Beyond the Female Victim: Legal Voids in Recognizing Male and Transgender Survivors of Sexual Violence

Abstract

The recent paradigm shift in India’s criminal jurisprudence to the Bharatiya Nyaya Sanhita, 2023 marks a watershed moment in the history of human rights in India. However, it also brings to the fore the glaring lacuna created by the absence of gender-neutral laws on the crime of rape. This paper critically analyzes the failure of the Indian legal system to provide substantive legal protection to male and transgender victims of sexual assault. Aligning itself with the conference sub-theme of ‘Vulnerable and Marginalised Groups,’ the paper explores the manner in which the existing legal framework has created a narrow definition of victimhood based on the gender of the victim. Male victims of sexual assault have been largely ignored in the primary legislation on sexual assault, while the Transgender Persons (Protection of Rights) Act, 2019 has been found to provide a much lower level of legal protection to the transgender community. The paper contends that such a rigid, gender-based definition violates the constitutional guarantee of equality and equal protection under Articles 14 and 15 of the Indian Constitution. Using a human rights-based approach, it juxtaposes Indian case law with the international human rights principles enunciated in the Yogyakarta Principles and the Universal Declaration of Human Rights. The paper finds that the time has come to replace the gender-specific definitions in the laws on rape with gender-neutral definitions. By recognizing the bodily autonomy of male and transgender victims, the Indian legal system will place itself in a position to fulfill its mandate in the field of human rights.