India's sexual offence laws exclusionary despite progressive reforms

Recent reforms have been hailed as progressive and sensitive. Despite this, are India's sexual offence laws exclusionary, still?

Ground Report | New Delhi: In recent years, laws related to sexual offenses in India have become much more progressive. The definition of rape has been changed. It is no longer limited to penetration, but also includes penetration of any part of a woman's body (mouth, anus etc.) using any object or part of a man's body. The punishment for this crime has also become much stricter.

Following the 2012 Nirbhaya case, there is no scope for the death penalty in rape cases. The minimum punishment for gang rape has since increased from 10 years to 20 years. Acts of stalking, voyeurism, etc. have been legally identified as offences. Moreover, raising questions about the victim's character in sexual offence inquiry is now illegal.

The Sexual Harassment Act has been in place since 2013. It has a wide scope covering different types of employees and holding a widened definition of "workplace". Not only does it require the institution of a proper redressal mechanism, but also makes provision for monetary compensation and interim relief.

The problem

However, despite the progressive nature of these laws, they are still exclusionary due to being gender-specific. The victim of a sexual crime, whether rape, sexual assault, or sexual harassment, can only be a woman. This is clearly seen in the language of the law. The lack of gender-neutrality in such a law means that offences against members of the queer community, especially non-binary people, aren't addressed. The sexual offences committed by men against men, women against women, and in rare cases, by women against men, are all trivialized and ignored.

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Additionally, this approach of the law legitimizes the narrative that men can't be victims. It further forces them to keep quiet about their experience out of fear of being made fun of or seen as "not manly". This serves as an obstruction in the path of justice while reinforcing problematic patriarchal stereotypes (sexual offence).

The reasons

The reasons behind the sexual offence laws being gendered are socio-historical. Most of these crimes were and are committed by men against women. There are, on average, 88 rapes happening per day in India. On a comparative, there are little to no statistics about rape or sexual harassment of non-female persons. Several scholars and feminists have pointed out that such crimes are related to men expressing and asserting their power and dominance. If the offence is gendered, then the law must also be oriented towards a specific gender.

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The other reason that is often cited is that women will be in a much weaker position if men are able to put charges of rape, sexual harassment, etc. on them. There could be false counter-complaints. Not only would they then have to fight long legal battles, but they'd also be deterred from making complaints out of fear of such a situation arising. This would also mean added trauma and humiliation (sexual offence).

The counter-reasons

Even though sexual crimes are a reflection of patriarchy and the dominance of men over women, it has become clear in recent years that there are non-women groups who are also affected by the system. Members of the LGBTQIA+ community and some non-queer men too are at risk. The absence of statistics regarding sexual offence against non-women people is likely because of reporting hesitancy.

The narrative of "men aren't victims" deters people from revealing their experience of being a sexual assault/harassment victim. Plus, in the absence of any law protecting these people against sexual crimes, even those being reported might not be registered. Even if the number of rapes committed against non-women persons is comparatively very low in number, each victim of such an offence is entitled to justice and shouldn't be ignored just because they are in minority (sexual offence).

There is little to no certainty that men will file counter-complaints against women. Moreover, the patriarchal norms around masculinity already mean that men are deterred from talking about their sexual victimization- especially if it was done by a woman. Thus, to tell the world that they were raped or harassed by a woman would be viewed as extremely humiliating by a man. This is likely to deter them from making false complaints.

Indeed, a gender-neutral law wouldn't aim to ignore the gendered history of rape where it was a weapon used against women. Instead, its goal is to ensure the law is able to provide justice to anyone who might be a victim of a sexual offence.

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