Gender Biased Rape Laws The Draft Criminal Law (Amendment) Bill, 2010 (2010 Bill) seeking to examine

the issues relating to review of rape laws, is based on an antiquated understanding, as opposed to a modern liberal understanding of rape, by failing to appreciate the constitutional protection of sexual autonomy and as a consequence, disregarding the accepted notion of male sexual victimization. This is evident from the reading of proposed section 375 which criminalizes a man, as opposed to a person, for committing an offence falling under the section. The 172nd Law Commission Report, influenced by the Sakshi Case (1997) presented a detailed list of suggestions concerning rape laws and shared the concern of making Indian rape laws more gender neutral stating that forced sexual assault causes no less trauma and physiological damage to a boy than to a girl. Although most of the substitutions in the 2010 Bill echo the 172nd Report, it lacks objectivity in achieving gender neutrality by restricting itself in the incorporation of an expansive definition of sexual intercourse from the viewpoint of perpetrators. The importation of word person for man in section 375 marks non-observance to global trends on sexual victimization as it is a proven fact that sexual crimes can be potentially committed by either sex against either sex with comparable mental, physical or psychological injury. Also, given the exclusion of female perpetrators from the purview of section 375, the 2010 Bill proposes to cast an unreasonable net of culpability to only amount to a similar treatment of dissimilar crimes, punishment being identical. For instance, and the most subtle, given the undue burden of proving lack of consent and against her will to negate rape charges, the law would end up equating non-consensual sex with rape. The difference between non-consensual sex and rape can best be appreciated by an analogy, another contested unsolved mystery that is the subtle difference between culpable homicide and murder. For instance, more particularly in date/acquaintance rape, the actor normally has a bona fide, albeit mistaken, belief of implied (as opposed to informed) consent on the part of victim. While there is indisputably an act of sexual crime, it cannot be so widened to be included in the traditional common law definition of rape because of the absence of undue force, reasonable or unreasonable belief, and mistakenly presumed consent. This is because, as is obvious with Indian criminal justice system, for any criminal culpability there must be mens rea

followed by actus reus. So what is imperative is the perpetrators state of mind and not what the victim actually has in mind at the time of the commission of offence. Another example of similar treatment of dissimilar crimes is the act of penetration itself. The 2010 Bill generalizes the act of rape and explains that mere penetration amounts to sexual assault. This law at best spells minimal institutional recognition of post-penetration scenario where although the actor and receiver consent, (however implicitly or reluctantly) at the time of penetration (however nominal) the consent is withdrawn by either of the two post-penetration. Such an act may be non-consensual sex but certainly not rape or the 2010-Bill-definition of sexual assault. Given this variation in nature of sexual crimes, the quantum of punishment cannot be generalized and needs to be taken into consideration while making laws. Ashish Goel is with the National University of Juridical Sciences, Kolkata.