By Soumyaditya Dasgupta, WBNUJS.
Crime is considered to be a ‘gendered’ phenomenon. Criminal offenders tend to be mostly men. The number of female offenders are far fewer than that of male offenders[1]. So does it mean that females do not commit crimes? Or the number of crimes committed by women are less reported? Or are the crimes committed by them of such nature that they are not conspicuous? The number of female victims of crimes are 48.2 % of the population[2] but the number of female perpetrators of crimes are much lesser than that. The recent Criminal Law Amendment Act, 2013 has made several offences under the IPC gender specific from gender neutral. It is considered that these offences can only be committed against women and only men can perpetrate these crimes. These crimes include rape, sexual harassment, stalking etc. Was it a good move to make these crimes gender specific?
Criminal Law Amendment Act of 2013-
The Act was passed by both the houses of the parliament in April, 2013 and ratified by the President in the month. The decision to amend the IPC[3] was an immediate reaction to the December 16, 2012 Delhi rape incident. A committee was constituted under the chairmanship of Justice JS Verma, a revered Supreme Court Judge. The committee suggested several reforms to the laws regarding sexual offences of which some were included in the final act. This act was marred by controversy but that is not pertinent to discuss it here. The offences under IPC were amended of which Sexual Harassment, acts with intent to disrobe etc. were specifically added in S. 354 which is regarding acts done with the intention to outrage the modesty of a woman.
S.354A is regarding sexual harassment and only women are protected and the offender can only be a man. S.354B is regarding ‘Acts with the intent to disrobe a woman’. The heading itself suggests who it seeks to protect and again only a man can commit this offence. S.354C is about ‘Voyeurism’ which means spying on people when they are involved in an act of a very intimate or personal or private nature. This section too only protects women and the offender can only be a man. S.354D is regarding Stalking and as the aforementioned offences can only be perpetrated by men on women.
Why This Gender Bias?
The offences mentioned in S.354 are referred to as ‘crimes against women’ and not as ‘sexual offences’. This is due to the fact that the Indian patriarchal society looks on sexual offences as offences which can only be perpetrated by men against women as women are the ‘weaker sex’. It is considered that men are the only ones who can show sexual desires and the only ones capable satisfying their desires forcefully. Only men are capable of having inappropriate thoughts of sexual nature. A woman showing any type of sexual desire is seen as immoral and is looked down upon by the society. Such women are deemed not to ‘exist’. Women are only seen as timid creatures incapable of any sexual deviances. Another popular belief is that a man cannot be sexually offended and even if such a travesty occurs it can only be perpetrated by men who have homosexual orientations. Such acts are criminalized by S.377 but not as sexual offences but as ‘unnatural’ sexual offences. Something which the state sees unnatural cannot be punished as a sexual offence.
The laws are only a reflection of the social constructs and values. They are not external to the society. A society of a patriarchal nature would naturally tend to be biased regarding gender issues of which women are always the ‘lesser gender’. Consequently the laws regarding sexual offences become crimes which can only be perpetrated against women by men. Also any sexual offence perpetrated against men is committed by homosexual men which is dismissed as unnatural and the unnaturalness of the act is punished and not the sexual offending.
What is wrong with the bias?
The Sections 354 to 354D are all about ‘acts done with the intent to outrage the modesty of a woman’. The section is regarding crimes against women which is something which every Criminal penal code should include. But the fact that no such sections exist which protect men from sexual offences is what makes this bias detrimental to men. If we consider the popular belief that sexual offences on men can only be perpetrated by ‘gay’ men, the act is punished for being unnatural. And both the involved men are punished. No party is seen as innocent as the section only talks of ‘consensual’ sexual acts not forced sexual acts. There is absolutely no protection for men. A woman is as much a sexual creature as a man and can have sexual desires. It is unfair to assume that sexual offences cannot be committed by women on men.
Women as Offenders-
In the last decade the number of female criminals have increased. Women are increasingly adopting the culture of violence, drug abuse and drinking which was formerly associated only with males[4]. Most people associate female criminals as being victims themselves of economic insecurity, domestic violence, social deprivation or emotional turmoil[5]. But this view doesn’t hold true in every case. Women’s world view has drastically changed in the last decade. Their role as home makers though heralded by the Indian society, young women are much more reluctant nowadays to become home makers. They instead opt to be free of family constraints and crave personal liberty. This change makes criminal activities more attractive to these young women resulting in an increase in female criminal activities.
The Irony of Gender-Specific Offences-
In S.354A only a woman can be sexually harassed by a man. A man can only make ‘inappropriate sexual advances’ by way of remarks or gestures. A man cannot be harassed sexually. In fact Women can harass men sexually, but the act may not exactly consist of gestures or remarks. Women tend to be emotionally manipulative and very often use manipulative tricks to gain favours. The act of sexual harassment of a man by a woman might be more of a manipulative act rather than a physical act[6]. It may be by way of emotional blackmail or mental torture. In Australia cases have been reported where older women have harassed young teenage boys by emotional manipulation[7]. But the belief that a male would always want sex from a female makes it harder to charge the offending females. In a case in America a woman made improper advances on an 11 year old boy who was her neighbour’s son[8].
S.354B is regarding ‘acts done with an intent to disrobe a woman’. It stipulates that only men can be convicted for committing such acts on women as the name clearly suggests. A woman can commit an act to disrobe a man. As seen above, the older women harassing the young men may try to disrobe them as well. This may be achieved by emotional manipulation by the women. With the rise of ‘girl gang’ culture[9] such an act might be attractive to the young women as well. In a case in New Zealand a teacher molested her 11 year old student and forcibly took off his clothes.
S.354C deals with voyeurism. Only men can be convicted for spying on women indulging in private acts. There have not been any reported cases of voyeurism by females but such an act is not totally impossible. Some cases have been reported of perverted sexual predators who indulge in perverted activities to get a ‘kick’[10] so such an act cannot be far away from being committed.
S.354D is regarding stalking. Only a man can be convicted of stalking a woman. In reality there have been several cases of women stalking men. In one particular case[11] a man and a woman were involved in a short lived affair during which the man felt guilty of acting in perversion to his religious beliefs. The man then moved from America to UK. The woman was so persistent that she tracked him down using a private detective and stalked him for many years.
S.376 is regarding rape. Only a man can be convicted of raping a woman. A woman can be convicted of rape only if she was involved in a group of men raping women. It involves physical force making the victim sexually submit to the offender. In the aforementioned case, the woman stalked the man for several years and one day apprehended him with a gun. She forced the man to perform sexual acts on her at gunpoint. In an American case a teacher coerced her student into having intercourse with her by threatening to fail him in her subject.
From the above instances it is very clear that sexual deviance is not a male only phenomenon, women have been widely documented to have committed acts which amount to sexual offences. The gender specific nature of these offences is ironical in that sense.
The Problem of 377-
S.377 seeks to prevent any sexual acts against the ‘order of nature’. But it does not recognize any victim as all parties involved are considered as offenders. The trouble is that a man/woman who has been sexually offended by a member of their own sex cannot ask for justice in the presence of such a provision. Both men and women have been reported to have faced such situations especially in prisons. Male on male & female on female rape is not uncommon in prisons all over the world. Even if such cases are not reported as much in India it in no way means that such incidents don’t happen at all.
Arguments for a Gender Neutral Approach-
Veteran women’s rights lawyer Flavia Agnes wrote in The Times of India “To presume that women can rape men is rather outrageous. While women can sexually harass men, they can’t sexually assault them. There have been no such cases anywhere.”[12] She probably has not bothered to check the cases of women raping men mentioned in this paper.
Another popular belief is that arousal implies consent in some way. In several studies it has been confirmed that men subject to humiliation and sexual assault have sexually responded even in stressful situations[13]. It is just a myth that only consenting men can become aroused. Both men and women are sexual beings, men are not the only ones to have sexual desires.
Another belief is that even if women are capable of rape, the instances of women raping men are just ‘freak incidences’[14], just aberrations from the usual trends. In a survey conducted in the United States, it was found that 1 in 71 men admitted that they had been raped[15]. The total figure stands at 1.5 Million which is not a negligible number at all[16]. They also found that 28% of men who had been raped were raped when they were of 10 years old or younger. In India a survey was conducted in which it was found that 79.3% men believed that a woman can rape a man and 16% adult men admitted to have been forced into sex by a woman[17]. The number of men who admitted to have been forced into sex by men was a measly 2%[18]. This clearly shows that instances of rape in India by a woman on a man though unreported are by no means fiction.
Also it is often pointed out that men are not affected in the same way as women after a rape implying that men have no qualms in indulging in non-consensual sex[19]. But a survey has reported “prevalence of frequent headaches, chronic pain, difficulty sleeping, activity limitations, and poor perception of their own physical and mental health in men who have been victims of rape, stalking, or physical violence by an intimate partner”[20]. In another study it was found that “men who have been raped by women face sexual dysfunction and disorder and are unable to respond physically to a female partner of choice even two years after the attack. The men had lost their sense of personal dignity and confidence in their masculinity”[21]. Another study of male rape victims pointed out that there were several long term effects of rape which include “anxiety, depression, increased feelings of anger and vulnerability, loss of self-image, emotional distancing, self-blame, and self-harming behaviour”[22].
The effects of rape on men and women are not entirely similar but there is an adverse effect in both cases. But the consequences of a rape are not everything about the act[23]. The act itself is such that it must be recognized as an offence. The numbers themselves make it unjust to ignore the fact that men are raped as well.
Most cases where men are raped go unreported. These can only be attributed to the myths attached with rape. Most men are not comfortable to talk about a sexual assault due to the fear of ridicule in their peer groups[24]. Men are to be ‘stoic’ and should not be ‘sensitive’. These men are unable to find support and fall into depression. The police too do not have any sympathies for such men. They would just send them away stating that men cannot be raped by women and would perhaps ask him why he had not enjoyed the act. The society also looks down upon these men. It should not be a surprise that these cases go unreported
Feminists would argue that making gender neutral rape laws will act in detriment of women. The men accused of rape might accuse the woman of rape as well. And the accusation and counter accusations will fly high and low victimizing women further and distancing them from justice. They forget that equality is a fundamental right under the constitution of India and any such discrimination on the grounds of gender is a blatant disregard of that right. A man should have as much right as a woman. A man who has been raped should have access to the same types of remedies as available to women. There should not be any question of unfairness. Not all men are like the typical sex crazed sexual offender category. There are men who are as sensitive as women and they have all the rights to be sensitive. These men feel the same humiliation as women do while being raped. He should have the same protection available to him as women have. An argument stating the contrary defeats the tenets of equality ensconced in the constitution of India. Gender neutral rape laws do not ‘decontextualize’ rape[25] in any way.
[1] Darrell Steffensmeier & Emelie Allan, “Gender & Crime”, available at http://law.jrank.org/pages/1256/Gender-Crime.html (Last visited on February 25, 2015).
[2] National Crime Records Bureau Annual Report, 2012.
[3] Indian Penal Code, 1860.
[4] Maria Silvestri & Chris Crowther-Dowey, Gender & Crime 25 (2008).
[5] Smriti A Bhosle, Female Crime in India 16 (2009).
[6] Living Well Organization Australia, Unhelpful Myths about Sexual Offences, available at http://www.livingwell.org.au/information/unhelpful-myths-about-the-sexual-assault-and-rape-of-men/ (Last visited on February 21, 2015).
[7] Ibid.
[8] Damien B, 10 Shocking Cases of Female Sexual Predators, May 9, 2014, available at http://listverse.com/2014/05/09/10-shocking-cases-of-female-sexual-predators/ (Last visited on February 23, 2015).
[9] Maria Silvestri & Chris Crowther-Dowey, Gender & Crime 25 (2008).
[10] Supra 8.
[11] Ibid.
[12] Jai Vipra, A Case for Gender Neutral Rape Laws in India, available at https://ccsinternship.files.wordpress.com/2013/05/286_case-for-gender-neutral-rape-laws-in-india_jaai-vipra.pdf (Last visited of February 23, 2015).
[13] Supra 12.
[14] Ibid.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Supra 13.
[24] Supra 6.
[25] Supra 13.