“Rape should be considered a gender-neutral offence.” Kerala High Court on Sexual Assault

Rape is one of ther most heinous crimes any human can commit upon someone. However, any debate around the issue has always been one-sided and only female victims of rape and male perpetrators are recognised. But, this is not true and slowly people have started to recognise that. Kerala High Court’s recent observation about the sexual assault sheds some light on it.

Kerala High Court bats for gender-neutral rape laws

Recently, Kerala High Court was adjudicating upon a matrimonial dispute involving the custody of a child. Suddenly, the Counsel standing against the husband brought up the fact that the man was once accused of rape by a woman. Husband’s counsel replied that it was a case on false promise of marriage and the accusations were unsubstantiated.

Then Justice A Muhammed Mustaque remarked, on rape laws “Section 376 is not a gender-neutral provision. If a woman tricks a man under false promise of marriage, she can’t be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender-neutral”

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Unconventional but factual

Honourable Judge’s opinion can be called unconventional, but it is definitely not a radical idea. We as a citizen have time and again failed to understand the whole gambit of the offence of rape. When we use the word rape, we generally assume that a man has used physical force against a woman. But, that is not the only aspect of it. However, the fundamental reason behind calling forceful sex as rape can be used to understand the phenomenon.

When a man uses force, then it means the woman did not consent to engaging in coitus with the man. That is why it is a grave offence as the person committing the act refuses to identify the woman as a sapien like every other of the same kind. The act itself conveys to the woman that her choice does not matter and she is a substandard individual. This crushes her spirit and makes it impossible for her to look into the mirror. It is this aspect which makes our society take cognisance of the issue and punishes the man for treating her unequal.

Read more: Kerala High Court provides relief to men hit by misandrist laws

‘Consent’ is the key

However, the word ‘consent’, after violating which a man is punished severely is not a straightforward word. You can violate someone’s consent not just by physical force, but also by tricking them through incentive. If a woman does not want to engage in sex before marriage and man wants it then he can derive her consent by promising that he will be marrying her in future. Woman will believe it and convince herself to engage in coitus with her. However, later the man can turn away from his promise and refuse to marry her.

In that scenario, the man will be charged for rape as it is believed that man tricked her into believing that engaging in sexual act with him is moral act, since they are going to marry. In fact, majority of rape accused men are behind the bars because their female partners accused them of raping on pretext of marriage.

How women trick men for sex

This is where the scope for gender neutral rape laws is wide open. While, there are certain morphological differences between men and women, due to which only minority of women are in a position to physically force a man for sex. But, they definitely derive their consent through the promise of marriage and other emotional techniques as well. In modern day and age when two people are involved in a relationship, both promise each-other of marrying them. Generally, a girl looks up to a well earning man because the cost of a relationship is more for her. Her needs (especially during pregnancy) are much more than a man. Moreover, an unstable financial condition in case of her pregnancy is an existential risk for her and her child.

Read more: Feminism, Marital rape and “Gupt Sutra” – A dangerous trio

So, it obviously makes sense for her to look for a better earning man. If the man is not able to earn enough according to schedule, then it is the end of the road for him. By the time love matures and man is not earning enough, then the girl marries someone else. Sometimes, girls refuse to marry because her parents do not want to marry her with a particular lover.

Moreover women also trick men for short term stability, short term security as well. In all the above circumstances, the man is left bewildered when he is ditched by the woman. He cannot approach any Court for justice. But, a female in similar condition can always accuse her former lover for rape and force him to marry her.

Society is changing and so are men and women. The strict gender roles based on dual amalgamation of biological essentialism and existential crisis is now no more valid. Our rape laws should also evolve according to time.