Sexual violence constitutes a severe violation of human rights, personal safety, and bodily autonomy. Historically, international legal frameworks have formulated sexual assault provisions within a distinctly gendered paradigm, categorically designating women as exclusive victims and men as single perpetrators. This conceptual framework sprang from a pressing socio-historical need to protect women from institutionalized patriarchal oppression, yet its ongoing codification has systematically excluded male and transgender survivors from the legal realm of criminal justice. By imposing a rigid, gender-specific definition of sexual violation, modern legal frameworks sustain significant institutional inequalities, effectively obstructing access to justice for individuals whose experiences do not conform to conventional patriarchal binaries. In India, the principal offense of rape under Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which directly replaces Section 375 of the Indian Penal Code, 1860 (IPC), rigidly confines victims to women. As a result, adult males and transgender individuals who experience non-consensual penetrative sexual violence are entirely excluded from fundamental legal remedies under rape legislation. Consequently, prosecutors are compelled to pursue remedies under lesser, ancillary provisions such as criminal force, assault, or general harm. This legal deficiency reveals entrenched, outdated societal beliefs that perceive masculinity as fundamentally immune to sexual abuse and consign transgender identities to complete legal obscurity. The legal exclusion of non-cisgender-female survivors results in numerous systemic detriments: • Reporting Suppression: It aggressively deters reporting through institutional mockery, social stigma, and deep cultural skepticism. • Obstacles to Rehabilitation: It deprives survivors of legal access to specialist medical treatment, government-funded psychiatric rehabilitation, and victim compensation. • Reinforcement of Heteronormativity: It perpetuates restrictive, heteronormative doctrines inside the legal system, solidifying the erroneous belief that sexual assault is dictated by biological sex rather than the misuse of power. This legal disenfranchisement is becoming increasingly unsustainable given modern constitutional law. The Supreme Court of India, in pivotal rulings like National Legal Services Authority (NALSA) v. Union of India, has unequivocally broadened the assurances of equality, respect, and non-discrimination to encompass the transgender population. The global legal framework has progressively transitioned towards gender neutrality. Prominent common-law jurisdictions such as the United Kingdom, Canada, the United States, Australia, and South Africa have updated their penal codes to acknowledge that individuals of any gender can be victims of sexual assault. These comparative models illustrate that the implementation of gender-neutral protections neither diminishes nor jeopardizes the safety of female survivors; instead, it enhances the overarching principle of the rule of law. This comparative analysis rigorously investigates the influence of gender bias in Indian rape legislation on male and transgender survivors. This study contends that gender-exclusive rape prohibitions fundamentally contravene constitutional morality by examining historical trends, constitutional tensions, and international legislative frameworks. It finally promotes extensive legislative reforms that prioritize sexual offenses based on the infringement of individual consent and personal autonomy rather than physical characteristics.
Rohit Shukla (Fri,) studied this question.
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