Gender-neutral laws for sexual offences

Abstract
Gender-neutral laws for sexual offenses represent an essential shift in legal
frameworks to ensure equitable protection and justice for all individuals, irrespective of their
gender. Traditional sexual offense laws often contained gendered language, reinforcing
stereotypes and limiting protections predominantly to female victims while framing males as
primary offenders. This approach neglected the experiences of male, transgender, and non-
binary victims and excluded the possibility of female offenders, resulting in an inequitable
legal system. In response, many jurisdictions are now implementing or considering gender-
neutral laws, which use inclusive language and definitions that apply universally to any
person involved, whether as victim or perpetrator.

This review explores the development, benefits, and challenges associated

with gender-neutral laws for sexual offenses, drawing on recent legal literature and case
studies from various countries, including the UK, Canada, India, and parts of the United
States. The shift to gender neutrality in law aims to create a more inclusive, fair, and realistic
legal response to sexual violence, encourage reporting from all demographics, and reduce
societal biases that influence the judicial process. Despite these advantages, challenges
remain, particularly in changing societal perceptions and ensuring consistent enforcement
across diverse legal contexts. This literature review highlights the progress made and
underscores the ongoing need for research and policy adjustments to optimize the impact of
gender-neutral sexual offense laws.

INTRODUCTION
The Gender-neutral laws for sexual offenses Rape laws in India is
governed by Indian Penal Code, section 375 which provides the definition of rape and section
376 is for punishment of this offence. Provisions related to rape in Indian Penal Code is made
in 19th century and since then society has evolved and undergone a massive social, economic
and political change. We need to change the stereotypical stance that rape is an act of sex
committed by a person having penis upon one having vagina to satisfy their sexual desire.
In India, we need to introduce the rape laws that are more gender-neutral as it has been
realized over the time that rape is not committed only out of lust or sexual desire and it is not
merely related to any specific sex or gender1. The commission of rape is to show one’s
dominance on the basis of race, class, caste and ethnicity. It is an act of sexual nature to
manifest the sense of control and humiliation in others. 2 By this reason people not belonging
to ‘woman’ community can also be the victim of the rape

LITERATURE REVIEW

How effective are gender-neutral laws in providing justice and support to

all victims of sexual offences?

Gender equality in the present context implies that criminal law should
recognize that both men and women can be the perpetrator as well as victim of the sexual
offences. The progressive thought of making criminal law gender neutral can be found in an
old case offset. Sudesh Jhaku v. K.C.J. and others10. While hearing this case on rape, the
Delhi High Court observed that crime is a dynamic concept and keeps on changing with
economic, political, and social set-up of the country. This observation was made while
pondering overexpansion of definition of rape to include penetration by any part of man’s
body and foreign objects as well

In the present context of Gender neutrality two components can be taken

into account, i.e., victim and perpetrator. It has already been discussed at length that how
current legal regime erroneously recognizes only female as the victim of sexual offences.
There is no official data available to reflect the number of rape cases against men and
transgenders. The reason is twofold: firstly, it was not until recently that in 2019 transgenders
were recognized as “third gender” by the Apex Court

Gender-neutral laws offer several advantages in addressing sexual

offences:

Equal Protection

They ensure that regardless of gender identity or sexual orientation, all

victims have the same legal rights and protections. This can be particularly important for
marginalized groups who may face additional barriers to reporting and seeking justice.

1
Feminist Perspectives on Rape, Stanford Encyclopedia of Philosophy
2
Shashwat Bhutani, The Lacuna in Law: Desideratum of Gender-Neutral Rape Laws, Indian Journal of Law and
Public Policy, https://ijlpp.com/the-lacuna-in-law-desideratum-of-gender-neutral-rape-laws/
Recognition of Diverse Experiences

Gender-neutral laws acknowledge that sexual violence can happen to

anyone, regardless of their gender. This recognition can help to challenge harmful stereotypes
and create a more inclusive understanding of sexual assault.

Potential for Increased Reporting

By removing gender-specific barriers, gender-neutral laws may encourage

more victims to come forward and report their experiences, leading to a more accurate picture
of the prevalence of sexual violence. However, it's important to note that gender-neutral laws
alone are not a complete solution. Effective implementation and societal shifts in attitudes
towards sexual violence are crucial for ensuring justice and support for all victims. Some
concerns about gender-neutral laws include

Potential for Underreporting

Some argue that gender-neutral laws may lead to underreporting by

women, as they may fear that their experiences will not be taken seriously or that they will
face stigma. Need for Specialized Support Services Gender-neutral laws may not address the
specific needs of different groups of victims, such as women who experience gender-based
violence.

Risk of Overlooking Gender Dynamics:

While gender-neutral laws can be beneficial, it's important to

recognize that sexual violence often occurs within specific gendered power dynamics.
Ignoring these dynamics could undermine efforts to address the root causes of sexual
violence. Therefore, while gender-neutral laws are a step in the right direction, a
comprehensive approach that addresses both legal and societal factors is necessary to ensure
that all victims of sexual offences receive the justice and support they deserve.

MEANING OF GENDER NEUTRALITY

Gender neutrality means that every person regardless of which
gender they belongs to have equal protection under law. Gender neutral laws are the laws in
which no specific gender is given preference over others and all the genders are provided
with equal rights and protection under law. There are some gender specific laws to which
even other genders are possible victims. For instance, person belonging to male or trans-
gender community can also face sexual violence or forced sexual intercourse. But law which
governs the offence of rape in India, only activate in case where a woman is the victim.
Gender parity can be attained if interests, needs and priorities of men, woman, girls and boys
are equally considered3. Women centric laws on any issue to which even other genders are
subjected to, needs to be amended to make these laws gender neutral in order to achieve
‘equality for all’ in true sense.

Gender-neutral perspective of the bill of 2019

The gender-neutral rape laws, it is being contended that gender neutrality
in rape laws would be devastating for women condition.
Section 375 of IPC in a way discriminatory towards women as well, as it
depicts only “a man’ as perpetrator. So, in case a woman is ‘raped’ by another woman, the
offence didn’t come in the ambit of section 375 of IPC. In a recent case of February 2021, a
French woman was raped by another woman in Goa under the guise of a shaman performing
rites4. Because the existing legislation is gender-specific and does not recognise the criminal
act of rape by a woman, the accused woman could not be charged under Section 375 of IPC.

1) Rape (Section 63)

2) Assault or use of criminal force for outraging the modesty of a woman (Section 74)
3) Sexual harassment by physical advances, coloured remarks, showing pornography,
demanding or requesting sexual favours (Section 75)
4) Assault or use of criminal force with intent to disrobe (Section 76)
5) Stalking (Section 78)
6) Word, gesture or act to insult modesty or privacy of a woman (Section 79)

WHY GENDER-NEUTRAL RAPE LAW?

The Gender-neutral laws of Section 375 of IPC defines the rape as “a

man is said to commit rape This provision of IPC clearly states female gender as victim and
male gender as perpetrator always, which is true in most of the cases. But sexual assault can
be committed by a woman on a man or trans-gender people as well. Although in miniscule
number of cases, but could not be ignored. There are certain incidents where an adult male

3
UNICEF Regional Office for South Asia, Glossary of Terms and Concepts, November 2017
4
Mytheme Ramesh, LGBT Activist Divya Dureja Booked For Sexual Assault, Out On Bail, updated Mar 3 2021,
https://www.thequint.com/neon/gender/lgbt-activist-divya-dureja-booked-for-sexual-assault-goa
undergoes sexual abuse in the way defined in section 375 of IPC but because of paucity of
law in his favour, proper legal remedies are not granted 5. To mention a case of 2018, sexual
assault has been committed by 5 men on a boy of 20 years of age by inserting an object in his
anus6. But this incident could not be booked under section 375 of IPC, as it do not recognize
any male victim. Although child survivors of both sexes are covered by the POCSO Act
2012, but current rape laws leave out a large swathe of male victims, who cannot come
forward out of fear of stigma and a lack of specific legal recourse. Justice JS Verma
committee report has favoured gender-neutral rape laws. To address the loop-holes of section
375, it was recommended by Justice JS Verma committee that, rape law in India to be
amended to the extent that perpetrator is male but victim of the offence can be any gender.
This was recommended considering the fact that there are sexual offences against male
gender and trans-genders as well.

In its 172 reports on ‘review of rape laws’ Law Commission of India 7 has
made some recommendation on gender neutral rape laws. It was stated in that report that
equality before law and equal protection of laws as mentioned in article 14 of Indian
Constitution must be applied to rape laws as well. Every person has right to be protected from
any kind of sexual violence denying which, would amounts to gross violation of Fundamental
Rights of equality In 2017 PIL is filed by advocate Sanjiv Kumar in the High Court of Delhi
to challenge the constitutionality of Rape laws under section 375 of IPC 8. While putting
forward the need of recognizing male rights, it was contended in the petition that gender
neutrality is a basic recognition of reality: men are occasionally subjected to the same or very
comparable behaviours that women are subjected to. Male rape is far too common to be
considered an outlier or a rare occurrence. We are depriving a lot more men of justice than is
widely imagined by not having gender-neutral rape laws.

5
Patrizia Riccardi, Male Rape: The Silent Victim and the Gender of the Listener, 12 Prim. Care Companion J.
Clin. Psychiatry (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3067991/
6
Anchal Raghuwanshi and Aashutosh Jagtap, Indian law for Rape,July 5 2020 https://lawcorner.in/gender-
neutral-laws-way-to-equality/#INDIAN_LAWS_FOR_RAPE
7
Law Commission of India, 172nd report, Review of Rape Laws, march 2000
8
India.com News Desk, Delhi High Court Issues Notice to Centre on PIL Seeking ‘Gender-Neutral’ Rape Laws,
updated sept, 27, 2017 https://www.india.com/news/india/delhi-high-court-issues-notice-to-centre-on-pil-
seeking-gender-neutral-rape-laws-2502155/
Recognition of all Sexual Victimization

The case where woman is victim, it is defined as rape and provisions for
stringent punishment has been provided for that, but similar offence with a male is called
sodomy which is nowhere defined in Indian laws. While unnatural and immoral sex against a
woman is defined in specific section but that very offence against a male is termed as sodomy
in common. As per the data records of Delhi Police More than 543 cases of sodomy 9 have
been registered in three years (2016- 2018). Trans-genders rape- India recognise only
consensual sex between trans-genders not the forceful intercourse. A child under the age of
18 years has right to be protected from sexual offences under POCSO act 10 but once they
cross this age, this right is snatched from them. Supreme Court of India, in the case of
National Human Rights Commission v. State of Arunachal Pradesh11 has remarked that
people belonging to homosexuals, trans-gender and trans-sexual community should also be
granted protection under rape laws.
In the year 2014, a survey was conducted by National AIDS Control
Organization on about 5,000 people from transgender community. It was discovered that 20%
of them has suffered sexual violence in one year, 2013 12. Trans right activist Daina Dias, who
herself has been a transgender victim of rape has rightly mentioned that it is merely
impossible for trans-gender victims to get justice despite having such a clear stats because
Indian rape laws recognize only female rape victim and male rape perpetrator 13.

Preventing the misuse/abuse of women-centric laws

9
Chayyanika Nigam, Cruelty in rape cases raises concern among Delhi Police, April 16, 2018,
https://www.indiatoday.in/mail-today/story/cruelty-in-rape-cases-raises-concern-among-delhi-police-1212975-
2018-04-16
10
Protection of Children from Sexual Offences Act, 2012
11
1996 AIR 1234
12
National AIDS Control Organization (2016). National Integrated Biological and Behavioural Surveillance
(IBBS), Hijras/Transgender People, India 2014-15. New Delhi: NACO, Ministry of Health and Family Welfare,
Government of India.
13
Esha Mitra, CNN, India's rape laws don't cover transgender people. They say it's putting them at risk, Dec. 9
2020, https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html
 The Law is a mean to regulate the society; to provide a sense of safety and
security to all the people but sometimes it is been used as an edged weapon to target
innocents i.e. use the law to have advantage over others. Gender laws are made to protect the
oppressed gender from further oppression and uplifting them to satisfy the principle of
equality in true sense. But these laws are certain times misused. So, it become the
responsibility of the state and law-making agencies to amend the laws in order to meet the
requirement of society & thus to tackle misuse of the law against the innocents and to protect
other genders who are the possible victim of the same offence. There have to be a separate
provision for punishment in case of false cases or misuse of law. There are no statute or
provision that protect a man from false rape allegation other than file a suit seeking damages
from the complainant on account of defamation. Specific provisions are needed to protect
falsely alleged people in the situations where a woman takes the advantage of rape laws on
any other women centric law to derive some advantage by threatening the person from other
gender.
The gender neutral rape laws, Flavia Agnes, a woman rights activist
said,In a situation of deep-seated patriarchy and hatred towards women, making laws gender
neutral will only add to the problem since men have more power, they will be able to use
these against women out of sheer vengeance. But the same can be said in reverse manner as
well, women have always upper-hand as false allegation can be easily made or threatension
to file rape case. Justice Subromonium Prasad, while hearing a rape case has expressed his
concern on alarming increase in false rape case and remarked that now-days certain rape
cases are filed only to arm-twist the accused and make them succumb to the demands of the
complainant. In this situation, only people belonging to male or trans-gender category cannot
be subject to discrimination just because, enacting legislation in their favour would increase
the misuse of it. If there is a law, evil minded people will definitely go for finding loopholes
in it. But it does not mean that we will put a stay on law making. For this law needs to be
balanced. “All sexual offences should be gender-neutral. Be it a man, woman, or other
gender, anybody can be perpetrators of sexual assault and also victims of the same. Everyone
needs to be protected, not only women”14. Misuse of law can be tackled by different
provision/ legislation. Fear of misuse cannot halt the protection of rights granted to peoples.

14
KTS Tulsi, The Criminal Law (Amendment) bill, 2019, as introduced in the Rajya Sabha, July 12 2019
RIGHT TO EQALITY

Indian Constitution guarantee a set of fundamental rights 15 to all the

citizen of India. Article 14 describes equality for all before law and article 15 is about
prohibition of discrimination on certain grounds including sex. As per these constitutional
provisions even if rape cases of a male or trans-gender is not comparably rampant as female
rape, right of equal protection under law cannot be denied to them. While dealing with
fundamental right of equality enshrined in article 14 of Indian Constitution, apex court, in the
case of Subramanian Swamy vs. Director of Central Bureau of Investigation & Amr has
held that “article 14 is declaration of right of equality and equal protection of law to all the
persons out there in the territory of India. Every person is privileged to enjoy their rights and
liberty without any prejudice or discrimination”. Apex Court in the case of Bodhistawa vs.
Subhra Chakraborty16 has remarked that, “rape is a crime against basic human rights and is
also violative of the victim’s most cherished of the Fundamental Rights
Article 15 of Indian Constitution states that, “the state shall not
discriminate against any citizen on the grounds only of religion, race, caste, sex, place of
birth or any of them”. Opponents of gender-neutral rape laws in India claims that since
women are the most vulnerable part of society therefore gender-neutral laws will be a blow to
them as false cases will increase to oppress them more. Even if this concern is true to some
extent, but is does not change the reality of male and trans-gender sexual assault victims and
their right of being equally treated by law.

15
INDIA CONST. part III, refer https://www.mea.gov.in/Images/pdf1/Part3.pdf
16
(1996) 1 SCC 490
Gender-neutral laws for sexual offenses its case laws

National Legal Services Authority (NALSA) v. Union of India (2014)

Background:

This case affirmed the rights of transgender people and recognized

them as a "third gender." While it did not specifically address sexual offenses, it influenced
the discourse on gender-neutral laws by underscoring the need for equal rights and
protections for transgender individuals.

Significance:

This case prompted further discussions on ensuring that sexual

offenses against transgender persons are recognized under Indian law, leading
to later reforms.

Navtej Singh Johar v. Union of India (2018)

Background:

This landmark judgment by the Supreme Court decriminalized

consensual homosexual acts under Section 377 of the IPC. While the case did not directly
make sexual offense laws gender-neutral, it raised questions about discrimination based on
gender and sexual orientation.

Significance:

The judgment indirectly pushed for more inclusive legal

provisions, encouraging discussions around recognizing that sexual violence can affect
individuals of any gender.

National Legal Services Authority (NALSA) vs. Union of India (2014)

Navtej Singh Johar vs. Union of India (2018)

CONCLUSION

Male gender faces significant legal discrimination, and their basic

human rights are being violated on a daily basis in the name of ever-increasing legislative
measures that purport to empower and protect women. It's not that laws to empower women
are bad; in India, women endure a variety of violence, including rape, sexual harassment,
domestic violence, acid attack, custodial violence, unfavourable sex ratio, dowry-related
deaths of young brides, and molestation. But this should not be looked that, in empowering
the oppressed gender, we should neglect the others.
The provision of rape laws in IPC can be said to be violative of
Articles 14 and 15(1) of the Indian constitution since this is discriminatory on the basis of sex
of victim and undermine fundamental rights of people from other gender. If POCSO act
could showcase gender neutrality then why not the rape laws under IPC. Male rape or trans-
gender rape is not something which is prevalent in society. There are comparatively a smaller
number of such cases, many of which go unreported and unrecognized as well because in
Indian society, male rape is not considered as reality but a taboo 17. It is perceived as blow to
one’s manliness and masculinity. Laws makes great impact on thought processes of society
and it makes the easy adaptation of changes related to something which was previously
considered as taboo18. There is strong need of gender-neutral rape laws, which could
recognize male and trans-gender victims of rape as well. Gender neutrality is a simple
recognition of reality. Men sometimes fall victim to the same or at least very similar acts to
those suffered by women. ‘Male rape is far too prevalent to be termed as an anomaly or a
freak incident’. Justice is almost being denied to the male gender by not having gender-
neutral rape laws.

17
Robert T. Muller, Taboo of Male Rape Keeps Victims Silent, June 25, 2015
https://www.psychologytoday.com/us/blog/talking-about-trauma/201506/taboo-male-rape-keeps-victims-silent-
0
18
Career Launcher, Importance of law in the society,
https://www.careerlauncher.com/center-microsite/blog.jsp?id=mVyliTpiJzg%3D