It says Section 375 of IPC does not take into account sexual assault inflicted on men and transgender people.
New Delhi: Section 375 of the Indian Penal Code, which deals with rape, is not gender neutral in the light of the recent Supreme Court ruling decriminalising gay sex, claims a plea filed in the apex court.
“It is imperative to note that transgenders including but not limited to homosexuals & bisexuals, and men are sequestered from the point of view of victims of rape under the existing penal laws of the country, despite an impending need for the same”, the plea filed by NGO Citizens for Peace and Justice reads.
The petition, which is listed before a bench led by Chief Justice of India Ranjan Gogoi, seeks direction to redefine rape laws.
“The intention of the petitioner is not to undermine the experiences of women subjected to rape and discrimination. But, as society matures, we must develop empathy for all and this includes male and transgender rape victims,” it says.
“Thus, breaking our silence on the issue of male and transgender rape and questioning social constructs that glorify machismo, reduce men and transgenders to stereotypes and force them to mask their feelings, is what we need,” it adds.
The plea relies on the August 2017 order passed by a nine-judge bench of the top court that declared privacy a fundamental right. It also cited the NALSA judgment that recognised transgenders as the third gender.
“The onus to change this ideology is partly upon the societal perspective and partly on the incumbent legal framework of the country. If the legal authorities of the country do not view the possibility and plight of rape other than inflicted by a man over a woman, then it would be rather difficult to inculcate that sensitization in our worldview.”
“The lack of acknowledgment of male and transgender rape has impacted the ability of victims to recognise their own victimisation,” the plea reads.
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The existing rape law
Section 375 that defines the provision of rape is seen as archaic as it says, “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.”
Section 376 of IPC provides punishment for rape. According to the section, “the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years”. The accused “shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, the accused shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both”.
The NGO submits that Section 377 – before the courts stepped in, “criminalized both participants while including male victims in Section 375 would have criminalised only the rapist and not the victim.”
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This loophole discourages male and transgender rape victims from complaining against their rapists as it may lead to their prosecution as well. The 1860 version of the IPC also ignored sex without consent between a husband and wife (marital rape), a clause that is missing from “our anti-rape laws even today”, the NGO argued.