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The Need for Amendments in Rape Laws in India
Rape is a type of sexual assault that involves sexual intercourse against the will of the victim with the use of force or threat, or when the victim is incapable of giving consent because of reasons such as intoxication, age of minority, unsound mind, etc.[i] Section 375 of the Indian Penal Code, 1860 defines rape as a gender-specific crime, that is, non-consensual sexual intercourse would be considered as rape when the perpetrator is a male and the victim is a female. Moreover, if the victim is married to the offender and is not under fifteen years of age, then the act does not amount to rape.[ii]
Although Indian society can still be considered conservative, there has been an increase in discussions and debates surrounding the topic of rape. Awareness on the topic of gender-neutrality and marital rape has become more widespread, especially after the decriminalization of homosexuality and the ‘#metoo’ movement.
- Gender Neutrality:
The issue of gender specificity in rape laws was first raised in the high court of Delhi by Judge Jaspal Singh in Sudesh Jhaku v KC Jhaku.[iii] In this case, the court had to determine whether the pre-2013 definition of rape could include non-ubiquitous sexual acts. The court, however, went beyond its mandate and gave its opinion on gender-neutrality as well.
The word ‘victim’ in rape laws is always associated with women. This is due to the common belief in society that only men can commit such crimes. In the 2006 case of Priya Patel v State of Madhya Pradesh[iv], the court stated that “women cannot be said to have an intention to commit rape”. However, a survey conducted by the Center of Civil Society, Delhi found that approximately 18% of Indian men were victims of sexual assault, and almost all of them reported a female perpetrator.
Contrary to the common belief, the motive of offenders is not solely sexual pleasure, it is more so about misusing and exerting power and authority. In a modern society where women are empowered and work alongside men, it would be erroneous to think that a woman would not use her authority to commit wrong.
Furthermore, associating a particular gender with a role or category poses a problem for those who do not fall within the binary sex, that is, male and female, like the intersex community since their sexual organs are ambiguous. There is an act for the persons falling outside the gender binary, called The Transgender Protection Rights Act, 2019 which was introduced for the welfare of the transgender community. While when a man is convicted for raping a woman and faces a ten-year-long prison sentence minimum, in cases where the victim is transgender the prison sentence is only two years long under this act.[v] To ensure all people get justice equally, obscurities must be eliminated and gender-neutrality must be introduced to rape laws.
- Marital Rape:
A study conducted by the International Institute of Population Sciences, Mumbai, reported that 26% of women in Pune, 23% of women in Bhubaneswar, and 16% of women in Jaipur are forced to have sexual intercourse with their husbands.[vi] Forced intercourse with an unmarried woman is considered rape, then what makes a married woman different from her? Consent to marriage does not imply consent to form physical relations. Yet, marital rape is an exception under section 375 of IPC, which contradicts Article 21 of the Indian Constitution: Right to life and personal liberty. In the case of Bodhisattwa Gautam v Subhra Chakraborty[vii], the Supreme court stated that rape is a crime against human rights and violates the right to life, i.e., article 21 of the constitution. Yet, section 375 negates this pronouncement by not recognizing marital rape. The Protection of Women from Domestic Violence Act includes sexual abuse in its definition of domestic violence. It is defined as any conduct of sexual nature that abuses, degrades, and violates the dignity of a woman, but on the other hand, section 375 excludes spousal rape from its definition, even though rape is also a sexual act that violated the dignity of a woman. Both of the laws and vague and ambiguous and need amendments.
Under article 51(A)(g)[viii], it is a citizen’s fundamental duty to denounce practices that degrade the dignity of a woman. Therefore, the legislature should amend section 375 to provide justice to married women who face the social evil of rape.
The presence of gender-specificity in rape laws and marital rapes cannot be neglected. In order to protect individuals from getting exploited and abused, rape laws need to be amended. Moreover, there is a need to sensitize the legal system and the society to the reality of the present times and remove social evils such as patriarchy, heteronormativity, and stigma from our laws to ensure justice for all citizens. Amending the existing law and even formulating new laws will help to maintain equality in society. Countries such as the United States of America and the Philippines have already reformed their rape laws to be gender-neutral and penalize spousal rape in accordance with the changes in society.[ix] [x] It is time that India also leaves its gender biases behind and amend its rape laws for the benefit of individuals and Indian society.
[i] Anne L. Barstow, Rape, ENCYCLOPEDIA BRITANNICA (Jan. 28, 2021, 11:39 AM), https://www.britannica.com/topic/rape-crime. Accessed 28 January 2021.
[ii] Akshay Goel, Rape Laws in India, LEGAL INDIA (Jan. 28, 2021, 12:00 PM), https://www.legalindia.com/rape-laws-in-india/
[iii] Smt. Sudesh Jhaku v. K.C.J. And Others, (1996), DLT 563
[iv] Priya Patel v. State of Madhya Pradesh (2006), 6 SCC 263
[v] Esha Mitra, India's rape laws don't cover transgender people. They say it's putting them at risk, CNN (Jan. 28, 1:09 PM), https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html
[vi] Udisha Ghosh, Marital Rape: The Need for Criminalisation in India, ACADEMIKE (Jan. 28, 2021, 1:36 PM), https://www.lawctopus.com/academike/marital-rape-need-criminalisation-india/
[vii] Bodhisattwa Gautam v. Subhra Chakraborty, (1996), SCC (1) 490
[viii] INDIA CONST. art. 51A, cl. g
[ix] Persida Acosta, Men and women can now both cry rape, THE MANILA TIMES (Jan. 28, 2012, 3:13 PM), https://www.manilatimes.net/2015/06/14/legal-advice/dearpao/men-and-women-can-now-both-cry-rape/191826/
[x] Sarah LeTrent, Against his will: Female-on-male rape, CNN (Jan. 28, 2021, 3:14 PM), https://edition.cnn.com/2013/10/09/living/chris-brown-female-on-male-rape/
