrality is obscure and has not been properly defined anywhere. So in common words, gender means Gender is the range of characteristics of femininity and masculinity and differentiating between them. Most cultures use a gender binary, having two genders men and /or women those who exist outside these groups may fall under the umbrella term non-binary Some societies have specific genders besides "man" and "woman", such as the hijras; these are often referred to as third genders (and fourth genders, etc.[4]


Gender biased laws in India


Genders who have been the victims of assault

Male on Male rape

          “As I Was Walking Down the Street, Four Strange Guys Came and Took Me Under the Bridge, Where They All Raped Me”[5]decades.

In the US more than 100,000 men have been sexually assaulted in the military in recent decades. On average, about 10,000 men are sexually assaulted in the American military each year, according to Pentagon statistics. [6] According to phycologists, fewer than 1 out of 10 male rape are reported.[7] In 2018 me too campaign was started. The movement was gender neutral though most of the accused were male there were females also who were accused. According to some surveys, the data was revealed that more than 50%of children abused are boys and out of these more than 60% are abused more than once[8]

In India, coercive sexual intercourse between men on men is covered under section 377 of IPC as carnal intercourse goes against nature and is called an unnatural offence[9]. In India, there is no distinction between coercive and consensual sex between men. The minimum rape punishment for a crime of rape is a minimum of 7 years and a maximum of life imprisonment[10] as mentioned in the criminal amendment 2013 whereas section 377 which punishes coercive intercourse between men has been prescribed with no punishment.it should also have the same punishment as the normal rap but far from considering it a heinous crime it is not even come under the definition of rape in India


The Transgender Community

According to a survey of nearly 5,000 transgender people by the National AIDS Control Organization in 2014-15, one-fifth said they had experienced sexual violence in the past 12 months.[11]

Offences against transgender are punishable under the transgender protection act 2019. According to section 18 of the act (d) harms or injures or endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. Some activist says these lighter punishments make transgender more vulnerable to predators and give the message that their lives are not worth it.[12] A study conducted by PUCL in the province showed that there have been an oversized variety of cases associated with the assault against the transgender communities of India. however, what has been the foremost surprising factor was the conclusions that are derived from the report. The report had explicit that the sexual kind of violence that they had to face was an awfully common incidence against them. They were nonchalantly crushed up for being transgender and it is explicit that except for this physical violence, they additionally had to face a great deal of mental harassment. The physical kind of violence included- being crushed up, blobs of acids being thrown at them to deflower them, and lots of others. These folks additionally face innumerable statutory offences once they report their cases of narratives to the police. The police try and belittle them, victim-blame them, and head to the extent of feeling their body elements to form them feel uncomfortable and rape them. Whether or not the shape of physical violence, still amounts to gross harassment and it's to be taken into thought.


Female on female rape

In the case of State Govt. V. Sheodayal (1956 Cr LJ 83 M.P)[13] the high court opined that the modesty of a woman can be outraged by another woman under section 354 IPC  

In the case of Priya Patel vs State Of M.P. & Anr on 12 July 2006,[14] the question before the court was that “can a lady is prosecuted for gang rape in the interesting question involved in the appeal. According to section 376(2) ‘whoever’ commits the act of gang rape shall be punished. Furthermore, the explanation state that when a woman was raped by one or more person with the common intention of committing the rape shall be punished, this means the act of penetration is not necessary by every member of the group but the mere common intention will be enough to prove him guilty of the act. Though the court in the judgment held that women cannot be guilty of rape. A telephone survey conducted in 2010 found that 43.8% of lesbians reported having been raped, physically abused, or stalked at some point by an intimate partner; of these, 67.4% reported the perpetrator or perpetrators as being exclusively female. In the same survey, approximately 1 in 8 lesbians (13.1%) reported having been raped in their lifetime, but the sex of their rapists was not reported.[15] In Another survey, one out of three lesbians have been raped by another woman once in their lifetime but India is still silent on this topic


Female on male rape

My name is Lokesh Pawar and I am a sexual abuse survivor, and no, I am not a female.[16]

Typically rape was thought of and defined as an offence solely committed by males against females only and this is still believed in many parts of the world including India but the rape of male are criminalized in a few countries and has a subject to more discussion than the past.

More recently, the Delhi-based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.[17] In the present study, 52.4% of men experienced gender-based violence. Out of 1000, males 51.5% experienced violence at the hands of their wives/intimate partner at least once in their lifetime and 10.5% in the last 12 months. The most common spousal violence was emotional (51.6%) followed by physical violence (6%).[18]


Domestic violence

Domestic violence is covered under section 498a of the Indian Penal code and domestic violence act 2005[19]. According to section 498A IPC whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.[20].Under this section, the husband and his family are treated as guilty until proven innocent. Women are not always the victim. According to a study 52.4%men experience gender-based violence. Out of 1000 males, 51.5% experienced violence at the hands of their wives/partner once in their life [21] Men reported being perpetrators of domestic violence with 22% reporting some form of physical domestic abuse, 17% sexual, 59% psychological, and 59.5% any form of domestic abuse. Men reported experiencing a higher prevalence of all forms of violence but the lowest rates of sexual violence..[22]

This section is getting highly misused by the women by putting false allegations against husband or their families just to make some money or revenge. In a recent judgment, Shamshada Akhter vs Ajaz Parvaiz Shah[23] given by the Jammu and Kashmir local court that the Protection of Women from Domestic Violence Act, 2005 (DV Act) was enacted to protect women from violence and not to harass the spouse or aggravate marital Dischord [24] and fined the women rupees 10lakhs for misusing the law against her husband


Outraging modesty

According to section 354 of IPC Assault or criminal force to a woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.[25] This is the same as the rape law of the country, only a man can be a predator and the victim will always be a woman only. It is now becoming a trend to register FIRs alleging sexual harassment cases to force a party to withdraw the complaint or to arm-twist a party. The whole Indian legal code proves that Men don't have any modesty or dignity as there is not any section to relinquish voice for his dignity and emotions and so permitting them to be the victim of falsified cases. As per Indian culture, their modesty can’t be abused as indicated by them the inclination of sex is simply in men. Around thirteen % of men between the ages gatherings of 18-24 are the casualty of online molestation.


Views against complete gender neutrality

  1. It is physically impossible for a woman to rape men

“John again woke one night to discover that he was being handcuffed to the bed.

Then, he says, his partner force-fed him Viagra and gagged him.

"There was nothing I could do about it," he says.”[26]

     There is a clear misconception that to have sex a man must be sexually aroused so it must be consenting. According to research, a man can get an erection when he is scared, terrified, or nervous.[27] So an erection or orgasm doesn’t define that he was enjoying it or was consenting because their body is responding physiologically. This is an issue with both male and female but is not widely discussed but there are clear evidence.

It is physically possible for a woman to rape a man


  1. Man is stronger than the woman

It is supposed that men are stronger than women and if he didn’t want to have sex he can overpower her and if he didn’t it must be consented to. Anyhow particular man can be weaker than the woman who is forcing him. He can be

physically restrained, unconscious, too drunk to consent, physically or mentally disabled, drugged, duped about the woman’s identity, or he might simply not want to hurt her due to a belief that men should not hit women. In any case, claiming that somebody who doesn't physically resist rape, once they are ready to do so, has thereby consented to the sex, is, again, the wrong way of brooding about consent, and is like old rape laws whereby a lady would need to show evidence of a physical struggle to secure a conviction. People don't consent to be beaten up simply because they didn’t fight back, although they're physically stronger than their attacker.


  1. Does not shows up in the society

It is argued that there are no instances in India where a woman had raped a man or sexually assaulted her. There need to be strong pieces of evidence to prove that male sexual assault is a thing in India. Some social workers underlined the sentence that there is not even a single case of male rape in India. The law cannot be changed because some people said it without any evidence.

This is particularly because men are always taught they are strong and should protect themselves against all the odds. They feel embarrassed and humiliated and guilty and society's pressure keeps them away from opening up and not reaching for help also there are no laws to protect them or to file a Fir. That is why there is no registered male rape case ever in India.


  1. Gender neutral laws will have a negative impact on the female victim

Some activists believe that making gender-neutral laws will open up situations to inflict the trauma and humiliation caused to the society and will defeat the purpose of reform. According to them, the female victims will be forced to take their case back as the offender can file a counter case. The victims will be afraid to file a case. The number of non-reporting of rape and sexual assault cases is already high[28] and will rise even more and this will demotivate the women to come out in open and fight for justice


Views in favor of Gender Neutral Laws

  1. Biological possible

It is based on the assumption that rape includes only vaginal interpretation but the definition of rape has been changed after the criminal amendment act 2013. Now it also includes oral, anal penetration, and insertion of the object as well.[29]  And even if it is the vaginal interpretation an erection doesn’t mean contextual. Various studies have found that men can get an erection during an assault[30]. A female can rape a female forcible stimulation of female genitalia by a female perpetrator is possible by digital manipulation, oral sex, strap-ons, other dildos or other foreign objects, or tribadism.[31]


  1. There have been cases of male assault/rape

This argument on one hand agrees that there are more female assault/rape cases than men. One of the main reasons is men are considered invulnerable even if a man cries it is considered a shamefully and unmanly specially in Indian society being so male stereotyped many males cannot come up front to talk about their problems so there are fewer cases about the male assault but there have been sufficient data to prove that men are also assaulted by both men and women.[32]


  1. Consequences of male rape

It is believed that rape victims women a harsh reality in India so why a male victim is denied to get justice for the same crime. They are also human beings who also face consequences and social stigma. It is noted by Eogan and Richardson that male victims tend to feel a lot of intense anger than feminine victims, whereas each bear similar feelings of distress after the rape.[33]Various studies found that depression and hostility are more profound in male victims immediately post-rape than in female victims.[34]


Gender neutrality around different jurisdictions

 United States

Rape is sexual intercourse that is forced on another without the person's consent or against the person's will. This act is criminalized throughout the United States, but the legal term for it varies from state to state. Some states label this crime like rape, while others refer to it as sexual assault, sexual battery, or criminal sexual penetration. Regardless of what a state calls this offence, however, most agree on the definition as sexual penetration or sodomy without consent[35]

Rape law in the US is gender neutral after the 2013 amendment, earlier it was also a gender-specific law but they have given the priority to gender neutrality, However, some states still recognize rape as female victim The new definition is read as

“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.”[36]



The criminal code of Canada does not include the offence of rape which required penile penetration to be proved guilty, rather the criminal code has criminalized ‘sexual assault’ which is defined as sexual contact with another person without that other person's consent. The offence of sexual assault is broader than the historical offence of rape. Proof of penetration is not required to ground the offence of sexual assault, /nor is the offence gender specific.[37]  There is an increase in sexual assault punishment with imprisonment of 10 years, 14 years, and life imprisonment  [38]


New Zealand

The new Zealand laws The New Zealand law protects everyone against sexual violation, which includes rape and unlawful sexual connection, as well as other forms of sexual abuse.

Unlawful sexual connection encompasses all sexual contact that occurs without consent and is gender agnostic. That is, it permits non-consensual sexual contact between individuals who are male to female, male to male, female to male, and female to female. The unlawful sexual connection includes the penetration of one person by another person by genitals, fingers, or objects. The unlawful sexual connection also includes oral sex given or received without consent.[39]


Sexual violence is defined as using force or manipulation to coerce someone into engaging in unwanted sexual activity without their consent. Such violence occurs in both heterosexual and homosexual relationships, as well as in relationships outside of intimate relationships.  All sexual offences infringe on the fundamental right to sexual self-determination.  In Finland, sexual violence and taking advantage of someone is always a crime, regardless of whether the perpetrator is the victim's spouse, relative, or friend.  Sexual offences include, but are not limited to, rape, coercion into a sexual act, and sexual exploitation of another person.  While women are the majority of sexual violence victims, 26 percent of Finnish men have experienced sexual harassment since their 15th birthday. [40]


Recommendations & Law Reforms

The rape law traced its origin in 1860 when anti-rape laws were mentioned in the IPC. The first major amendment in the history of rape was made in Mathura Rape Case


Mathura Rape Case

Earlier various anti-rape law amendments were made but this case shook the whole nation which eventually leads to The criminal law amendment act 1983[41]. The act bought a remarkable change and sections  376-B, 376-C and 376-D  were inserted to deal with custodial rape[42].  It included section 114A in the Indian Evidence Act,1872 which is Presumption as to the absence of consent in certain prosecution for rape.[43] And The amendment also introduced section 228A IPC which is the Disclosure of the identity of the victim of certain offences [44]


The Nirbhaya Rape Case

In 2012, the rape case made the largest impact in the history of the Indian Penal code, the young woman was named Nirbhaya to prohibit the real identity of the victim as per section 228A IPC.There was a nationwide outrage after the incident and to control it the government set up a committee under Justice J.S Verma it was named Justice J.S Verma committee and it was formed to give recommendations on various sexual crimes faced by the citizens.


J.S Verma Committee

The committee gave his recommendation on various topics. The committee submitted 644 pages report to the government giving his suggestion on the amendment needed to Indian laws regarding sexual crimes. The committee recommended criminalizing marital rape (exception 2 section 375)[45] but the government denied the recommendation stating that the principle of marriage will be defeated if marital rape will be criminalized [46]. Another recommendation made was to increase the punishment of rape from 7years to life imprisonment to death penalty but it was changed to the punishment of 20 years to life imprisonment or death. The Committee further recommended the insertion of certain offences such as Voyeurism, Stalking, and Intentional Touching in the Penal code. It also reviewed the practice of the "two-finger test" during the medical examination of the victim and suggested the scrapping of the test by stating that "the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. Based on this test observations/ conclusions such as 'habituated to sexual intercourse' should not be made and this is forbidden by law".[47] The committee also recommended the importance of gender Neutral laws in India but it was also denied.

The Criminal Amendment Act, 2013

The criminal amendment act 2013 came into force on 3rd February 2013, which brought comprehensive changes in the Indian Law. The most important change was in the definition of rape section 375 which was earlier restricted to penile – vaginal intercourse [48] but the definition got widened and now it includes bodily penetration as well. Consent definition also got more specific; an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act[49]. The age of consent also got increased from 16 to 18. This amendment was a huge step by the government of India to protect women. Despite so many changes, the amendment was criticized as it does not include certain recommendations given by the committee like gender-neutral laws, criminalization of marital rape, and many more.

The laws are constantly getting modified the ground reality of rape remains the same.


The Criminal Amendment Act, 2018

After six years of the Nirbhaya Case, another horrendous case Unnao[50] and Kathua[51] rape case shook the entire nation. These cases led to protests whole over India and which pressurized the government to make strict rules against such crimes and it made the government pass The Criminal Amendment Act, 2018.

The act made changes to the Indian Penal Code, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973, and the Protection of Children from Sexual Offences Act, 2012.[52]

  • Under the act, The Punishment for the rape was increased to a minimum of 10 years which was 7 years.
  • If a person rapes a girl, who is below 16 years he shall be punished for a minimum of 20 years.
  • If a person rapes a girl, who is below 12 years he shall be punished with rigorous imprisonment for minimum 20 years or life imprisonment  and may be liable for the death penalty
  • Anticipatory bail will not be granted in case of in offence of rape committed with a girl below 16 years of age



            In conclusion , the researcher has tried to look at the necessity of Gender Neutral Laws in India.The work of these who criticize gender neutrality in Indian penal code lacks enough and educated analysis.In addition some critics, relying either on misrepresentation of evidence or no evidence in the slightest degree, obtain to construct Associate in Nursing “ideological projection” within which they claim genderneutrality harms women. The paper highlight the extent and prevalence of male and transgender sexual violence in India. It is terminated that the existence of male and transgender sexual toture in India, particularly male-on-male rape can not be denied.There is pressing want of addressing sexual violence against males and trangender community. really it's troublesome to imagine a accountable discussion of rape that doesn't think about all problems regarding gender and also the realities of sexual violence round-faced by each women and men. The patriarchal mindset of Indian society and the potential detrimental effects on female victims are the most frequent arguments against complete gender neutrality. The proponents of complete gender neutrality, on the other hand, rely on the justification of equality and the societal shame associated with male rape. 4) The Justice Verma Committee Report proposed a compromise solution that allows the victim to be gender inclusive while keeping the perpetrator gender specific.  This is the path India should take. This protects the transgender community as well as male victims of homosexual rape. At the same time, there is no concern about counter-complaints or prejudice against women. Rape Laws that are Gender Just, Gender Sensitive, NOT Gender Neutral  Gender neutral laws in caste and communal conflicts are urgently needed. In such cases, all other identities with which a person is associated trump gender identity. In terms of incarcerated sexual violence, it must be acknowledged that homosexual rape is the norm in Indian prisons, and victims must receive justice.In cases of gang rape and abetment to rape, the perpetrator must include a woman. Section 377 must be amended to decriminalise homosexuality in order to create an effective gender neutral or partially gender neutral law. Consensual sex, regardless of gender, can only function if sexual minorities are first granted the right to have consensual sex. Otherwise, such a provision is likely to be used to further harass sexual minorities who are not recognised as citizens with rights but are still criminalised and stigmatised because of contamination and deviancy.



[1] A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following

[2] The Criminal Law Amendment Act , Section 354 (2013)

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance,[3]

[4] https://en.wikipedia.org/wiki/Gender

[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6886282/

[6] https://www.nytimes.com/interactive/2019/09/10/us/men-military-sexual-assault.html

[7] https://en.wikipedia.org/wiki/Rape_of_males#Male-on-male_rape

[8] https://www.gonewsindia.com/latest-news/health/sexual-abuse-of-males-shrouded-in-the-shadows-553

[9] Section 377 ipc

[10] Section 376 ipc

[11] https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html

[12] Transgender Protection Act 2019

[13] https://www.casemine.com/judgement/in/5ac5e2e94a932619d90371dd

[14] https://indiankanoon.org/doc/1555191/

[15] https://www.cdc.gov/violenceprevention/pdf/nisvs_sofindings.pdf

[16] https://theprint.in/opinion/i-am-a-sexual-abuse-survivor-no-i-am-not-a-woman/641099/

[17] https://ccs.in/indias-law-should-recognise-men-can-be-raped-too

[18] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6437789/#:~:text=In%20the%20present%20study%2C%2052.4, by%20physical%20violence%20(6%25).

[19] https://en.wikipedia.org/wiki/Protection_of_Women_from_Domestic_Violence_Act,_2005



[22] https://en.wikipedia.org/wiki/Domestic_violence_in_India#Gender

[23] https://lawbeat.in/sites/default/files/2021-12/Shamshada_Akhter_v_Ajaz_Parvaiz_Shah.pdf

[24] https://www.barandbench.com/news/domestic-violence-act-enacted-to-protect-women-not-harass-men-jk-court-imposes-10-lakh-fine-on-wife-for-misusing-law-against-husband

[25] 354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

[26] https://www.bbc.com/news/stories-49057533


[28] https://www.shethepeople.tv/news/pune-minor-gangrape-rabia-saifi-india-rape-statistics/

[29] https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf

[30] Philip M. Sarrel & William H. Masters, Sexual Molestation Of Men By Women, 11 Archives Sexual Behav. 117, 118 (1982).; Michael King & Ernest Woollett, Sexually Assaulted Males: 115 Men Consulting ACounselling Service, 26 Archives Sexual Behav. 579, 587 (1997)

[31] https://en.wikipedia.org/wiki/Rape_by_gender#Rape_of_females_by_females

[32] India officially undercounts all crimes including rape - The Hindu

[33] https://www.duplichecker.com/article-rewriter.php

[34] https://en.wikipedia.org/wiki/Rape_of_males#:~:text=Female%2Don%2Dmale%20rape,-Female%2Don%2Dmale&text=Statistics%20on%20the%20prevalence%20of,were%20victims%20of%20attempted%20rape.

[35] https://www.criminaldefenselawyer.com/crime-penalties/federal/rape.htm              

[36] https://en.wikipedia.org/wiki/Rape_in_the_United_States

[37] https://en.wikipedia.org/wiki/Laws_regarding_rape#Canada

[38] https://laws-lois.justice.gc.ca/eng/acts/c-46/

[39] https://toah-nnest.org.nz/what-is-sexual-violence/the-law#:~:text=Laws%20around%20sexual%20violence%20are,other%20forms%20of%20sexual%20abuse.&text=without%20believing%20on%20reasonable%20grounds%20that%20person%20B%20consents%20to%20the%20connection.

[40] https://en.wikipedia.org/wiki/Sexual_violence_in_Finland#:~:text=Rape%201%20%C2%A7%20(27.6.,-2014%2F509)&text=If%20a%20person%20forces%20someone,and%20at%20most%20six%20years.


[42] https://indiankanoon.org/doc/1279834


[44] https://indiankanoon.org/doc/1696350/

[45] https://indiankanoon.org/doc/195673915/      

[46] https://scroll.in/article/1015495/explainer-why-is-marital-rape-not-a-crime-in-india-and-can-the-courts-make-it-one

s[47] 22 Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 115 (January 23, 2013).

[48] https://blog.ipleaders.in/comparison-rape-laws-criminal-amendment-act-2013/

[49] https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf

[50] https://en.wikipedia.org/wiki/2017_Unnao_rape_case

[51] https://en.wikipedia.org/wiki/Kathua_rape_case

[52] https://www.mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018.pdf


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