GENDER NEUTRALITY IN RAPE LAW
Author: Akshaya .K, B.A.,LL.B(Hons), practicing advocate.
Co-author-1: Ranjitha .B, LL.M from School of Excellence in Law in Chennai.
Co-author-2: Pooja srinithi .S, LL.M from Government Law College Trichy.
Rape is considered to be the heinous crime in the world. India is being stated as the most unsafe country, where rape cases are being reported high every hour. The statutory definition of rape law is defined under sec 375 of Indian Penal Code, and it states that a man who has forceful sexual intercourse without the consent of a woman is considered a rape. From this definition, we may understand that this definition clearly indicates a notion of perpetrator-victim as man-woman.
Because there are many factors associated with this traditional approach to rape law, they are patriarchal society, statistical evidence and characterization assigned to genders. But there is immediate need to expand the ambit of the victim in rape law by inserting men and transgender. Gender neutrality is not meant to desexualize the rape law. There is a significant thing to understand that the violations against any human being such as man, woman and transgender must be equally treated.
The Law must treat genders in equal because rape can violate the integrity and dignity of a human being. So, Right to live with dignity and integrity of every human being falls under Article 21 of the constitution. There is a mis-assumption that men and transgender rape cases are very low, and there is no proper statistical evidence to show they are affected. But we have to understand that their rape cases are not reported but still it is happening in the country.
Hence forth, the implementation of widening the victim term by including the male and transgender can brings equality in society by equally protecting all before the law and also their basic human rights cannot be deprived.
This Article aims to critically explain that the gender neutrality in rape law regarding the victim, without distinguishing any sex. There is a detailed analysis made regarding how the male and transgender rights are deprived and there are no proper legislations have been made to protect.
MEN AND TRANSGENDER RAPE VICTIMS AND THEIR DEPRIVATION OF RIGHTS
The study of Transgender rape victims, it is difficult for a transgender rape victim to report sexual assault because we live in a society where transgender are considered as sexual workers. They are thought to have strong masculine power, thus most people are afraid that disclosing their sexual attack will cast doubt on their potency or, if assaulted by a man, they may be labelled homosexual. But now there are some brave transgender who have courage to come forward and share their experience but there are still many transgender who never report their rape due to the fear of society. The research of Male rape victims started only after 1980s and that too was mostly focused on child sexual assaults. Even in the 21st century, Male also affected by Rape. But, they are considered to have potential to protect themselves as well as others. It contravenes the Article 14, 15 and 21 of the Constitution.
INDIAN LAWS ON RAPE
In India according to Section 375 of the Indian Penal Code rape is defined as -A man is said to commit "Rape" if he-
A man, who penetrates, inserts and manipulates women's body without her consent set to commit rape.
From the above mentioned, definition in Section 375 of Indian Penal Code, it can be clearly presumed that rape is always committed by a man against a woman without her consent. If a man forces a transgender to have intercourse with him, it is not considered as a rape, but the same done by a man to a woman is considered as a rape. But, this patriarchal society does not believe that a man can be raped too and most often they deny agreeing to such incidents. Its lacks gender neutrality.
Rishi Malhotra v. Union of India
The Apex Court dismissed that PIL by petitioner, where PIL mentioned for making rape laws to be made gender-neutral as there are no laws to protect males, transgender from sexual harassment. From this judgement we may conclude that the male and transgender rape victims cannot be protected from the law and they are deprived from their right to live with dignity and integrity comes under Article 21 of the Constitution.
Criminal Law Amendment Bill, 2019
The Parliament to make the rape laws gender neutral in India that, “Law needs to be balanced. The balance has been disturbed. All sexual offences should be gender-neutral. Men, women, and third gender can be perpetrators and also victims of these offences. Men, women and third gender need to be protected.”
THE TRANSGENDER PERSON (PROTECTION OF RIGHTS) ACT, 2019
Section 2(k) defined that, "Transgender Person" means, a person who doesn't match with their gender assigned to that person at the time of birth, is known as transgender. They will be either trans-man or trans-women. Due to sex reassignment surgery or hormonal changes from birth or laser therapy etc...
Section 18(d) says that, if any person harms or injuries or endangers to the life, safety, health or well being in the manner of mental or physical abuse to the transgender, they shall punished with imprisonment not less than six months extended to two years with fine. Abuse may be in the form of physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse.
Section 376 of Indian Penal Code says that, a person who commits rape, he punished with rigorous imprisonment of either description of term which shall not be less than ten years, which may be extend to imprisonment for life.
Here also lack of gender neutrality. If women affected by Rape, the perpetrator punished with rigorous imprisonment, but what about Transgender? They are also a human being and they also have self-respect and dignity. When, the transgender is affected by Rape, that perpetrator gets punishment only from six months imprisonment to two years which was stated in Transgender Protection of Rights Act 2019. Here, the law itself made to be discriminatory and it is violating Art14, Art 15 and Art 21 of the Constitution. Rape is called as Rape. Rapist is also called as Rapist in Any Form. There is no differentiating between women rape and transgender rape. But why we do injustice for transgender. If Rapist raped a woman, that’s was insane and we are taking it too seriously. What about transgender? Changes need to be made in Transgender rape law. The Transgender Persons (Protection of Rights) Act of 2019 should be as harsh as the Indian Penal Code.
In Re NALSA v. UOI, the identity of the transgender community was recognised as a "Third Gender" community for the first time and it was held that their rights are safeguarded under Article 21 of the Constitution of India. It was also held that the term “person” under Article 14 of the Constitution is not restricted to only male and female, but that hijras and transgender person
who are neither male nor female are likewise considered "persons" and are entitled to legal protection under the law in all areas of government activity. The doctrine of rule of law prescribes protection of individual human rights. Such rights are guaranteed to each and every human being. Transgender also human being, so they also protected by law. These Transgender, even though insignificant in numbers, they also have every right to enjoy their human rights.
Gender neutrality in rape doesn’t wish to completely desexualize rape, rather; it seeks to increase the victims of rape. Its pity that Indian legislation and societies still believes that a rape victim can only be women but there are men and transgender. Female rape victims face lots of social issues and personal matters, but male victims and transgender faces a totally different set of issues in their life.
The rape law punishment must be entitled to all genders. Indian parliament must bring gender-neutral rape law as like in other countries. The pain of the other genders needs to be heard.