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January 05, 2016

Gender Neutrality Of Sexual Laws Is Need Of The Hour


Gaurav-Dhama

Over the years, most of the western countries have made their sexual laws gender neutral given that both victims and perpetrators can be male or female sexual laws are referred to include all offences from outraging modesty and harassment at workplaces for sexual favour to the offence of rape. The injury of sexual offences is more psychological than physical and it has more grave impact on the life of the injured, such injury is neutral irrespective of the victim's sex. There have been great changes in the law for protecting the fair sex but while doing so, the concern of men has not been touched at all.

Legislative Landscape

Before we delve into the issue of gender neutrality of sexual laws in India, it would be better to have a look at development of laws pertaining to sexual offences in India. After Mathura case, reported as 1979 AIR 185, the provisions of sexual laws of IPC and Cr. P.C. have substantially been amended to the extent of shifting the burden of proof from the victim to the accused. Only circumspection on the veracity of the victim's statement is the corroboration of circumstantial evidences, and our judiciary has well applied the circumstantial evidences for corroboration holding that every discrepancy is not fatal to the conviction as the circumstantial evidences have to be looked into in entirety.

Following the pursuit, the Hon'ble Apex Court of the country in Vishaka's Case, 1997 (6) SCC 241, entered into the legislative domain, as there was no law to meet the concerns of the working women at the workplaces for protection from sexual abuse, and laid down guidelines for protection of working women. Thereafter, in the wake of Nirbhaya rape and murder case, due to public uproar, the provisions of rape have again been amended drastically and the definition of rape has been enlarged to include every intention of the accused and now it is mens rea, which weighs more than actus reus as clause (c) of Section 375 envisages that penetration even by an object or finger in any part of body of such woman amounts to rape. "Any part of body" may be nose and ear as only the days to come would witness in what ways the judiciary deals with it. Simultaneously, four sections - Section 354A, 354B, 354C & 354D have been added in the IPC for protection of the women from sexual harassment. Even after the legal provisions so lopsided in favour of the women, irony is that the women in India are feeling more unsafe because of growing incidence of sexual offences and the writing on the wall is that mindset of the people has not changed with the pace of their material advancement and it will take long time to bridge this gap if done arduously.

No Law For Sexual Offences Against Men

However, amidst the uproar for women's safety, the concerns of the men have been left in the lurch as the sexual offence in India is by default synonymous with sexual offences against the women. This is based on the premise that the man cannot be abused sexually and he has only protection under Section 377 of the IPC, the scope of which is entirely different and only covers an iota of the issue. He does not have any other protection like 354 to 354D and the law envisages that male does not possess modesty. It would be pertinent to mention an incidence, which occurred in July 2015 in Delhi, in which an autorickshaw driver was trapped and bolted in a room by two women while one woman was forcing herself upon him, another was filming the acts. The autorickshaw driver, feeling danger for his life, jumped from the balcony and got his legs fractured. On their arrest, four more licenses of other autodrivers were recovered. This incidence is the tip of the iceberg, which shows sexual abuse of males by females is not reported due to the psyche of men. Moreover, those women were arrested for the offences of abduction, wrongful restraint and extortion and not for committing rape and outraging his modesty because there exists no such law.

Fact cannot be denied that the men are sexually harassed though no complaint is made by a male for sexual harassment or it surfaces rarely. The reason is that men find it very difficult to acknowledge sexual harassment because any such admission would mean that they have been victimised by a woman and there is nothing worse that can happen to men than this. The absence of a law definitely doesn't stem from the absence of the crime. A large number of males do face sexual harassment at work places, both at the hands of men and women. Man on man harassment is more common, but woman on man harassment is not unheard of either. Sexual harassment like other harassment is an assertion of power. So it does not take any one form or place itself in the hands of just one gender. The traditional psyche only men can abuse needs to be relooked in the light of rising incidence of sexual harassment of male employees. According to the US Equal Employment Opportunity Commission (EEOC), which tracks sexual harassment under Title VII of federal law, reports that men make up 16.3% of complainants in 2012, up from 11% in 1997, which includes the female perpetrators. We cannot imagine such data in India.

Moreover, if a male is sexually harassed in India to the extent of rape (under existing law, it is unnatural offence) the burden of proof always lies upon him to prove the case to the hilt and his statement alone weighs very little and insufficient to cast the burden on the accused to prove that he is not guilty. Whereas the existing sexual laws for women render their statement on trial as gospel and the burden shifts on the accused to prove that he is innocent.

Need Of The Hour

Over the years, most of the western countries have made their sexual laws gender neutral given that the victim may be a male or female and both the genders can be perpetrators, the law should treat them equally without any bias. In U.K., the Sexual Offences Act, 1956 has been amended till 1994 keeping in view gender neutrality, simultaneously, in other laws this principle has been kept intact, these laws are: Protection of Children Act, 1978, Criminal Justice Act, 1988, and Sex Offences Act, 1997. Under the Canadian law, this principle has been kept to its heart while passing and amending the provisions of Criminal Code of Canada (R.S.C. 1985), and the same tempo has been maintained in Australia in the Crimes Act, 1914 and by Crimes Legislation Amendment (Sexual Offences Against Children) Act, 2010. In South Africa, Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 has been passed to the same effect among other additions. In U.S., gender neutrality has been maintained in the various laws by the States as there is no federal law for crime in U.S., it being a state-subject. Now it is the need of the hour for India to come up with equal protection for men. However, while raising demands for gender neutrality of sexual laws, the privileges provided to women should not be withdrawn. Efforts must be made to strike a balance between conflicting interests of the aggrieved male and female.

Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.

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