Gender Neutral Rape Laws: Not As Simple As You Might Think

After the Nirbhaya Rape case in Delhi, a committee led by Justice Verma, a former Chief Justice of the Supreme Court, was established in December 2012 to make recommendations for amendments to the Criminal Law that would expedite the legal process and strengthen punishment for those found guilty of sexual assault against women. Justice Leila Seth, a former High Court judge, and Gopal Subramanium, a former Solicitor General of India, were the other members of the Committee.

On January 23, 2013, the Committee submitted its report. It included suggestions for changes to the law pertaining to rape, sexual assault, trafficking, child sexual abuse, victim medical examinations, police, and electoral and educational reforms but the government rejected their recommendations and passed legislation making rape a crime against both sexes, making it gender neutral.

What followed was a lot of backlash from feminist groups. It is important to note that gender neutrality was not the only reason why there was a backlash, but also because they did not take any of the recommendations from the Committee, including recognising marital rape and keeping the age of consent at 16. Marital rape is still, even in 2022, not recognised by our constitution.

Prominent women’s rights advocate Flavia Agnes also voiced concern against the bill, “I oppose the proposal to make rape laws genderneutral.” She also added that women’s groups had also protested against gender-neutral Child Sexual Abuse laws.

DO BOYS NOT GET ABUSED?
India had pledged to safeguard its children from all types of sexual exploitation and abuse when it ratified the United Nations Convention on the Rights of the Child in 1992. The first extensive government-sponsored research study to evaluate the scope and form of child abuse in India was commissioned as a result of growing concerns about female infanticide, child rapes, and institutional abuse of children. Shockingly, a government-commissioned survey revealed that more than 53% of Indian youngsters experience sexual abuse or assault. With almost half of the victims of child sexual abuse being boys.

In 2012, Delhi advocate Vrinda Grover said: “Why should rape laws be gender neutral? There are no instances of women raping men.”

DO MEN NOT GET RAPED BY WOMEN?
There is a misconception that men are more likely to be raped by other men. This misconception originates from rape statistics in the USA. In truth, the state’s definition of rape is flawed, it does not consider “made to penetrate” as rape. For male victims, the sex of the perpetrator varied by the type of sexual violence experienced.

The Majority Of Male Rape Victims (93.3%) Reported Only Male Perpetrators.

For Three Of The Other Forms Of Sexual Violence, A Majority Of Male Victims Reported Only Female Perpetrators: Being Made To Penetrate (79.2%), Sexual Coercion (83.6%), And Unwanted Sexual Contact (53.1%).

For Non-Contact Unwanted Sexual Experiences, Approximately Half Of Male Victims (49.0%) Reported Only Male Perpetrators And More Than O n e - T h i r d (37.7%) Reported Only Female Perpetrators. 5,451,000 men reported being ‘forced to penetrate in their lifetime while 1,581,000 men were ‘penetrated by someone else’, hence around four times more men are made to penetrate than that are penetrated by someone else in the US. If ‘made to penetrate’ is also considered rape, which it is, then the majority of male rape victims are raped by women.

Unfortunately, we have no data at all for male rape victims in India. Hence the situation can only be assessed based on speculations and analogies. The countries are in extremely different stages of gender equality, but it should give us some context

Another reason why feminists opposed gender-neutral rape laws is that they believed that if the laws are not gender-specific, the perpetrator can file a countercase against the victim to mislead the court. Intimidating the victims into taking their complaints back.

Instead, they argued in favour of the perpetrator being gender specific and the victim being gender neutral.

There is little evidence to support or disprove this claim, however, this is an opinion shared by many lawyers and judges, including justices from the Supreme Court. Holding the view that Indian society is not yet ready for gender-neutral rape laws. They believe that there should be separate laws, instead, where complaints can be filed against women when there is a clear power dynamic, such as hostel wardens, teachers and so on.

They hold that the men who benefit from gender-neutral rape laws are much fewer than the women who will have to suffer. Female on Male rape victims are likely to be statistically quite small. On the other hand, around 3 million women face sexual violence every year and 99% of those cases are never reported.

This is the trolley problem. If rape laws are made gender neutral then it will give a course of justice to male rape victims, but will also harm female victims by giving more legal avenues to rapists. On the other hand, if the rape laws are gender specific, then they will deny justice to female on male rape victims. And as is the trolley problem, you run over the side with fewer bodies ...... right?

Well however you may choose to answer this moral paradox, the centre repealed the bill. According to the Indian penal code, men cannot be raped. Not even by other men; though they do have a legal course to justice via sodomy laws. When in 2018 activists tried to make rape laws gender neutral once again, the centre said that rape laws cannot be gender neutral after ‘consultation with Women’s Groups.

This topic is still a matter of debate amongst feminist groups; with the younger and inter-sectionalise generation being in favour of gender-neutral laws, while the older and experienced one argues against it, holding the view that India is just not ready.