Discussions relating to sexual violence tend to revolve around female victims, as this demographic accounts for the most significant percentage of victims. Nevertheless, a question that is often not asked is: What are the consequences of being a male or transgender individual who has been sexually assaulted?

The answer to this question is much more complex than most individuals may think.

The implementation of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code (IPC), 1860, and will cease to exist after the BNS comes into effect on July 1, 2024, has raised questions for many legal practitioners and activists, as well as constitutional scholars, regarding a major omission in the criminal justice system of India. The new law modernises many aspects of criminal legislation; however, critics contend that the failure to give males and transgender individuals equal protection under the offence of rape places them at a distinct disadvantage.

Getting a Handle on the Law

According to Section 63 of the Bharatiya Nyaya Sanhita, a man can commit the crime of rape against a woman if he does so in certain ways (like without her consent, or using threat or fraud). However, men and transgender persons who have sexual relations with other men or transgender persons cannot be charged with rape under the new law. Even though these activities are still against the law and can result in punishment under other parts of the Criminal Code, they cannot be charged under the definition of rape.
This issue is one of the most talked about

Change From IPC

The Indian Penal Code's section 377 dealt with "unnatural offences" previously. The law has been heavily scrutinised due to its colonial roots and was limited after decriminalising consensual same-sex activity by the Supreme Court in Navtej Singh Johar v. Union of India (2018), but it still created a legal framework through which certain non-consensual sexual acts can still be prosecuted, without regard to the gender of the victim. Although Section 377 is now repealed and BNS was enacted, no equivalent gender-neutral provision to address these types of acts was put in place. As a result, legal experts state that male and transgender survivors have less access to specific laws for obtaining justice for certain types of sexual violence than previously permitted.

Warnings to Parliament

It was anticipated that these matters would arise. During its review of the Criminal Code, the Parliamentary Standing Committee on Home Affairs (2023) has suggested that the legislation on sexual crimes against other persons (i.e. those which did not take place because of) should include provisions for all people to be protected irrespective of their identity as a man or woman. The committee recommended that there should be recognitional provisions in the law that each person is equally at risk of becoming a victim of abusive sexual behaviour. None of these reports were adopted into the completed version of the Bharatiya Nyaya Sanhita. Since this decision was made, there has been ongoing debate by both lawyers and human rights advocates regarding the decision."

The Constitutional Debate

The issue of legal protections against sexual violence involves both criminal law and constitutional principles. Critics state that not allowing male and transgender victims to have access to legal protections might be a violation of Articles 14, 15 and 21. Article 14 guarantees that every person has equal protection of the law; Article 15 prohibits discrimination against anyone based on gender; and Article 21 guarantees every person the right to life, and to their own personal liberty. For these critics, their argument is simple: if all persons have equal dignity and bodily autonomy, then legal protections against sexual violence cannot be based solely on the gender of the victim who has suffered sexual violence.

Advocates of the current law hold that rape laws are supposed to be gendered laws, because women experience disproportionately high rates of sexual violence in India. They believe that a woman-centred rape law retains historical inequalities, and thus, provides greater protection for women from sexual violence than if there were a gender-neutral rape law.

Global Landscape

In numerous nations across the globe, such as the U.K., Canada, Australia, New Zealand and South Africa, there is now a gender-neutral sexual offence law, acknowledging that sexual violence can be inflicted on men and transgender individuals as well. Currently, India has a legal construct that only defines rape as a gender-specific offence; therefore, whether India should adopt a gender-neutral framework akin to those of the aforementioned countries continues to be the focus of an ongoing public policy discussion.

The Importance of This Conversation

Acknowledging male and transgender survivors does not lessen the struggles women have encountered. There is no competition between genders for suffering caused by sexual violence. The question being debated is whether or not to have legal recognition for male and transgender (as well as female) victims and whether all survivors have access to economic and social justice through a common law. All survivors should have dignity, acknowledgement and access to some form of justice.

The Bharatiya Nyaya Sanhita is one of the most important changes to India's criminal justice system in recent decades. However, one of its major shortcomings has been its failure to include gender-neutral provisions on rape in its overall reform of the criminal justice system.

It is not clear whether this will be addressed by Parliament through future changes to the law. What is clear, however, is that the dialogue regarding sexual violence is changing. As society continues to recognise that violence does not discriminate between genders, many believe that the law will eventually have to change as well. Justice is most meaningful when it equally protects everyone. Ensuring that all survivors are recognised by the law does not mean that women will no longer have protections under the law. Rather, it means that all victims, regardless of gender, will be afforded the equal protection of the law.

References: 

• Bharatiya Nyaya Sanhita, 2023 (Section 63)
• Indian Penal Code, 1860 (Former Section 377)
• Parliamentary Standing Committee on Home Affairs (2023) Report on the Bharatiya Nyaya Sanhita Bill
• Navtej Singh Johar v. Union of India (2018), Supreme Court of India
• Constitution of India (Articles 14, 15 & 21)

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