UNGENDERED JUSTICE - Gender Neutral Laws Against Rape

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Even as rape continues to become the most aggressively condemned crime in the country, Indians remain unaware of the fact that men and the third gender too can be victims to this heinous crime. The credits for the ignorance might be forwarded to the IPC, which at present constitutes no provisions for rape victims who are male or of the third gender.

The current law against rape (Section 375) in India is not gender neutral. There are nil provisions for cases of rape wherein a man/ a person of the third gender is the victim or wherein the perpetrator is a woman or a person of the third gender.The rape of males and the third gender is a truth which has for long been ignored by the Indian Penal Laws.

Male rape until now is being covered as sodomy (Section 377 of the IPC), which is not considered to be rape, and sports other shortcomings such as no distinctions between consensual and non-consensual sexual acts between male adults. The Transgender Persons [Protection of Rights] Bill, 2016, treats sexual violence as a petty offence – maximum punishment being two years.

A simple search on the internet reveals scores of incidents and statistics of male and transgender rape, not just in India but the world over. Mr. Ramesh Lalwani, in an online article titled 'India's law should recognise that men can be raped too'  writes, "As a former director of a Lesbian Gay Bisexual Transgender counselling and sexual health centre in New Delhi, I can attest firsthand to the dozens of such male and transgender survivors in the nation’s capital." A study by the Centre for Civil Society found that approximately 18% Indian adult men surveyed spoke of being coerced into sex, of which 16% claimed a female perpetrator and 2% claimed that they were forced into sex by another male.  A survey conducted in 2017 by Swasti Health Resource Centre – a Bangalore-based non-profit group, revealed that 40 per cent of transgender people faced some sort of sexual abuse in India before turning even 18.

The lack of statistics is understandably due to the lack of suitable provisions in law under which such cases can be reported.

The latest efforts to castigate these deficits were made by the ‘Criminal Justice Society of India’, that filed a petition (2018) in the SC to assail to Section 375 of the Indian Penal Code, 1860 on the ground that the Section is not gender-neutral. It said,

“As for transgenders, their voices are curbed because of non-acceptance and societal pressure. On the other hand, the concept of masculinity and male vanity prevent male victims from coming forth and reporting such crimes. Importantly, in the absence of legal recourse or remedy under law, there is no provision for any person except a woman to report rape or sexual assault"

It further argued that "In the absence of equal protection to men and women alike, the provision of Section 375 of the Code is violative of Articles 14, 15 and 21 of the Constitution of India”

The Law Commission of India, in its 172nd report in 2000, had proposed that rape laws in the country be made gender neutral, by substituting the definition of ‘rape’ with that of ‘sexual assault’. In 2012, the Union Cabinet through the Criminal Law (Amendment) Bill, 2012, had proposed to make rape a gender-neutral offence by replacing the term ‘rape’ with that of ‘sexual assault’. With reference to this, it is important to note what the petition mentioned:

“Scholars have criticized traditional rape laws that only prescribe penile-vaginal intercourse, arguing that these laws exclude ‘a great deal of behavior which is remarkably similar to the act legally designated as rape and.. such exclusion appears to rest on no logical or justifiable grounds. The physical and psychological trauma caused by non-consensual penetration of the vagina, anus, and mouth by the penis or other objects. Moreover, in understanding what constitutes rape, international law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context.”

However, the SC bench observed that though there is merit in the petition, the legislature is the appropriate authority as the law 172nd Law commission Report had already recommended gender neutrality in rape laws.

The Indian version of the definition of rape should take inspiration from or change to the U.S. version, which ensures more equality. 

Indian version:

Please check the links attached.

U.S. version:

“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

        This definition 

  • includes any gender of the victim or perpetrator,
  • and also recognizes rape with an object. 

A Bill should be introduced in the legislature at the earliest to make the required amendments to the laws governing rape under the IPC, and hence ensure a gender neutral rape law, punishing equally and severely those convicted of this abhorrent crime irrespective of gender.

The law at present omits two entire communities, and is nothing short of inhuman. Apart from being highly inconsiderate of the victims, it also lets the guilty off with punishments extremely petty given the severity of the crime. As the 'Criminal Justice Society Of India' said in their petition, 

"…as society matures, we must develop empathy for all and this includes male and transgender rape victims. Thus, breaking our silence on the issue of male and transgender rape and questioning social constructs that glorify machismo, reduce men and transgenders to stereotypes and force them to mask their feelings, is what we need.”