Gender Bias In Section 375 Of The Indian Penal Code
Research Methodology
This topic "Gender Bias in Section 375 of the Indian Penal Code" is a general research on the system of gender discrimination and biasedness which we can see in the Indian Penal Code of India and specifically in the Section 375 which states about rape. Researcher's observations and conclusions are based upon the secondary materials and this research based on the intrinsic and extrinsic aspect of the paper. The methodology adopted by the researcher to draw conclusion about the topic is basically depended upon this doctrinal research.
The Researcher took the help of various articles and the book of Indian Penal Code by Ratanlal & Dhirajlal. He also took help from some judgements from Manupatra and public opinion but to a very limited scope which was basically a feedback from his friends and the most non-exhaustive resource that is the Internet.
Research Problem
This paper aims to elaborate on the regressive and problematic nature of the notion that only women can be recognized as the victims of rape and only man can commit this crime. This is the main problem the researcher is observing with the help of section 375 of the IPC and other rape laws in India
Research Questions
Introduction
Rape comes under "Malum in se", which is a Latin phrase and it describes something that is wrong or evil in itself. Now, "Malum in se" is different from "Malum prohibitum" which means that something is wrong only because it is prohibited by law. Rape is essentially a form of a sexual assault which involves a sexual intercourse or sexual penetration which is carried out against an individual and carried out without the consent of that individual.
In India, rape is defined by Section 375 of the Indian Penal Code[1] (IPC) and according to the rape laws in India, only a man can commit the act of rape and only a woman can be a victim of this crime. This stipulation is very wrong in itself. This shows us the gender bias in this particular section of the Indian Penal Code.
Even after expanding the concept of rape under the Indian Penal Code to include non-penilevaginal acts of penetration, the concept continues to comply with a gender-specific notion of rape, based on a predetermined classification of the victim-perpetrator on the basis of their gender. The notion that the perpetrator has to be a man and the victim a woman is wrong.
Herein, I will try to critique this idea of gender specificity in Indian provision of rape law i.e. Section 375, on the grounds that it reinforces a binary notion of gender, and results in gross under inclusion. Instead, it is more appropriate to negate the role and involvement of gender in identifying the victims and perpetrators of the crime of rape.
If the woman whom the man is having intercourse is his wife, and above fifteen years of age, then the man is not guilty of rape.[3] This principle clearly makes us see the traditional view of rape which regards women as property of man. Any act of sexual assault committed against women was then considered to be a violation of a man's right of his property. Such a concept of rape carries with it countless social disgrace.
This is because the value of a woman with respect to this perspective is assessed with her "sexual purity", and because men in our society are regarded as superior class and it is not accepted in the society that rape could be a sexual offence against a man's autonomy too. Now, it is important to identify rape as an assault on individual autonomy and lead our society towards more gender neutral laws and legal processes.
I strongly believe that it is an absolute necessary duty of the legal system in India to abolish the discriminatory court room practices, specifically those practices which associate the societal standards of character and morality with the integrity of the witness so that rape can be looked at as a crime and not an issue of shame for the victim. Rape is maybe the most under-reported crime in India irrespective of the growing awareness and media and public support for the rape survivors.[4]
However, very few rapists are brought to the door of justice and the victims are held responsible for "inviting it upon themselves". In cases of women, their "chastity" is questioned and in cases of men, their not fighting back to anything is considered disgraceful and non-masculine.
Having said this, it is clear that the idea of rape being holistically polluted with stereotypes of the Indian society has its very own consequences. Denying gender neutrality to this crime of rape not only discriminates against victims of female-male rape but also preserve the theory of masculine discourse in which "real men" are perpetrators and can never be victims. Besides, by always illustrating a man as the perpetrator and refusing the fact to accept that men can also be anxious and vulnerable, society prescribes a masculine behaviour that is definitely aggressive.
The most problematic consequence of this is: a man can not prosecute for rape in India. On the other hand, a woman cannot even be punished as an abettor in the case of gang rape, a precedent well established by Priya Patel v. State of MP[5] , where the appellant was involved in abetment to the crime of rape with her husband who was doing the actual penetration.
This section uses the phrase "voluntary carnal intercourse against the order of nature" but does not talk about consent which is obtained by coercion unlike Section 375 which explains the idea of "consent" in a great detail. Furthermore, this phrase seems more relevant to the 19th century concept of sex than the present day concept of sex.
This phrase has also not been explicitly defined by the Indian Penal Code even though the carnal intercourse in a heterosexual relationship is not criminalized. There are very limited conviction statistics under this section; moreover, those victims who were subjected to non-penile violations cannot even seek relief in the light of this section.
Moving on to another inference which seems extremely strange to me, if a man obtains the consent of a woman for sexual intercourse before the marriage of both to each other and then does not marry her, he can be held liable for rape. However, the stand taken by the Honourable Supreme Court in this case, is that if the intention of the male is mala fide and he has evil motives, then he should be convicted of rape.[6]
To convict the accused in such cases, the court must be sure beyond any doubts that since the very inception, there was no intention to marry (Saleha Khatoon vs State of Bihar)[7]. This does not apply to cases where a woman gives unpleasant hints to a man to engage in sexual activities with her on a fake pretext of marriage, unlike the earlier other way around. According to my opinion, these differences in the law stem from and then further feed the discriminatory practices arising from the stereotypes about gender as discussed.
Similarly, by the same logic, there are burdens placed on male survivors of being perceived as homosexual which are stigmatized discourses. Now to counter this argument, consider the fact that all the crimes affect victims in different ways; and yet the state convicts based on the similarity of the crime (with a few exceptions) and not based on the similarity of the effect of the crime.
If the state were to prosecute based on the effect, it would mean that some victims are more important than the others and it would go against the concept of equality before law. The second argument regarding the gender neutrality is certainly valid but its probability and potency cannot be predicted very accurately.
For example, the possibility of a male rapist's counter-accusation of rape in response to the female survivor's initial reporting comes under the area of the second argument. However, while this is technically true, there is a wide range of counter-accusations such as consensual sex and fabricated allegations which are often being claimed by male rapists.
In every court of law, any accusation of rape must be supported by valid proof and evidence. For women, there are certain medical tests which the victims can recourse to, but for men, in lieu of counter-accusations or not, proving rape will be a different and a more difficult procedure altogether. It is extremely important to note that in countries where Rape laws are gender-neutral, this kind of exploitation (described above) by men is almost non-existent.[9]
Conclusion
Justice Krishna Iyer in the case of Rafiq v. State of U.P.[10] observed and remarked that, "a murderer kills the body, but a rapist kills the soul". When the judiciary refuses to recognise an act of rape committed against a male victim, then it is like denying the very spirit of the legislation and being extremely mechanical in the application of law.
The only recourse to male victims available under Section 377 also leads to the creation of a tragic legal fictional phrase that "men can be sodomized but not raped"[11].
It takes a huge courage for a rape survivor to share their story to general public and denying him justice because the crime done against him does not fit into the regular picture frame of rape understood by the society is completely inhuman and fallacious. After the 2013 amendment of the Indian Penal Code, the definition of rape was expanded from understanding rape as just peno-vaginal penetration to other sexual acts as well.
Moreover, changes to the definitions of "vagina" and "consent"; as well as understanding physical resistance from the perspective of a survivor were brought about too. After this amendment, if the law structure understands women being raped broadly, can such type of an understanding not be extended to men as well?
Bibliograpgy
Books
This topic "Gender Bias in Section 375 of the Indian Penal Code" is a general research on the system of gender discrimination and biasedness which we can see in the Indian Penal Code of India and specifically in the Section 375 which states about rape. Researcher's observations and conclusions are based upon the secondary materials and this research based on the intrinsic and extrinsic aspect of the paper. The methodology adopted by the researcher to draw conclusion about the topic is basically depended upon this doctrinal research.
The Researcher took the help of various articles and the book of Indian Penal Code by Ratanlal & Dhirajlal. He also took help from some judgements from Manupatra and public opinion but to a very limited scope which was basically a feedback from his friends and the most non-exhaustive resource that is the Internet.
Research Problem
This paper aims to elaborate on the regressive and problematic nature of the notion that only women can be recognized as the victims of rape and only man can commit this crime. This is the main problem the researcher is observing with the help of section 375 of the IPC and other rape laws in India
Research Questions
- How rape laws reflect the Patriarchy system in India?
- What are the limited relief available to male rape survivors?
- What are the possible problems associated with the gender-neutrality of the crime of rape?
Introduction
Rape comes under "Malum in se", which is a Latin phrase and it describes something that is wrong or evil in itself. Now, "Malum in se" is different from "Malum prohibitum" which means that something is wrong only because it is prohibited by law. Rape is essentially a form of a sexual assault which involves a sexual intercourse or sexual penetration which is carried out against an individual and carried out without the consent of that individual.
In India, rape is defined by Section 375 of the Indian Penal Code[1] (IPC) and according to the rape laws in India, only a man can commit the act of rape and only a woman can be a victim of this crime. This stipulation is very wrong in itself. This shows us the gender bias in this particular section of the Indian Penal Code.
Even after expanding the concept of rape under the Indian Penal Code to include non-penilevaginal acts of penetration, the concept continues to comply with a gender-specific notion of rape, based on a predetermined classification of the victim-perpetrator on the basis of their gender. The notion that the perpetrator has to be a man and the victim a woman is wrong.
Herein, I will try to critique this idea of gender specificity in Indian provision of rape law i.e. Section 375, on the grounds that it reinforces a binary notion of gender, and results in gross under inclusion. Instead, it is more appropriate to negate the role and involvement of gender in identifying the victims and perpetrators of the crime of rape.
Rape Laws: A Reflection Of The Indian Patriarchal Society
There are many provisions in the Indian Penal Code relating to sexuality which supports not only Victorian notions of morality but also the non-agency of women.[2] The general principle behind rape in India is that, if a man has or tries to have sexual intercourse with a female under eighteen years of age, irrespective of her consent, he can be held guilty of rape in the court of law.If the woman whom the man is having intercourse is his wife, and above fifteen years of age, then the man is not guilty of rape.[3] This principle clearly makes us see the traditional view of rape which regards women as property of man. Any act of sexual assault committed against women was then considered to be a violation of a man's right of his property. Such a concept of rape carries with it countless social disgrace.
This is because the value of a woman with respect to this perspective is assessed with her "sexual purity", and because men in our society are regarded as superior class and it is not accepted in the society that rape could be a sexual offence against a man's autonomy too. Now, it is important to identify rape as an assault on individual autonomy and lead our society towards more gender neutral laws and legal processes.
I strongly believe that it is an absolute necessary duty of the legal system in India to abolish the discriminatory court room practices, specifically those practices which associate the societal standards of character and morality with the integrity of the witness so that rape can be looked at as a crime and not an issue of shame for the victim. Rape is maybe the most under-reported crime in India irrespective of the growing awareness and media and public support for the rape survivors.[4]
However, very few rapists are brought to the door of justice and the victims are held responsible for "inviting it upon themselves". In cases of women, their "chastity" is questioned and in cases of men, their not fighting back to anything is considered disgraceful and non-masculine.
Having said this, it is clear that the idea of rape being holistically polluted with stereotypes of the Indian society has its very own consequences. Denying gender neutrality to this crime of rape not only discriminates against victims of female-male rape but also preserve the theory of masculine discourse in which "real men" are perpetrators and can never be victims. Besides, by always illustrating a man as the perpetrator and refusing the fact to accept that men can also be anxious and vulnerable, society prescribes a masculine behaviour that is definitely aggressive.
The most problematic consequence of this is: a man can not prosecute for rape in India. On the other hand, a woman cannot even be punished as an abettor in the case of gang rape, a precedent well established by Priya Patel v. State of MP[5] , where the appellant was involved in abetment to the crime of rape with her husband who was doing the actual penetration.
Limited Relief
Currently, if we see, the male rape survivors can only seek justice under anti-sodomy laws defined under Section 377 of the Indian Penal Code. Problematically though, neither does this law consider sodomy as an actual rape, nor does it attempt to differentiate between consenting and non-consenting acts between two adults involved.This section uses the phrase "voluntary carnal intercourse against the order of nature" but does not talk about consent which is obtained by coercion unlike Section 375 which explains the idea of "consent" in a great detail. Furthermore, this phrase seems more relevant to the 19th century concept of sex than the present day concept of sex.
This phrase has also not been explicitly defined by the Indian Penal Code even though the carnal intercourse in a heterosexual relationship is not criminalized. There are very limited conviction statistics under this section; moreover, those victims who were subjected to non-penile violations cannot even seek relief in the light of this section.
Moving on to another inference which seems extremely strange to me, if a man obtains the consent of a woman for sexual intercourse before the marriage of both to each other and then does not marry her, he can be held liable for rape. However, the stand taken by the Honourable Supreme Court in this case, is that if the intention of the male is mala fide and he has evil motives, then he should be convicted of rape.[6]
To convict the accused in such cases, the court must be sure beyond any doubts that since the very inception, there was no intention to marry (Saleha Khatoon vs State of Bihar)[7]. This does not apply to cases where a woman gives unpleasant hints to a man to engage in sexual activities with her on a fake pretext of marriage, unlike the earlier other way around. According to my opinion, these differences in the law stem from and then further feed the discriminatory practices arising from the stereotypes about gender as discussed.
Possible Problems Associated With The Gender Neutrality Of The Crime
In response to the chances of making rape a gender neutral crime, the Centre for Civil Society was faced by dissenting views because of following two main issues:- the idea of rape being viewed in isolation from female-specific consequences for the survivor and
- the exploitation of gender-neutral language by men.[8]
Similarly, by the same logic, there are burdens placed on male survivors of being perceived as homosexual which are stigmatized discourses. Now to counter this argument, consider the fact that all the crimes affect victims in different ways; and yet the state convicts based on the similarity of the crime (with a few exceptions) and not based on the similarity of the effect of the crime.
If the state were to prosecute based on the effect, it would mean that some victims are more important than the others and it would go against the concept of equality before law. The second argument regarding the gender neutrality is certainly valid but its probability and potency cannot be predicted very accurately.
For example, the possibility of a male rapist's counter-accusation of rape in response to the female survivor's initial reporting comes under the area of the second argument. However, while this is technically true, there is a wide range of counter-accusations such as consensual sex and fabricated allegations which are often being claimed by male rapists.
In every court of law, any accusation of rape must be supported by valid proof and evidence. For women, there are certain medical tests which the victims can recourse to, but for men, in lieu of counter-accusations or not, proving rape will be a different and a more difficult procedure altogether. It is extremely important to note that in countries where Rape laws are gender-neutral, this kind of exploitation (described above) by men is almost non-existent.[9]
Conclusion
Justice Krishna Iyer in the case of Rafiq v. State of U.P.[10] observed and remarked that, "a murderer kills the body, but a rapist kills the soul". When the judiciary refuses to recognise an act of rape committed against a male victim, then it is like denying the very spirit of the legislation and being extremely mechanical in the application of law.
The only recourse to male victims available under Section 377 also leads to the creation of a tragic legal fictional phrase that "men can be sodomized but not raped"[11].
It takes a huge courage for a rape survivor to share their story to general public and denying him justice because the crime done against him does not fit into the regular picture frame of rape understood by the society is completely inhuman and fallacious. After the 2013 amendment of the Indian Penal Code, the definition of rape was expanded from understanding rape as just peno-vaginal penetration to other sexual acts as well.
Moreover, changes to the definitions of "vagina" and "consent"; as well as understanding physical resistance from the perspective of a survivor were brought about too. After this amendment, if the law structure understands women being raped broadly, can such type of an understanding not be extended to men as well?
Bibliograpgy
Books
- Ratanlal and Dhirajlal's The Indian Penal Code, ISBN – 9788131251003.
- Indian Penal Code By S.K. Misra, ISBN – 8189530887.
- "Does Sexual Intercourse on a False Promise to Marry amount to Rape?", By Gayatri Chadha and Amitabh Tewari, 25 February 2013.
- "Gender Analysis of the Indian Penal Code", By Ved Kumari, 1999.
- "7 FAQs on Law, Sexual Violence and Section 375 & 376 of the Indian Penal Code", By Srishti Agnihotri, 22 August 2016.
- "India's law should recognise that men can be raped too", By Ramesh Lalwani, September 11, 2014.
- Act No. 45 of 1860.
- Ved Kumari, (1999), Gender Analysis of the Indian Penal Code.
- Section 375 (Exception), Indian Penal Code, 1860.
- http://www.atimes.com/article/rapes-go-unreported-india/
- 2006 CrLJ 3627.
- Gayatri Chadha and Amitabh Tewari, 25 February (2013), Does Sexual Intercourse on a False Promise to Marry amount to Rape?.
- 1988 (36) BLJR 678
- Ramesh Lalwani, September 11 (2014), India's law should recognise that men can be raped too
- Idem.
- 1981 AIR 559.
- Srishti Agnihotri, 22 August (2016), 7 FAQs on Law, Sexual Violence and Section 375 & 376 of the Indian Penal Code.
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