INTRODUCTION
In the globalized world, the misconception still prevails that sexual abuse always happens to females but in reality, males are too the victims of sexual abuse even though not in majority but still in minority. Sexual abuse can happen with anyone irrespective of their gender and therefore, the society must understand that it can be a male, female, non-binary, transgender who can be the victims of sexual abuse. Different laws have been proposed in this regard like POCSO Act 2012, BNS, and etc.
The term “sexual abuse” can also be referred to as molestation which further means violent sexual behaviour by one person upon another and in this paper, the topic “gender neutral sexual abuse” will be analysed through the idea of the renowned juristic thinker “Jeremy Bentham” who is also popularly known as the father of utilitarianism. This paper will critically analyse the topic through his proposed theories.
Born in the year 1748, London, United Kingdom, “Sir Jeremy Bentham was an English philosopher, jurist and social reformer.” He was also the founder of modern utilitarianism and he is also known today for his moral philosophy which ascertains actions based under their repercussions.
ANALYSIS
• Analysing Bentham’s theory of utilitarianism with the present topic.
According to Bentham’s theory of utilitarianism, it states that “happiness of the greatest number is the tool to measure right and wrong” which means basically, if the majority of the people are happy then its fine if the minority isn’t happy. Moreover, happiness is understood as the presence of pleasure and absence of pain. Therefore, government is unable to make everyone happy but if the government can make the majority happy then its deemed as the government has made everyone happy.
According to the present concept that is gender neutral sexual abuse laws. Applying the theory of utilitarianism, it can be understood that the majority of people do support the laws which are for sexual abuse but for gender neutral sexual abuse? It still remains a question mark. People are indeed not in favour of child sexual abuse irrespective of their gender whether they are male or female but when it comes to adults, no such laws are implemented which would protect men. For women, there is presence of section 63 in BNS which defines rape. It doesn’t include the word “woman” directly but it can be well understood that the provision is made for woman by reading it.
After the Visakha Judgement, “The parliament has also brought a law for prevention of sexual harassment at workplaces.” Except BNS, other initiatives like Nation Commission for Women, Verma Committee Report, etc were implemented in order to safeguard the rights and interests of women.
But as the theory of Jeremy Bentham mentions happiness of greatest number where happiness shall mean pleasure and not pain. So, as far as the Indian society is concerned, implementing laws for women to safeguard them from sexual violence is an excellent take. But what about men? It’d be analysed critically as what society thinks bringing sexual abuse laws for both the genders.
For children, irrespective of whether they are male or female, “POCSO Act has been implemented but here, also the law will remain valid upon the particular child till puberty.” Post puberty, the woman’s sanctity will be protected by other laws especially BNS while there’s no such law to protect the rights and interests of a man.
According to National Crime Records Bureau, “10% of rape victims or 1 in 33 men (3%) have experienced rape.” This shows that there’s presence of male rape in Indian society and that to, this is the reported data, the unreported one is still unrecorded.
According to activist Vrinda Grover who’s also a renowned international human rights lawyer, he has mentioned in Indian times interview that “There are no instances of women raping men. I don’t think men are facing serious sexual violence issues as women.” But in contradictory, 2 of 5 men were the victims of sexual violence and have received ill and unfair treatment from women.
An overall statistics as per the report of centre for disease control and prevention shows that “Nearly 1 in 38 males have experience wholly or partly rape in their lifetime, about 1 in 4 have experienced rape for the first time between 11-17 years old and the same number have also experienced rape for the first time below 10 years old.” This shows that men’s rights are also getting exploited since there’s no law in present to safeguard their rights and interests.
Even in another case of Sakshi v. Union of India (1997) , “The Supreme court highlighted the protection of male rape victims and the gender-neutral application of laws to the law commission which later found its way through the 172nd law commission report.” It also introduced the criminal law amendment bill, 2012 in Lok Sabha which enhanced gender neutrality in India.
In the case of Criminal Justice Society of India v. Union of India (2018) , “The Hon’ble Supreme court requested the government to consider the criminal law amendment bill which provided the need for gender-neutral legal provisions for rape as well as other crimes.”
So, if gender neutrality and gender equality is analysed in depth, then gender equality means providing and safeguarding the rights and interests of both the genders while gender neutrality doesn’t actually mean equality but more upon equity. It can mean bringing one gender to equal footing as to the other gender by providing certain privileges. The former is included in Article 14 of Indian constitution while the latter can be an example through “Article 15(3) of Indian constitution which provides Reservation only for women” .
Under the Transgender Persons (Protection of Rights) Act of 2019, “It was enacted in order to recognise the rights of transgenders and to provide provisions which will not be discriminatory and will not lead to prejudice.” This shows that even the rights of transgenders are required to be safeguarded and protected as like any women and children.
In India, transgenders are victims of hate crimes that is a crime which happens due to discrimination and prejudice where one caste, class, creed, race, gender or religion is getting violated. According to NCAVP Report (2009), “50% of people who died and were victims of hate crimes included lesbian, gay, bisexual and transgender. The offence they went through included sexual assault, genital mutilation and murder.”
Applying Bentham’s utility theory, if such law is implemented then there’s a high chance that it can be for the interests of minority and not for the majority which will also mean that here, the happiness is providing pain and not pleasure.
But it’d also be taken into consideration by giving an excellent real-life example that in 19th century, Sati was considered to be a crucial practice that is if the husband is deceased then the widow wife has to die along with him which shows that there was no right to life of widow women. But after Raja Rammohun Roy protested against such evil practice, society understood that what they were doing was actually wrong and this man had leading contribution to abolish Sati. That’s why he’s known to be a “legend”.
Even the invention of computers can also be a great example. Since, at that period, people were engrossed in agriculture and so, when computer was invented, it received a great amount of opposition from the society. The reasons were people will become lazy and unemployed. Here, if Bentham’s theory is applied then such invention should be struck down. But, over a period of time, people understood the importance of computers and that’s how computer has been emerging in present era. So, it can be safely concluded that society is dynamic.
That’s where Bentham lacks in his theory. His theory is somehow correct but he fails to include the quality of the greatest number. But it’d also be taken into consideration that the era which he belonged to was also considered to be the age of enlightenment where industrial revolution was at its peak. Therefore, he developed such theory in order to bring reforms in social and legal systems. He saw that there were presence of injustices and inefficiencies in the systems. So, he proposed utility theory to use it as a tool to fill the gaps present in the system.
• Status of gender-neutral sexual abuse laws in other countries
“Around seventy-seven countries have established and accepted the gender-neutral laws including USA, UK, Australia and Denmark which shows that the majority of the countries are in support of gender-neutral sexual abuse laws.” This is so because in order to ensure equality and fairness between both the genders.
But in this case, India can’t consider to be wrong since, India implemented gender specific laws on the basis of providing equal footing to women, ensuring “equity” between men and women.
So, then the battle comes between equality Vs. equity, which would be suitable for India? But then it’d be a vast topic. So, as far as the Bentham’s theory is concerned, right can be measured through the happiness of majority.
Laws in India are subjective and change according to the requirement of the society. So, if the society becomes comfortable with such kind of laws, then the legislature will not hesitate to implement such laws. But to bring such change, it’d also be taken into consideration that India has been a victim of different orthodoxic and conservative beliefs and has witnessed different evil practices like Sati, child marriage, etc. So, Indian society has a different mentality as compared to the mentality of other developed countries.
Therefore, even though the theory of utilitarianism makes sure that gender neutral sexual abuse laws shall be held valid but comparing it with India, majority of people aren’t thinking it as a requirement in the contemporary society.
Hence, people at first will start protesting such kind of laws but later, they will realise the importance of such laws and this is how Bentham’s theory of utilitarianism can also be respected and protected.
CONCLUSION
To conclude, as the quote suggests “Equality knows no gender”. It’s not only a quote but also a fact, when it comes to equality whatever is provided to men should also be provided to women. So, if certain laws are being implemented for women, then they shall also be implemented for men. As it is clearly known through the ideas of feminism that gender is an artificial term and as well as a man-made term that means if certain barriers are made between men and women then they are made by the society through gender. But according to sex, it’s the natural term used to distinguish males and females and it happens biologically where the female is used to bear the child and the male is required for procreation. This is something which can’t be changed.
If men aren’t provided with laws, then they are getting exploited by the society and such kind of exploitation is restricted under Article 23 (right against exploitation) of Indian constitution. Indian preamble also includes the word “equality” which means men and women are equal in the eyes of law. Therefore, not providing such kind of law to men is violating Article 14 of Indian constitution and since, in India, majority of population are males.
To sum up, sexual abuse laws should also be implemented for men as its implemented for women since, sexual abuse can happen to anyone, anytime and anywhere.
Author: Arpeeta Dash, law student at Symbiosis Law School, Symbiosis International University, Nagpur
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Link to Indian Criminal Laws: https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
