Replacing the existing Indian Penal Code (1860), the Bharatiya Nyaya Sanhita is set to come into force in our country from the date of 1st July, 2024. However, even after more than a century and a half, gender-neutral laws for a crime as henious as rape have still not found a place in our legislation.

The Section 63 of the Bharatiya Nyaya Sanhita (2023) specifies that only the sexual assault of a woman by a man is an 'offence of rape' in the eyes of law of the land. It does not acknowledge forceful sexual acts commited against a man or a third gender person as "rape". 

Leaving out men and transgender victims from the purview of protection in such a grave crime is unseeing the myraid of forceful sexual violence cases against entire adult populations simply on the basis of their gender. This is in violation of the Fundamental Rights under Article 14, 15 and 21 of the Constitution that guarantees equal and discrimination-free treatment before law to all persons.

The defination of rape as per Section 63 of BNS also fails to take into consideration cases where sexual abuse is initiated by adult women/ other genders. It narrows down to just 'men' for possible rape offenders. This definition reduces adult women into weak, passive humans who are incapable of making informed, independent decisions. 

Previously, Section 377 of the IPC mentioned "carnal inter-course against the order of nature with any man, woman or animal" as a crime. However, in the 2018 landmark judgment of Navtej Singh Johar v. Union of India, Section 377 (IPC) was declared as "unconstitutional" by the Supreme Court because it can be interpreted as a violation of the right to have consensual sex among same-sex adults. This was indeed a welcome judgment in recognising the rights of the LGBTQ community. The IPC though continued offering protection under parts of Section 377 against sexual acts or bestiality where consent was absent between parties including those cases when victims were men. 

The new BNS, however, has provided for no alternative to the earlier Section 377 (IPC). It is important to note that the Parliamentary Standing Committee on Home Affairs (2023) had also recommended the criminalisation of sexual acts without consent against any person regardless of gender, similar to the earlier Section 377(IPC), to be retained within the BNS (2023). However, the recommendation was not accepted. 

What then about instances when a man is sexually violated by a group of other men? Or when a woman is sexually assaulted by another woman? Or when a man is coerced and put under threat to have sex with a woman? 

Sexual assault affects the mental health of men survivors similar to women survivors. As per the Accidental Deaths and Suicides in India (ADSI) report published by the National Crime Records Bureau (NCRB), a staggering 1,22,724 men died by suicide in India in the year 2022 as compared to 48,172 women deaths by suicide in the country. Suicides are seldom caused by a singular factor but it is still important to know what exactly are the associated risk factors and take steps to prevent them. In a 2022 review paper published in the well-respected Psychiatry Journal (Volume 137), the research findings of the study based on extensive literature review suggested that sexual abuse at any point in life is a significant risk factor behind high male suicide rates. Men who are sexually assaulted are more prone to attempt suicide or develop suicidal thoughts as compared to men who have never been sexually assaulted. Men's sexual assault incidents are rarely reported due to shame and fear of disbelief by others. A huge number of people in India still struggle to accept that "men can be raped too".

Non-recognition of rape for the third gender population under Section 63 poses similar complex problems. Transgender sexual assault victims already face the stigma of belonging to a much marginalized community.  

Transgender Persons (Protection of Rights) Act, 2019 prescribes a punishment of just six months to 2 years of imprisonment along with a fine for any sexual, verbal, physical, and emotional abuse towards a trans person. Compare that to the prescribed punishment of a minimum 10 years rigourous imprisionment that can go up to life imprisionment for the rape of a woman.

 In an article dated 7th July, 2022 published on the Article 14 portal, a LGBTQI activist quotes :

"It is saddening that law-makers think the rape of a transwoman is not of the same gravity as it is of a cis-woman."

Trans community members have often highlighted how the process of filing a police complaint against their perpetrators is in itself an uphill battle. When transgender victims do come forward to file a sexual assault case at a police station, there have been complaints of often being humiliated and not taken seriously by the police personnel. Cases are not unheard of where transgender survivors got repeatedly raped at the hands of policemen when they approached them for protection. Community members have also alleged that they are at times even subjected to inhumane procedures like being "stripped naked" by authorities to prove their gender. This can be a harrowing experience for any person, let alone a victim who has come to seek help of law against sexual abuse. These incidents also point to the grave complications that arise out of not having a clear-cut gender-neutral rape law in place. 

The demand for gender-neutrality in rape laws has been a long ignored matter in India's legal reforms history. The Justice J S Verma committee had noted in 2013 itself that all persons regardless of their gender are entitled to legal protection. The Committee had asked the Indian legislature to recognise the ugly reality of sexual assaults against transgenders, homosexuals and transsexuals.

It is pertinent to point out here that the Protection of Children from Sexual Offences (POCSO) Act 2012 which deals with sexual assault offences against minors/children is a gender-neutral law. This strengthens our argument that adult sexual assault laws should similarly follow the same principle of gender-neutrality like the POCSO. Age should not become a determining factor for whether a person is able to access justice or not.

Presently,there are seven countries in the world with gender-neutral laws for rape crimes- USA, UK, Australia, Ireland, Philippines, Canada and Finland. 

Section 63 of the BNS (2023), unless made gender-neutral, would continue to perpetuate harmful patriarchal stereotypes which prevent men and transgender persons from speaking out about their traumas. Men and third gender victims are reluctant to come out with their stories because of the blatant shaming they receive in society as well as the downplaying of the horror of their faced assaults. Thus,Indian legislature and judiciary are requested to follow these progressive precedents in other countries. Our laws need to break free from the colonial era mindset in relation to sex and gender stereotypes.

It's 2024 already and we demand that it is high time India gets gender-neutral rape laws for itself.