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Our legal system is based on evidences and not mere assumptions. But how fair is it to punish only one sex for a crime which can be committed by other sex also? And the assumption that only one sex could be the victim would lead to inequality. Isn’t it so?
The term ‘Man’ and ‘Woman’ is defined as male human being and female human being respectively of any age in Sec 10 of The Indian Penal Code, 1860.
Let us look at the definition of Rape as provided in IPC, 1860 under Sec 375:
A man is said to commit "rape" if he -
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) 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 to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven 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 eighteen years of age.
7. When she is unable to communicate consent.
When we look at the definition of rape as provided above, one has to ponder why the act of commission as mentioned in (b), (c), (d) can’t be fulfilled by a woman or a transgender man. Article 14 of the Constitution of India deals with Equality before law. Will it not be violation of Article 14 when one person is punished for the act which if done by the person of other sex would not be punishable? The stereotyping and patriarchy in the society assume only men as capable of being wrong-doer in these cases. Are women not equally efficient to fulfill the requirements of (b)(c)(d) under sec 375 of IPC?
When we analyze the legal definition of rape, it’s not just about the culprit but also about the victim whose sex is already known. Is it not possible to replace the terms like vagina, urethra or anus with other Gender-neutral terms like Sexual organs to increase the scope of the definition of Rape from women to all persons?
While looking at the seven descriptions provided in the definition of rape, question can be raised why same or similar provisions cannot be applied on other sex also. Does unsoundness of mind or intoxication restrict to one sex only! Is it that Consent which in simple language can be understood as permission needs to be seek only when the person is of particular sex?
Article 21 of the Constitution of India deals with the concept of “Life and Personal Liberty”. Crime of rape has two components- physical and mental. Rape has more deteriorating effect because of mental/psychological aspect as a person feel violated in the most brutal way. Physical aspect may have less effect unless the act is done in barbaric manner or the victim is too young. And these feelings can happen to both sexes.
The Protection of Human Rights Act, 1993 defines “human rights” in Section 2(d) as meaning the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India. There can be no doubt that man or woman whose body is used/misused without their consent would amount to violation of their human right to liberty as guaranteed by the Constitution.
[1]Male rape was first recognized under English law in 1994 when the definition of rape was revised so as to include non-consensual, penile-anal intercourse of a woman or a man.
In Independent Thought v UOI,2017, SC it was held that merely because something is going on for a long time is no ground to legitimize and legalize an activity which is per se illegal.
Conclusion: Does only women have modesty and ‘honor’? Men don’t have right over their own bodies to give consent or not! Are we not providing blanket freedom to do assault with men which is sexual in nature because at most the culprit will be punished only for assault even in such cases? Or can all this be justified under Art 15(3) of Indian Constitution by claiming that it is beneficial to women. Also, how can we forget the whole Feminist movement where Feminism means Gender Equality. As Feminists, we should strive not only to bring women to equal pedestal in all fields where they have been neglected till now but also to bring men equal to women in the spheres where they have to bear the losses because of just being man. With modernization and progress, hopefully the victim and culprits will be focused more rather than their sex or gender unless it is the major factor behind such cases. Let’s work on implementing Art 14 in its true essence in all places where it has not reached yet.
[1]Seattle Journal for Social Justice Volume 6 Issue 1
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