Gender Neutral laws on Sexual Offences in India: An Intersectional Approach

Abstract

In India, most laws relating to sexual offences are gender specific. For example, under criminal law only a man can be convicted for committing rape and the victim can only be a woman. This is further seen in the laws pertaining to stalking, adultery, voyeurism, and sexual harassment at workplace. Thus, binary classification of male and female continues to guide such offences on the predetermined understanding of the gender-based victim-perpetrator framework. In this schema, men and transgender community as victims are often overlooked. Despite recent attempts to bring gender neutrality, it is evident that there has been a historic denial on the part of scholarship and court decisions that such assaults even occur on the other genders. Many countries have adopted gender-neutral laws. Therefore, the paper attempts to assess if such laws are viable in Indian society. While criminal law and some special laws, will be elaborated, the paper will also study the aspect of gender neutrality from constitutional perspective that obligates the state not to discriminate on the basis of sex. It argues for a rights-based approach in defining sexual offences with a gender-neutral paradigm which seeks to address the harm caused rather than the associated notion that only a woman can be a victim of sexual offences. Through a comparative and intersectional approach, the paper addresses the concern as to why current laws refer only to binary classification as an identifier for victim-perpetrator framework and other markers like dominance, caste, class, religion have diminished relevance. Thus, the paper contributes to existing scholarship by analysing and critiquing the notion of gender specificity in sexual offences and advocating for gender neutrality in India.