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Research paper - INTERPRETATION OF STATUES

RESEARCH PAPER SHOULD WE HAVE GENDER
NEUTRAL RAPE LAW OR NOT?

Name – Ritika wahi

Course – LLB (3yrs)
Section – B
Enrollment – A3256119077
Semester- 2
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DECLARATION

I hereby declare that the Project report entitled " INTERPRETATION OF

STATUES RESEARCH PAPER SHOULD WE HAVE GENDER
NEUTRAL RAPE LAW OR NOT?" submitted to the Amity law school
,Amity University Salem in partial fulfilment of the requirements for the
award of the degree of 3 years LLB is a record of original dissertation
work done by me, under the guidance and supervision of Mr.VIKAS
GUPTA, Lecturer and Research Supervisor, Department of Law, and it has
not formed the basis for the award of any Degree/Diploma/Associateship/
Fellowship or other similar title to
any candidate of any University.

NAME - RITIKA WAHI

ENROLLMENT NO – A325119077
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Faculty guide approval

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Acknowledgement

I have taken efforts in this project. However, it would not have been
possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted to Mr.vikas gupta for their guidance and constant

supervision as well as for providing necessary information regarding the
project & also for their support in completing the project.

I would like to express my gratitude towards my parents & member of

Amity Law School for their kind co-operation and encouragement which
help me in completion of this project.

I would like to express my special gratitude and thanks to industry persons

for giving me such attention and time.
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INDEX
Sr. No.
Table of Content
Page No

1
INTRODUCTION

2
INDIAN LAW

2.1
History of rape law in India and its meaning

2.2
Whether Man can be raped ?

2.3
Courts response to gender neutral rape law in India

3
FOREIGN LAW

3.1
Foreign legislations on rape

3.2
Interpretation and courts opinions

4
Conclusion
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INTERPRETATION OF STATUTES RESEARCH PAPER

SHOULD WE HAVE GENDER NEUTRAL RAPE LAW OR NOT ?

SYNOPSIS AND RESEARCH QUESTION

As per the definition of rape given under section 375 of Indian Penal Code, 1860.
Rape is considered to be “sexual intercourse with a woman against her will, without
her consent”. According to the definition given under Section 375 of IPC women are
the victim of rape and the man are perpetrator but nowhere it include men and
transgender as victims of rape. Therefore, the central question of this paper is, that
whether rape law be made gender neutral or not ?
To asses this question I will look into the some of the important issues and questions
which one may ask, that can a man be raped and what is rape, is it only restrict to
penal vaginal offence or does it include other forms of penetration through fingers or
other objects, should the definition of rape be made gender neutral especially taking
into the consideration the fact that it's males dominated which might bring more
problem for justice being served to women? To arrive at a right answer I will first
look at the history of rape law in India, meaning of rape, various study’s on male
rape, court response to gender neutral rape law and legal position in other foreign
jurisdiction.

INDEX

Sr. No. Table of Content Page No

1 INTRODUCTION

2 INDIAN LAW

2.1 History of rape law in India and its meaning

2.2 Whether Man can be raped ?

2.3 Courts response to gender neutral rape law in India

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Sr. No. Table of Content Page No

3 FOREIGN LAW

3.1 Foreign legislations on rape

3.2 Interpretation and courts opinion

4 CONCLUSION

INTRODUCTION
In the present day India, today rape has become of the common topic of discussion
within the news headlines which concerns everyone especially women about their
safety and creates a horror in their minds. Even after so many amendments and strong
laws being made still the justice system is unable to cover up for everything. Under
Section 375 of Indian Penal Code, 1860 rape has been defined as “sexual intercourse
with a woman against her will, without her consent, by coercion, misrepresentation or
fraud or at a time when she has been intoxicated, or is of unsound mental health and
in any case if she is under 18 years of age.” If we look at the definition then there are
two major problem with it first it is gender specific and not gender neutral which
doesn’t cover both man and transgender. Second under exception 2 “sexual
intercourse or sexual acts by a man with his own wife, the wife not being under 18
years of age” is not a rape which lead voices of many victims unheard. According to
Cambridge Dictionaries, Rape means “to force someone to have sex when they are
unwilling, using violence or threatening behaviour”. 1 Thus, from the above definition
we can say that Rape means when one forced other person to have sexual intercourse
without taking consent of the person, which is different from the legal definition of
rape as understood in India because according to the patriarchal notions it is generally
understood that men cannot be raped which may not always be true. Hence the
question which need to be answered is that whether men can be raped or not ? If yes
whether violate of fundamental rights given under Constitution of India especially in

1 http://dictionary.cambridge.org/dictionary/english/rape.
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the content when there is no official statistics or reports on rape of man by women ?
But most importantly, primarily to understand what is rape ?
As per the crime survey for England and Wales (CSEW) Approximately 85,000
women and 12,000 men (aged 16 - 59) experience rape, attempted rape or sexual
assault by penetration in England and Wales alone every year. 2 There is no data
available regarding female on male rape in India because there is no law at first place
which criminalise rapes by female on male, leaving no space to report the cases.
There are different consequences and social stigma that men face as well. If a male
alleges that female raped him, he is not seen as a “Real Man” because the
stereotypical patriarchal assumption of “men are superior and stronger to women”
comes into the picture. The same “male domination” and the notion of patriarchy is,
in fact, the very reason males do not come out of the closet to report rapes. For this
reason, some activists and research organisations, including Jai Vipra at the New
Delhi think-tank Centre for Civil Society, argue that the phrasing of rape laws should
be gender-neutral. As per their survey 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.3
The Law Commission, in its 172nd Report submitted in 2000, under chapter III
recommended gender-neutral definition of rape by replacing the term “rape” in the
IPC with the words “sexual assault”. The commission in the report stated that
“Forced sexual  assault  causes  no  less trauma and psychological damage to a boy
than to a girl subjected to such  offence. Boys  and  girls  both  are being subjected to
oral sexual intercourse too.” The centre accepted the proposal to make definition of
rape gender-neutral after the December 16, 2012, gang rape of Nirbhaya. Justice
Verma Committee, set up after the horrific incident, recommended use of the word
“person” in place of “woman” to cover all victims of sexual violence. The then UPA
government thus notified the Criminal Law (Amendment) Ordinance in February
2013 which adopted a gender-neutral definition of rape. However, following criticism

2 https://webarchive.nationalarchives.gov.uk/20160106113426/http://www.ons.gov.uk/ons/rel/crime-
stats/an-overview-of-sexual-offending-in-england---wales/december-2012/index.html.
3 https://ccs.in/indias-law-should-recognise-men-can-be-raped-too.
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of the change by a number of women’s rights activists, the Criminal Law

(Amendment) Act, 2013, passed by the Lok Sabha on March 19, 2013, and the Rajya
Sabha on March 21, 2013, reverted to the gender-specific definition of rape. Those
who opposed gender-neutral rape laws questioned their relevance in the context of an
intrinsically patriarchal and gendered society where sexual violence evidently acts as
a medium to exercise power over the female/non-male body. The Verma Committee
recommended in 2013 that though the perpetrator of sexual violence should continue
to be identified as a man, the victim be categorised as gender-neutral to cover sexual
violence against men, women and transgender persons. The Criminal Law
(Amendment) Act, 2013 unfortunately restored the gender-specific definition of
sexual violence for both the perpetrator and the victim. Justice Leila Seth, one of the
members of the Verma Committee, noted that “this was a serious mistake, and
Parliament failed to understand the injustice done thereby to so many men and
transgender people.”4 It is this lacuna in law which the centre should seek to fill while
responding to pleas for gender-neutral laws against sexual violence. Advocate
Sanjjiiv K Kumar filed a PIL at the Delhi High Court in 2017, challenging the
constitutionality of the rape laws under the Indian Penal Code. He stated in his
petition that “gender neutrality is a simple recognition of reality men sometimes fall
victim to the same or at least very similar acts to those suffered by women, Male rape
is far too prevalent to be termed as an anomaly or a freak incident. By not having
gender-neutral rape laws, we are denying a lot more men justice than is commonly
thought.”5 In that case Chief Justice Gita Mittal and Justice C. Hari Shankar nudged
the Central Government during the hearing of this PIL and asked if there will ever be
a right time to make rape and its punishment under the IPC gender neutral. The
petition has been raking up debate since it was filed in the High Court. The debates
got stronger when the MeToo movement hit India and even men came out to be a
victim of sexual harassment. These groups too are demanding modification in the

4 https://www.indialegallive.com/did-you-know-facts-about-news/perspective-news/male-rape-making-the-
system-neutral-68529
5 https://www.shethepeople.tv/news/central-govt-no-making-rape-laws-gender-neutral.
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rape laws. Even after agreeing to petitioner contention the court put onus on the
parliament.
Therefore it is pertinent to find out that after all these debates and issue in hand, why
rape law still stand as it is. This can be be understood by first tracing back at the
history of rape laws in India and then answer all the questions that I had mentioned
above.

INDIAN LAW
Before britishers came to India each states had its own laws and there was no
uniformity in the law which prevailed during that time. In order to make law uniform
Indian Penal Code was drafted by the Indian law commission by Lord Macaulay in
1860. At that time understanding of rape was very narrow and it take it roots from the
deep patriarchal notion which were not much focused much on the violation of
female bodily integrity instead much of the focus was on the dishonour that had
happened to the family member. “It was assumed that in some way the girl must
have 'asked' to be abducted, that, therefore, she must have been a person of
6
disreputable character. This, of course, is a slur on her family's name and honour.”
While dealing with cases of rape the courts took into consideration about the victim’s
character, age, and experience- while determining the severity of punishment. It
assumes that a woman who had a sexual relation must have invited trouble or 'asked
for it', and that she would not, on account of her promiscuity, withhold her consent.
The father or husband were considered to be the aggrieved party. The women might
be punished for bringing dishonour to the family.7 Even if we look at the opinion of
the court of that time and even some of the most recent judgments, they reflect rather
a traditional understanding in which rape isn’t seen as an assault on the women body
instead her modesty, and honour were always been the main point of discussion. The
patriarchal notion undermines the idea of victims bodily integrity. If we look at the

6 https://shodhganga.inflibnet.ac.in/bitstream/10603/17049/9/09_chapter%205.pdf. Page- 227

7 Supra Note 6, Page- 235
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most recent case of the Supreme Court in case of State of MP Vs. Madanlal we can
see the prints of traditional understanding when court said that “Dignity of a woman
is a part of her non-perishable and immortal self and no one should ever think of
painting it in clay. Their cannot be a compromise or settlement as it would be against
8
her honour which matters the most.” Due to such notion being in place victims
character and moral were always questioned, which doesn’t considered it as a sexual
offence against body. Even the UN DESA, Handbook for Legislation on Violence
Against Women condones the fact that “sexual violence has often been addressed in
the problematic framework of morality, public decency and honour, and as a crime
against the family or society, rather than a violation of an individual’s bodily
integrity.”9 Furthers the historically supported understanding that “rape is ‘a
conscious process of intimidation by which all men keep all women in a state of fear
”10 support the traditional understanding of power relation where man being
masculine in nature can only do rape. It is due to this understanding that in our legal
system is gender specific and consider only women as victims and men as
perpetrator.

Since after independence many interest groups has questioned the rape laws of India.
One of the major step in reform of rape laws was the formation of Justice Verma
Committee which was constituted to recommend amendments to the Criminal Law so
as to provide for quicker trial and enhanced punishment for criminals accused of
committing sexual assault against women. The committee recommended many
reform out of which one was to have a gender neutral rape law and the change in the
traditional understanding of rape to modern one, which needs a broader view.
However due to criticism from some groups the idea of having gender neutral laws
was seen as a major hindrance for women in a justice system. Therefore, it was due to
all these reason that rape laws in India is still a matter of debate.

8 Appeal No 231 of 2015. Para 16

9 UN DESA, Handbook for Legislation on Violence Against Women (New York: UN Division for the
Advancement of Women, 2010) at 26
10 https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/beyond-the-binary-
rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7BBDEB78CED0BC5144C0/core-reader.
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In my opinion not having a gender neutral law leaves both men and transgender with
the injustice of not being heard by the justice system. Though the number of sexual
assault victims are largely women but by not considering men and transgender people
as victims is discriminatory. It is pertinent to mention the words of Susan
Brownmiller, a renowned feminist author “While the penis may remain the rapist’s
favourite weapon, his prime instrument of vengeance, his triumphant display of
power, it is not in fact his only tool. Sticks, bottles and even fingers are often
substituted for the “natural” thing. And as men may invade women through other
orifices, so, too, do they invade other men. Who is to say that the sexual humiliation
suffered through forced oral sex or rectal penetration is a lesser violation of the
11
personal, private inner space, a lesser injury to mind, spirit and sense of self ?”
Even The Law Commission, in its 172nd Report submitted in 2000, under chapter III
recommended gender-neutral definition of rape by replacing the term “rape” in the
IPC with the words “sexual assault”.
If we look at the Supreme Court of India in decision in Priya Patel vs State Of M.P.
& Anr Appeal court said that “The language of sub-section(2)(g) provides that
"whoever commits 'gang rape" shall be punished etc. That cannot make a woman
guilty of committing rape. This is conceptually inconceivable.” 12 Supreme Court
adopted the rule of literal interpretation and by keeping itself away from answering
this question court had fairly overlooked the mischief that happened due to it.
Part III of the Constitution guarantees fundamental rights to every citizen of India.
Article 14 enshrines the right to equality before law and Article 15 provides for
prohibition of discrimination on the grounds of sex. Men, therefore, must be entitled
to the same rights as women. Further The doctrine of equality applies. Equality
before law is a negative concept; equal protection of laws is a positive one. The
former declares that everyone is equal before law, that no one can claim special
privileges and that all classes are equally subjected to the ordinary law of the land;
the latter postulates an equal protection of all alike in the same situation and under
like circumstances. No discrimination can be made either in the privileges conferred
11 Supra Note 10
12 (crl.) 754 of 2006 on 12 July, 2006.
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or in the liabilities imposed. In case of Sudesh Jhaku v K C Jhaku 13 court was

required to determine whether the pre-2013 definition of rape could be interpreted to
include non-penetrative sexual acts. However, the court went beyond its mandate to
opine on the issue of gender neutrality as well. While holding that the prayed-for
relief could not be granted by a judicial authority, but only by means of legislative
amendment, Singh, J went on to articulate his preference for the offence of rape to be
redefined in gender-neutral terms14 which clearly that how even after recognising the
injustice, still law wasn’t made gender neural. offence like rape is indeed a humans
right violation and hence it shouldn’t be made selective. Lawyer and queer rights
activist Arvind Narrain wrote that the reversion of the 2013 ordinance “betrayed the
hopes and aspirations of the transgender community to a life free from sexual
violence,” since the 2013 Act, defining the victim of sexual violence as being only a
“woman,” excluded the transgender community from the scope of legal protection”. 15
Hon’ble Court in their landmark judgment titled National Legal Services Authority v.
Union of India16 after referring to chain of judgments and certain International
Covenants, opined that gender identity is one of the most fundamental aspects of life
which refers to a person’s natural sense of being male, female or transgender or
transsexual person. Justice Radhakrishnan tasted that “The discrimination on the
ground of sex under Articles 15 and 16, therefore, includes discrimination on the
ground of gender identity. The expression sex used in Articles 15 and 16 is not just
limited to biological sex of male or female, but intended to include people who
consider themselves to be neither male nor female.” 17 He further recognised the fact
the by not recognising transgender as the third gender it has done a greater harm to
them which denies them equal protection before the law. Further If we look at the
case of Hon’ble Supreme Court in judgment of Justice K. S. Puttaswamy (Retd.) and
Anr. vs Union Of India And Ors. 18 wherein Right to Privacy was held as a

13 1998 Cri LJ 2428

14 Supra Note 10
15 Narrain, A. & Mundkur, A. (2013, April 19). Betraying the Third Way. The Hindu. Retrieved from
http://www.thehindu.com/opinion/op-ed/betraying-the-third-way/article4630899.ece. On February 20, 2018.
16 WP (Civil) No 400 of 2012
17 Ibid
18 WRIT PETITION (CIVIL) NO 494 OF 2012.
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fundamental right under Article 21 of the Constitution of India. The said judgment
has used the word “consent” 38 times. Consent and bodily integrity of each citizen
are now fundamental rights and the cornerstone of the Privacy Ruling. Hence,
Privacy now being a Fundamental Right has changed the validity of Section 375
because it doesn’t include male and transgender as victims, thereby leading no place
for consent of male and transgender which is violative of Article 21 of the
constitution. In the case of Avishek Goenka vs Union Of India &Anr 19 it was held
that “whatever are the rights of an individual, they are regulated and controlled by the
statutory provisions of the Act and the Rules framed thereunder. The citizens at large
have a right to life i.e. to live with dignity, freedom and safety. This right emerges
from Article 21 of the Constitution of India. As opposed to this constitutional
mandate, a trivial individual protection or inconvenience, if any, must yield in favour
20
of the larger public interest.” Hence, this makes section 375 as null and void
because it violates Article 14, 15 and 21 of the Constitution.

FOREIGN LAW
If we look at the laws of all the progressive country such as US then we can see that
their law on rape are gender neutral. In 1984, in case of People v Liberta, The
defendant argued that since the provision are not gender neutral, it violated an
individual’s constitutionally protected right to equality before law. Section 130.35 of
the Penal Law violates equal protection because it applies to males who forcibly rape
females but exempts females from criminal liability for forcible rape of males. It was
argued that a gender-neutral law would indisputably better serve, even if only
marginally, the objective of deterring and punishing forcible sexual. Thereafter, the
court neutralised the gender requirement of the offence altogether.21

19 (2012) 5 SCC 321

20 Ibid
21 Supra Note 10
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CONCLUSION
As society evolves and times changes, there is always a need for a change in law. A
good law is one which changes and adapts itself with time. In my journey of trying to
find the question of whether gender neutral law be made or not , this paper tried to
uncover the misconception regarding the rape laws. Rape against men wasn’t
recognised because of the patriarchal notions that exist at time and the power relation
of gender. Then as we move on we can see how the jurisprudence of rape law has
evolved and there is a growing tendency of the court in favour of gender neutral law.
Especially NALSA and K. S. Puttaswamy judgments proved to be the two major case
which has recognised and has further expanded the jurisprudences of gender identity
and the growing demand for a neutral laws. This shows us that it’s the need of the
hour that the rape law be made gender neutral so that no person of any gender is left
with injustice. Having a gender neutral law will not only help the victims of crime to
come out but it will also bring equality in society and help to remove the myth, the
patriarchal norms which people had in their minds.