It would take little effort and a pinch of attention to observe that we live in vastly unequal times. Society, it is argued, has always been this way. Centuries prior, the balance between the sexes rusted into a mannish tilt; it has now hardened into a fact – one that barely invites notice.
Among the most pronounced – and certainly the most crude – manifestations of inequality is sexual assault, namely rape. To understand rape is to see it not merely as an act, but as the material offspring of a deeper psychological condition. Chauvinism, sexism, patriarchy: call it what you will, but these terminologies, used to the point of cliché, have almost lost their significance and fail to invoke the freshness and intensity that is necessary for a vital confrontation of facts.
Rape is sex-based violation and is inflicted by and on those who are gendered as socially unequal to one another. This statement must be unpacked to understand its specific implication.
The biological facts of man and woman spell of obvious differences, particularly in physiology, and the contrasts between both genders, by nature, is limited to this. The hierarchy in gender types, however, is of a social, cultural and political order – i.e. the hierarchy is manmade – and is often tied to notions of power, caste, class, ethnicity, muscle, money, etc., as well. The sexual violations that stem from this hierarchy are expressed and determined on the distinct natures and physical bodies of men and women. The moulds of the aggressor and the aggrieved, in this way, are largely defined as psychological binaries. It is crucial to note that the act of domination that flows from this limits neither man nor woman to the identities of victim or perpetrator. Not all victims of sexual assault are women and men are not always the aggressors.
A few years before rape emerged as a major talking-point in our public discourse, the Supreme Court of India delivered a judgement in Priya Patel v. State of Madhya Pradesh that was both problematic and telling. The court read rape in a most constricted sense, conforming to the dead word of the law, and its opinions, quick and basic, reflected the extent to which public thinking in India lacked structure and content while dealing with questions on sexual assault.
The first part of this short essay offers a critique on the judgement and the second gives a more specific treatment to the subject of a gender-neutral rape law.
A Critique on the Judgement
A young girl was returning from a sports meet and her train, the Utkal Express, halted at the platform in Sagar. She was running a fever and was keen on getting home. At the station, a man named Bhanu Pratap Patel met this young girl, informing her that he was sent by her father. He then took her home and raped her. Patel’s wife, on reaching the scene, witnessed what was happening. She slapped the young girl, proceeded out of the room, shut the door and allowed her husband to carry on with his assault.
Section 375 of the Indian Penal Code defines rape as a gender-specific act, one that can only be committed by a man on a woman; Section 376(2)(g) [now Section 376D] deals with gang-rape – i.e. rape committed by two or more “persons” (referring to no gender in particular).
When this case was brought before the High Court of Madhya Pradesh, a single-judge bench found Bhanu Pratap Patel’s wife, Priya Patel, guilty of gang-rape. When the matter was appealed and argued before the Supreme Court, the High Court’s verdict was reversed. The Supreme Court noted that the non-ambiguous language of Section 375 of the IPC made it clear that an act of rape can be performed only by a “man” and not “any person”. Further, it was considered that the expression “in furtherance of their common intention”, as was detailed in Explanation-I of Section 376(2) (now Section 376D) of the IPC, related to the intention to commit rape and, therefore, given the conceptual inconceivability of a woman committing rape, she cannot be understood to have an intention to commit rape. Hence, a woman cannot not be charged for an act of gang-rape. It’s purely impossible, according to the court.
Without delving into the subject of rape and the ability or inability of women to be party to the act, the application of “common intention” – in the determination of gang-rape – in this case appears to be problematic. Priya Patel slapped the victim, shut the door and left the place of the incident; she clearly knew the consequences of hers and her husband’s actions and was, by way of her conduct, in support of her husband’s raping the young girl. This much is enough to determine Priya Patel’s criminal intention. It also qualifies for common intention (as defined in Section 34 of the IPC, the specific section concerning common intention) in the criminal enterprise of rape.
Two famous cases interpret Section 34 of the IPC usefully for this analysis: Barendra Kumar Ghosh v. King Emperor and Mahbub Shah v. King Emperor. Without picking too much into either of the cases, an important conclusion they culminate in is that participation in a criminal enterprise is imperative in making one liable for the acts of others. This requirement is not limited to participation in the actual criminal act; to be liable for common intention, Section 34 of the IPC calls for two or more persons to come together in a criminal enterprise, with a common intention to affect an end that is punishable by law – i.e. though they may be involved in separate acts that constitute a given criminal enterprise, their common intention to further such an enterprise is important. Physical incapacity – as was argued in the present case – is not an impediment to determine liability by way of common intention. The act of rape is not all that constitutes the broader enterprise of gang-rape. The charge of gang-rape, therefore, could not have been struck down on the grounds it was in the Priya Patel Case. Besides, the law on gang-rape (now Section 376D of the IPC) does not describe the act as being gender-specific at all.
In a case of such importance, the judges did not refer to any past cases, precedents, scientific opinion, scholarship or juristic writing, which is very strange given the complexity of the questions involved. Also, the dismissal of rape with a woman as the offender (a woman-on-woman rape, for instance) was done in haste and a fuller consideration of rape and its possibilities was almost absent.
To deal with the broader question of rape as a gender neutral act (in law), a 1981 case before the Supreme Court of the United States, dealing with the same question, offers ample insight. In Michael M. v. Superior Court, the dissenting opinions, offered separately, by Justice Brennan and Justice Stevens frame the issues in this discussion well. To summarise:
The purpose of a law is the standard against which it must be judged. The law on rape is to prevent acts of such sexual and violent assault of a given kind, namely towards women. The absence of evidence to prove that a gender-specific rape law serves this purpose better than a gender-neutral one casts doubt on the point and effectiveness of the latter. Additionally, common sense suggests that a gender-neutral law is potentially a greater deterrent of sexual assault as it places both men and women as subjects to the law; this arguably has a greater deterrent effect on twice the number of potential violators.
Secondly, the fact that a particular category of people is especially vulnerable to a risk is reason enough for a law designed to avert that risk being made applicable to that class. However, the need for special protection for a particular group of people through a law does not provide a rational explanation for an exemption in that law. The emphasis on protecting women from violent sexual crimes does not justify the exclusion of women as being possible perpetrators of such crimes.
Further, if the interest in enforcing laws like Section 375 of the IPC is to deter citizens from causing harm (to others and themselves), the discrimination between genders in such laws is actually perverse. Justice Stevens illustrates this fact perfectly: “Would a rational parent making rules for the conduct of twin children of opposite sex simultaneously forbid the son and authorise the daughter to engage in conduct that is especially harmful …? That is the effect of this statutory classification.”
Lastly, the framing of a gender-specific rape law reveals that the legislative judgement which creates it considers a typical situation where the male is normally the guiltier party. This judgement obviously assumes that the decision to engage in risky conduct is always – or at least typically – a male decision. If this assumption is valid, then a law like Section 375 of the IPC is valid too. But what is there to prove such an assumption? It wouldn’t be a stretch to reason that traditional perspectives on male-female relationships play a crucial role in forming such assumptions. And to observe that such persistent perspectives may reflect nothing more than an irrational bias makes it totally insufficient in being the basis on which discriminatory treatment in law – which is otherwise blatantly unfair – can be sustained. In fact, this can be grounds to challenge such a law as violating Article 15 of the Constitution of India, whose first clause reads that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In crafting and enforcing a discriminatory law, based on sex, the State is arguably violating a core tenet of the Constitution.
The arguments detailed above reflect not so much the strands of a debate, as it does the dismal lack of one. The reasons for a gender-neutral rape law are innumerable and more detailed than those for a gender-specific law; this is largely because the motivations behind gender specificity appear to be those born from bias rather than a rational application of thought.
Judgements like those of the Priya Patel Case ought to be considered bad law – either by the court or the legislature – and a fuller discussion on the subject must culminate in a more progressive law on rape. It’s a win-win all the way.
 An excellent and more detailed exposition of sexual assault in connection with gender equality, and the power dynamics lining this subject, can be found in Chapter 18 of Catherine A. MacKinnon’s ‘Women’s Lives, Men’s Laws’.