Are perpetrators of sexual violence always men? Or do women perpetrate sexual abuse too? An ongoing case in the Bombay High Court has set judges and lawyers thinking about these questions.
In the case, which came up for hearing on May 5, a 78-year-old woman from a suburban Mumbai housing society has been accused of molesting her neighbour, a 55-year-old woman. The incident allegedly occurred in 2010, in the midst of a fight between the two families and other neighbours over matters relating to the housing society. The alleged molestation is one of many complaints the parties have filed against each other.
The elderly lady’s lawyer, Pradeep Havnur, dismissed the allegations as fabricated, pointing out that Indian law does not allow a case of molestation to be registered against a woman. The judges, however, took note of this particular aspect of the case and have asked the lawyers to find out what laws in other countries have to say about women as perpetrators of sexual assault.
In the Indian Penal Code, rape (Section 375) is very clearly defined as an act committed by a man on a woman, just as sexual assault and harassment (Section 354) is described as an act of “outraging the modesty” of woman, by a man. Even the new Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, is designed to protect women from abuse at the hands of male colleagues.
But if a woman is part of a gang that molests or rapes another person, "they are booked as abettors of the crime”, said Flavia Agnes, a Mumbai-based women’s rights lawyer.
In some countries, even though laws would assume that sexual abusers are always men, they have seen cases of women being charged and convicted of rape.
United Kingdom: According to the UK’s Sexual Offences Act 2003, rape, assault by penetration and sexual assault are clearly defined as acts perpetrated by men on "another person". However, there have been a few cases in which women have been convicted of rape in Britain, such as 18-year-old Claire Marsh, who was sentenced to seven years in jail for participating in a gang rape in 2001.
Zimbabwe: Rape laws in the central African country do not recognise women as perpetrators of sexual assault, but in 2011, the country saw a number of cases against women allegedly raping several men. The women had to be charged with “aggravated indecent assault”.
In many other countries around the world, however, sexual assault laws are gender neutral.
Australia: While each state in federal Australia has its own specific laws on rape, sexual assault and indecent assault, the language of the laws in all the states is consciously gender neutral. They refer to perpetrators of sexual crimes as “he or she”, and acknowledge that victims could also be either women or men.
Canada: The Criminal Code of Canada, in its definition of sexual assault, does not use gender specific terms to refer to perpetrators, but employs the term "every person" instead.
South Africa: In 2007, South Africa amended its criminal law on sexual offences to make it gender neutral. One of the aims of the amendment was to expand the statutory offence of sexual assault, making it “applicable to all forms of sexual penetration without consent, irrespective of gender”.
When India’s new rape laws, under the Criminal Law (Amendment) Act were being discussed in 2013, some activists had lobbied for gender neutral laws. “But it did not work out that way, and we now have laws that indicate the opposite – that women simply cannot be sexual abusers,” said Aishwarya Bhati, an advocate-on-record at the Supreme Court.
In a country where the scales are overwhelmingly tipped against women when it comes to sexual abuse, women’s rights activists feel there is no need for gender neutral laws.
“Laws are meant to protect women from the routine, widespread and systematic violence they face at the hands of men,” said human rights activist and lawyer Vrinda Grover. In such a situation, if laws provide for women to be booked for sexual abuse, they could easily be misused against women, she said.
The only gender-neutral sexual abuse law in India is the Protection of Children from Sexual Offences Act, which recognises that both child victims as well as perpetrators can be either male or female.
Grover does believe, however, that there is a case to be made for gender neutrality in situations of custodial rape, which take place in prison or other institutions. “Since such cases are about the abuse of one’s authority, it does not make a difference whether the victim – or the perpetrator – is male or female,” said Grover, emphasising that gender neutrality should first be extended to victims. “Laws could be amended to protect male victims of custodial abuse as well.”
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In the case, which came up for hearing on May 5, a 78-year-old woman from a suburban Mumbai housing society has been accused of molesting her neighbour, a 55-year-old woman. The incident allegedly occurred in 2010, in the midst of a fight between the two families and other neighbours over matters relating to the housing society. The alleged molestation is one of many complaints the parties have filed against each other.
The elderly lady’s lawyer, Pradeep Havnur, dismissed the allegations as fabricated, pointing out that Indian law does not allow a case of molestation to be registered against a woman. The judges, however, took note of this particular aspect of the case and have asked the lawyers to find out what laws in other countries have to say about women as perpetrators of sexual assault.
In the Indian Penal Code, rape (Section 375) is very clearly defined as an act committed by a man on a woman, just as sexual assault and harassment (Section 354) is described as an act of “outraging the modesty” of woman, by a man. Even the new Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013, is designed to protect women from abuse at the hands of male colleagues.
But if a woman is part of a gang that molests or rapes another person, "they are booked as abettors of the crime”, said Flavia Agnes, a Mumbai-based women’s rights lawyer.
In some countries, even though laws would assume that sexual abusers are always men, they have seen cases of women being charged and convicted of rape.
United Kingdom: According to the UK’s Sexual Offences Act 2003, rape, assault by penetration and sexual assault are clearly defined as acts perpetrated by men on "another person". However, there have been a few cases in which women have been convicted of rape in Britain, such as 18-year-old Claire Marsh, who was sentenced to seven years in jail for participating in a gang rape in 2001.
Zimbabwe: Rape laws in the central African country do not recognise women as perpetrators of sexual assault, but in 2011, the country saw a number of cases against women allegedly raping several men. The women had to be charged with “aggravated indecent assault”.
In many other countries around the world, however, sexual assault laws are gender neutral.
Australia: While each state in federal Australia has its own specific laws on rape, sexual assault and indecent assault, the language of the laws in all the states is consciously gender neutral. They refer to perpetrators of sexual crimes as “he or she”, and acknowledge that victims could also be either women or men.
Canada: The Criminal Code of Canada, in its definition of sexual assault, does not use gender specific terms to refer to perpetrators, but employs the term "every person" instead.
South Africa: In 2007, South Africa amended its criminal law on sexual offences to make it gender neutral. One of the aims of the amendment was to expand the statutory offence of sexual assault, making it “applicable to all forms of sexual penetration without consent, irrespective of gender”.
When India’s new rape laws, under the Criminal Law (Amendment) Act were being discussed in 2013, some activists had lobbied for gender neutral laws. “But it did not work out that way, and we now have laws that indicate the opposite – that women simply cannot be sexual abusers,” said Aishwarya Bhati, an advocate-on-record at the Supreme Court.
In a country where the scales are overwhelmingly tipped against women when it comes to sexual abuse, women’s rights activists feel there is no need for gender neutral laws.
“Laws are meant to protect women from the routine, widespread and systematic violence they face at the hands of men,” said human rights activist and lawyer Vrinda Grover. In such a situation, if laws provide for women to be booked for sexual abuse, they could easily be misused against women, she said.
The only gender-neutral sexual abuse law in India is the Protection of Children from Sexual Offences Act, which recognises that both child victims as well as perpetrators can be either male or female.
Grover does believe, however, that there is a case to be made for gender neutrality in situations of custodial rape, which take place in prison or other institutions. “Since such cases are about the abuse of one’s authority, it does not make a difference whether the victim – or the perpetrator – is male or female,” said Grover, emphasising that gender neutrality should first be extended to victims. “Laws could be amended to protect male victims of custodial abuse as well.”
