Written by Akshat Kumar student at National University of Study and Research in Law, Ranchi & Shruti Udayan, student at National Law University, Jodhpur.
INTRODUCTION:
With the implementation of BNS, many changes were brought with it, aiming to modernise legal provisions; however, like many legal provisions, certain sections remain rooted in gender-specific language. One such section is Section 63 of the BNS. In 2007, a survey was conducted by the Ministry of Women and Child Welfare, a government body of India, where it was found that 53.2% of children reported having been abused sexually at least once in their lifetime; out of these, 52.9% were boys. According to a study done by SP (Railways) and a commandant of a women’s police battalion of Kerala in November 2020, boys were victims of sexual abuse in 17 per cent of cases, and in several of these incidents, culprits were women. In a country where male rape is more stigmatised than female and where male survivors find it difficult to come forward and talk about such incidents due to the fear of being mocked by society, such gender-biased laws make the situation even worse. This article explores the necessity of revising Section 63 to make it gender-neutral, it will delve into the changes in Laws related to the rape of males, transgender individuals, and animals that were brought after the implementation of BNS it will also delve into the global approach of different countries regarding male rape cases.
Changes in Laws Related to the Rape of Males, Transgender Individuals, and Animals in Bharatiya Nyaya Sanhita (BNS):
With the implementation of BNS, several changes were brought, to the the legal definition of various words; one such word is “rape”. The new definition of rape which is given in section 63 of BNS reduces gender neutrality which was already a significant concern in our legal system.
Now section 63 of BNS, which is a reproduction of Section 375 of IPC, starts with “A man is said to commit “rape” if he…” Here, words like “he” and “man” vividly indicate how the BNS limits the instances of rape where the perpetrator is male. The BNS does not recognise forced intercourse with adult males as a criminal offence. This absence creates a legal void where male victims have no recourse under the law for sexual violence. Apart from this, in the new law, even the word “animal” is omitted, which means the new law not only excludes the rape of men and transgender but now even acts of bestiality is decriminalised. Contrary to this, section 377 of the IPC reads, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to a fine.”
However, men and transgender persons may seek limited redress under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 or Section 114 of the BNS, which talks about grievous hurt, and it is a bailable offence with a maximum imprisonment of seven years. But, the penalties in these provisions are only between 6 months to 2 years, notably lighter than the punishment for rape under Section 63, which mandates imprisonment of 10 years to life. Furthermore, acts of bestiality are no longer criminalised under the new framework.
This is clearly against Article 14 of the Indian Constitution, which forbids unjustified discrimination and ensures equality before the law. Here, the concept of “reasonable classification” mentioned in the case of Gauri Shanker v. Union of India, where the Court emphasised that “equals should not be treated unlike and unlike should not be treated alike”, becomes irrelevant because there is no rational justification for the trauma and experience of rape to vary according to the gender of the perpetrator or the victim.
Global Approaches and lessons for India’s BNS reforms:
The global approach to addressing male rape and gender-neutral sexual violence laws reveals significant variations, with progressive frameworks in some jurisdictions offering lessons for India’s BNS.
The Sexual Offences Act 2003 of the United Kingdom recognises male victims, but it restricts perpetrators to males by defining rape as the non-consensual penetration of the mouth, anus, or vagina with “a penis.” However, female perpetrators can be charged under Section 4 of the same act for “causing sexual activity without consent“, which carries the same penalties of life imprisonment as rape. South Africa, under its Sexual Offences Act (2007), uses a better definition of rape and follows more gender-neutral laws. The act says rape occurs when a person forces another to have sexual intercourse without their consent. The law explicitly protects men, women, and LGBTQ+ individuals. It also provides provisions for the support and protection of the victims who experienced sexual assaults, providing access to both psychiatric and medical services as well as legal aid for the protection, development and help of all victims. The US, too, have gender-neutral laws for non-consensual sexual acts under Chapter 109A of the United States Code. Federal Bureau of Investigation (FBI) defines sexual assaults and rapes as ‘penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person without the consent of the victim’ and the term ‘another person’ implies gender neutrality in the provision. In Singapore, there are two different sections for sexual violence for women in section 375(1) of the penal code defining rape as male-perpetrated penetration of a female, “unlawful sexual penetration”, and for males or transgender individuals in section 376. However, both carry identical penalties. France criminalised any non-consensual sexual penetration (vaginal, anal, or oral) as rape, regardless of the victim’s gender. This includes male survivors and cases involving female perpetrators using objects under Article 222-23 of the French Penal Code.
Conclusion
We can conclude from this article that excluding men, transgenders, and animals from the definition of rape under section 63 of BNS clearly shows that it is not only gender biased but also undermines the principle of equality before the law and denies justice to male and transgender victims of rape. In the authors’ opinion, such laws also reinforce harmful societal stigmas that are already prevalent in our society, eventually preventing survivors from speaking out.
This article also highlighted the urgent need for reform by comparing India’s legal stance with the approach of some of the countries regarding male rape and gender-neutral sexual violence. It showed examples of some of the countries, like South Africa, the United Kingdom, the United States, France, and Singapore, that have moved towards more inclusive and gender-neutral definitions of sexual crimes that ensure that all survivors receive legal protection and justice irrespective of their gender. India should also amend Section 63 of the BNS to ensure that all victims, regardless of their gender, have legal recourse against sexual violence.