Law, Emasculation, and Sexual Violence in India

Indian Journal of Law and Society, Double-Blind Peer Reviewed and Refereed Journal |, ISSN: 2583:9608, 2023

Rape laws in India have been in question for decades now. While many nations recently have changed their rape laws to gender-neutral, India still lacks any legislative intent on the same. There were significant efforts made after the Law Commission of India in its 172 nd report recommended the changing of "women" to "any person" as victims of rape. However, all efforts did not bear any fruit. The law against the rape of males in India is governed currently by Section 377 of the IPC, which criminalizes "unnatural offenses" or gratifying of unnatural lust. There is less clarity as to what constitutes this "unnatural lust" and there is a need to define this for interpretative purposes. This research does a comparison analysis of international norms and practises pertaining to male rape victims in order to provide context. To highlight the differences and similarities, it looks at the legal systems and societal norms in a number of nations. This study attempts to highlight the urgent requirement for legal reforms and social awareness campaigns in India to better protect and help male rape victims through the integration of legal research with a sociocultural viewpoint and a worldwide comparative approach. It adds to the current conversation about gender-neutral laws and the significance of respecting the experiences of all survivors, regardless of gender, while promoting more inclusive and equal legal safeguards globally.

Journal of Indian Law and Society (ISSN 2277-5552), Vol.5, Winter 2013, pp.61-93., 2013

After the recent gang-rape in a Delhi bus and the subsequent death of the victim, a lot of debate is going on about the massive number of rape and other sexual offences in India and their possible remedies. The paper tries to look beyond the immediate issue to seek the root of the problem in a socio-legal approach that tends to consider a woman’s body as a property of the husband. This approach is often defended on the name of India’s ancient tradition and may indeed be traced back to some early Indian texts. The attitude of early Indian lawgivers, like Manu and Bṛhaspati, matched well with the Victorian morality the colonial state inherited. The I.P.C., drafted in 1860 under Lord Macaulay’s leadership and largely retained till date, has to be understood in this social context, for any legal structure is the product of its contemporary society. This paper tries to show how this socio-legal tendency to consider a woman’s body a property to be protected and preserved for her husband affected the law regarding adultery, rape, molestation and prostitution in both ancient and present day India. It also tries to show how the construction and perpetual justification of this attitude in the name of ‘Indian tradition’ is possible only through a selective appropriation of the sources. Locating the problem and its roots, the paper argues that the solution of this deep-rooted social problem has to be social as well as legal, but, as a start, our law has to shed off the historical baggage of both the Dharmaśāstric tradition and of Victorian morality, and proceed to a more gender-neutral and sensible approach that will accept a person’s absolute right over his/her own body.

Udayana Journal of Law and Culture

The problem of violence perpetrated against women in India is not simple. It is embroiled in the historical subjugation of the ‘weaker sex.’ Women have been unable to claim equality in society despite mandatory provisions in the Constitution of India and other legislations in their favour. Despite numerous amendments to the Indian criminal law, rape, one of the most heinous crimes, continues to be committed in India at an alarming rate. The law on Rape in India has undergone three phases of amendments, and all precipitated in the aftermath of public fury on account of brutal and heinous incidents of rape. This paper employs the socio-legal approach to assess the efficacy and impact of these amendments in changing social behaviour. It concludes that though the massive public outrage undoubtedly led to radical amendments, it was a knee-jerk reaction that suffered from legislative ambiguities. The increase in the retributive content of the law ultimately resulted in reduced convictions...

LAW AND LAWYERS, 2020

Ferocity is at its worst demonstration when it occurs within the rim of a family. Rape within the bounds of marriage is a notion that can fret any woman to the very core. The dread of having suffering silently through is an unbearable thought. This self-imposed silence not only has deleterious reverberations on the emotional level, but also disturbs the mental stability of a woman. However, if looked at precisely, this silence is not exactly self-enforced. The enforcement makes its way through the shortfalls of the laws and the existence of social stigmas resulting in the concealment of a heinous crime behind the ‘saintly’ nature of a marriage. This paper focuses on highlighting the practice of marital rape, gives an account of the legality of marital rape laws, looks within the social extremity of marital rape, and attempts to frame a reference to human right stance. It also offers a comprehensive view of the legal complexities of the already existing laws - Section 375 (exception 2) of the Indian Penal Code, 1860. It will only be complying to say that minimal criminalization of this crime will not be enough to terminate its dreadful plight, but it will surely act as a predominant stride towards altering a woman’s encounter with sexual violence and dominance. It is high time for the abstraction of “rape is rape, irrespective of the relationship between the victim and the perpetrator” to get acknowledged by judicial structures and be put to strict force, breaking off all the uncorroborated patriarchal claims of men over women.

The India Forum, 2024

Why does there continue to be a disconnect between sexual assault and punishment of the perpetrator in India? There is a need to question why the onus for the crime of sexual assault and its punishment seems disconnected in our society. Do we see how Hindutva’s social and cultural ethos is reversing the position and worth of women? Do we see how women from Dalit and Adivasi communities and from minority religious groups bear the brunt of sexual violence and denial of justice? What makes sections of the public, including women, take to the streets in defence of perpetrators of crime? Do we see the formidable matrix of political power, caste superiority, and muscle power that protects the perpetrators of sexual crimes? This article will attempt to unpack some of these complexities.

Sexual and Reproductive Health Matters, 2021

India enacted a new child sexual abuse law in 2012 and made important changes to the rape law in 2013 to expand the definition of rape and sexual assault, introduce several reforms and improve gender sensitivity in rape trials. However, the child sexual abuse law with its definition of who is a child has increased the age of consent for sex from 16 years to 18 years, echoed by similar changes in the rape law. This paper revisits the debates on the age of consent in India in the late nineteenth century. It reviews them in the light of the new legislative changes, adjudication of cases of sexual assault, and examines the implications of the new laws on adolescents and their sexuality. We contend that the changes in the law have resulted in several challenges: for adolescents exploring their sexuality on the one hand, and for courts to adjudicate on love, romance, and elopement, on the other. Further, in conjunction with raising the age of consent, other changes such as mandatory reporting of sexual activity among adolescents, especially by hospitals, have increased family control on adolescents' sexuality and strengthened regressive social norms linked to marriages. One of the most troubling developments is the resulting barriers to adolescents' access to reproductive and sexual health care. This paper explores how laws devised to address harm and extend protection to children play into dominant social norms and are in the service of protectionist and patriarchal control on young people and their sexuality.

Australian Feminist Studies, (2014) Vol. 29, No. 81, 255-272

India is one of the few countries in the world that continues to exempt husbands from being charged with rape committed against their wives. This article describes a brief period of contestation between feminists and the state in India, when this exceptional treatment of marriage was challenged and it was demanded that the husband’s legal immunity be ended. Unpacking the responses of the state for retaining the immunity, this article shows how the idea of marital rape as an impossibility is constituted and contested in contemporary India. While the demand for repealing the husband’s immunity did not succeed, the manner in which the state framed the issue and internal debates among Indian feminists over the politics and potentials of criminalising marital rape, complicates our understanding of the issues at stake. Consequently, the article emphasises the need for situating the marital rape question within a broader analysis of the legal regulation of marriage, rather than focusing on criminal law reform alone.

Asian Journal of Comparative Law, 2016

Despite expanding the definition of rape under the Indian Penal Code to include non-penile-vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of their genders. Herein, I will critique this idea of gender specificity in Indian rape law on the grounds that it reinforces a binary notion of gender, and results in gross underinclusion. Instead, it is more appropriate to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape. The argument is pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape law.

Suffering it has been said, is in the eye of the observer and not in the eye of the sufferer. Rape is one of the most heinous forms of sexual harassment against women. It not only harms the victim physically but also drains her mentally. The victim of forcible sexual intercourse is treated as an accomplice in the society which values chastity as the most important attribute of womanhood and does not hesitate to test it by subjecting the woman to the ordeal of fire without causing a ripple amongst the onlookers.3 Rape transgresses into the right to privacy of the victim and cripples her for life. Unfortunately, in a patriarchal society like India the victim is forced to suffer for the act of the accused and is held responsible for her fate in one way or the other. She has to relive the tragedy in the court rooms if she gathers enough courage to prove her innocence. It is very unfortunate that it is the victim and not the accused of rape who carries the social stigma for life

International Journal for Crime, Justice and Social Democracy, 2014

Abstract The brutal gang rape of a physiotherapy student in India in December 2012 drew the world’s attention to the problem of sexual violence against women in that country. Protests and mass public reaction towards the case pressurized the government to respond to the crisis by changing the laws on sexual violence. However, these new laws have not led to a decrease in violence against women (VAW). Is this the result of the failure of the rule of law? Or does it highlight the limitations of law in absence of social change? This paper addresses the need for using law as a key tool in addressing violence against women in India. It recognizes that unless we address the structural and root causes of violence against women, our analysis will be limited. It is important to bridge the creation of new laws, with an analysis that speaks to the role of hypermasculinity, neoliberalism and culture in VAW. If unaddressed, what may result instead are quick fixes, symbolized by the passing of new laws that act as token gestures rather than ones leading to transformative action. Keywords India; gang‐rape; law; hypermasculinity; political economy;