Gender neutral rape law? Legal experts disagree, call it flawed understanding of law

Can there be a gender neutral rape law? While the Kerala High Court recently observed that such an amendment is required in the penal, legal experts are in complete disagreement with some terming it as a “flawed understanding of the law” or that it “displayed a patriarchal mindset” and some even said it would be viewed as “absurd” as women cannot be seen as subduing a man.

While there are an increasing number of cases of men allegedly tricking women into a sexual relationship on false promise of marriage, what happens if a woman does the same, this was the concern reportedly raised by the Kerala High Court recently which further orally observed that section 376 of the IPC — which lays down the punishment for the offence of rape — should be gender neutral.

A bench headed by Justice A Muhamed Mustaque had reportedly raised the concern while hearing a child custody case between a divorced couple wherein the woman had alleged that the man was unfit to take care of their kid as he was accused in a rape case.

The allegation against the man was that he had sex with a woman on a false promise of marriage.

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The court, during hearing of the matter, orally observed that if a woman tricks a man into a relationship she is not prosecuted, but for the same offence a man is and therefore, section 376 should be gender neutral.

Disagreeing with this view, senior advocate Rebecca John — a prominent criminal lawyer who practices in the Supreme Court and Delhi High Court — said, “The entire premise of the judge was based on a flawed understanding of the law.”

“I am in complete disagreement, because Justice Mustaque seems to suggest that by making section 376 gender neutral, women who falsely implicate men can be prosecuted. Please remember section 376 is a section used for prosecuting those who have committed rape. It is not meant for people who have made false allegations. So making it gender neutral will not solve the issue of false cases,” she told PTI.

John further said that making the provision would not solve the concern of the judge and that “if you want to prosecute people making false allegations, then you will have to have another provision but not under section 376”.

Senior advocate Jaju Babu, who represented MediaOne’s editor and some other employees when the Malayalam news channel’s broadcast was stopped by the Centre, said that there was a general notion that victims of sexual offence should be weak.

“Since man is considered to be strong, and woman weak, the idea of woman subduing a man will seem to be absurd… Thus, according to me, the masculine gender and feminine gender considerations in the matter of defining the offender and victim, as also imposing punishment arises from the notion that women are weak and victims of sexual offences should be weak,” he said while speaking to PTI.

Babu said that unless social changes bring in an atmosphere to shelve this hardened concept as a wrong notion or a myth, “I do not think it is possible that the common gender concept could be adopted to redefine the offenders in penal laws relating to sexual offences”.

Advocate A K Preetha, who represents the victim in the rape case against film producer Vijay Babu, also disagreed with the High Court view and said there was a “highly misogynistic trend that is continuing as far as rape cases are concerned.
She said that everyone was viewing such cases “through a tunnel view”.

“Why do they see that women would trick someone? That is the mindset which needs to be deconstructed. How many false cases can there be out of 1,000? It would be a miniscule number of cases where the allegations are false. Therefore, a generalisation or stereotyping is not possible,” Preetha said, while speaking to PTI.

Such generalisation is “reactionary”, she added.

She further said that while there are false cases, some of which are retaliatory, “that cannot be enough to stereotype and say that every case has to be viewed from a gender neutral perspective”.

“Courts cannot do it especially because the legislation is otherwise…. Gender neutral viewpoint cannot be seen as the panacea in all such cases. After the 2013 amendment, rape laws accommodate victim protective perspective and not a gender neutral one. Even Article 15(3) of the Constitution provides for making special provisions in law for women and children. There is no gender neutrality there. That is how the amendment to rape laws too should be viewed. That is the intention behind it. That is because victims need protection. This is not an area which can be generalised or made gender neutral,” she said.

Preetha said the concept of ‘consent’ under rape laws has undergone a sea change since the 2013 amendment to the laws related to sexual offences “as we have adopted the more stringent Canadian view on that”.

However, “courts continue to view consent from a patriarchal or misogynistic stand point”, she added.

“Rape is a trespass on your bodily autonomy. So if it is to be gender neutral, then it will have to be viewed with sensitivity,” she said and pointed out that the Supreme Court in Aparna Bhat’s case held that judges need to be sensitised on how to deal with such cases.

In that case, she said the apex court had directed devising a module on gender sensitisation, to be included in foundational training of judges.

Advocate Philip T Varghese, who represents actor Dileep in the 2017 actress assault case and related matters, has an entirely different viewpoint — instead of treating sexual relations on false promise of marriage as rape or making it gender neutral, “the better option would be to decriminalise it.”

“Every love relationship that one enters nowadays is not with an expectation that it would end in marriage. It may be so in olden times. Therefore, going back on a promise to marry cannot be considered to be a criminal offence of that nature (rape). That is my feeling. It cannot be a criminal offence, be it a man or woman. Therefore instead of making it gender neutral, a better option would be to decriminalise it. It should not be a criminal offense at all,” Varghese said, while speaking to PTI.

He said that sexual relations on the basis of a false promise of marriage becoming rape “is not a proper concept in present day society” when people are literate, educated and better equipped to take care of themselves.

“It may amount to cheating in certain cases, but it cannot be rape. It may even be considered a breach of trust or promise, in the present scenario,” he said.

By equating sexual relations on false promise of marriage with something as “drastic and heinous” as rape, you are “trivialising” the offense of rape.

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