Sexual Assault laws

There's been much debate over the proposed amendments to how Indian law views/considers 'sexual assault'. Here's a bit from Kalpana Kannabiran:

Broadly, rather than viewing ‘sexual assault' as a mechanical substitute for ‘rape' under Section 375 of the IPC, the effort of rights groups has been to think through the feasibility of formulating a chapter on sexual violence/atrocity that will define a range of such violence in a manner in which the focus shifts from the penetrative logic of definitions hitherto used to the assaultive nature sexual violence.

That article here.

To contextualise what's happening in India within the context of international debates, we've invited our first Guest Post! It's from Megan Hjelle who's been researching this issue for the Alternative Law Forum, Bangalore.

Gender-Neutral Sexual Assault Laws - A Brief Summary

Since the 1997 Writ Petition filed by Sakshi regarding amendments to India’s penal code regarding rape, gender neutrality has emerged as a lingering controversy. As currently written, India’s rape laws recognize the male/perpetrator - female/victim as the only framework within which rape can occur and regards penile-vaginal rape as the only “real” form of rape.

When the draft bill for amendments to the rape law was introduced with the intent of updating and expanding the laws into a spectrum of sexual assault offenses, few could have known that the topic would be such a lightning rod, pushing to the forefront fundamental contestations of the nature of gender itself. In an attempt to understand why the issue of gender-neutrality has been so uniquely contentious within the Indian context, the developments of gender-neutral sexual assault laws in other countries may provide some insight.

Rape law reform in countries such as the U.S., Canada, the U.K., Germany, and Australia produced, among other legislative developments, gender-neutral sexual assault laws. This note seeks to provide a brief summary of gender-neutral sexual assault laws along the following lines of inquiry:

- When did the shift to gender-neutrality occur?
- Why did the shift occur?
- What, if any, were the feminist stances in opposition and counter-responses?
- What impact, if any, have the application of gender-neutral laws had?

As most of the relevant data on the topic comes from research focused on the U.S., this summary will use the U.S. reform as its point of departure, with relevant comparisons to other nations with gender-neutral sexual assault laws as well.

Under the U.S. Model Penal Code, adopted by most U.S. states, rape was originally a crime that could only be perpetrated by a male on a female. The early Model Penal Code sex offenses were drafted under the influence of Kinsey’s research on sexuality. As well as creating a sexual offense hierarchy of severity, at the top of which was penile-vaginal rape, the drafters also required evidence of force in order to establish a rape. The drafters, fearing unfair prosecutions of defendants during a time when rape could still result in capital punishment, thought the evidence of force requirement would protect against false charges. Instead, it made successful rape convictions rare and re-victimized rape survivors by putting them on trial.

In the 1970’s, however, on the heels of the “Sexual Revolution,” the crime of “rape” was changed to “sexual assault” in an effort to de-emphasize the sexual elements of the crime and re-cast it as a crime of violence. The Michigan 1975 Criminal Sexual Conduct Statute served as a national model for implementing many of the rape law reforms that have now been adopted to some degree by most of the U.S. states. The reforms were largely a result of the feminist movement, which had as one of its fundamental objectives, the goal “to change peoples’ awareness and perceptions of violence against women.”

In comparison, Canadian rape law reform began in the early 1980’s and, in the U.K., sexual assault was not recognized as gender-neutral until 1994.

The development of gender-neutral sex offenses within the U.S. and elsewhere, is marked by a lack of direct discussion. This seems to be due to a confluence of factors relating to the goals of the feminist movement. At least one researcher has posited that “some extension of the coverage of rape laws was implicit in feminist objectives.” Feminists set out to “challenge the stereotyped assumptions about male roles and female sexuality” by “achiev[ing] comparability between the legal treatment of rape and other violent crimes, prohibit[ing] a wider range of coercive sexual conduct and expand[ing] the range of persons protected by law.”

Because feminists hoped to put an end to the phallocentricity of the laws as written and to emphasize the victim’s experience of violation, shifting the focus “from bodily harm to the protection of autonomy,” a gender-neutral law seems implied since, theoretically, it would capture more violative acts and would topple the hierarchy of penile-vaginal rape. Even at the time the Model Penal Code sex offenses were created, the drafters recognized the possibility that a gender-neutral approach “could also help to abrogate certain sex stereotypes that our society is appropriately beginning to address.”

Some researchers also identify as a factor changing social and sexual norms. For instance, one researchers posits that, social acceptance of oral and anal sex contributed to the shift toward gender-neutrality, while another attributes it to increased tolerance of more and difference types of sexual activity.

A researcher of Canada’s rape reform goes even further to identify gender-neutrality as merely a result of more primary reforms, rather than an end in itself.

Because, as suggested above, gender-neutrality may have seemed like a natural step in the feminist agenda rather than a focal point of the reform and as a result of practical reasons, the shift to gender-neutrality seems to have encountered little direct opposition in the U.S.

For instance, as previously mentioned, feminists had several linked objectives behind the reforms. Because of this, the rape law reforms were significant and numerous, with variations between states. So, states like Michigan made changes to remove the resistance requirement, remove immediate reporting requirements, shift the burden of proof, legitimize the victim’s testimony without corroboration, remove the marital exception, enact “Rape Shield” laws, provide an entire continuum of acts to be included under the term “sexual assault,” with gender-neutrality often being just one part of this array of reforms.

The single point of contention against gender-neutral sexual assault laws represented in the feminist literature seems to have developed retrospectively, rather than concurrently with the reform. And, in fact, that argument is best distilled and articulated by a recent argument in opposition of any gender-neutral amendments in Indian legislation:

There seems to be a presumption that if women can be framed as violators, then the trauma of rape for women as victims would be reduced and the stigma attached to the offence would peel off.

The response to this contention pivots between the arguments that gender-neutral terms do not preclude a gendered response to sexual assault, nor does it erase women’s experiences of sexual assault to include men. In also highlighting research indicating the trauma experienced by male victims of sexual assault, one researcher succinctly counters:

A principle of criminal law is, surely, that all persons should be protected equally from harm of like degree.... The case for treating crimes of like heinousness similarly appears to be stronger than that calling for a distinction to be made between penetration of the female body and penetration of the male body, whatever the sex of the actor.

Although some have tried to argue that gender-neutral laws have impeded the progress of rape law reform in combating sexual assault by introducing male victims, this argument does not seem corroborated by significant research. In fact, the majority of research shows that introducing gender-neutral laws and the rape law reform in general, have not had either a significantly positive or a significantly negative impact on sexual assault in the U.S. as of yet.

In conclusion, gender-neutral sexual assault laws were brought about during a period of intense legal reform initiated by feminists during the 1970’s to 1980’s in numerous nations and states as an attempt to trouble gender stereotypes and biases. There is an ongoing debate regarding the benefits and detriments of gender-neutrality to feminist goals, but research shows that the rape law reform has had little significant statistical impact on sexual assaults.

Megan is a second-year law Brooklyn Law student committed to providing advocacy and representation as a public interest lawyer. Her work is rooted in an interest in the ways globalization, migration and gender perpetuate and subvert each other. Megan has worked with the Coalition to Abolish Slavery and Trafficking in Los Angeles, where she helped match trafficking survivors with services and coordinated trainings to promote the identification and referral of trafficked individuals. More recently, Megan has worked at the Safe Horizon Anti-Trafficking Program. There, she developed and implemented a media outreach plan, helped maintain and strengthen international partnerships, coordinated trainings and worked on clients’ T-Visa and Asylum applications. Megan hopes to combine her background and legal education to facilitate a holistic, community-centered approach to advocacy for underserved populations and is currently pursuing these goals in an internship at the Alternative Law Forum in Bangalore.


Anonymous said...

I enjoyed reading your blog. It is most thoughtful and erudite. I agree with the concluding sentence inasmuch as rape is generally an act of impulse and opportunity. The act would more likely be limited by cultural taboos rather than codified regulations. What acts may be malum in se in some cultures may be malum prohibitum in another. Here you have used a view originating in the West that may or may not translate to the culture in India.

hemangini said...

hello anonymous!
any thoughts/ideas regarding how these ideas might be differently received/interpreted in india would be welcome to extend this debate.

Marco said...

This is a difference in cultures. What is deemed acceptable in India is not acceptable here(UK) and I'm sure that some things we would find acceptable would not be accepted in India