test

• Volume: 10
,
• Issue: 1
• Date: August 26, 2019, 7:55 pm

                              Looking at rape in India through a gender-sensitive lens

 

                                                               ABSTRACT

In this so called progressive age, where our laws are meant to be moulded according to the changes taking place in society, we must ask ourselves how fluid and adaptable these laws actually are. Today, the number of rapes in India is alarmingly high. While our laws have taken adequate measures to safeguard the interests and bodily integrity of women, they have turned a blind eye to the victims of rape belonging to other genders. This article attempts to urge our law makers to look at rape through a gender-sensitive lens. The absence of having such a perspective is a gross violation of the fundamental rights of the victims. This becomes all the more necessary in the light of the recent landmark judgement that has now legalised same gender sex in the country. This article also seeks to do away with the popular yet incorrect view that finds it impossible to recognize women as perpetrators of rape. The authors hope to instil in the minds of their readers that any individual can be raped by any other, irrespective of their genders. It is about time that our rape laws adapt a gender-sensitive approach that ensures every single individual equal protection under the law.

 

 

 

 

 

 

 

 

 

 

Former associate Supreme Court Justice of the United States, Louis D Brandeis remarked, “If we desire respect for the law, we must first make the law respectable.” The fundamental principle that lies at the heart of criminal law is that it must not discriminate and views every individual through an identical lens.

In stark contrast to this principle, the father of a 13 year old rape victim in Mumbai, narrates how his child had gone through intense pain and trauma post being gang-raped by four men. The child subsequently committed suicide. Of all the rapes that happen in India, how is this any different? The difference lies in that the child here was a thirteen-year-old boy. Owing to the patriarchal stigma attached to the word rape in India, it has become common for a person to assume the victim to be a girl. However, rape is not a gender-specific crime.

In India, the law recognises only the rape of a woman by a man. For,how can a man be raped?How can a woman rape!? It is these blind spots that help perpetrators walk away scot free.

So here we are today, debating the need for a gender sensitive interpretation of the laws on rape in India. It was the brutal gang rape of Nirbhaya in Delhi suburbs that sent shockwaves across the world and citizens from all over, vociferously called for the need for more stringent laws to ensure greater safety for women.It was in response to this that a three member committee under Justice Verma in an attempt to amend the criminal law, made several recommendations confined not just to rape and sexual assault, but also to other sexual offences, adequate safety measures for women, and the medico-legal examination of the victim.[1] Although the tone of the committee seemed to take a gender sensitive stance, no recommendation was made with regard to the recognition of different kinds of rape. Prior to this, the Law Commission of India, in its 172nd report, had even proposed a widening of the scope of rape as an offence under Section 375 of the Indian Penal Code, to make it gender sensitive.Yet, the law that stands today identifies rape as an act perpetrated by a man upon a woman. This article seeks to change this discriminatory narrative and discuss the need to make rape laws gender just and gender sensitive.

As the Protection of Children from Sexual Offences (POCSO) Act recognises, the offender can be of any gender – male, female, third gender, etc. But sadly, the protection under this act extends only to children. When the victim is an adult, the law turns a blind eye unless the act comes under the narrow definition provided for rape.

Recently, the Delhi High Court questioned if there ever will be a right time to make rape and its punishment ‘gender sensitive.’ In a petition filed by a social activist, challenging the constitutionality of section 375, it was opined that making the law gender sensitive is a simple recognition of reality — men sometimes fall victim to the same or at least very similar acts to those suffered by women.[2] In fact, the petitioner submitted that such incidents were far too prevalent to be termed as a mere anomaly, thus denying justice to several men.[3] The current laws make a dangerous assumption that only protects women and ignores the fact that victims of sexual abuse, even if part of a minority, are victims nonetheless. We have to remind ourselves that the victims of sexual abuse could be male, female or transgenders.

The second most prevalent kind of rape in India is that of a male by a male. A major factor contributing to the unawareness of this issue is the victim’s reluctance to come out of the closet and reveal his scars. There is a great stigma attached to homosexuality in India which has led to the wrong yet popular belief that a man’s masculinity is diminished if he is sexually assaulted by another man. Men are taught to bear struggles like a man and not cry like a woman. This might seem insignificant, but it is the preaching of this attitude from an early age, that makes most men hide their trauma and hardships. When a man is raped by another man, there is also an additional fear of being branded as a homosexual by those around him. Despite the decriminalisation of homosexuality in India, the stigma attached to it still prevails in the minds of most.

 The truth is, throughout the world, sexual abuse and rape of boys is an ignored reality that society would rather look away from instead of addressing.” says Insia Dariwala an Indian film maker who is investigating links between unresolved male trauma and its impact in later life, after an online survey of 160 Indian men showed that 71% of respondents are survivors of some form of sexual abuse. Of these survivors, 84.9% said they had not told anyone about the abuse. The primary reasons for this were shame (55.6%), followed by confusion (50.9%), fear (43.5%) and guilt (28.7%)[4].

Silence is the perpetrator’s best friend. As Maneka Gandhi, India’s Women and Child Development minister rightly points out, boys who are sexually abused as children spend a lifetime in silence because of the stigma and shame attached to male survivors speaking out. It is a serious problem and needs to be addressed.

Yet another kind of rape is one which involves a woman perpetrator. One primary reason these incidents go unrecognized is due to the social stigma that rape is a crime committed to satisfy sexual desire alone. However, it is as much a crime of violation of bodily integrity, causing grave physical and mental harm.[5] We fail to realise that sexual abuse also covers assaults where a woman coerces a man, woman, or child to penetrate her in one or more of the ways stipulated.[6]

Not only does the law not recognise women perpetrators of sexual abuse, but a victim of a female perpetrated sexual assault often does not seek recourse due to the stigma attached to homosexuality in India. In fact, lesbian women activists themselves are unable to speak of such cases within their own community, simply because the law interprets sexual violence as something only a man can commit against a woman.[7] What is even more troubling is that there is almost no statistical data to produce as evidence on the matter. Recently, the Delhi-based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.[8] While women’s rights activists argue that such gender sensitive laws will be misused and cause further trauma to women, the same can be said about the misuse of current laws by women as well.[9] The crux of the matter is that sexual abuse in itself, is extremely difficult to prove; but this lack of proof cannot be used as a reason to nullify the rights of other classes of persons altogether.

Another prevalent issue that isignored in India is sexual abuse of and by transgenders. Just as the country has not taken transgenders seriously until recently, it has also not considered the crimes against them with the seriousness that it commands. This is glaringly obvious in the Transgender Persons [Protection of Rights] Bill, 2016, which regards sexual assaults against transgenders as a petty issue which deserves only a maximum punishment of two years of imprisonment in comparison to the rape of a woman, which requires imprisonment of at least ten years. The government has not even recognised rape of transgenders as it merely talks about physical and sexual abuse and thus is rarely even addressed which leaves little or no scope for it being answered[10]. For, only when a question is raised will answers be sought.

Of all the transgenders who survived sexual abuse, only ten per cent were successful in getting official complaints registered with the police[11]. Most of them were deterred with the same question- “You are neither male nor female; how can you be raped?” When a transgender woman gets raped in this country, cops first mock her, claiming that she does not have the organs to be sexually assaulted; and what follows is a barrage of injustices, perhaps greater than the first one. Thus, it might look like sexual violence against transgender women is covered under the law, but transgender men have no legal relief.[12]

Ramesh Lalwani, former director of an Lesbian Gay Bisexual Transgender counselling and sexual health centre in New Delhi, says that he can attest first- hand to the dozens of such male and transgender survivors in the nation’s capital. This issue is not only confined to the capital but also every corner of the nation and will continue to be ignored until rape of transgenders is atleast recognised, let alone eradicated[13].

When asked recently, why women too cannot be perpetrators of crimes under section 375(b), Justice Chandrachud stated that the law is open for change. A move away from a narrow definition of rape reflects a realization that the historical justifications for its existence do not survive critical analysis. Such acknowledgement itself may help break down societal notions of denial and assist victims of all genders in seeking support and legal redress.[14]

Recognition however, is only the first step. Even among those in support of gender sensitive laws, there has been much debate. Some suggest that instead of altering the definition of rape, a specific set of special legislations is the better way moving forward. On the flip side, there is also a view that it is up to Parliament to gauge the changing social circumstances, and to revamp the colonial penal code.

We must keep in mind that there is distinction between being a victim of a crime despite there being a law and one where the victim’s right itself is not recognised. The goal here is not to equate crimes of a similar nature but to admit that the penetration of the female body and penetration of the male body, whatever the sex of the actor[15], is still a crime that needs to be recognised. Lack of evidence, stereotypical notions and parochial construction and interpretation of the law are no reasons to turn a blind eye to the growing concerns relating to sexual abuse.

The authors of this article strongly feel that this issue ultimately comes down to the laws working in tandem with the changing moral narrative. It is not gender- neutral but rather,  gender- just and gender-sensitive laws that are the need of the hour. Irrespective of one’s gender, every person deserves equal protection under the law; legal recognition is but the first step. We can only dream that a time will come, and come soon, when this goal is achieved.

 

 

 

 

---

[1]Dhvani Mehta, The Justice JS Verma Committee Report on Amendments to Criminal Law Relating to Sexual Violence in India – Preliminary Observations, OXFORD HUMAN RIGHTS HUB ( Jan.24, 2013),  http://ohrh.law.ox.ac.uk/the-justice-js-verma-committee-report-on-amendments-to-criminal-law-relating-to-sexual-violence-in-india-preliminary-observations/ (last visited  Aug.18 , 2018).

[2] Soibam Rocky Singh, Will Rape Law Be Ever Made Gender-Neutral, Asks Delhi HC, THE HINDU, July 12, 2018.

[3] Id. at 2.

[4] The mindset is that boys are not raped': India ends silence on male sex abuse, THE GUARDIAN, https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala.

[5]Aravind Narrain, The Delhi Rape Case among Others – Violation of Bodily Integrity, 48 Economic&Political                      Weekly, (2013).

[6]Philip N.S. Rumney,  In Defence of Gender Neutrality Within Rape, 6 SJSJ. 7, (2007).

[7]Shivam VIJ, Section 377 must go, but who will speak for the men raped in India?, ASIA TIMES (Jan.24, 2018) , http://www.atimes.com/article/india-section-377-male-rape/.

[8]John Stokes, India's law should recognise that men can be raped too, SCROLL (Sept.11, 2014), https://scroll.in/article/676510/indias-law-should-recognise-that-men-can-be-raped-too.

[9]TNN, Activists join chorus against gender neutral rape laws, TIMES OF INDIA (Mar.7, 2013), https://timesofindia.indiatimes.com/india/Activists-join-chorus-against-gender-neutral-rapelaws/articleshow/18840879.cms.

IANS, Court says rape law is being misused by women, INDIA TODAY (May.25, 2013), https://www.indiatoday.in/india/north/story/women-misuing-rape-law-marriage-consensual-sex-164414-2013-05-25.

[10]Puja Changoiwala, India: No country for transgender women. THIS WEEK IN ASIA (July 8 2018), https://www.scmp.com/week-asia/society/article/2154077/india-no-country-transgender-women.

[11] Id. at 10.

[12] Id. at 10.

[13]Ramesh Lalwani. India's law should recognise that men can be raped too, SCROLL, https://scroll.in/article/676510/indias-law-should-recognise-that-men-can-be-raped-too.

[14]Id. at 6

[15]Philip N.S. Rumney,  In Defence of Gender Neutrality Within Rape, 6 SJSJ. 5, (2007).