India Legal – July 13, 2019

| INDIA LEGAL |July 22, 2019 13

HOULD the definition of

rape be gender-neutral?

The issue has been agitating

the government, academics,

courts and activi sts for quite

some time. Sect ion 375 of

the Indian Penal Code des cribes four

specific sexual acts by a man, which

amount to committing rape under

any of the following seven descr iptions:

First, against her will.

Second, without her consent.

Third, with her consent, when her

consent has been obtained by putting

her or any person in whom she is inter-

ested in fear of death or of hurt.

Fourth, 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.

Fifth, 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 conse-

quences of that to which she gives

consent.

Sixth, with or without her consent,

when she is under 18 years of age.

Explanation: Penetration is sufficient to

constitute sexual intercourse necessary

to the offence of rape.

Seventh, when she is unable to com-

municate consent.

Explanation 2: Consent means an un -

e quivocal voluntary agreement when the

woman by words, gestures or any form of

verbal or non-verbal communication,

communicates willingness to pa r t icipate

in the specific sexual act. Prov ided that a

woman who does not physically resist

the act of penetration shall no t by the

reason only of that fact be re g arded as

consenting to the sexual activity.

Exception 2: Sexual intercourse or

sex ual acts by a man with his own wife,

the wife not being under 18 years of age,

is not rape (as read down by the Sup -

reme Court in Independent Thought v

Union of India in 2017).

To make the above provision gender-

neutral, it has to be entirely rewritten,

or deemed to be understood differently,

if it is conceded that men also are vic-

tims of rape, whether by women or by

other men. On July 5, the centre infor -

med the Delhi High Court that rape

laws can’t be made gender-neutral as

wo men are the predominant victims.

The centre admitted that the 2012

Nirbhaya tragedy in the Capital, where a

young woman was brutally gang-raped

in a moving bus, made it abandon the

legislative effort to make the rape law

gender neutral.

The centre’s admission was made in

response to a petition filed by a social

activist, Sanjjiiv Kkumaar, director of an

NGO, Knewmax Benevolent Found -

ation, who was seeking gender-neutral

rape law.

Even before Kkumaar’s petition was

heard by the High Court, the Supreme

Court had dismissed a PIL with similar

prayers on February 2 last year. The PIL

sought to make laws pertaining to rape,

sexual harassment, stalking, voyeurism,

outraging modesty, etc., gender-neutral.

The PIL in the Supreme Court cha ll -

enged the constitutional validity of Sec -

tions 354 (assault or criminal force to

woman with intent to outrage her mod-

esty), 354A (sexual harassment), 354B

(assault or use of criminal force to

woman with intent to disrobe), 354C

(voyeurism), 354D (stalking) and 375

(rape) of the Indian Penal Code. The

PIL argued that since these sections do

not stipulate any provisions to protect

men from sexual violence and in many

cases allow the female perpetrator to go

unprosecuted, they are in violation of

Articles 14 (right to equality), and 15

(prohibition of discrimination on

grounds only of sex) of the Constitution.

Terming it an “imaginative petition”, a

bench headed by Chief Justice Dipak

Misra noted that these sections of the

IPC are affirmative provisions for the

protection of women and the classifica-

tions in the sections are valid.

Is it then proper to assume that the

perpetrator of sexual violence is always a

man who engages in a non-consensual

sexual activity with a woman? Such an

assumption appears to be valid in the

absence of substantial evidence of fem -

ale perpetrators of sexual violence aga -

inst men. Out of all the cases of male

rape cited in Kkumaar’s petition, none

are from India. Gender-neutral laws on

sexual violence in the context of a male-

dominated legal system and police mac -

h inery and cultural impunity regar ding

sexual violence, it is believed by acti -

vists, would result in limiting women’s

ability to file complaints and meeting

complaints by women with

S

“Parliament failed to understand the

injustice done thereby to so many men

and transgender people.”

—Justice Leila Seth on

gender-specific rape law

In response to a petition filed by social

activist Sanjjiiv Kkumaar, the centre

admitted that the 2012 Nirbhaya tragedy

made it abandon the legislative effort

to make rape law gender-neutral.