What needs to be emphasised, cutting across all those vulnerable to sexual assault, is that consent should mean the unequivocal voluntary agreement to engage in the sexual activity in question.

Laxmi Murthy

Should law reflect society as it is, or sketch a vision of society as it should be? A bit of both, perhaps. The debate around gender neutrality in rape laws would appear to be a tussle between these positions. Taking recourse to clichés, it could be proposed that the truth lies somewhere in between.

Reform in the rape law is not new to the women’s movement in India. In fact, it galvanized women’s organizations around the country in the late 1970s. The countrywide campaign launched in 1979 in what came to be known as the ‘Mathura Case’ brought rape on to the public agenda. The rape of a 17 year-old adivasi girl by local policemen near Bombay and the subsequent acquittal of the rapists led to fervent protests against patriarchal notions in the judiciary. Women’s groups all over the country protested against this judgement, and demanded a retrial as well as far-reaching amendments to the rape law, particularly to provisions dealing with custodial rape.

The amendment in 1983 following this campaign led to some changes in the Indian Evidence Act (IEA). Prior to this, the burden of proof to establish the commission of rape by the accused was wholly on the prosecution, and the definition of ‘custody’ was restricted to police stations, and did not include hospitals, remand homes or jails. Following the amendment in 1983, in cases of custodial rape, the burden of proof (to prove that rape was not committed) shifted to the accused. Shifting the burden of proof on to the accused is a departure from criminal jurisprudence in all democratic countries, which presumes a person innocent until proven guilty by due process of law. While women’s groups may feel (justifiably) impatient and disillusioned with the law as applicable in women’s cases, especially violence against women, we must not lose sight of larger democratic principles. It is also significant that a study by the Peoples’ Union for Democratic Rights, Delhi, Custodial Rape: A Report on the Aftermath (May 1994) which looks at the custodial rape cases in Delhi in the 10 years after the amendment, found that barring two convictions by the High Court, the accused policemen in all cases were acquitted and reinstated in uniform. The defense in all cases relied on the past sexual history of the complainant to demolish the credibility of the woman who was raped.

It was after two decades of sustained campaigning that the Lok Sabha passed the Indian Evidence (Amendment) Bill, 2002  deleting Section 155(4) of the archaic Indian Evidence Act, 1872, which permitted the person accused of rape to prove that ‘the victim was of generally immoral character’.

Hopefully, it will not take another 20 years to overhaul the laws related to rape. Women’s groups, from the early 1990s, have made attempts to broaden the current definition of rape as ‘penetration of the vagina by the penis’ to ‘sexual assault’, which includes other forms of sexual violence that can be as traumatic. Recent events like the sexual violence perpetrated on a mass scale on Muslim women in Gujarat in 2002 – for which few cases have been registered and even fewer are likely to reach the stage of conviction – have underlined the need to broaden the definition of ‘rape’. Yet, some concerns remain about whether replacing the term rape with ‘sexual assault’ can convey the seriousness of rape, or whether it will be diluted in the anxiety to include every form of sexual violence in the definition.

The 172nd report of the Law Commission in March 2000 put forth recommendations for a review of the rape laws which were made in partial consultation with Sakshi, Interventions for Support, Healing and Awareness (IFSHA), and the All India Democratic Women’s Association (AIDWA) from Delhi. The Bill now in circulation, although referred to as the ‘AIDWA Bill’, is an outcome of this decade-long process in which several women’s groups have been involved at some stage. The Bill seeks to amend several laws in the Indian Penal Code related to sexual assault   Section 375 and 376 (rape) 354 and 509 (sexual harassment or ‘outraging the modesty of a woman’), relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act, 1872, in order to broaden the definition of rape, amend procedures and deal more effectively with child sexual abuse.

While the current Bill is not gender neutral, it is worth revisiting the debate in the context of amending laws relating to sexual assault.

Gender Neutrality: Has the Time Arrived?

While there has always been a consensus on broadening the definition of rape to include forms of sexual assault other than peno-vaginal penetration, the issue of gender neutrality has been a contentious one. At some point in the process, the draft law was envisaged as gender neutral, in order to bring child sexual assault, and sexual assault of men by other men, and sexual assault of women by other women, especially in custodial situations, into the ambit of the law. One definition proposed (replacing ‘man’ and ‘woman’ with ‘person’) would apply to forced oral, anal and/or vaginal penetration by a man or a woman, forced penetrative sexual intercourse by an adult man or woman on a child of either sex and forced sexual activity between members of the same sex.

The need to make the law on sexual assault gender neutral was felt because legislation did not recognize any form of sexual assault that did not fit the parameters stated in the current Section 375 IPC i.e man as perpetrator/woman as victim; peno-vaginal penetration. Simultaneously, there was also a move to repeal Section 377 of the IPC (pertaining to ‘unnatural’ sexual acts) currently the only law that can cover sexual assault on boys and men. The fact that Sec 377 was routinely used by the police to harass consenting adult homosexual men  (and in rare cases women), and not to prosecute perpetrators of rape, made it all the more urgent to get the archaic law dropped from the statute books.

Women’s groups recognized that:
 

• The current definition of ‘rape’ does not cover sexual assault of boys.
• Men, too, can be sexually assaulted – by men, as well as by women (in rare cases).
• Women, too, are capable of perpetrating sexual assault on men in the broadened definition of sexual assault, and also on other women.

Women’s groups also recognized that the incidence of these forms of sexual assault is higher in custodial situations (jails/hospitals/mental asylums etc) or situations of caste/communal violence etc, where women may collude with, or initiate sexual assault on men and even women of ‘lower’ castes/minority communities. But given the current socio-legal climate, women’s groups also asserted that it would be more appropriate not to have a law covering cases of sexual assault brought by men against women (except sexual abuse of the male child).

Heated debates about the wisdom of allowing room for men to prosecute women in a patriarchal society, led to the formulation of a proviso/ exception, whereby the definition would not allow a man to complain that a woman has committed sexual assault on him.

The challenge is not to avoid putting it into a legal framework because in the majority of cases women are the ones subjected to sexual assault, but to frame the law in a manner that would cover even the unlikely cases without creating more problems for women. In several instances of laws where women can be indicted – for instance Section 498A IPC (dealing with domestic violence) or the PNDT Act (dealing with prenatal sex determination), it comes as no surprise that it is the mothers and sisters-in law who languish in jail, rather than husbands, fathers or brothers-in-law of the complainant wives; and that it is the women who undergo sex determination tests who are arrested, rather than the errant doctors and technicians who bribe or bail their way out of criminal charges.

In an ideal society, gender neutrality in laws on sexual violence would imply that any perpetrator of sexual violence must be punished. However, just as there can never be equality between unequals, which frames the logic of affirmative action/reservation, the concept of gender neutrality assumes that all the actors are on the same footing, and treats them all as ‘equal before law’. This can have disastrous consequences in a society where patriarchy is not only strong in social, family and community structures, but in the law enforcement and judicial structure as well. While striving for an ideal society, there must be a recognition that present society is far from ideal and egalitarian.

This is hardly to suggest that women who commit acts of sexual assault should not be punished, but a reminder of the reality that it is almost exclusively men who are the perpetrators of sexual crimes, and a law has necessarily to take this into account. Legal reform inevitably is forward thinking, and society is perforce expected to catch up. But in the process of catching up, we must prevent more powerless sections of society from plummeting into legal potholes.

Violence as an expression of power is not limited to unequal gender relations. It spans a whole range of iniquitous relations – from age, caste, religion, race and sexual orientation, to situations of custody, and so on. The thesis that women are ‘inherently’ peace loving and non-violent cannot be supported by the empirical evidence of the horrors that some women, especially those in positions of power, are capable of inflicting on other human beings. Yet, a law stripped of the recognition of the systemic patriarchy in Indian society and the widespread violence on women, cannot be an answer to addressing the issue of violence by women.

Laws on Child Sexual Abuse : Is Gender Neutrality the Answer?

Current laws do not deal effectively with child sexual abuse either in definition, or procedural matters. Beginning from the confusion about the age till when a person is a ‘child’, to restrictive definitions of rape that do not take cognizance of the gamut of sexual violence that a child can be subjected to, to procedural inadequacies that do not take account of the vulnerability of children, their inability to articulate and give evidence, and the long term consequences of sexual abuse.

Introducing gender neutrality in the laws relating to sexual abuse could ensure that boys who were sexually abused by older boys or men could have recourse to legal protection. It would also recognise that women, too, are capable of sexually abusing children – both boys and girls.

The challenge for us then is not to criminalize consensual sexual activity of teenagers, but define ‘consent’ and ‘coercion’ in a way that would ensure protection against forced sexual acts. The proposal for safeguards like a maximum age difference between the girls and boy may end up mired in technicalities, and may sometimes be unrealistic e.g. Can it be presumed that a 15 year-old girl cannot have consensual sexual relations with a 22 year-old boy?

While the law cannot have the answer to all the complexities of sexuality, violence and gender relations, the guiding principle must be that it does not foreclose options by its very definitions. Cries for ‘strengthening’ laws and awarding more stringent punishment must not have the effect of narrowly circumscribing possible fluidity in equations based on gender and age.

Gender Neutrality and Same Sex  Violence

Another argument in favour of a gender neutral law is the need to tackle violence of men on men and women on women, in the framework of same sex relationships. The LGBT community has argued that because the context and realities of same sex interactions are different, it would be preferable to draft a separate law dealing with same sex sexual assault. Most importantly, the initiative needs to come from the LGBT community, particularly because of the non-recognition of same sex relationships in civil law  be it marriage, inheritance, or custody of children. When same sex relationships continue to be shorn of legitimacy (and in fact actively criminalised), the first legal recognition in the context of sexual violence is bound to reinforce the perception of same sex relations as ‘abnormal’.

Any legislation that specifically seeks to address same sex violence, must be grounded in the reality of same sex relations in India – the invisibility, lack of societal and legal recognition, as well as the hostility, homophobia and outright violence that is meted out to those daring to challenge the norm of heterosexual monogamous marriage. Just as laws attempting to address violence on women, however problematic they may be, do in fact, take into account some of the realities of the Indian context. For instance, the provision that it will be considered rape if the ‘man knows that he is not the husband of such complainant and that the complainant’s consent is given because the complainant believes that the offender is another man to whom the complainant is or believes herself to be lawfully married’ is peculiar to the Indian context, where the husband and wife may not even have met each other (or looked closely at each other) before the wedding ceremony. Procedural requirements also take into account the peculiarities of the marriage and family relations in Indian society.

Yet, the repeal of Section 377, cannot be conditional on the formulation of a law penalizing same sex violence. There is an urgent need to strengthen the campaign demanding the deletion of Sec 377 and emphasise that law cannot punish consensual sexual activity between two persons.

Simultaneously, then, there needs to be some protection for sexual assault. This should include all kinds of rape of women that don’t meet the traditional definition of peno-vaginal penetration, and, sexual assault of men by other men, as well as by women on other women, in situations we know are common, in custody, for instance. This could perhaps be taken care of by certain sections being made gender neutral, rather than make the entire law gender neutral.

What needs to be emphasized, cutting across all those vulnerable to sexual assault, is that consent should mean the unequivocal voluntary agreement to engage in the sexual activity in question.

Laxmi Murthy is a member of Saheli, Delhi, an autonomous women’s group set up in 1981.