Recently, a 26-year-old French woman accused LGBTQI activist Divya Dureja of sexually assaulting her in a resort in North Goa on February 23.

The Indian Express reported, “According to the victim’s complaint, Dureja kept her in her hotel room for over four-and-a-half hours without her consent and penetrated her with her fingers. North Goa SP Utkrisht Prasoon said Dureja was arrested based on the victim’s complaint.” “He said the victim’s statement will be recorded before a magistrate under Section 164 of the Code of Criminal Procedure”, the article added.

The Police say that the victim had arrived in Goa in January. The victim is a Yoga trainer and she has accused that Divya invited her to her room in a resort, and was subjected to sexual assault in that room. She also talked about this horrifying incident through Instagram where she alleged that Divya assaulted her for over four hours.

The victim also put out a second post that raised important questions of how the legal provisions against rape in India lack validity in today’s time as they are not gender-neutral. There are no concise laws that govern individuals raped by the same gender, or rape of transgender individuals, or the situations when men are raped.

What is the history of rape laws in India?

The Mathura rape case was one of the reasons why there were several amendments made in the field of criminal law. It is thus recognized as one of the landmark cases to have existed in the field of criminal law and the subject matter of rape. Post the Mathura Rape Case, it was the horrific turn of events in the Delhi capital in 2013, i.e. Nirbhaya Gang rape case that led to the formation of the Criminal Law Amendment Act, 2013.

Hence, In India according to Section 375[iv] of the Indian Penal Code (IPC) rape is defined that a ‘man’ is said to commit "rape" if he: –

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.

A man is said to commit "rape" if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age.

What are the drawbacks of the laws enlisted in Section 375?

The rape laws in India as per Section 375 of the Indian Penal Code, very clearly assumes that rape is always and only committed by a man against a woman. There is no doubt of the fact since time immemorial rape has been systematically used as a tool of suppression and for asserting dominance by men over women, especially on women in the lower castes in the patriarchal societal system of India. This still continues to remain a sad reality in most situations.

However, it fails to provide a legal framework for justice to be meted out in various other situations when a ‘woman’ is not the victim and a ‘man’ is not a perpetrator. Furthermore, there exists a lack of functional laws that punish false rape allegations by any gender.

The law does not function against the rape of Men (heterosexual and homosexual)

These laws do not take into account the times when men have been forced to have non-consensual intercourse by women or other men. Our country does not guarantee any particular legal framework that governs male victims of rape. Section 377 of the IPC serves as a partly gender-neutral law as it defines unnatural offenses and criminalizes carnal intercourse against the order of nature with any man, woman, or animal. Apart from this, the POSCO Act criminalizes sexual assaults against a male child, but there are no concrete laws that protect an adult male.

Go News India reported, “Government data reveals that over 50% of child sexual abuse victims are boys and most males are abused between the ages of 5 and 15. Around 60% of the victims are molested or raped more than once.”

“A survey conducted on adult men in India shows that one out of every 5 males is raped or molested at least once in their lives. In several cases, the offenders are women. Most of these men are aware of male molestation and rape but are not sure as to what constitutes as molestation of their sex”, the report further added.

The worst affected in these situations are homosexual men, who often receive homophobic treatment. They are manipulated by the male perpetrators who blame the “gay man” for willingly demanding a sexual intimation with the assaulter.

The law does not function against the rape of transgenders or Non-binary genders

The transgender community in India has been brutal victims of sexual assault in the form of physical violence combined with mental harassment. A survey conducted in 2014-15 by the National AIDS Control Organization said that amongst the 5,000 transgender people surveyed, one-fifth of them said they had experienced sexual violence in the past 12 months.

After the NALSA judgment, the identity of the transgender community was finally given recognition. Although the offenses against transgender people are punishable under the Transgender Persons (Protection of Rights) Act 2019, the validity and intensity of the punishment for the same crime carried out against a transgender is different.

For example, when a transgender person is a victim of physical and sexual abuse, the punishment given is a minimum of six months and a maximum of two years in prison with a fine. However, the punishment for a man found guilty of raping a woman is a minimum of 10 years in prison, which may be extended to life imprisonment or a death penalty.

Hence, this results in discrimination towards the transgender community as the existing rape laws in the country do not provide them with a pathway to seek justice for the heinous crime of rape.

The law does not function against the rape of Women by Women or any other assault

The final aspect that remains in the dark that women can also be perpetrators of rape against women themselves, where a woman is either the one who carries out the assault or plays any role in aiding the rape of a woman by men.

An example of this is seen in the case of State v. Sheodayal, 1956 where the Madhya Pradesh High Court stated that the modesty of a woman can be outraged by either a man or any other woman under the IPC section 354. Further, in the Om Prakash v State of Haryana, it was seen that the Supreme Court did hold the wife of the accused accountable for being a part of assisting the rape process. The wife of the accused was the one who convinced the victim to go to her house where she was subjected to rape.

Thus, currently, the primary rape laws of the country fail to be valid in these kinds of situations and lack accountability.

The need for gender-neutral rape laws: the way forward

The invalidity of the current rape laws is associated with the assumption that rape can be only imposed by a ‘man’ on a ‘woman’ and in most cases is considered as penile-vaginal intercourse. This is not true as any violation of consent and coercion carried out by any person is an act of rape. Further, the current law induces a fall sense of toxic masculinity and portrays men as the ‘only’ face of assaulters with the perceived belief that men are supposed to dominate and are biologically strong. Furthermore, these laws provide no shelter to transgenders who are not only the victims of sexual assaults, and rapes but also witness transphobia in the Indian society

In Rajya Sabha, KTS Tulsi, a senior lawyer, and a Parliamentarian had introduced a gender-neutral bill (“Criminal Law Amendment Bill, 2019”), which had addressed the idea of gender-neutral rape laws in the country

He stated, “Law needs to be balanced. The balance has been disturbed. All sexual offenses should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of these offenses. Men, women, and others need to be protected.”

Thus, gender-neutral rape laws are needed to tackle these discrepancies and provide an equal form of justice to any ‘individual’ subjected to this horrendous act. This will also ensure that the provisions of Article 14- Right to Equality in the eyes of the law are fulfilled. By adopting gender-neutral rape laws, a platform is provided for men and transgender individuals to be vulnerable and open up about sexual assaults and rape. Although the cases of assault on men are much lesser than those of women, one cannot exclude the need for stringent gender-neutral laws to address the same.

The entire concept of proposing gender-neutral rape laws stems from the fact that gender-specific words like “any man” and “any woman” must be amended and replaced by gender-neutral words like “any person.” This is a rightful way forward to make legal protections against rape extremely inclusive for men, women, and transgenders.