Here's Why India Needs Gender Neutral Rape Laws

The Kerala High Court under Justice A Muhamed Mustaque on Wednesday said that rape should be made a gender-neutral offence under the Indian Penal Code. He made this observation while listening to a matrimonial dispute moved by a divorced couple over custody of their child. During the course of the case the wife’s counsel brought up the fact that the husband in the case had once been accused of rape. The husband’s counsel in return argued that he was currently out on bail and that the said allegation was based on unsubstantiated accusations of sex under a false promise of marriage.

To this, Justice Mustaque observed that Section 376, which provides for punishment in rape cases under the Indian Penal Code, is not a gender neutral provision.

“If a woman tricks a man under the false promise of marriage, she can’t be prosecuted,” he remarked, according to Live Law. “But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral.”

Having gender neutral rape laws in our country has been long debated. Justice Mustaque’s comment has again raked up the issue. Let’s do a deep dive:

It’s not something unique he’s asking for

Countries that already have gender-neutral rape laws are the Unites States, United Kingdom, Canada, Philippines, Finland, Ireland and Australia, recognising both men and women as perpetrators and survivors.

Rape according to the Indian Penal Code

According Section 375, a man is said to commit “rape” when he has sexual intercourse with a woman under circumstances that fall in any of the six following descriptions:

• Against her will.
• Without her consent.
• With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
• With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
• With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

The idea of men being sole perpetrators of such a heinous crime like rape comes from a patriarchal point of view that men are physically stronger than women, as sexual assault is considered the exercise of power by men over women. Therefore, our laws unfairly classify only women as survivors and so granting them protection and completely ignoring other genders of our society.

Suggested Reading: Here's A Fact: Marital Rape Is Rape

Argument for gender neutral rape law

Rape is not just an act in which a perpetrator achieves sexual satisfaction but mainly an act used by a person or group of persons on another to exert control, power and dominance. Rape can be committed by any gender. The number of men, trans people, non-binary persons who are survivors and the number of women, trans men or women and non-binary persons who are perpetrators may be small, but this does not in any way mean that a section of society should not have any legal assistance against injustices. We can look at it in another way as well that this small group has to deal with a society where their battles are seen as non-existent and their predators are on the loose.

Argument against gender neutral rape law

One of the key arguments against gender neutral rape law is that it’s physically and biologically impossible for a woman to commit rape. This argument is based on the belief that a man is stronger than a woman and thus cannot be subjected to rape.

Another common argument against gender neutral rape laws is the historic oppression of women in our country which leads us to assume that women can be subject to a potential situation where an offender can file an illegitimate counter-complaint against women survivors of rape, which might force them to withdraw their complaint. While this is a likely scenario, we have to keep in mind that other genders, including women, too can commit sexual assault on pretext of marriage, or by obtaining consent under influence or by levying threats of harming a person's loved ones.

By refusing to widen the criterion of rape and making laws gender neutral we may be denying a section of society, however small it may be, of certain constitutionally guaranteed rights like the right to justice, dignity, equality and liberty and this is pure injustice.

Views expressed are the author's own.