Gender-biased rape laws must change

India’s rape laws despite having undergone some changes over the past few decades continue to be regressive and propagate patriarchal gender stereotypes. At a time when many countries around the world are moving towards gender-neutral rape laws to observe a person of any gender as a potential victim/survivor or perpetrator, India continues to follow a law which is based on the principle of vaginal penetration by a man. This is a dangerous stereotype which can deny justice, liberty, right to life and equality to a section of society.

The idea of men being sole perpetrators of such a heinous crime comes from a patriarchal standpoint that men are physically stronger than women, as sexual assault is the exertion of power by men over women. The principle that only women can be victims comes from the same patriarchal thought of men being strong and powerful to not be subjected to such acts. Section 375 of the Indian Penal Code unreasonably classifies only women as victims thus awarding them protection and completely ignores other genders of our society.

Though resentment against non-consensual sexual acts is on the rise, the legislation enforces unjust, regressive gendered stereotypes about male and female sexuality that is problematic for almost all sections of society.

I do not by any means ignore than rape and sexual assault has been systematically used by men to oppress women, by upper-caste men to oppress lower caste women. However, the propagation of patriarchal ideologies through regressive laws deems to ignore sexual assault and rape as a weapon to exercise power, control and dominance.

What complicates the matter further is when only men and women are included in the discussion, another equally important section of society – trans people and non-binary persons are excluded from the purview of the rape law.

The Supreme Court’s judgement in Navtej Singh Johar v. Union of India Ministry of Law and Justice Secretary decriminalised consensual carnal intercourse, but failed to equate non-consensual carnal intercourse to sexual assault, but deemed it to be an unnatural offence.

A common argument against gender-neutral rape laws is the historic oppression of women in the country and them being subject to a potential situation where an offender can file an illegitimate counter-complaint against female survivors of rape, hence forcing them to withdraw their complaint. Whilst this situation is highly probable, another issue arises--that of denying a section of society, however small it may be, of certain constitutionally guaranteed rights--the right to justice, dignity, equality and liberty.

As a cis-heterosexual man, I have personally been forcefully intoxicated and forced into sex, all in one horrific incident. However, I do not have any means of legal recourse, or even term this incident as an act of rape or sexual assault. 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. The number of men, trans people, non-binary persons who are victims/survivors and the number of women, trans men or women and non-binary persons who are perpetrators may be small. However, for a section of society to not have any legal recourse, means to reconcile with injustices. It means having to deal with a society where their battles are seen as non-existent and for predators to be on the loose. This is dangerous, hurtful and fundamentally opposed to the Constitution and the Rule of Law, and humanity.

Hence, we must make a case for the life, equality and dignity of men, transgender and homosexual persons to be protected alongside those of women from sexual offences.

What propagates men to think that they have the right to get sex, without consent, and thus exert control over others is toxic masculinity, that is forced upon the society. Toxic masculinity also prevents men from showing their emotions, even if it arises out of going through what is a dehumanising act.

The most affected by the lack of gender neutrality, however, are not men but transgender and non-binary persons who more often than not face abuse and sexual assault.

Such rape laws are not the sole cause or consequence of gendered stereotypes of sexuality, and amending them would not eradicate them, but if lawmakers and the government start to recognise that any person can be a perpetrator and a victim/survivor, that would be a start to recognise that all citizens irrespective of their gender have a right to sexual integrity and autonomy. Amending the law to be gender-neutral does not mean to claim that rape affects men and women in the same manner and magnitude, but such an amendment would change the way in which gendered stereotypes of sexuality are seen by society.

(The writer’s name has been changed to protect privacy)