Ms. Arundhati Diljit
There are many laws which are enacted purely for the protection of women. They may, on the face of it, appear to be aimed at achieving gender equality, however, a careful perusal of this reasoning behind such gender biased laws reveal that they may be in conflict with the liberal feminist principles which have developed over the years. Therefore, the question arises whether these laws are helping us achieve equality or are they in reality, taking us a step backward. The author attempts to analyze gender biased laws from the perspective of liberal feminist principles and would be for this purpose focusing specifically on the rape laws which exist in India.
India had, for a long time, hosted a patriarchal society in which women were subjugated and oppressed. But as time progressed feminism has made huge strides within our society, but as we slowly break away from the shackles of our past, what still haunts us is the vestiges of old beliefs which remain stubbornly in our midst.
Liberal feminism, which is the most popular branch of feminism, advocates that men and women should be considered equal in terms of their capabilities[i] and that discrimination should not exist on the basis of belief in such inequality. The reason why it is most apt for the modern world is because it emphasizes the value of women as human beings and do not see them as merely instruments for the welfare of men and children.[ii] It staunchly believes that women are at par with men in all fields. Therefore, in essence, while applying this to law, provisions should not be based on the belief that the abilities of men and women are different and therefore calls for their differential treatment.
It is true that India has high incidences of violence against women, and it is also true that this calls for stringent laws which would curb it. In pursuit of such noble intentions or as rhetoric various governments have over the years enacted laws specially to safeguard the interest of women and women alone. However, the question remains whether such gender biased laws are providing a path leading us away from our stereotypes or whether it is propagating the same beliefs in a different manifestation. Therefore, it is important to analyse these laws in the light of the liberal feminist theory.
There are various laws which are specifically directed only towards women, that is, under the ambit of those laws, only women can be victims. Some of these laws are those dealing with rape, domestic violence, modesty and sexual harassment. These are undoubtedly necessary safeguards for women in this country, but the question is, are they the only one who need such protection? The underlying presumptions behind such gender specific laws are that men cannot be victim of rape, they cannot be victims of domestic violence and neither can they be subjected to harassment.
The ground reality suggests differently and the author would like to focus specifically on the rape laws. The often cited study conducted by the Ministry of Women and Child Development in collaboration with United Nations Children’s Fund (UNICEF)[iii] had revealed that 52.94% of the children who have reported child abuse are boys. Since the inception of the Indian Penal Code (IPC), only Section 377, which dealt with unnatural sex, was capable of dealing with sexual abuse of a male. This Section does not lay down a minimum punishment consequently leading to a lesser punishment than what Section 376, which deals with the rape of a girl child provides. This was for an extent rectified by the enactment of Protection of Children from Sexual Offences Act (POCSO), which was a gender-neutral act for dealing with child sexual abuse. However, with the coming of the Criminal Law Amendment[iv] of 2018, death penalty could be imposed on the accused for the rape of a girl child below the age of 12, whereas POCSO as well as Section 377 only provides for a maximum punishment of life imprisonment. There seems to be no rational reasoning for such a distinction.
Coming to the issue of rape of adults, the belief persists that either men cannot be raped, or if they are, so few men are raped that it becomes a freak occurrence.[v] The concept of male rape has been hitherto unrecognised in India, and consequently there have been no reports on the same. However, by drawing references from reports of study conducted in other countries it is amply clear that even men can be victims of rape. In the US, a study[vi] found that 9% of the victims of rape and sexual abuse are men, likewise a report[vii] dealing with UK and Wales found that 4% of men have experienced some type of sexual assault by the age of 16. The percentages may seem to be significantly lesser than those of female victims, however, relevant here is the proof that men too can be victims of rape and there is no reason why this should be considered as any less serious. The lack of recognition given to this possibility means that the victims have no recourse available to them both legally and socially.
Much of the literature on male rape, or male sexual victimization, states that negative attitudes or beliefs regarding male victimization stem from rape myths or sex-role stereotypes.[viii] Therefore, considering rape as capable of being committed by a man on a woman is only a manifestation of the belief that only men are able to exercise power and only women can be victims. Therefore, recognising male rape, would further the goal of feminists to do away with all forms of gender stereotypes.
The Law Commission came up with a report[ix] which suggested that rape laws be made gender neutral. This recommendation was briefly taken up by the government through the Criminal Law Amendment Bill, 2012. However, this never saw the light of day as J.S.Verma Committee was set up due to the Nirbhaya case[x] and its report[xi] suggested making rape gender neutral with regard to the victim but retain that only men be held guilty of it. However, the Criminal Law (Ordinance) Act, 2012, which came soon after made rape laws completely gender neutral. This was criticised severely by various groups ensuring that the Criminal Law (Amendment) Act, 2013, though adding other non-penile vaginal forms, retained the age-old gender classification of only women as victims and men as perpetrators.
Within the judiciary conflicting views have turned up over the years with regard to whether gender is an essential element for determining victims and perpetrators of rape. In one case, the court opined that considering rape as sexual assault rather than as a special crime against women, might do much to place rape law in a healthier perspective. It will also reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.[xii] Whereas, in more recent occasions, like the Priya Patel case,[xiii] the court held that it is inconceivable for a woman to commit rape.
Recently, petitions questioning this have been raised before the judiciary. Rishi Malhotra initially raised the validity of using the term ‘any man’ for defining the perpetrators of various offenses within the IPC stating that it violated the principle of equality by discriminating on the basis of sex which holds no merit as crime has no gender.[xiv] Later, Criminal Justice Society of India brought a petition for amending the rape laws and making it gender neutral.[xv] On both these occasions the court refrained from making a stance and dismissed the petition by saying that it is upon the parliament to bring about a change in laws, if deemed necessary.
Bearing in mind the precedents laid down by the judiciary it is amply clear that this law is in derogation to the guiding principle which allows discrimination on the grounds of sex which would otherwise be in violation of Article 14 and 15 of the Constitution. The judiciary has laid down that such distinction must be founded on some intelligible differentia[xvi] which should not be based solely on stereotypical conceptions of male and female roles.[xvii] The distinction in our rape law stems from the general belief that women are incapable to exercise power over men and is centred around the male-dominated idea of sex. Hence, it is in derogation of the principle of equality.
Over the years, various countries like Ireland, USA, China, Sweden and UK have brought forward gender-neutral rape laws. In these countries there have been many instances where men have been recognised as victims of rape and on occasions females were held guilty for forcing penetration like in the Cierra Ross case.[xviii] India too should follow suit and start legally recognising the silenced male victims of rape.
The voices which advocate this gender bias say that it is required to prevent the dilution of the political and social commitment to protecting women. This very notion that women alone need protection goes against the fundamentals of liberal feminism. It is only a manifestation of the deep-rooted patriarchy which we still seem to fail to weed out and is in derogation of all the progress we have made over the years.
Ms. Arundhati Diljit is a third year B.A., LL.B. (Hons.) student at National Law Institute University, Bhopal.
[i] Margaret Davies, Unity and Diversity in Feminist Legal Theory, Flinders University, https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-9991.2007.00091.x.
[ii] Susan Wendell, A (Qualified) Defense of Liberal Feminism, Wiley, https://www.jstor.org/stable/pdf/3810017.pdf?refreqid=excelsior%3A10ab6fb8b726f2297ce07a54521444ac.
[iii] Ministry of Women and Child Development, Study on Child Abuse: India (2007).
[iv] Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018 (India).
[v] Michael Scarce, Male on Male Rape: The Hidden Toll of Stigma and Shame (1997), 8-9.
[vi] National Sexual Violence Resource Center, Statistics about sexual violence (2015).
[vii] UK Ministry of Justice, Office for National Statistics and Home Office, An Overview of Sexual Offending in England and WaleS (2013).
[viii] Nicola L. and Pina, Afroditi, An overview of the literature on female-perpetrated adult male sexual victimization. Aggression and Violent Behavior, Fisher, (2013), at 12.
[ix] Law Commission of India, 172nd Report on Review of rape laws (2000).
[x] Mukesh v. State for NCT of Delhi, (2017) 3 S.C.C. 719.
[xi] J.S.Verma, et al., Amendments to Criminal Law (2013).
[xii] Sudesh Jhaku v. K C Jhaku (1998) Cri. L.J. 2428 (India).
[xiii] Priya Patel v. State of Madhya Pradesh, (2006) A.I.R.2639.
[xiv] SC Dismisses PIL to Make Rape, Sexual Harassment, Stalking, Outraging Modesty Gender-Neutral. Live Law, (Feb 28, 2018, 12:58 PM), http://www.livelaw.in/sc-dismisses-pil-make-rape-sexual-harassment-stalking-outraging-modestygender-neutral/.
[xv] Plea to Make Rape Law [Section 375IPC] Gender Neutral: SC Refuses to Interfere, Live Law, (Nov 12, 2018, 11:26 AM), https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-375ipc-gender-neutral/.
[xvi] State of West Bengal v. Anwar Ali Sarkarhabib Mohamed, (1952) A.I.R 75.
[xvii] Anuj Garg v. Hotel Association of India, (2008) A.I.R. 663.
[xviii] Meredith Bennett-Smith, Cierra Ross, Chicago Mom, Charged With Raping Man At Gunpoint, Huffington Post, (Sep 6, 2013), https://www.huffingtonpost.in/2013/09/06/cierra-ross-charged-raping-man_n_3882608.html.