Gender neutral rape law? Experts disagree, call it flawed

Kochi: Can there be a gender neutral rape law? While the Kerala High Court recently observed that such an amendment is required in the penal, legal experts are in complete disagreement with some terming it as a “flawed understanding of the law” or that it “displayed a patriarchal mindset” and some even said it would be viewed as “absurd” as women cannot be seen as subduing a man.

While there are an increasing number of cases of men allegedly tricking women into a sexual relationshionp on false promise of marriage, what happens if a woman does the same, this was the concern reportedly raised by the Kerala High Court recently which further orally observed that section 376 of the IPC -- which lays down the punishment for the offence of rape -- should be gender neutral.

A bench headed by Justice A Muhamed Mustaque had reportedly raised the concern while hearing a child custody case between a divorced couple wherein the woman had alleged that the man was unfit to take care of their kid as he was accused in a rape case.

The allegation against the man was that he had sex with a woman on a false promise of marriage. The court, during hearing of the matter, orally observed that if a woman tricks a man into a relationship she is not prosecuted, but for the same offence a man is and therefore, section 376 should be gender neutral.

Disagreeing with this view, senior advocate Rebecca John -- a prominent criminal lawyer who practices in the Supreme Court and Delhi High Court -- said, “The entire premise of the judge was based on a flawed understanding of the law.” “I am in complete disagreement, because Justice Mustaque seems to suggest that by making section 376 gender neutral, women who falsely implicate men can be prosecuted. “Please remember section 376 is a section used for prosecuting those who have committed rape. It is not meant for people who have made false allegations. So making it gender neutral will not solve the issue of false cases,” she told PTI.

John further said that making the provision would not solve the concern of the judge and that “if you want to prosecute people making false allegations, then you will have to have another provision but not under section 376”.

Senior advocate Jaju Babu, who represented MediaOne’s editor and some other employees when the Malayalam news channel’s broadcast was stopped by the Centre, said that there was a general notion that victims of sexual offence should be weak. “Since man is considered to be strong, and woman weak, the idea of woman subduing a man will seem to be absurd... “Thus, according to me, the masculine gender and feminine gender considerations in the matter of defining the offender and victim, as also imposing punishment arises from the notion that women are weak and victims of sexual offences should be weak,” he said while speaking to PTI.

Babu said that unless social changes bring in an atmosphere to shelve this hardened concept as a wrong notion or a myth, “I do not think it is possible that the common gender concept could be adopted to redefine the offenders in penal laws relating to sexual offences”.

Advocate A K Preetha, who represents the victim in the case against Film Producer Vijay Babu, also disagreed with the High Court view and said there was a “highly misogynistic trend that is continuing as far as rape cases are concerned. She said that everyone was viewing such cases “through a tunnel view”. “Why do they see that women would trick someone? That is the mindset which needs to be deconstructed. “How many false cases can there be out of 1,000? It would be a miniscule number of cases where the allegations are false. Therefore, a generalisation or stereotyping is not possible,” Preetha said, while speaking to PTI.