A. Human Rights and State Obligation

As iterated above, an act of rape must be viewed solely as a human rights violation. However, such a characterization is theoretically incompatible with the gender specificity prevalent in rape law. If rape is indeed a human rights violation, then a criminal offence of rape that seeks to punish these instances cannot be selective in terms of the protection it affords, on the basis of the genders of the actors involved. Human rights, such as the right to life with dignity and equal protection of the law, are rights that each person is entitled to by reason of being a human being. This includes men, women, and transgender persons to equal extents.

The evidence in support of the above assertion is abundant. The Preamble to the UDHR states that “the inherent dignity and […] the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Article 2 of the UDHR provides that “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, [including] … sex … or other status.”Footnote ⁶¹ Article 7 further states that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”Footnote ⁶² Crucially, Article 8 prescribes that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”Footnote ⁶³ The use of gender-neutral language in these provisions is deliberate, suggesting that the entitlement of these rights cannot be restricted by factors like sex, and that the protection granted by the legislature in furtherance of these rights must remain uniform.

Admittedly, a literal reading of the above covenants merely reflects a formal, as opposed to a substantive, understanding of equality. While the former equates equal treatment with sameness, the latter is premised on the acknowledgment that at times equal treatment requires the state to treat a class of person differently:

The Constitution contains provisions for both formal and substantive equality, thereby “suggesting recognition on the part of the founders that uniformly applied formal equality would perpetuate the existing structural inequalities.”Footnote ⁶⁵ In fact, “India’s equality jurisprudence has long exhibited inklings of formal equality’s limits, undertows, intransigence, and backlash potential, and it displays a vigorous sense that a more substantive notion of equality is needed.”Footnote ⁶⁶ On the one hand, Article 14 provides that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”Footnote ⁶⁷ Similarly, Article 15(1) prescribes that “[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”Footnote ⁶⁸ However, on the other hand, Article 15(3) states that “[n]othing in this article shall prevent the State from making any special provision for women and children.”Footnote ⁶⁹ Therefore, it expressly permits the State to enact any special provisions for women and children “even in violation of the fundamental obligation of non-discrimination among citizens, inter alia of sex”.Footnote ⁷⁰ It is on account of this provision that noted feminists such as Catharine MacKinnon seem to believe that “India’s constitutional text holds great potential for ameliorating the subordination of women to men.”Footnote ⁷¹

One may be tempted to justify the constitutionality of Section 375 of the IPC in terms of Article 15(3). However, despite its ameliorative character, Article 15(3) may also be interpreted as merely enabling the state to provide women and children with higher thresholds of protection, without allowing it to abdicate its constitutional duty to protect its citizens from human rights violations. Further, unlike other jurisdictions,Footnote ⁷² the offence of rape as defined under Section 375 is the sole offence in Indian criminal law that addresses extreme incidents of sexual assaults that violate a victim’s bodily integrity, without any alternate source of redress. Thus, viewed from this perspective, “[t]he case for treating crimes of like heinousness similarly appears to be stronger than that calling for a distinction to be made between penetration of the female body and penetration of the male body, whatever the sex of the actor.”Footnote ⁷³ Nonetheless, as iterated earlier, my intention here is not to question the constitutionality of Section 375 on the grounds of gender specificity. Instead, I am only attempting to point out its inadequacies in light of the State’s constitutional responsibilities.

In this regard, the State’s obligation to ensure adherence to the responsibilities arrayed above is not just theoretical. It is widely accepted that states have an obligation to ensure observance of human rights within their territory without discrimination. In fact, General Recommendation 19 on Violence Against Women notes that:

The doctrine of state obligation that emerged in General Recommendation 19 relied on the idea of state responsibility to protect and fulfil human rights, and built the case that a State could be held accountable for abuses by non-state actors. While doing so, an emerging doctrine on state accountability was strengthened in its codification.Footnote ⁷⁵ In India, a similar stance was adopted by the National Human Rights Commission as well in an order stating that:

As such, a State’s obligation to ensure the protection of the basic human rights of its citizens within its territory appears to preclude the idea of a gendered protection of the same, thereby casting ample doubts on the appropriateness of gender specificity in Indian rape law, especially when there is no alternative of like seriousness under the Indian criminal law.

B. Judicial Precedents

The above proposition advocating for gender neutrality in rape law is yet to be considered by an Indian judicial authority, or debated in the Parliament. However, the same is certainly not unprecedented globally.

In 1984, in People v Liberta,Footnote ⁷⁷ the Court of Appeals of New York Court was faced with a challenge to the constitutionality of, inter alia, Section 130.35 of New York’s Penal Code, which stated that “[a] male is guilty of rape in the first degree when he engages in sexual intercourse with a female ... by forcible compulsion”.Footnote ⁷⁸ The defendant argued that since the provision was not gender neutral, it violated an individual’s constitutionally protected right to equality before law. Finding merit in the defendant’s argument, the court held that:

Upholding the principle of gender neutrality in rape law, the court added that:

Thereafter, the court neutralized the gender requirement of the offence altogether.

This decision came as a surprise as it was preceded by the decision of the US Supreme Court (SCOTUS) in 1980 in the case of Michael M v Superior Court of Sonoma County. Footnote ⁸¹ Therein, the SCOTUS was required to determine whether a California rape statute that punished only males violated the principles of equal protection. By a majority of five to four, the court found the statute to not be unconstitutional for discriminating on the basis of sex as young men and women were not similarly situated with respect to the problems and the risks of sexual intercourse.Footnote ⁸² Considering the state’s strong interest in preventing illegitimate pregnancy, it reasoned that:

However, in his dissenting opinion, Justice Brennan duly acknowledged that while the objective of preventing teenage pregnancies is credible, the same could also be achieved by a gender-neutral statute without discriminating on the basis of the sex of the offender. He thus found it difficult to reconcile the gender-specific protection afforded by the Californian statute with the SCOTUS’s previous opinion in Orr v Orr. Footnote ⁸⁴

In Orr v Orr, the SCOTUS held a statutory scheme imposing alimony obligations on husbands, but not wives, to be unconstitutional as it violated the equal protection principle. The court’s reasoning was that where:

In the United States, this dictum is regarded as the guiding principle stating the role of gender in legislative classification.

Outside the United States, in 1985, the European Court of Human Rights (ECtHR) had an opportunity to comment on state accountability in the context of human rights, albeit in a slightly different situation. In X & Y v The Netherlands,Footnote ⁸⁶ the ECtHR found the Netherlands to have breached its responsibilities under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which, inter alia, provides that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”Footnote ⁸⁷ Noting the prosecutor’s refusal to initiate criminal proceedings against a man accused of raping a mentally handicapped woman and recognize her father as a substitute complainant, the ECtHR held that Article 8 did:

Accordingly, since effective deterrence in this regard could only be achieved via the criminal law,Footnote ⁸⁹ it concluded that the Netherland’s failure to enact an appropriate criminal law addressing the rape of a mentally handicapped woman violated its obligation under Article 8 of the European Convention.

Recently in the 1994 case of Nicholas Toonen v Australia,Footnote ⁹⁰ the applicant challenged Sections 122(a)-(c) and 123 of the Tasmanian Criminal Code, which criminalized various forms of sexual contact between men, against Articles 2, 17, and 26 of the ICCPR. During these proceedings, the State of Tasmania conceded that Section 123 of the Criminal Code clearly draws a distinction on the basis of sex as it prohibits sexual acts only between males.Footnote ⁹¹ However, the UN Human Rights Committee found that the challenged provisions violated Articles 2 and 17 of the ICCPR, and thus did not consider it necessary to discuss whether the statute discriminates on the basis of sex in violation of Article 26. Nonetheless, the key concession made by the State of Tasmania in this regard is sufficient to further my assertion.

The purpose of citing these decisions is not to insist that a gender-specific definition of rape is necessarily unconstitutional, though, as stated in the previous section, the possibility cannot be discarded. Instead, it is to assert that a state’s responsibility to ensure the observance of human rights within its territory for persons of all genders must factor in when framing its criminal laws. In the absence of the same, a differential or selective protection of human rights on the basis of gender of either the victim or the perpetrator of rape would be incompatible with the very idea of human rights, as well as gender justice. As highlighted by the Supreme Court of India in its judgment in NALSA, the “[r]ecognition of one’s gender identity lies at the heart of the fundamental right to dignity” and that “discrimination on the basis of … gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.Footnote ⁹²

I will discuss the specifics of the decision in NALSA in the next section. However, at present, it will suffice to state that the argument of gender neutrality in rape law is an argument against the exclusion of genders from the ambit of law aimed at protecting human rights. Absent any other provision to adequately address sexual assaults beyond the traditional notion, and in coherence with the principle of equality before law, the argument for gender neutrality furthers an adaptable understanding of rape that emphasizes the rights of each rape victim, without prioritizing the rights of one gender over others.Footnote ⁹³ In fact, the introduction of gender neutrality allows one to rightly question the archaic binary understanding of gender, an aspect discussed in detail below.

C. Recognizing Transgender Rights

Despite undergoing multiple amendments, the definition of rape under the IPC is still affixed to a binary notion of gender. It views rape through a male-on-female paradigm, where men and women are assigned static roles of the perpetrator and the victim respectively. While this victim-perpetrator framework may stem from a push back against the law’s tendency to disbelieve a female rape survivor, it is also under-inclusive, and therefore damaging.Footnote ⁹⁴

Irrespective of which gender is assigned what role, an adamant fixation to a male-on-female paradigm compels members of the transgender community to suppress their actual identities, and identify themselves as either males or females. Consequently, certain victims and perpetrators are absent from theories of rape simply because they refuse to sacrifice their gender identity. The laws so framed then present a class of victims of nontraditional sexual assaults with a choice between gender identity and the pursuit of justice. As such, when the traditional notions of sex and gender are transgressed by the transgender community, every progressive society must strive to free itself from such outdated and rigid notions of human nature.Footnote ⁹⁵ “[T]he purpose of the social movement for transgender rights cannot be limited to the right to fail to conform to one’s gender identity by choosing to conform to the gender identity of the other sex within the [existing] gender binary.”Footnote ⁹⁶ Per contra, its purpose is to legitimize the right to determine one’s own gender. In this light, any insistence on gender specificity in rape law stands contrary to the edifice of uninhibited gender justice. It subverts the idea that the reach and promise of sexuality includes individuals without names and identities – the most conventional and privileged along with the most despisedFootnote ⁹⁷ – and reinforces an understanding that only two genders are relevant to any discourse on rape law.

On such basis, one may infer that gender specificity in rape law is, or potentially can be, at loggerheads with the objectives of the queer community that is constantly attempting to expand the binary understanding of gender and incorporate gender non-conformists into the mainstream. Herein, I use the word “queer” in the same manner as understood by Arvind Narrain and David Halperin. For them, queer simply denotes:

Thus, it is conceivable that any stubborn adherence to gender specificity in rape law not only legitimizes the social hostility towards gender non-conformity in India, but also inadvertently reinforces the heterosexual nature of the legal framework. However, it is essential to note that the mere existence of this tendency may soon become a fatal obstruction for those people who “have been marginalized, discriminated against, ridiculed, and even dehumanized. It is perhaps unsurprising, given this history of stigmatization, that transgendered people have not often found refuge in the law.”Footnote ⁹⁹

The assertions above resonate with a recent decision of the Supreme Court of India in respect of transgender rights. In NALSA, the Supreme Court of India was concerned with the grievances of the transgender community, who sought:

Therein, the apex court duly acknowledged the inability of the Indian legal system to consider the members of the transgender community as belonging to a third gender, and affirmed the right of human beings to choose their own gender. The court’s reasoning is of considerable assistance not only due to its substantive content, but also the approach it adopted. Adopting a human rights approach, the apex court reasoned that:

Unsurprisingly, the court did not find any reason to hold why a transgender person must be denied their basic human rights, including the right to life and liberty with dignity.Footnote ¹⁰² During this process, it not only discarded a binary understanding of gender, but also exposed its sheer incompatibility with the notion of human rights. When extended to the realm of rape law, this reasoning clarifies that a gender-specific definition of rape that is based on, and even furthers, a binary understanding of gender is incompatible with and contrary to the characterization of rape as a human rights violation; especially when there is no other equivalent provision in Indian law to address the excluded class of victims.

It is pertinent to note that none of the directions given by the apex court in NALSA pertain to rape law. Nonetheless, the implications of the decision are far-reaching in various contexts since it reflects an institutional shift in the understanding of gender as a social construct. Thus, it will be futile to view the said decision as being limited to a theoretical recognition of the transgender community as a third gender, and not recognizing their hardship, oppression, and discrimination. After all, as opined by Radhakrishnan, J, the:

Given this scenario, to acknowledge the vulnerability of transgender persons to sexual assaults yet continue to exclude them from the definition of rape under the IPC would, in my opinion, constitute an inexplicable and complete abdication of the state’s constitutional duty to protect the rights of its citizens, as well as its obligation to ensure observance of human rights within its territory. As such, implementing the true spirit of the NALSA decision necessitates an expansion of the male-on-female paradigm, and a reconsideration of the definition of rape under the IPC.

One may argue that instances of non-consensual same-sex sexual violence can be prosecuted under other provisions such as Section 377 of the IPC, which criminalizes voluntary carnal intercourse against the order of nature as an unnatural offence.Footnote ¹⁰⁴ However, even overlooking the fact that the constitutionality of the said provision is itself questionable, the said provision is not an accurate legal basis to criminalize sexual assaults violating a person’s bodily integrity, as doing so creates an artificial distinction between sexual assaults that are heterosexual in nature and those that are not. Thus, it not only reinforces a differential attitude towards gender non-conformity, but also perpetrates the idea that while heterosexual assaults are acts of rape, the latter only amount to a lesser violation of bodily integrity. Further, there are substantial differences in the punishment awardable for committing an unnatural offence under Section 377 of the IPC and for committing rape. First, while the latter is punishable with imprisonment for a term not less than seven years,Footnote ¹⁰⁵ there is no such minimum threshold in case of the former.Footnote ¹⁰⁶ Additionally, as per the amended Section 376A, causing the death of a rape victim or committing an act which results in the victim lapsing into a persistent vegetative state is punishable with death.Footnote ¹⁰⁷ However, the said provision does not apply to an offence committed under Section 377. Coupled with its infrequent use to prosecute those engaging in non-consensual “unnatural offences”, it is amply clear that Section 377 of the IPC does not provide an adequate alternative to the offence of rape, as punishable under Section 376 of the same Code.

Similar concerns would persist if one desires to address the arrayed inadequacies by enacting a separate gender-neutral offence of like seriousness catering to the nontraditional instances of sexual assault, similar to Section 377CA of the Malaysian Penal Code Footnote ¹⁰⁸ or Section 376(2) of the Singapore Penal Code.Footnote ¹⁰⁹ While such a measure would provide a multitude of victims with the legal protection they were hitherto bereft of, the same is also likely to have inadvertent social consequences. For instance, a conscious decision to not term the equally condemnable acts of sexual violence as “rape” only because they do not conform to the traditional notion diminishes their gravity in the eyes of society. It may be apposite to reiterate the observations of the JVC acknowledging that the term “rape” is understood as an expression of society’s strong moral condemnation.Footnote ¹¹⁰ In fact, the Committee, while referring to the offence of “sexual assault” defined under Section 265 of the Canadian Criminal Code, opined that:

In harmony with the above, I believe this moral condemnation ought to be extended beyond the male-on-female paradigm as well. Acknowledging that rapes have historically been a tool for gender subordination does not constitute a sufficient justification to distinguish sexual assaults on the basis of a gendered characterization of the victim-perpetrator framework. It ignores the fact that though rape is an act of power, this power differentia between a perpetrator and a victim need not be based on their respective genders, but can be a consequence of other power structures based on, for example, caste, race, or economic differences. Most importantly, the failure to recognize a class of sexual assaults as rape is likely to trivialize the experiences of those who do not conform to the male-on-female paradigm. Therefore, from a holistic perspective, enactment of separate gender-neutral offences, while retaining the gender specificity in the offence of rape, is certainly convenient, but not ideal. Yet, considering the broader objectives of gender justice and the need to provide legal redress to a large number of rape victims outside the traditional notion, it will nonetheless be construed as a step in the right direction, even if an imperfect one. What remains crucial is to recognize that the victims and perpetrators of sexual violence can be men, women as well as transgender persons.

A. Statistical Evidence and Gender Non-Conformity

The first argument against gender neutrality in rape law is that, unlike with women, there are no official statistics to evidence that non-females are raped in India or that women can rape another person. This argument draws support from an underlying belief that “‘it is still men who are raping and women who are being raped’” and that “gender neutral rape laws do not reflect the reality of rape.”Footnote ¹¹² It also furthers the historically supported understanding that “rape is ‘a conscious process of intimidation by which all men keep all women in a state of fear’”.Footnote ¹¹³ Indeed, after the constitution of the JVC, a plethora of feminist groups had suggested that a gender-neutral definition of rape implies “that women can commit sexual assault against men for which there is no empirical evidence at all”.Footnote ¹¹⁴ A few others were more conscious, stating that “nearly 97% of the survivors of rape or sexual assault are women”,Footnote ¹¹⁵ or that there have been a “negligible number of cases where women have been the perpetrators.”Footnote ¹¹⁶ Similar suggestions were also made by the People’s Union for Civil Liberties,Footnote ¹¹⁷ the prominent human-rights Advocate Ms Vrinda Grover,Footnote ¹¹⁸ and the Women’s Research and Action Group, Mumbai.Footnote ¹¹⁹ In effect, the opinion endorsed by most feminist groups is that:

At the outset, it is helpful to note that feminists have long recognized sexual assaults beyond the male-on-female paradigm without obstructing themselves from highlighting issues of gender inequality or female victimization.Footnote ¹²¹ To quote Susan Brownmiller, a renowned feminist author:

Likewise, in its recommendations to the JVC, Alternative Law Forum had recommended that the conceptualization of a victim be broadened from a “woman” to a “person” so as to protect those who are assaulted on grounds of their gender identity. In particular, it had acknowledged that:

Thus, the objective of gender equality need not always be inconsistent with recognizing non-female victims of rape.

This notwithstanding, my response to the first argument against gender neutrality in rape law is twofold.

First, a gender-specific definition of rape based on the male-on-female paradigm not only associates the victim and the perpetrator with a specific gender, but also the various stereotypes associated with it. There are countless theories of gender which further the idea that “gender and sex are fixed notions that are inherently linked: men are, or should be, masculine, and women are, or should be, feminine.”Footnote ¹²⁴ This creates a perception wherein a male perpetrator is not only a man, but someone who demonstrates masculine aggression, and a female victim is associated with a sense of passive feminine subordination. Therefore, in addition to belonging to specific genders, rape victims and perpetrators are expected to behave in accordance with their gendered roles for any sexual assault to constitute rape. This is identical to Zsuzsanna Adler’s description of an ideal rape, where each participant to an act of rape is required to behave in a particular manner, conforming to the expectations from each gender. For instance, while rape victims must be sexually inexperienced and possess good character, rape perpetrators must use physical force.Footnote ¹²⁵

In India, several attempts have been made to address the aforementioned concerns, and limit the frequent references to gender-based stereotypes. As noted in the JVC Report, “evidence of the victim of rape is on the same footing as the evidence of an injured complainant or witness. Her testimony alone is sufficient for conviction.”Footnote ¹²⁶ Additionally, in certain cases of aggravated rape under Section 376(2) of the IPC, the burden of proving “consent” is placed upon the accused.Footnote ¹²⁷ However, notwithstanding these efforts, the dangers of stereotyping roles continue to plague the Indian criminal justice system even today.

The constant association of the victim/perpetrator framework with gendered roles encourages a legal system to label rape perpetrators as “beasts”Footnote ¹²⁸ or “sex-starved wolves”.Footnote ¹²⁹ This particular risk was noted even by the SCOTUS in Orr v Orr, when it opined that:

At first, the said tendency appears harmless. However, over time, it creates a situation where if either participant to an act of rape does not conform to his or her role, then one finds it difficult to recognize the incident as an act of rape or attach blameworthiness to the perpetrator.Footnote ¹³¹ The judicial decisions reflecting this tendency are plenty.Footnote ¹³² In my opinion, if the wisdom of the judges falls prey to such stereotypes rather frequently, then not many can be considered immune. In this light, the first argument against gender neutrality may well be a product of the sheer inability or reluctance to acknowledge the occurrence of rapes beyond the traditional notion, where actors do not demonstrate the expected behaviour. Indeed, Alletta Brenner fears that “[s]uch a finding seems surprising only because the victim/perpetrator framework simultaneously constructs male sexual desire as ever-present and aggressive, female sexual desire as absent or passive, and the male/female sexual relations as defined by male dominance and female subordination.”Footnote ¹³³ It would not be unreasonable to extend her opinion to the Indian scenario where various other power structures which are not based on gender continue to ply with great force. As acknowledged by Laxmi Murthy:

Accordingly, gender neutrality may allow us to abrogate sex stereotypes, and move beyond an understanding of men as the natural aggressors and women as the perennial victims.Footnote ¹³⁵

Second, it cannot be denied that there are likely to be no statistics in India to evidence sexual assaults beyond the traditional notion of rape. This, however, does not lead to a conclusion that such instances do not occur. The absence of any official statistics is explainable on three counts.

One, in the context of male victims, there is an anti-masculinity stigma attached to any form of sexual assault, discouraging them from reporting an incident of victimization. This is commonly referred to as hegemonic masculinity, which is the “most honored way of being a man, […] requir[ing] all other men to position themselves in relation to it, and […] ideologically legitimat[ing] the global subordination of women to men.”Footnote ¹³⁶ Supplemented by continuous sexual segregation in society, “three important characteristics of […] hegemonic masculinity [are] that men are not feminine, are heterosexual, and are physically aggressive.”Footnote ¹³⁷ In a patriarchal society, this creates a popular, but unfounded perception that men who are raped are rendered female by it.Footnote ¹³⁸ Such perceptions go on to demonstrate how men experience rape and its reporting as a threat to their masculinity and concept of self.Footnote ¹³⁹ In a society that celebrates masculinity, men are stereotypical aggressors. However, men, like women, are also bound by stereotypes, perpetuated in society and legitimized by law, which deny them opportunities for self-definition and coerce them into stifling identities.Footnote ¹⁴⁰ Thus, social constructs of patriarchy also discourage men from registering their complaints if they are sexually assaulted, especially where the perpetrator is a woman.Footnote ¹⁴¹

Two, sociological studies have indicated that there is a likelihood of blaming the victim for their experience of rape, notwithstanding whether the victim is male, female, or transgender.Footnote ¹⁴² In the context of women, this tendency of victim-bashing drew the ire of the JVC Report when it stated that:

While the JVC’s observations were with regard to sexual violence against women, the tendency of victim bashing creates a socially hostile environment for victims of all genders. For example, many gay men may avoid seeking help because they do not know how the police will treat them,Footnote ¹⁴⁴ or because they are afraid that “‘people will forget the rape and blame [them] for hooking up with [strangers], especially [other men].’”Footnote ¹⁴⁵ Accordingly, this tendency of repositioning the blame on the rape victim, irrespective of gender, contributes to the absence of any statistical evidence on the issue.

Three, there is an additional consideration justifying the absence of official statistics on the issue, especially in the context of transgender persons. In India, there is no law that recognizes rape beyond the traditional notion, which makes it more difficult for non-female victims to file a complaint with an insensitive police establishment. For communities only recently afforded a legally-recognizable gender identity, such concerns immediately multiply. As such, “[t]he historic failure of the legal process in most jurisdictions to recognize rape outside the male-on-female paradigm may have also contributed to the failure of society to acknowledge male [or transgender] sexual victimization.”Footnote ¹⁴⁶ In any event, the absence of official statistics evidencing nontraditional cases of rape ought to be viewed in the appropriate social context, especially after the apex court acknowledged how members of the transgender community are often subjected to rape and other forms of sexual assault.Footnote ¹⁴⁷ Therefore, the statistical imperfections do not afford a legitimate basis to deny the need to revisit the issue of gender neutrality in rape law.

Nonetheless, I acknowledge that instances of sexual assault beyond the traditional notion of rape will be few in comparison to those that conform to the male-on-female paradigm. However, the potential size of the class of victims likely to benefit from the suggested reforms must remain irrelevant to any discourse in law. If not, then such an argument would be disastrously similar to the appalling reasoning adopted by the Supreme Court of India in Suresh Kumar Koushal v NAZ Foundation Footnote ¹⁴⁸ while upholding the constitutional validity of Section 377 of the IPC, which criminalizes consensual sex between adults of the same sex. The apex court reasoned that only:

This line of reasoning was described as “counterintuitive to the notion of discrete and insular minorities who are unable to fend for themselves or use the political process and in need of judicial intervention to protect their rights and freedoms.”Footnote ¹⁵⁰ Many considered it to be an abdication of the responsibility to protect all minorities from the vicissitudes of the majority’s opinion, and some mockingly labelled it as “the rise of a constitutional numerical equality test”.Footnote ¹⁵¹ Similarly, the fact that instances of nontraditional rapes may only constitute a miniscule fraction of total rapes ought not to hold any relevance.

As pointed out by the Court of Appeals of New York in People v Liberta:

Consequently, “while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labeled by the criminal law.”Footnote ¹⁵³

B. The Threat of Countercomplaints

The second common argument against gender neutrality in Indian rape law pertains to the ill-effects of recognizing women as potential perpetrators in an incident of rape. Many consider patriarchal societies like those in India to be ill-prepared to accept a completely gender-neutral definition of rape since doing so would introduce a serious threat of countercomplaints being filed against every bona fide woman complaining of being raped. In other words, if the offence of rape is made completely gender-neutral, it “will allow men to file false cases of penetrative sexual assault against women”.Footnote ¹⁵⁴ As a result, for every complaint of rape by a woman, there will be a countercomplaint filed by the accused man, which will deter female rape victims from coming forward.Footnote ¹⁵⁵

In such a scenario, it is strongly argued that “[a] gender-neutral rape law would open up avenues for inflicting even greater trauma and humiliation to an already marginalised section and hence defeat the very purpose of reform”,Footnote ¹⁵⁶ and would erode “the deterrence value of criminalizing rape as it will inevitably be used against women in rape trials, where men will state that women were [the] aggressors”.Footnote ¹⁵⁷ As such, many consider it prudent to “be suspicious of the way that a gender neutral lens not only obscures facets of women’s oppression[, but] also provides the tools ... for dismantling some of the gains that have been made for women.”Footnote ¹⁵⁸ In India, these concerns stand further elevated due to the apathetic and insensitive nature of the legal process –starting from the time of registering a complaint with the police to the ordeal that a rape trial is. Even the JVC noted that “[t]here is, naturally, a certain degree of institutional bias against women. Their complaints are not taken seriously by the police. On account of the patriarchal structure the male police officers do not take complaints of rape seriously.”Footnote ¹⁵⁹

However, the very existence or extent of this threat is contingent upon the filing of a countercomplaint by a man against a woman, which is by no means a certainty. The continuous and overbearing emphasis on masculinity deters men from voicing their sexual victimization by another person, especially a woman. As noted by the JVC:

Thus, “[w]hereas women have had to suffer the discrimination that derives from being perceived as physically and emotionally weak, men have had to endure the discrimination that derives from being perceived as bearers of physical courage.”Footnote ¹⁶¹

In such light, to file a countercomplaint of rape, men, much like women, must be desirous of braving an agonizing trial process that will question their masculinity at every stage. Assuming the existence of such courage as a foregone conclusion, however, is unreasonable. Some wonder if they will even be believed to begin with,Footnote ¹⁶² while many others doubt whether others will take the crime seriously and fear becoming the “‘butt of myriad jokes.’”Footnote ¹⁶³ This illustrates that the social barriers that tend to make the criminal justice system inaccessible for women also hinder the ability of men to file a rape complaint against another person. After all, “most gender theorists acknowledge the simple fact that the dominant societal notion of being masculine means ‘doing things that cannot and should not be done by women’.”Footnote ¹⁶⁴ Accordingly, this consideration must be factored in to mitigate the perceived threat of a countercomplaint.

In any event, an imperfect social structure plagued with patriarchy is no reason to discard the idea of gender neutrality in rape law as the entitlement of human rights is not contingent upon the cultural, or legal, idiosyncrasies of a society. This statement is premised on the universality of human rights, which states that human rights are universal in nature and apply to human beings despite cultural or social differences.Footnote ¹⁶⁵ As noted by Fernando Tesón, albeit in response to the theory of cultural relativism:

Tesón’s opinion expounds the idea that while sovereign nations are capable of asserting various human rights demands in different modalities, there is an almost universal insistence on certain basic values among all cultures.Footnote ¹⁶⁷ I believe this principle of the universality of human rights firmly contradicts the legitimate, but slightly misplaced second argument against gender neutrality in Indian rape law. It is true that the risk of a false countercomplaint cannot be completely eliminated. However, it does not permit any state to abdicate its constitutional responsibilities and turn a blind eye to human rights violations occurring within its territory. Introducing gender neutrality in rape law neither addresses nor aggravates this concern, which has its roots in the very structure of society. Accordingly, a possible solution to these concerns is not in the selective protection of human rights through underinclusive criminal laws, but rather in institutional and educational measures.

C. Undermining the Gendered History of Rape

The third argument against gender neutrality is relevant from the perspective of both the victim and the perpetrator. Much more than a deliberate attempt to intimidate and harass women, rape “has been one of the means through which the social hierarchy of power relationships is maintained and nurtured in a gendered society.”Footnote ¹⁶⁸ In light of such gendered history, feminists conceptualize rape exclusively in the context of the deeply entrenched power inequalities between men and women.Footnote ¹⁶⁹ The same is consistent with the UN Handbook for Legislation on Violence Against Women, which clearly recommends that legislation be gender-sensitive, and not gender-blind.Footnote ¹⁷⁰ As per the Commentary to this recommendation, a gender-sensitive approach ought to acknowledge that “women’s and men’s experiences of violence differ and that violence against women is a manifestation of historically unequal power relations between men and women and discrimination against women.”Footnote ¹⁷¹ This leads to a fear that introducing gender neutrality in rape law would erode the history of the offence, undermine its use as a tool for gender subordination, and compel an analysis that ignores its role in perpetrating gender inequality in society.

To quell this fear, one must revisit the meaning and purpose of gender neutrality in rape law. By gender neutrality, I only refer to a more expansive definition of the offence of rape from the perspective of the victim and the perpetrator that includes, but is not limited to, a male-on-female paradigm. The conceptual alternation only extends to include non-female victims and non-male perpetrators within the notion of rape, and nothing more.Footnote ¹⁷² By making this suggestion, I do not suggest an ungendered analysis of rape. The idea of gender neutrality requires equality, and not the neutralization of gender as a relevant factor in the analysis of the offence.Footnote ¹⁷³

In fact, I agree that rape is an act of power. However, “within a single interaction, power may operate in multiple, intersecting, and sometimes competing ways.”Footnote ¹⁷⁴ To construct the interplay between a rape victim and a perpetrator, and to identify the power differentia between the two solely on the basis of their respective gender is rather oversimplistic. After all, “sexuality varies in complex ways across time and place in a manner we are just beginning to apprehend, despite its ... allegedly unchanging and static nature.”Footnote ¹⁷⁵ As such, the introduction of gender neutrality in rape law is necessary because it grants flexibility to an already heterosexual framework in order to appreciate that rape can be motivated by power differentia which are not based on gender.

From this perspective, gender neutrality does not undermine the history of rape, but allows one to perceive other elements of power that may be relevant to our understanding of rape. In the words of Arvind Narrain, “[v]ictimhood depends upon a host of circumstances including the motivation of the perpetrator. If it is indeed to humiliate the victim on account of his or her membership in a particular community, the gender of the victim is irrelevant.”Footnote ¹⁷⁶ For example, in armed conflicts, rape becomes a mark of victory. In ethnic wars, it is an act of assertion of power on the members of an ethnic tribe notwithstanding their gender. Such assaults are then best described as “gratuitous acts and extravagant defilements” committed on bodies which are both male and female.Footnote ¹⁷⁷ Accordingly, in addition to its historically supported description as a tool for gender subordination, rape can also simultaneously constitute a form of aggression used for the intimidation, degradation, humiliation, discrimination, control, or destruction of a person.Footnote ¹⁷⁸

In the context of the Model Penal Code, Deborah Denno opines that “[b]y understanding how rape laws were influenced in the past, we have a better idea of how they can be reshaped in the future.”Footnote ¹⁷⁹ However, this must not become an obstacle to the evolution of rape law jurisprudence with the changing facets of time and society.Footnote ¹⁸⁰ Many contemporary academicians now consider the gender specificity of the offence of rape codified in the Model Penal Code to be a problem, and a gender-neutral approach to be more desirable. Even the Commentary to the Penal Code states rather forthrightly that “‘[i]f the Model Code were being redrafted today, it might well be that preserving these [gender] differences would not be thought to outweigh the advantages of describing the entire offense of rape in gender-neutral terms.’”Footnote ¹⁸¹ I believe that this adequately explains that the definition of rape can be redefined in gender-neutral terms and still remain true to its historically accepted meaning.

In any event, considering that gender is itself a dynamic social construct, evolving with time, it would be futile to adhere rigidly to an archaic notion of rape to the exclusion of gender groups that lack adequate historical recognition, such as transgender persons. Accordingly, to quote Phil Rumney: