Introduction And Background

The Greek philosopher Aristotle states, “Man is a social animal.” Here, man refers to the human being, who cannot live alone. Therefore, there is a need for society. In society, there is a need for rules and regulations, otherwise, the social animal would do whatever they want without any limits. To control the social animal, there are laws and regulations.

In society, whenever a crime occurs, it has a negative impact on the community. To provide justice, there is a system with three organs:

• The Legislature
• The Executive
• The Judiciary

A crime is always against society. There are penal laws that define what constitutes a crime and the punishment for it.

India is a country with the largest democratic setup. Where people choose their representative, and they have a duty to make laws in respect of their needs. They areauthorized to make rules and laws for the people. To regulate the society, there is always a need for laws and regulations. Then Indian Penal Code was created during the British rule by the first Law Commission, which Thomas Babington Macaulay led.

In recent times the Indian Penal Code, 1860, was replaced by the Bharatiya Nyaya Sanhita, 2023. But still, there are some laws which have restrictive and they are not gender neutral as to victims.

The same was highlighted by the Former Chief Justice of India UU Lalit recently spoke about the gender neutrality of sexual assault laws during the talk.for not making the offence of rape gender neutral as to the victim, even as it introduced gender-neutrality in several other offences.Speaking at a lecture organised by the Supreme Court Bar Association on “BNS 2023 and IPC 1860: Continuity, Change and Challenges,” Justice Lalit said the new law.

1.1 The Question Arises: Why Is Gender The Only Identity That Is To Determine The Victims And Perpetrators?

While it is true that women are going through such henious crimes like (rape, sexual assault) and others, but it is not completely truth that they are the only victims. There is no denial from that women faces these heinous crimes, but sometimes to balance the law, other genders excluded. It is true females faced various cases of rape, but it is not true. They are the only sufferers male or third gender also suffers various sexual assault or rape cases, but just imagine they cannot register complain against this crime because laws do not consider this heinous crime or offence as the crime.

The framer of Constitution has framed the constitution in such a manner to give a shape or to establish gender equality. The constitution has the Articles 14, 15, and 21contain the Constitutional Doctrine of equality and Personal liberty. These articles guarantee a person’s right to life, liberty, and equal protection under the law as well as their freedom from all forms of discrimination. When we can interpret equality it means equal in the eye of law, which can be interpreted like every human’s being should be treated equally without any discrimination or prejudice.

Human rights are for human it is no gender specify when there is any person’s lust victim can be any human being and yes it includes men women and third gender too. Crucial case laws like Sakshi v. Union of India, (2004) 5 Supreme Court Cases 518 and Sudesh Jhaku v. K.C. Jhaku highlighted the judiciary’s acknowledgement of the need for equal protection under the law for male victims of sexual assault. The Law Commission of India’s initiatives to modernize the country’s rape laws recommendations and later legislative changes like the Criminal Law Amendment Bill, 2012.

1.2 Objectives Of Having Laws

Laws are the ways or a medium to protect us from crimes. Every law has its own objectivesand aim but sometimes it depends on its implementation. The new laws like BNS, it has the same definition of rape like in IPC.

Salmond: – “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice.”

The laws are always made with the purpose of the betterment of the society for theprotection of the human rights and for the establishment of the justice, equality and welfare of the society. There is a need for the gender neutral laws for the all human beings. Making rape general neutral, it doesn’t mean take the rights of the woman and not for the ‘negative impact’ on women.

Types Of Equality In Legal Framework

Type Of Equality	Description
Formal Equality	Requires that laws apply equally to all individuals, without considering the historical and social context that may place certain groups at a disadvantage.
Substantive Equality	Recognizes that individuals do not start from the same position in society and aims to correct systemic disadvantages through affirmative legal measures.

The principle of equality before the law is a cornerstone of modern legal systems and international human rights frameworks. It guarantees that all individuals, regardless of gender, have the same legal rights and obligations. Legal scholars distinguish between formal equality and substantive equality, two competing approaches to gender-neutral legal reform. Formal equality requires that laws apply equally to all individuals, without considering the historical and social context that may place certain groups at a disadvantage. This approach assumes that treating everyone the same will naturally result in equal outcomes.

However, it often fails to account for structural inequalities, such as wage gaps, barriers to legal recourse, and discriminatory social norms. Substantive equality, on the other hand, recognizes that individuals do not start from the same position in society and that equal treatment alone may not be enough to achieve actual equality. This approach aims to correct systemic disadvantages through affirmative legal measures, such as gender- based protections in the workplace, targeted social programs, and legal presumptions in favor of historically disadvantaged groups.

2. Rape Has No Gender

This definition of rape is having restrictive definition which excludes men and the third gender. The reason why this definition is narrow because the women can be the only victim, not other human being.

The aim of gender neutral laws are to establish the equality or equal rights or it is related to gender equality because victim of a rape can be can be a male, female or third gender. Forthe betterment of the society it is required. Because rape is only for the purpose to gratify the lust.

• Includes male, female, and third gender victims
• Focuses on equality and equal rights
• Aims at societal betterment

The proposed Criminal Law Amendment Act, 2012, should be modified as suggested, and to secure public confidence, be promulgated forthwith. The regulations must be aware ofthe realities of homosexual, transgender, and transsexual rape as well as the likelihood ofsexual assault against men. We are of the opinion that these factors are to be kept in mind as we go forward. We do think that the criterion that “a stigma attaches to the rape victim in Indian society.” is a counterproductive basis of appraisal. We do not think the victim suffers a stigma. It is a stigma against society.

There is some degree of substance in the criticism which we have heard from women’sorganisations that women do not need sympathy, empathy or charity. They are equal per se. In other words, they claim what general human rights and the Constitution guarantees as their natural space to live freely and effect decisions based on individual judgment. We are unable to discountenance this argument. On the contrary this is entirely correct. The fundamental attitude, based on paternalism, must be discarded. We also think that the judgments of courts can sometimes be misconstrued as suggestive of sympathetic consideration in a criminal trial. We also think that the right to justice is a fundamental right under the Constitution and must not be earned out of a sympathy having regard to the social malaise which exists in society.

2.1 Recent Development in Definition of Gangrape

In recent case of Suneeta Pandey v. State of U.P. and Anr. 2023 SCC OnLine All 44 we have seen major changes in laws, in 2023 a judgement came up with wider interpretation in the definition of gang rape woman can also be held guilty of gang rape if she has facilitated the act of rape.

The word “person,” as used in this section, should not be interpreted narrowly.According to Section 11 I.P.C., a “person” is any organization, association, or group of people, whether or not it is incorporated. Additionally, the Shorter Oxford Dictionary defines the term “person.” The English Dictionary defines it as “an individual human being” or “a man, woman, or child” in the first place, and as “the living body of a human being” in the second. As a result, a woman cannot commit rape; however, under the modified regulations, she may face gang rape charges if she assisted in the rape of a number of individuals. Women are liable for sexual offenses just like men are. If a woman has assisted in the rape of a number of people, she may also be charged with gang rape.

Key Aspect	Explanation
Case Reference	Suneeta Pandey v. State of U.P. and Anr. 2023 SCC OnLine All 44
Legal Interpretation	Expanded definition of “person”
Liability	Women can be held liable for gang rape if they facilitate the act

3. Rape Laws in Other Countries

The United Nations Handbook points out that the definitions of rape and sexualassault have evolved over time, from requiring use of force or violence, to requiring a lack of positive consent. The United Nations recommends that the definition of rape should require the existence of “unequivocal and voluntary agreement” as well as proof by the accused of steps taken to ascertain whether the complainant was consenting.

This has the advantage of shifting the burden to the defence to prove that such steps were taken. This approach was endorsed by the Cedaw Committee in its views in Vertido v. Philippines, (Communication No. 18 of 2008, Committee on the Elimination of Discrimination Against Women(Cedaw), July 2010.) which made it clear that such a definition would assist in minimising secondary victimisation of the complainant/survivor in proceedings.

• Shift from force-based definition to consent-based definition
• Focus on “unequivocal and voluntary agreement”
• Burden shifts to accused to prove consent

Similarly, under Canadian Law, the accused cannot argue that there was belief in consent if the accused did not take reasonable steps to ascertain that there was consent to the specific sexual activity. It is not enough that the accused subjectively believed there was consent. He also needs to show that he tried to find out in good faith.

The Law of England and Wales says that a person “agrees by choice and has the freedom and ability to make that choice.”23 There are certain legal assumptions about consent. For example, If the complainant was unlawfully confined, unconscious, or asleep; if the accused used or threatened violence, or if the accused had instilled a fear of violence; if the accused administered a chemical that could have rendered the complainant stupefied; or overpowered. If the defendant purposefully misled the complainant about the nature or aim of the relevant act, or if they obtained consent by pretending to be someone the complainant knew, then the lack of consent is shown beyond a reasonable doubt.

Country/Body	Approach to Consent
United Nations	Unequivocal and voluntary agreement
Canada	Requires reasonable steps to confirm consent
England and Wales	Consent must be by choice with freedom and capacity

4. Illustrations

4.1 Pocso Act 2012

Let’s assume the situation: there is a boy who has not attained the age of majority. With that boy, if any offense like penetrative sexual assault under section 3 of The Protection of Children from Sexual Offences Act, 2012, (POCSO) or any other offence happen, then the accused will be punishable. But after becoming major, if any such offense happened to that boy, it is not an offense; just think, or there is a need to think about it. It can be considered the loophole in our law or against the principle of article 14 and 21.

4.2 Posh Act 2013

Where the definition of sexual harassment has a wider interpretation. The section 2(n) of the sexual harassment at workplace, defines “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

1. physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

But the section 3 only includes women and exclude other gender.

“3. Prevention of sexual harassment.—(1) No woman shall be subjected to sexual harassment at any workplace.”

4.4 Bns 2023

The section 77 of the Sanhita defines the voyeurism, And does not include men and others.

“77. Voyeurism.—Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.”

---

5. Current Situation Of Third Gender

In the recent news of 2025, 24 members of the transgender community in Indore collectively consumed phenyl, According to the complaint, the accused approached the victim, claiming to be reporters covering the dispute within the transgender community. They demanded money from her and threatened to malign her name in the media. When she refused, one of them dragged her to a nearby building and sexually assaulted her.

• Incident involved 24 members of the transgender community
• Location: Indore
• Allegations included threats, extortion, and sexual assault
• Highlights vulnerability and legal gaps affecting third gender

---

6. Conclusion

The aim of gender neutral laws are to establish the equality or equal rights or it is related to gender equality because victim of a rape can be can be a male, female or third gender. For the betterment of the society it is required. Because rape is only for the purpose to gratify the lust.

The laws are always made with the purpose of the betterment of the society for the protection of the human rights and for the establishment of the justice, equality and welfare of the society. There is a need for the gender neutral laws for the all human beings. Making rape general neutral, it doesn’t mean take the rights of the woman and not for the ‘negative impact’ on women.

Former Chief Justice of India UU Lalit recently spoke about the gender neutrality of sexual assault laws during the talk.

Key Aspect	Explanation
Purpose of Laws	Protection of human rights and ensuring justice, equality, and welfare
Need for Reform	Inclusion of all genders in sexual offence laws
Gender Neutrality	Applies equally to male, female, and third gender victims
Clarification	Does not reduce or negatively impact women’s rights

End Notes:

1. Shruti Gupta, ‘A Critical Analysis on Gender Biased Rape Laws in India’ (2020) 2(2) Indian Legal Solution International Journal of Law and Management https://ilsijlm.indianlegalsolution.com/a-criticalanalysis-on-gender-biased-rape-laws-in-india/ accessed 22 March 2024
2. Bauer, J.E. 2003, Magnus Hirschfeld’s Doctrine of Sexual Intermediaries and the Transgender Politics of (No-) Identity, Conference: Past and Present of Radical Sexual Politics, Amsterdam.
3. Justice Verma Committee Report — [Anti Rape Laws] Report of the Committee on Amendments to Criminal Law
4. Ridhi, ‘Know What Led the Supreme Court to Set aside Private Tutor’s Conviction in 1996 Rape Case’ SCC Times (5 February 2024) https://www.scconline.com/blog/post/2024/02/05/know-what-ledsupreme-court-set-aside-conviction-1996-rape-case/ accessed 22 March 2024
5. Communication No. 18 of 2008, Committee on the Elimination of Discrimination Against Women (CEDAW), July 2010.
6. The Istanbul Convention opened for signatures in May 2011 and entered into force in August 2014. Currently, it has been signed and ratified or accessed by 37 countries (Turkey has withdrawn), and the European Parliament recently voted for the EU to accede to it.
7. https://ijrpr.com/uploads/V6ISSUE4/IJRPR42358.pdf
8. https://www.sciencedirect.com/science/article/pii/S175606162400020X
9. https://lawbeat.in/top-stories/male-victims-still-remediless-former-cji-uu-lali-criticizes-bns-for-not-makingrape-laws-gender-neutral-1532478
10. https://www.indiatoday.in/cities/indore/story/indore-transgender-protest-phenyl-consumed-after-rape-fakejournalists-madhya-pradesh-2804008-2025-10-16