The National Crime Records Bureau (NCRB) report for 2021 highlights alarming statistics on rape cases in India. There were 65,025 reported rape cases during the year. This represents a 19.34% increase in rape cases compared to 2020. However, it is important to note that underreporting remains a significant concern due to factors such as stigma, lack of trust in the criminal justice system, and social pressure on victims to remain silent. Who can be the victim in these situations is where all the ambiguity begins.
The Oxford Dictionary defines rape as the crime of forcing somebody to have sex when they do not want it or are not able to agree to it. However, S.375 of the Indian Penal Code of 1860 (which defines what constitutes "Rape") states otherwise. Initially, it states, " A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman -". There is an emphasis on the gender of the perpetrator being a man and the victim being a woman.
Let's use two instances to be able to acknowledge the anachronistic nature of and associated chasms within this definition.
A group of three is hanging out at a party, having the time of their young life, immersing themselves in everything a 20-something indulges in for recreation and subsequently loses control over his senses. Come morning, all three of them find themselves in a precarious situation, which is considered a nightmare for half the world's population.
The friends are lying astray all through the party spot, and as they wake up, they find themselves at the behest of a stranger who is forcing himself on them and taking advantage of their compromised state.
The first friend is enraged and aghast and rattles at the stranger and threatens to pursue criminal charges.
The second friend is more amused than concerned and doesn't pay much thought to what has conspired.
The third friend is in a predicament; is scared of what has occurred but is also confused about the recourse that ought to be pursued if at all one is available.
Let us fill in the details if it has not occurred to you yet.
The first friend, a woman, woke up to find a man penetrating her as she lay unconscious. She felt violated and threatened the man with the well-known recourse available to her.
The second friend, a man, woke up to find a woman forcing herself on him. However, he perceived it as an amusing rather than a heinous violation of his body because his social conditioning directs one to presuppose a woman's sexual advances as only positive without having an iota of regard for consent.
The third friend, a woman, woke up to find a woman taking advantage of her insentient state. She felt violated and wished to take action but felt absolutely defenseless. The law of her land doesn't acknowledge her situation as requiring redressal.
The irony of this tale is that though all three friends are similarly circumstanced, only the first friend is relatively fortunate. She is the only one with a silver lining in the form of a legal remedy, and society recognizes her plight as legitimate.
Four strangers drag a woman off her path to her home and take her to a dingy place. Unfortunately, her fate is apparent, and she is subjected to unimaginable tribulation and suffering.
The first stranger forces her to perform fellatio on him.
The second stranger inserts a wooden stick in her anal cavity.
The third stranger forces her to penetrate one of the other strangers with her fingers.
The last stranger violates her by applying his mouth to her private parts.
The woman ultimately, escapes the ordeal and files charges against the four strangers. Subsequently, they are convicted, however, distinctly.
As per the law, the four acts done by the perpetrators all manifest as the sub-clauses of Section 375 of the Indian Penal Code, 1860, which deals with what constitutes rape in India. The only factor that makes the charges vary is that the last stranger is a woman and hence, according to law, "incapable" of rape.
Victims are discouraged from reporting rape incidents due to the restrictive definition and social stigma. Many survivors are afraid of being judged, blamed, or retaliated against, which leads to severe underreporting and a lack of access to justice and support services.
INADEQUACY OF S. 375: TURNING A BLATANT BLIND EYE
Male Victims: The definition's emphasis on male perpetrators and female victims ignores the fact that men can be victims of sexual violence as well. This exclusion contributes to the societal stigma associated with male victimisation and restricts their access to justice and support services.
Same-Sex Rape: The present definition excludes incidents in which the perpetrator and victim are of the same gender. As a result, victims of same-sex rape do not have appropriate legal protection or acknowledgement for their experiences.
Transgender and Non-binary Victims: The definition does not address sexual violence against transgender or non-binary people. This omission ignores the unique obstacles and vulnerabilities individuals may confront and fails to provide them with adequate legal remedy.
Currently, India does not even consider homosexuality a crime, let alone a heinous one. Therefore, the Verma Committee recommended making the offence of rape gender-inclusive concerning the victim and including men and the LGBTQ community. However, it was argued that unless the LGBTQ community is granted the right to engage in consensual sexual intercourse in the first place, such laws would only serve as a tool to harass and abuse them. But now situation is different and law must provide the remedy.
ALTERNATIVES THAT BEING PRESENTED: Potential avenues waiting exploration
It is being said that such cases can be filed under sexual assault that may not be sufficient to address the issue. Therefore, it is essential to recognize the severity of non-consensual sexual intercourse and ensure that adequate measures are in place to address it, regardless of the sexual orientation or gender of the individuals involved.
While some argue that increasing the severity of punishment for sexual assault in those cases where the offender is a woman would offer a potential redressal, others insist that it would be as good as a chocolate teapot given the marginal victim base and the ancillary nature of remedy provided for upon the charge of sexual assault.
Advocates of severe punishment for female offenders insist that if a crime has a marginal victim base that is no justification for not having an equitable punishment.
Besides that, even though a case of sexual assault is fairly made out in such instances, that provides no alternative to a rape charge, even though it entails every element of rape under the I.P.C. but the requisite gender of the offender.
Other gives the alternative under S.377 of IPC 1860. It is an archaic law that originated during colonial times, which penalizes sexual intercourse that goes against the "order of nature.". However, it is essential to ponder if using the term "unnatural" to describe such offenses is appropriate, as it can perpetuate harmful stereotypes and stigmatize individuals based on their sexual orientation. In other words, we need to be mindful of the language we use when discussing these issues, as it can have scaling implications for how people are perceived and subsequently treated.
ARGUMENTS THAT ARE BEING MADE
Those who consider women to be incapable of committing rape offer a four-pronged argument.
First, that rape is an offence that attenuates the dignity of a woman, and it is a far cry that any degeneration of that kind will ever occur with men.
Second, forced penetration done to someone is graver when compared to being forced to penetrate someone. Hence, a woman suffers more in a non-consensual sexual act than a man.
Third, a woman can't commit rape as the man will presumably not show signs of sexual arousal for penetrative intercourse if his intention to participate in the sexual act is absent.
Lastly, India has had a history of women being considered chattel of their male next of kin and have been systematically suppressed. As a result, it is hard to conceive a woman as a cold-blooded offender. Additionally, it is presumed that a man is physically more powerful than a woman.
Let us deconstruct the aforementioned arguments.
First, the argument about the degeneration of the purity and dignity of a woman when rape is committed on her has misogynistic undertones, which implies that a woman loses a significant part of her being permanently whenever she is urged to undergo the ineffable ordeal. However, it must be noted that her dignity as a person will always remain regardless of her getting raped because otherwise, it would suggest that women have little value beyond their sexuality. If the latter view is taken, we will also have to acknowledge that women are sufficiently capable of committing sexual offences in the exercise, even though illegal and for the sake of their pleasure, of their agency, and autonomy.
Second, rape is not only a physical violation but also a mental violation, and, in most cases, mental trauma is far more than any physical injury. Thus, even though a male might not go through as much physical trauma as his female counterpart would ordinarily do when in a similar circumstance, he cannot be taken not to go through, if not more, at least the same measure of mental trauma as his female counterpart would in a similar situation. In fact, when dealing with sexual offences at large, the focal point should be determining the presence of consent instead of the gender-based capability of the potential offender.
Third, medical science has proven that sexual 'arousal' has little to do with the willingness to indulge in intercourse, as it is a biological response to stimulation and therefore cannot be taken as conclusive proof of consent (not even implied) in cases where the victim demonstrates physical signs of arousal. For instance, regardless of female orgasm after intercourse, it was held to be rape owing to the victim's lack of free and voluntary consent. Therefore, the argument of sexual arousal as a cushion against the offence of rape is hardly tenable.
Lastly, it is an anachronistic view that women are incapable of meeting atrocities. It is an egregious form of gender-based stereotyping, which, among other things, is also equivalent to turning a blind eye towards the suffering of male victims. Additionally, it is an ableist presumption that a man will, no matter what, always be physically more robust than a woman and will never be overtaken by the administration of intoxicants and psychotropic substances.
A POTENTIAL SOLUTION
Ever since its enactment in 1860, S.375 of the Indian Penal Code has undergone several revisions apropos the definition of ‘rape’. These amendments have sought to broaden the application of the provision and make it more stringent, in keeping with the society’s changing attitudes towards sexual assault. The 2013 Criminal Law Amendment intumesced ‘rape’ to include object insertion, application of mouth to the vagina of a woman, and anal penetration (According to Criminal Law Amendment Section 375, 2013). As a result, it is no longer tenable to assert that women are incapable of raping their male counterparts or that the victim can only be ‘females’.
Thus, in keeping with the changing dynamics of the time, it would be in the best interest of everyone that ‘man’ in S.375 of the I.P.C. be interpreted in consonance with the definition of; man in the General Clauses Act, which stipulates a gender-neutral meaning of the term ‘man’ – thereby meaning that ‘man’ would be equivalent to ‘person’. This change is much exigent for meeting the ends of justice by shedding our gendered perception of sexual offenses.
The Hon’ble Supreme Court had rightly pointed out the inaccuracy inherent in the pronouncement of Priya Patel V. State of M.P. (2006) (Ref: 6 SCC 263) which provided that given the bare tenor of S.375, I.P.C., it would be incorrect to convict a woman under S.375 or S.376D. It was subsequently attempted to be corrected in Om Prakash V. Union of India, wherein the court had observed that regardless of the literal tenor of S.375, a woman can be convicted for abetment to commit rape under S.109. Thus, it is pertinent to note that though some progress has been made apropos the interpretation of provisions such as rape, there is still a long way to go. Adopting a ‘General Clauses Act-definition of the word man and woman’ for S.375 would not only bring women within the radar of the provision since women may rape another woman or a man by adopting one (i.e., under sub-section (a) to S.375) but any of methods provided under sub-sections (b), (c) and (d) to S.375. As a result, women would also come within the radar of S. 376D and would be as much likely to be penalized as a man for the offense of rape. It is time we heed this pressing concern and pursue a worthy resolution to ensure that the ends of justice are met.
Written By - Manjari Tripathi & Sujal Garg
Manjari Tripathi: She is a 2nd Year Law Student at Dharmashastra National Law University, Jabalpur. Keen to explore topics that are overlooked within society through legal content writing. She is passionate about focusing on marginalized communities and neglected subjects that often go unnoticed. She believes that every legal issue, no matter how obscure, deserves attention & understanding.
Sujal Garg: He is a 3rd-year law student at the National Law University, Jabalpur. He has a strong interest in law and believes in making a meaningful impact through his skills. He has participated in various courses & internships related to legal research, writing & analysis. He strives to create engaging and informative legal content that resonates with readers. He believes in the power of effective communication to raise awareness and incite positive change.