INDIAN RAPE LAWS: WHERE CRIME HAS A GENDER By - Vaibhav Singh And Harshita Gupta

INDIAN RAPE LAWS: WHERE CRIME HAS A GENDER

 

Authored By - Vaibhav Singh And Harshita Gupta

 

Abstract:

The paper briefly discusses the gender bias of the present rape laws in India, which only apply to women and exempt all other genders. The analysis in the paper also considers the possibility that victims of sexual crimes could be males or other genders, and it supports this claim with examples from different cases, for instance, Sunil Batra v. Delhi Administration, and various articles from different prestigious sites. This paper illustrates the division rape of men into two categories, the first one being man-on-man rape and the other one being woman-on-man rape, and also criticizes the fact that there is a lack of a law that prohibits rape of a male by a female and especially in a situation in which a woman forces a man to penetrate. In spite of the fact that section 377 of the Indian Penal Code is used to handle man-on-man rape cases, the reasons why it is insufficient and not enough to deal with sexual assault cases of men have been examined in the paper. Finally, Indian rape laws have been compared to those of other nations that have rape laws that are comparably quite gender-neutral, numerous Social and political obstacles that hinder the creation of gender-neutral rape laws have also been highlighted. Lastly, some actions that can be taken to create gender-neutral rape laws that will protect all genders whether it be male, female, transgender, or any other gender from sexual crimes have been recommended.

 

Keywords: Gender neutrality, transgender, male rape, forced penetration

 

Introduction

There are many heinous and barbarous crimes being committed in our society and one of them is rape. It is one of the oldest and most predominant crimes and has been present on the face of this planet from time immemorial and since the acts of people leads the evolution of the law similarly the laws regarding rape evolved over time.

 

There has also been an evolution of laws in India in ancient India the punishment for rape was burying the rapist with his head out at the marketplace, either stoning him to death or chopping his head off[1] but eventually, with time along with development in the society, there were also many developments in the law. Today, we have different kinds of punishments in different countries, for instance, in China, it is a death sentence or castration, in Saudi Arabia it is beheading, in North Korea, it is death by firing squad and even in India, it is life imprisonment to death sentence even though India follows a reformative approach in delivering punishments. In India rape is among the highest committed crimes and even after such serious and rigorous punishment the crime rate does not seem to decrease. As per the NCRB data, India lodged an average of 86 cases of rape daily, 49 offenses against women per hour in 2021[2]. We ourselves are witnessing the law evolve, and we have seen various changes in the legal system, especially after eye-opening cases like the Nirbhaya Case which shocked the whole country, and after that, the Zero FIR system came into existence. Such evolution has been happening for a long time.

 

Women’s rights and empowerment is a recent happening but before this, in almost all the history pages we can see minimal or no rights given to women and they were considered just an object and rape was considered as the violation of another man’s object[3] but with the development of the society as the condition of women improved gradually so did the laws that were related to rape and other similar offenses. Today the rape laws are so developed that no offender can escape from the grip of the laws but since one coin has two sides so do these rape laws which are specifically made for women as many times these laws are used against men as a weapon and there are no strict rules to stop this from happening.

 

1. Current Situation And Need For Gender Neutral Laws

India did not always have codified laws and for all the specific crimes like it currently does. In India, the laws against rape originated from the British Common laws, and it was first introduced in colonial times specifically in 1860 when the Indian Penal Code was initially brought to India by Thomas Babington Macaulay who was head of the drafting committee of the Indian Penal Code. Society evolves with time and along with the society, the laws evolve too so after more than 75 amendments in the IPC, the latest amendment which was related to the laws against rape was the amendment of 2018 which increased the imprisonment duration from 7 years to 10 years.

 According to IPC rape is defined as- A man has committed rape if he penetrates his penis, any object, any other part of the body or any part of the woman’s body in the woman’s vagina, mouth, anus or urethra or makes her do this to himself or any other person or applies his mouth to the vagina, anus, urethra of the woman or makes her do the same with himself or any other. It is explicitly mentioned in IPC that the victim in cases of rape can only be a woman and the perpetrator will always be a man and this is a major drawback of this law as it excludes the possibility of a man being raped because of this ignorance a number of men and boys have already become the victim of sexual abuse. There are many examples of such cases being reported where men or boys are raped and among these many victims one of the victims is Mr. Lokesh Pawar. As a child, Mr. Lokesh was repeatedly raped by one of his relatives and he didn’t even know what was happening to him[4] and even after Lokesh’s resistance the rapist continued to rape him, cases like this are the result of ignorance of proper acknowledgment of crimes by the law as since they are not explicitly considered an offence so people commit such crimes without considering its outcome or consequences. Although the cases of sexual abuse are dealt with under Section 377 which deals with unnatural offences which includes sexual intercourse with animals or same-sex without consent but it just acts as a makeshift for proper laws against rape for men. Laws against rape in India are biased towards women and men are not even considered to be potential victims of rape that is the reason why many cases where men have been victims of sexual crime are not even reported as there is not enough awareness among the masses about such a crime and also because of the mentality of the society which has been framed generation after generation that men can’t be raped and we need to change our laws to change the mentality of our society so something must be done about it which is discussed later in the paper.

 

1. Offences Against Men:

The perpetrator can be anyone regardless of gender identity, sexual orientation, or age. Like other offenders, they may employ physical force or strategies of psychological and emotional coercion. Broadly it can be said that the offences against men are of 2 types:

 

1. Man On Man Offences:

Sexual violence or rape against men is not a new happening, it has been happening for ages, it was just never recognized as an offence under any law because of factors like social shame, the homophobic nature of society and society not looking at them not as victims but as homosexuals. Even though now minor boys are protected from sexual crimes with the help of the POCSO act but earlier even they have excluded from protection this law against this heinous crime but adult males have still a scarcity of representation in these laws and the cases which are filed are dealt with the help of Section 377 of IPC which as mentioned earlier deals with unnatural offences. So, sexual violence or rape against men is termed as an unnatural offence instead of rape which is one of the reasons why people are more reluctant in reporting this offence.

 

1. Sexual Assault in Jail:

One of the places from where most of the man-on-man cases are reported is from jail. It is not a thing particular to any country or place but every jail of every country region or state is suffering from this problem. Even in India, there are several people who have been the victim of such heinous crimes at the hands of their fellow inmates while they are in jail. One such case was filed in the year 1979 and that was Sunil Batra v. Delhi Administration[5], In this case, Mr. Sunil Batra, the petitioner, was an inmate at the Tihar Central Jail who was now serving a death sentence (waiting appeal). He complained in a letter to the Supreme Court judge about the mistreatment and torture he had experienced at the hands of both jail staff and prisoners. The petitioner stated in his letter that he had received an anal injury as a result of the chief warden, Maggar Singh, viciously assaulting him and that he and Charles Sobhraj who was a fellow inmate were suffering from sodomy (Anal Rape). The Supreme Court gave the case respect by treating it as a public interest lawsuit and turning it into a habeas corpus process (PIL). The Honorable Court nominated Dr. YS Chital and Shri Mukul Mudgai as amicus curiae to gain a complete understanding of the situation. The petitioner's assertions of the problems and facts were supported by the amicus curiae's conclusions. This shows that Indian jails are no exceptions when it comes to male rape, apart from this in the U.S. Department of Justice an article titled “No Escape: Male Rape in U.S. Prisons[6]” is published which explicitly states that most of the inmates in U.S. prisons have been victim to rape, the analysis was mostly based on data gathered from over 200 prisoners in jails throughout 37 States. Most of these prisoners had experienced sexual assault or other forms of sexual abuse while incarcerated, and they provided first-hand reports of the issue. All this data shows us how big this problem has actually become and needs to be recognized on a large platform.

 

 

1. Sexual Assault in The Military:

Crime has no boundary or region. Male rape is not just limited to the criminals in jail but there is another place from where these cases predominantly come and that place is the military. The military is mostly filled with men so man-on-man sexual assault is not rare happening there. Take the example of the U.S. military which is the world’s third largest military force when it comes to the active serving personnel and out of that approximately 72.6% of the personnel are male which is not a small number and out of these, many times some or the other personnel fall victim to the crime of rape by the hands of their own comrades. Military commanders have consistently promised reform but have fallen short of keeping their commitments, which has allowed sexual assault and harassment to fester inside the ranks of the armed forces for decades.

According to estimates from the Pentagon, approximately 10,000 men are sexually assaulted each year in the American military. The victims are overwhelmingly young and low-ranking. Many of these victims suffer later, are discharged from the military, and have difficulty adjusting to civilian life.[7]

The appointment of a "90-Day Independent Review Commission on Sexual Assault in the Military"[8] was one of US President Joe Biden's first acts. The panel reported that since 2010, approximately 509,000 service members—out of which 286,000 men—have been sexually harassed, and approximately 69,600 men—have been sexually assaulted. In the year 2018, 13,000 women and 7,500 men in the military have faced sexual assaults, totalling more than 20,000 victims. But just 8,000 assaults were reported.

The main reason why it is a rarity for the troops to receive justice is because of the manner that these crimes are investigated and prosecuted. Military commanders decide whether to conduct an investigation and file charges in line with the Uniform Code of Military Justice but in the case of civilian it is done by specialized law enforcement.[9]

 

1. Woman On Man Offence:

A male has to and does, dominate females in sexual acts, this presupposition makes people think that female rapes are plausible and male rape by women unpalatable, but in modern times, we must recognize that men can also be sexually raped by women and not just males, that women are also capable of committing sexual assault on men.[10]

 

Numerous incidents of men being raped by women have occurred throughout the world, not just in India. For instance, a 23-year-old woman from Norway was found guilty of raping a man and given a 9-month prison term..[11] In another case, a 23-year-old man was abducted and sexually assaulted by three women in Eastern Pretoria for three days.[12]

 

In India, Boys were sexually abused in 17% of cases, according to research done in November 2020 by SP (Railways) and R Nishanthini, the commandant of a women's police battalion in Kerela. Several of these occurrences involved women who were allegedly the perpetrators.[13]

 

Add to that a recent incident in Jalandhar when the victim claimed to have been drugged, kidnapped, and raped by four young women in their 20s while being bound behind his back, blindfolded, and drugged.[14]

 

Our society isn’t ready to accept the fact that a woman raping a man is also a possible offense, however, this form of assault has been documented at the institutional and college level, where male undergrad victims were coerced into having sex with their female lecturers. When forced to penetrate or have sex without their consent, male victims frequently claim that the offender was either their girlfriend or ex-partner.

 

1. Forced To Penetrate:

Even though it is an offense that is not so heard of but it is still happening in society, the most recent data survey related to forced penetration cases happened in 2010, in the U.S. called the National Intimate Partner and Sexual Violence Survey where 16,507 adults were interviewed on telephone survey about experiences of sexual violence. The definition of forced penetration is given as when a man is made to penetrate the perpetrator’s vagina, mouth, or anus. In the survey, it was found that 1 out of 21 men have admitted that they were made to penetrate someone else at least once in their lifetime and in these cases 80% of the perpetrators were females. Studies held in small scales provide further evidence of the prevalence of this type of offence, like in Berlin and Brandenburg, Germany two studies were done by Krahe et al which was about men who became target of women’s sexual violence. Rape was defined as penile-vaginal intercourse though threat or force by it. It was found out that out of 247 young men 2.8% faced forced penetration and out of 152 older people whose average age was 22, 5.2% experienced compelled penetration[15]. Such data proves that there is presence of ‘forced to penetrate’ crimes in the society and even after that there is no provision against it in the Indian Penal Code. No crime should be left unchecked and ignoring all these possibilities and acts is denial of justice to the victims of such crimes. To protect society, form these crimes there is need of certain amendments in the IPC which are discussed further in the paper.

 

1. Offences Against Transgenders:

Transgenders have a long history of discrimination. Ever since the law was first codified being transgender and indulging in homosexual activities was considered as a grave offence starting from the Mughal period transgender people, often referred to as Hijras (or Kinnars) during the Mughal era, were instrumental in the politics of expanding the empire. They held significant roles as a number of influential figures during the Mughal era, including bureaucrats, administrators, generals, and harem guardians. Hijras were revered for their loyalty, intelligence, and access to the entire community. They were crucial in the development of the Mughal empire because of this. During the Mughal Empire, transgender persons were treated with respect. But things significantly changed for transgender individuals in the 18th century with the advent of colonial control. Early European travellers were observed to react unfavourably to Hijras and were perplexed as to why they were accorded such high regard by the royal courts. In the latter half of the 19th century, British colonial government actively worked to criminalize the Hijra population and deny them civil rights. The colonial authorities in various regions of India divided Hijras into distinct castes or tribes. The first Criminal Tribes Act (CTA), which targeted "eunuchs (a stigmatizing colonial term for transgender)," was passed by the governor-general of British India (the head of the colonial authority) in 1871. Even in post-independence modern India transgenders faced a lot of discrimination to an extent that they were not even recognized as a gender but not until 2014 when the right of a transgender person to identify as male, female, or a third gender was recognized by the Apex Court of India in the National Legal Services Authority v. Union of India[16] case.

 

In India, there are many cases of transgenders being sexually assaulted but unfortunately, there is no law to safeguard the right of such people against this heinous crime. On top of that, there were laws like Article 377 which criminalized homosexual activities even between two consenting adults, only after 2018 it was decriminalized and it was one step towards the evolution of law in this field but still the homosexual society faces exclusion from justice domain of the law as they are not included in any law which protects the rights of the people against the crimes like rape and sexual violence. Our constitution in Article 14(No one shall be denied equality before law by the state or law should be equally protected in the territory of India), Article 15 (No one shall be discriminated on the basis of the place where the person was born, race, caste, religion, or sexual orientation), Article 16 (All citizens shall have equal opportunity in terms of employment and public hiring), Article 17 (Abolition of Untouchability), Article 18 (State cant grant any title apart from military or scholarly honour) guarantee the equality between all the citizens of the country but still after these provisions transgenders have to face such inequality and exclusion in the laws and the society and even after being exposed to this cruelty they can’t raise their voice against it because there is no law that is protecting them against such offences and this violates the provision of the constitution that says that all the Indian citizens are equal and one will be subjected to discrimination on the basis of caste, creed or sex and even though transgender people are ones who are prone to offences such as sexual offence and rape much more than as compared to cisgender people as stats form the National Crime Victimization Survey, the first nationally representative sample to make it possible to identify respondents who identify as transgender, were combined from 2017 and 2018 for analysis by the National Library of Medicine. It was found that as compared to cisgender people, who faced 21.7 victimizations per 1000 people, transgender people experienced 86.2 victimizations per 1000 people[17] and yet still they are given the least representation when it comes to laws that provide them right to protect themselves against these sexual crimes and assault.

 

 

 

1. Comparative analysis of rape laws of foreign countries:

1. United States of America:

 Earlier, the UCR SRS has defined “forcible rape” as “the carnal knowledge of a female, forcibly and against her will.”  That definition, untouched since 1927, was narrow and not according to the current norms. It only talked about the forceful penetration of a penis of a man into a vagina of a woman. Now it is defined as:

 

“The 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.”

It was the first time that the definition of sexual offence included any gender of the victim or the perpetrator and does not just confine it to man as perpetrator and woman as the victim. It also recognized that the rape with any object is as grave as a rape where man forcefully inserts his penis into a woman’s vagina. Rape will now be reported more precisely across the country, but the new UCR SRS definition of rape has no impact on federal or state criminal codes, charges, or prosecution on those levels.

 

1. United Kingdom:

In the United Kingdom rape is defined as: - A person ‘A’ has committed rape if he penetrates the vagina, anus, or mouth of a person ‘B’ with his penis knowingly and with intention and without B’s consent for doing it also A rationally does not believe that person B has given consent for committing such penetration. In such a situation the determinant of whether the belief was reasonable or not is all the circumstances which include any steps A has taken to confirm whether B consents[18]. Unlike India, in UK gender neutral nouns like the person are used instead of man or woman, and by doing this the scope and coverage of this law have widened instead of making a particular gender devoid of justice while giving the other gender one-sided privilege but apart from the such endeavour to make their law gender neutral UK failed to make it completely gender neutral as it only talks about a penis being forcefully penetrated and it does not talk about the situation when a man is being forced to penetrate. According to rapecrisis.org.uk 1 out of 20 men are raped as an adult.

 

 

1. Scotland:

Similarly in Scotland, the government has attempted to make their laws against rape gender neutral as the definition of rape in Scotland is Rape occurs when a person deliberately or carelessly inserts their penis inside the vagina or anus or mouth of another person without the victim's consent and without a rational basis to believe that the victim is giving their consent. In situations where an initial agreement to penetration is given but then revoked, the offender will have committed rape if they carry on with their behaviour[19]. Law against rape in Scotland is gender neutral to the most extent but even there, there is no provision to guard to rights of a man who is forced to penetrate.

 

1. Ireland:

Ireland also has relatively more gender neutrality in its laws against rape as the definition in Criminal Law (rape) (amendment) act, 1990 is a sexual assault that comprises even the slightest of penetration by the penis in the anus or mouth or in the vagina by any held object or by having been manipulated by another person[20]. Ireland’s law is wider as compared to other countries as it does not make it gender neutral by using gender-neutral terms but also it includes the offence done using external objects but again it does not include the provisions for the situation when a man is forced to penetrate.

 

1. Australia

In the common law system of Australia, the definition of rape is given as having sex with a woman against her will and was subject to stringent criteria of "sexual intercourse". In different courts, differing degrees of statutory amendments and additions to the common law offence of rape have been adopted, yet this has led to discrepancy between jurisdictions. Rape is now no longer a gender specific offence and even after some irregularities, this offence generally includes the penetration by any object, body part, penis or any part of the mouth into genitalia. Additionally, in some places it's illegal to force someone to participate in sexual intercourse or penetration.[21]

 

All the above countries are the example of an evolving world where gender neutrality in the laws is given priority in spite of making gender specific so that males or females that we knew of and all the other genders which have now been recognized as gender can be included in the scope that law. So, India should also give equal opportunity to all genders to receive justice if any of their rights are offended.

 

1. Inadequacy Of Section 377 For Dealing With Sexual Assault Cases:

In India, rape’s definition is limited to the insertion of a penis or any other object into the vagina & because of this exhaustive definition rape is limited to a women’s body & so women can never be charged with rape. Only "male on male" non-consensual sexual actions are covered by Section 377, whereas gay and transgender women are completely ignored.

 

Section 377 defines unnatural offences as “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with[22][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

'Whoever' in the section refers to the offender's sex in the section and denotes that it can include genders other than male and female i.e., transgender people can be included in the list of Section 377 offenders but the scope of the victim is limited to men & women. Therefore, those who are legally recognized as transgender cannot seek relief under this clause, while the possibility of them being the perpetrator is still open.

 

Although Section 377 is now used to protect men from sexual assault, there is still a significant gap between Sections 375 and 377. The words and meaning of section 377 limit the offence to penetration whereas Section 375, which encompasses a variety of penetrative and non-penetrative acts that are penile and non-penile[23]

 

Furthermore, the penalties under sections 375 and 377 are significantly different from one another. Punishment for Rape under 375 for is imprisonment for life, or with imprisonment of either description for a term of at least ten years for adults and twenty years for minors, and also shall be fined whereas Punishment for Carnal Intercourse under section 377 is life imprisonment, or with imprisonment of either description for a term of maximum ten years, and also shall be fined. Therefore, in contrast to section 377, where there is no minimum punishment imposed and an obvious breach of Article 14, the minimum bar set under 375 is 10 years of hard labour.

 

1. Hurdles In Making The Rape laws Neutral:

1. Social Factors:

There are various challenges when going forth with genderless sexual violence laws where the perpetrator and victim can be anyone across the gender spectrum. Two key factors out of the many social elements that stand in the way of making the rape laws gender neutral have been highlighted and analysed below.

 

1. Patriarchal Mindset Of The Society

The sexual exploitation of men appears to be hidden or even obscure. The assumption of male dominance has long been ingrained in society, and according to rape myths, sexual male violence is incompatible with ideas of masculinity.[24] It does not support a man's supposed "masculinity" to force him into a sexual act without his consent or to control him in any other way.[25]

 

The issue of male/male rape has been impacted from its inception by the idea of this traditional patriarchal pressumption of toxic masculinity. The denial that even men can be traumatised and harmed by such crimes is one aspect of the same problem. This notion gives rise to the false belief that men are not significantly impacted by such assaults on them. The stigmatisation of males who experience sexual abuse results from the portrayal of male victimisation as abnormal or unimportant.

 

The myth that men always want sex is also deeply ingrained in the collective consciousness of society. It seems that men would never refuse to engage in sexual activity and cannot, therefore, become a victim of the same.

 

Bodies are either penetrating or being penetrated, according to the heterosexuality theory[26]. The male body is referred to culturally as a "penetrator" and not as "penetrated"[27]. This is also the reason even fake cases of rape of women receive far more attention and are accepted much more readily.

 

 

1. Existence Of Transphobia Within The Society

Deep-seated transphobia not just in the general population but also among doctors in India was uncovered by a study carried out by researchers from Stanford University and the University of California in October of 2016, in association with the Civilian Welfare Foundation, a non-profit organization in Kolkata.[28]  A transwoman who took part in one of these studies claimed that the doctor at the hospital where she was taken after she was gang raped, questioned her, "How can you be raped?" This demonstrates a lack of empathy and comprehension of the grave problem of sexual violent acts that creates a sense of fear in the neighbourhood.

 

The transgender community also seeks no cooperation from the police. In a study that was held in 2017, the National Human Rights Commission (NHRC) discovered that "they (transgenders) do not get justice from the police. When transgender person whose right has been offended goes to the police station to report a complaint, the first obstacle is the fear of "what if I get harassed in the process?" or "what if I am asked pointed questions about my gender identity?" before any paperwork or documentation. Or, "what if I have to answer awkward questions or my family needs to intervene?" They are unable to contact the police for help, even in cases of gang rape, since they fear harassment and are unable to pay bribes.

 

Therefore, due to the aforementioned stigma, myths, and shame associated with male assault in a patriarchal society, and the presence of transphobia it's possible that the real number of occurrences is significantly underreported and that there aren't many people who can or want to speak out and because there are fewer of these individuals, those who have the power to affect change are unable to hear about the problem.[29]

 

1. Lack of Political Will:

Laws in every nation are made by the legislative body of that country and the legislative body of the country acts according to the political scenario of that place.

In India, the political scenario is not quite in the favour of the gender-neutral laws for rape as many women’s rights activists are against it claiming that it will even worsen the condition of women in the country as there will be many cases against women which will become a new way to suppress them.

The Hon'ble Apex Court instructed the law commission to study the rape law in Sakshi v. Union of India[30]. As a result, The Law Commission suggested legislation to make rape gender-neutral and impartial in its 172nd Report. The Criminal Law (Amendment) Bill, 2012 was approved by the cabinet for introduction in parliament, but before it could become an Act, the Nirbhaya Rape Case shocked the country, preventing the bill from becoming law. After this case, a committee led by Justice J.S. Verma was assigned by the government the creation of laws that will be better for the protection of women in the nation. This committee gave various suggestions which also included gender neutrality in the rape laws but this suggestion was criticized by various women empowering groups. After seeing such responses from these groups the laws were never made gender-neutral by the government.

 

K T S Tulsi, a Rajya Sabha MP and a renowned lawyer submitted a private member bill in the Upper House that would change the Indian Evidence Act, the Code of Criminal Procedure, and the Indian Penal Code. These amendments were regarding rape laws, making them gender neutral and including not just men but also transgenders the bill also asks for penalty for offender of any sex or gender[31] but this bill is still pending.

All this shows the level of political willingness that India is lacking for making the laws gender-neutral.

 

1. Suggestions:

The laws which have flaws and are outdated as per the current conditions of the world need to be amended and these amendments are how the laws evolve. In Contemporary times the Indian laws against rape need to evolve as it not only excludes all the other genders apart from females from being victims of rape but it also excludes females from being the perpetrator of this crime. So, to end this biasness and bring more neutrality to these laws in India there need to be two changes:

 

1. We must replace the gender-biased terms like man and woman from Section 376 with some gender-neutral terms like a person. This not just includes the males but all the people from the LGBTQIA+ community as it’s not just men but also the transgenders who are not represented in these laws.
2. There must be a clause that needs to be added and that is the clause that criminalizes the act of forced penetration. This clause will include the acts when a man is forced to penetrate a person’s vagina, mouth, or anus or is made to do the same with someone else.

 

1. Conclusion:

The world is evolving in every field and law is something that is integrally connected to this world as well as society. Since the world is evolving with the world the laws are evolving as well and India being a country with the second highest number of people living it, needs to protect the rights of all of its people and it can’t do that by implementing its old outdated method. People are now well aware of their rights and want them to be protected so there is no room for biasness for any gender religion or community in the laws of the nation. So, rape laws of India should be no exception, since there are more than two recognized genders now and we certainly cannot ignore all of them and mark one particular gender as the perpetrator and another as the victim and ignore the rest of them. Therefore, to fix this problem we need to amend the existing rape laws and bring a gender-neutral law that will protect the rights of all genders, and no particular gender will be privileged or discriminated against because it is not just the females who fall prey to such crime but the people of other genders also become victim to this crime and when they do they have inadequate or no way of fighting against this crime in the court of law. So, there must also be a representation of all genders in rape laws hence making it a gender-neutral and unbiased law for protection and welfare of all the citizens of India.

 

 

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[1] Yagnesh Mehta, “Cruel punishments for Rapists in Ancient India”, The Times of India, June 23, 2009, available at https://timesofindia.indiatimes.com/city/surat/cruel-punishments-for-rapists-in-ancient-surat/articleshow/4693672.cms (last visited on May 8, 2022)

[2] “India lodged average 86 rapes daily, 49 offences against women per hour in 2021: NCRB data”, The Hindu, August 31, 2022, available at https://www.thehindu.com/news/national/india-lodged-average-86-rapes-daily-49-offences-against-women-per-hour-in-2021-government-data/article65833488.ece (last visited September 5, 2022)

[3] Whisnant, Rebecca, "Feminist Perspectives on Rape", The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/

[4] Lokesh Pawar, “I am a sexual abuse survivor. No, I am not a woman”, The Print, 18 April 2021, available at https://theprint.in/opinion/i-am-a-sexual-abuse-survivor-no-i-am-not-a-woman/641099/, (last visited on October11, 2022)

 

 

[5] Sunil Batra v. Delhi Administration (1980) 3 SCC 488

[6] Joanne Mariner, “No Escape: Male Rape in U.S. Prisons”, (U.S. Department of Justice, 2001)

[7] Dave Philips, “Six Men Tell Their Stories of Sexual Assault in the Military”, The New York Times, September 10, 2019, available at https://www.nytimes.com/interactive/2019/09/10/us/men-military-sexual-assault.html (last visited on September 23, 2022)

[8] United States Government, “Independent Review Commission (IRC) on Sexual Assault in the Military” (U.S. Department of Defense), available at https://media.defense.gov/2021/Jul/02/2002755437/-1/-1/0/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF

[9] Melinda Wenner Moyer, “A Poison in the System’: The Epidemic of Military Sexual Assault”, The New York Times Magazine, August 3, 2021, available at https://www.nytimes.com/2021/08/03/magazine/military-sexual-assault.html

[10] https://pldindia.org/wp-content/uploads/2013/04/Comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf

[11] “Woman jailed for raping man”, The Guardian, April 28, 2005, available at, https://www.theguardian.com/world/2005/apr/28/2 (last visited on November 14, 2022)

[12] AtMigration, “3 women kidnap, force-feed and rape 23-year-old man for 3 days” India Today, May 30, 2017, available at https://www.indiatoday.in/fyi/story/gang-rape-man-raped-by-women-three-days-south-africa-forced-energy-drinks-980004-2017-05-30,(last visited on November 22, 2022)

[13] “Boys are victims in 17% child sexual abuse cases in Kerala” The Times of India, November 9, 2020, available at https://timesofindia.indiatimes.com/city/thiruvananthapuram/boys-are-victims-in-17-child-sexual-abuse-cases-in-kerala/articleshow/79120561.cms (last visited on October 23, 2022)

[14] Nakshab Khan, “Jalandhar: Man alleges he was kidnapped, gang-raped by four girls in their 20s”, Mirror Now, November 24, 2022, available at https://www.timesnownews.com/mirror-now/crime/jalandhar-man-alleges-he-was-kidnapped-gang-raped-by-four-girls-in-their-20s-article-95732303 (last visited on December 1, 2022)

[15] Siobhan Weare, “‘Oh you're a guy, how could you be raped by a woman, that makes no sense: towards a case for legally recognizing and labelling ‘forced-to-penetrate’ cases as rape”, Volume 14, International Journal of Law in Context, (May 18, 2017)

 

[16] National Legal Services Authority vs. Union of India [(2014) 5 SCC 438]

[17] Andrew R. Flores PhD, Ilan H. Meyer PhD, Lynn Langton PhD, and Jody L. Herman PhD, “Gender Identity Disparities in Criminal Victimization: National Crime Victimization Survey, 2017–2018” American Journal of Public Health (March 10, 2021)

[18] U.K. Public General Act, Sexual Offences Act 2003, c.42, Part 1, available at https://www.legislation.gov.uk/ukpga/2003/42/part/1/crossheading/rape 

[19] The Sexual Offences (Scotland) Act 2009, Acts of the Scottish Parliament, 2009 asp 9, Part 1, available at https://www.legislation.gov.uk/asp/2009/9/contents

[20] Criminal Law (Rape) (Amendment) Act, 1990, Section 4, available at https://www.irishstatutebook.ie/eli/1990/act/32/enacted/en/print#sec1

[21] Australian Government, “‘Rape’: the penetrative sexual offence”, (ALRC Report 114, Australian Law Reform Commission, November 11, 2010)

[22] Indian Penal Code, 1872, Section 377

[23] The Criminal Law (Amendment) Act of 2013.

[24] Heather R. Hlavka, “Speaking of Stigma and the Silence of Shame: Young Men and Sexual Victimization” Volume 20, Issue 4, Sage Journals (June 5, 2016)

[25] Dakshita Arora, “The Plight of Male Rape Survivors”, Indian Review of Advanced Legal Research (November 20, 2020)

[26] Judith Butler, “Bodies That Matter on the Discursive Limits of Sex”, (Routledge, New York, 1st edition)

[27] Ibid

[28] Ankur Paliwal, “‘How could you have been raped?’: New study on how India’s transgender people face bias from doctors”, Scroll.in, November 2, 2017, available at https://scroll.in/pulse/856285/transphobia-among-indian-doctors-study-aims-to-uncover-reasons-for-bias-against-transgender-people ,(last visited on December 3, 2022 )

[29] Supra note 26

[30] Sakshi v. Union of India (2004) 5 SCC 546

[31] Ambika Pandit, “KTS Tulsi floats Rajya Sabha bill to make rape laws gender-neutral” The Times Of India, July 14, 2019, available at https://timesofindia.indiatimes.com/india/kts-tulsi-floats-rajya-sabha-bill-to-make-rape-laws-gender-neutral/articleshow/70210664.cms ,(last visited on November 18, 2022)