Dismantling Carceral Norms: Gender-Neutral Sexual Violence Laws and the Promise of Transformative Justice in India

The Legal Architecture of Rape in India: Gender, Definition, and Exclusion

India’s legal regime on rape has been shaped by colonial and postcolonial interventions, but it remains heteronormative and gender-binary in its operation. Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 defines rape as an offence by a man on a woman. The language is also gendered explicitly, in which the offender is always presumed to be male and the victim female. This is a reflection of Victorian moralities and colonial ideas of chastity and honor. Even with sweeping changes via the Criminal Law (Amendment) Acts of 2013 and 2018, the gendered assumptions and terminology of the law are still largely unchanged.

The delineation of rape contained in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 is narrow. It enumerates seven situations in which a man’s sexual penetration act with a woman is considered rape. The law leaves out male victims, non-binary individuals, and female-perpetrated sexual assault, essentially making invisible all individuals who do not fit the binary gender model. The Justice Verma Committee (2013), constituted in the wake of the 2012 Delhi gang rape case, specifically suggested incorporating gender neutrality into rape laws. The committee suggested that both the victim and the perpetrator be gender-neutral. However, the latter version of the 2013 Criminal Law (Amendment) Act refused this with a poor justification.¹⁰

Resistance from the government toward gender-neutrality was mainly based on paternalistic reasoning of vulnerability. The argument is that in statistical terms, the victims of rape are predominantly women. But qualitative justice demands that laws are to be made so that any victim of sexual violence should be saved irrespective of gender identity. Scholars such as Ratna Kapur contend that the law, in this guise, sustains a gender-essentialist model that equates victimhood with womanhood and perpetration with manhood.¹¹ This not only contravenes the equality principles entrenched in Article 14 of the Indian Constitution but also betrays a discourse of moral panic rather than one of rights-based criminal justice.

A number of rulings, such as the “Navtej Singh Johar v. Union of India (2018)¹² and National Legal Services Authority v. Union of India (2014)¹³”, have identified gender as a spectrum and upheld the constitutional rights of LGBTQIA+ individuals. But the criminal law is still out of sync with these enlightened constitutional interpretations. There is a stark mismatch between constitutional jurisprudence and statutory criminal law regarding sexual violence. The inability to harmonize these legal regimes leaves unequal ground of access to justice. In addition, Section 377 of the IPC, before its partial decriminalization, was the sole provision employed to address sexual violence between men. But Section 377 addressed such acts as “unnatural offences” instead of placing them within the terms of consent, coercion, or body autonomy. Following Navtej Johar, the Section 377 consented part was read down, but non-consensual is still covered under it, but without the clearness or stringency of Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023. Therefore, whereas rape under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 is a cognizable offence with meticulous procedural safeguards, male victims and queer persons have ambiguity and less legal protection when they are sexually assaulted under Section 377.¹⁴

Besides, the Protection of Children from Sexual Offences (POCSO) Act, 2012, does offer a gender-neutral definition of child sexual abuse. This is sufficient to demonstrate that the state has recognized the necessity of such equality in certain situations. This equality disappears, though, when victims reach the age of 18 years, leaving one to wonder about the state’s presumptions of vulnerability and the selective deployment of egalitarian norms. Scholars such as Arvind Narrain have highlighted that the state’s method of handling gender through criminal law is “selectively inclusive and ideologically driven”, where queer rights are legally recognized in pieces and without structural safeguard. Such exclusion from rape laws not only keeps LGBTQIA+ outside legal protection but also deters reporting and perpetuates social stigma, essentially forming a victim hierarchy.¹⁵ In addition, feminist legal critiques, such as Pratiksha Baxi, mentioned that the law operationalizes caste and class and community biases even within the binary framework. For an intersectional understanding, however, these are amplified in the case of non-cisgender victims, who have compounded discrimination both within the legal system and through law enforcement agencies.¹⁶

Therefore, the present legal framework of rape in India depicts a highly gendered understanding of harm that is more in consonance with moral policing than constitutional rights protection. The legal exclusion of victims who are not female not only violates basic rights but also runs contrary. Rape laws in jurisdictions have been radically reimagined, mirroring changing socio-legal concepts of gender, victimhood, and sexual violence. While India struggles with whether or not to reform Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 to gender-neutrality, a comparative analysis of those jurisdictions that have already become gender-neutral in rape legislation gives legal insight as well as socio-political context. This part examines how nations such as the United Kingdom, Canada, Australia, and the South Africa have gender-neutralized rape laws and what lessons India can learn from them.

United Kingdom’s Sexual Offences Act, 2003 is a remarkable deviation from conventional notions of rape. Though the Act continues to have a gendered definition of rape in which the perpetrator is required to have a penis (and thereby is restricted to men) it supports this by criminalizing a wider range of sexual assaults that are otherwise gender-neutral under Sections 2 to 4 of the Act.¹⁷ Significantly, the law allows that non-penile violations can be equally traumatic and must be prosecuted as such. Nonetheless, this dualist method has not been devoid of criticism. Those like Vanessa Munro contend that maintaining a gendered rape definition is evidence of ongoing patriarchal presumptions regarding penetration and power. But the Act has been lauded for asserting consent as the core of all sexual offences, thus trending toward a consent-based and inclusive framework.¹⁸

Canada is an impressive case of absolute gender neutrality in sexual offence law. In 1983, Canada abolished its previous rape legislation and enacted a three-part system of sexual assault under the Criminal Code (Sections 271 to 273), which is absolutely gender-neutral.¹⁹ Neither the perpetrator’s gender nor victim’s gender is a restrictive element in the definition of the offence. Legal experts like Elaine Craig emphasize how this strategy makes it possible for male, transgender, and non-binary survivors to be acknowledged without watering down sexual violence against women.²⁰ Despite the persisting problems of implementation, especially regarding the social stigma attached to male and queer survivors, legal architecture at least provides these survivors with formal acknowledgment under law.

Australia provides a federal system of multi-faceted legal approaches. Jurisdictions such as New South Wales, Victoria, and Queensland have implemented gender-neutral language in sexual offence legislation. For example, Victoria’s Crimes Act 1958 does not use gendered terms when defining rape, instead using language that describes the act of penetration and absence of consent.²¹ Likewise, New South Wales’ criminal law was reformed in 2022 to remove binary gendered terms with words such as “person” and “another person” in order to be inclusive.²² Scholars such as Professor Paula Baron contend that the shift in Australia toward neutrality has facilitated greater reporting among queer and male survivors, even though deep-seated biases within society continue to exist.²³ Diversity in Australia’s jurisdictions also speaks to context-based legal drafting, according to the realities of societies and not universal legal models.

South Africa’s Criminal Law Amendment Act, 2007 has been widely praised for its trauma-based and survivor-oriented definition of rape. “The provision articulates a gender-neutral understanding of rape, encompassing any act of non-consensual penetration whether vaginal, anal, or oral by any part of the human body or an object.”.²⁴ This expansive definition is grounded in the trauma caused rather than the victim’s or perpetrator’s gender. The South African Constitutional Court has enforced these legislations as vital in a society which aims to disassemble heteronormative and patriarchal violence structures. Legal experts like Dee Smythe hold that the model is more effective in dealing with sexual violence against marginalized communities, including LGBTQ+ people, who tend to be invisible within gendered rape laws.²⁵

The comparative context makes one thing fully evident: legal acknowledgment of diverse victimhood in sexual crimes is not merely possible but absolutely necessary in an inclusive justice regime. The trend toward gender neutrality globally is informed by three broad principles: Consent as the key pillar: Those jurisdictions that have effectively changed their legislation make consent or its absence, rather than gender of the parties, the focus. Trauma, rather than anatomy, as the determining factor: South African and Canadian laws center on the infringement of bodily integrity regardless of the body part used or aimed at. Inclusivity, without invisibilizing women: Gender neutrality does not mean erasing the institutional violence inflicted on women but instead expands the scope to encompass other survivors.

Indian critics fear that instituting gender-neutral rape legislation will undermine the emphasis on women, they continue to make up the bulk of survivors and water down the particularized historical and structural violence to which they are subjected. Yet as legal scholar Ratna Kapur reminds us, “Feminist legal strategies must go beyond essentialist notions of womanhood and instead advocate for legal frameworks that are inclusive of all identities subjected to sexual violence”.²⁶

The Justice Verma Committee Report (2013), otherwise groundbreaking in various ways, refrained from suggesting gender neutrality in rape laws. Although it broadened the definition of sexual violence and proposed quicker trials and improved support to survivors, it confined the legal concept of a “rape victim” to women. The report said that as facts overwhelmingly indicate women as victims, the law has to be shaped accordingly, a notion challenged these days by queer-rights activists and mental health experts alike.²⁷ Additionally, empirical evidence from jurisdictions around the world suggests that gender-neutral legislation has not resulted in diminishing protections for women but has enhanced general access to justice. For instance, a 2019 report by the Canadian Department of Justice revealed that the introduction of gender-neutral legislation did not lower conviction rates in cases against women but boosted reporting among LGBTQ+ survivors slightly. ²⁸ The Indian justice system needs to take seriously whether its existing legal framework truly mirrors the realities of all survivors. The comparative paths of nations such as Canada and South Africa highlight that it is feasible to guard women’s rights without shutting out others from the juridical protection from sexual violence. Advancing towards a gender-neutral legal definition of rape does not mean the undoing of feminist gains but rather a sign of their evolution into a more inclusive and equitable form.

The Constitutional and Human Rights Argument in Favour of Gender-Neutral Rape Laws in India

The argument in favor of gender-neutral rape laws in India has strong basis in the constitutional promise of equality and non-discrimination. Article 14 of the Indian Constitution provides that every citizen is entitled to “equality before the law” and “equal protection of the laws.” Article 15(1) forbids discrimination on the basis of religion, race, caste, sex, place of birth or any of them “only.” Interpreted in conjunction with each other, these provisions impose a constitutional mandate on the legislature to see that the law does not institutionalize gender-based exclusions or hierarchies. The present legal definition of rape in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, which conceives rape as a crime perpetrated by a man against a woman, does not address this constitutional requirement of formal and substantive equality. Such male-perpetrator/female-victim binary embedded in law ignores the lived experiences of male, transgender, and non-binary survivors of sexual violence.

The rationale for gender-neutral rape legislation in India has sound roots in the constitutional guarantee of equality and non-discrimination. Article 14 of the Indian Constitution states that all citizens are liable to “equality before the law” and “equal protection of the laws.” Article 15(1) prohibits discrimination based on religion, race, caste, sex, place of birth or any of them “only.” These provisions, read together with one another, place a constitutional obligation on the legislature to ensure that the law does not formalize gender-based exclusions or hierarchies. The current legal meaning of rape under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, that imagines rape as a crime committed by a man on a woman, fails to attend to this constitutional mandate of formal and substantive equality. Such law-residing male-perpetrator/female-victim dichotomy ignores the lived realities of male, transgender, and non-binary sexual violence survivors. Legal commentators such as Dr. Mrinal Satish and Prof. Ratna Kapur have faulted India’s rape law for its heteronormative and patriarchal underpinnings. Satish argues that the current design of the law continues to promote the concept of female honour and chastity as the singular concern, rather than bodily autonomy or sexual agency.²⁹ Kapur further contributes that such a model renders the sexual subordination of those who do not live up to the normative constructions of gender invisible.³⁰

Lastly, India’s obligations under treaties of international human rights law support the case for reform. The Yogyakarta Principles of the United Nations on the Application of International Human Rights Law in respect of Sexual Orientation and Gender Identity (2007) unequivocally mandate states to “take all necessary legislative, administrative and other steps to prevent and provide protection against all violence and harassment on grounds of sexual orientation and gender identity,” regardless of the victim’s sex or gender identity.³¹ Similarly, In National Legal Services Authority v. Union of India (2014) 5 SCC 438, the Supreme Court held that transgender persons are entitled to the right to equality and dignity and reaffirmed that discrimination against such persons is against Articles 14, 15, and 21 of the Constitution. Still, the criminal law remains insensitive to such persons when they are rape or sexual assault survivors. The legal failure to recognize male and trans rape survivors thus constitutes a “constitutional exclusion” the phrase coined by legal scholar Gautam Bhatia to define the moments when ostensibly neutral legislation creates unreasonable distinctions.³²

The gendered character of the criminal law also amplifies the psychological harm of male and queer survivors. Several are reluctant to report abuse as a result of the stigma, incredulity, and institutional indifference they face. Studies by organizations like the Humsafar Trust and Sahayatrika have identified how queer survivors of sexual assault tend to remain invisible in the legal and public health system, and have no or limited access to counselling, justice, or rehabilitative care.³³ Such state failure undermines the state’s responsibility under Article 21 to protect the dignity and life of all persons. While others protest gender-neutral rape laws can be used against them or will water down protection for women, these arguments are the same patriarchal fears raised in opposition to women joining the workforce or combat units. The law can and must be subtle enough to protect everyone without setting up one group of vulnerable people against another.

The Politics of Protection: Defining the ‘Ideal Victim’ in Indian Rape Law

The Indian legal architecture on sexual violence has been in operation for decades based on the figure of an ‘ideal victim’ a quiet, chaste, heterosexual, ciswoman assaulted by a man, most typically in an action that fulfills notions of brutality. This figure does not just impact legal remedy but also constructs social understandings of victimhood and legitimacy. The legislation that tries to shield women from sexual assault tends to be exclusionary, leaving out those who do not belong to this limited category especially male, transgender, and non-binary survivors. The case law on rape in India, particularly after the Criminal Law (Amendment) Act of 2013, has perhaps perpetuated this ideal victim model. Although the Act was a turning point in Indian criminal law after the 2012 Delhi gang rape, it continued to uphold a gender based conception of rape under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, restricting victims to women and offenders to men. The gender based comprehension renders this binary view a neglect of many experiences that deviate from gendered norms, making queer and male survivors invisible to the criminal justice system. Feminist legal scholar Ratna Kapur writes that Indian rape law “continues to reproduce the sexual purity paradigm, in which the desecration of a woman’s chastity instead of her autonomy is at the heart of both moral indignation and legal redress.”³⁴

In addition, the courtroom becomes a space where credibility is produced through compliance with the ideal, with victims frequently assessed on their sexual history, dress, demeanor, or class position. According to legal anthropologist Pratiksha Baxi in her work on rape trials, casteist and patriarchal assumptions that judges and lawyers consistently use to weigh testimony transform the trial from a legal inquiry into a moral assessment.³⁵ It is here that such trials delegitimize experiences where individuals breach normative gender roles or fail to produce the ‘ideal’ response to trauma, such as delayed reporting, failure to put up a struggle physically, or continuing to live with the accused.

The politics of protection also appears in the selective outrage and media focus given to selected cases. As an example, urban, upper-caste, and conventionally beautiful women are more likely to gain public sympathy and media attention, while sexual violence against Dalit women, Adivasis, and LGBTQIA+ individuals remains unreported or marginalized. The Hathras case of 2020 brutally demonstrates this gap whereas the brutality was of similar intensity as the 2012 Delhi case, systemic cover-up of evidence, caste-based intimidation, and minimal public mobilization show the structural prejudices behind who is considered a victim that one struggles for.³⁶ On a number of fronts, Indian rape law’s projection of the ideal victim not only undermines intersectional justice but also represses larger feminist ambitions that aim to maintain autonomy, consent, and dignity for everyone regardless of gender identity or sexual orientation. The inability to broaden the legal imagination of victimhood entails that protection is non-universal; it is conditional, classed, and moralized. As queer theorist Akhil Kang writes, “the refusal to recognize trans and queer persons within the rape law is not just a legal exclusion it’s a political one, reflecting whose bodies the state deems worthy of protection.”³⁷ Therefore, demands for gender-neutral rape laws are not about the grammar of law but about the domination of hierarchies of protection and an assertion that everyone has a right to bodily integrity and justice.

Recognition in the law is insufficient to meet the structural exclusions which infuse the Indian criminal justice system. Feminist legal analysis must then reach beyond the law text to challenge how simultaneously caste, class, religion, and gender identity function to push survivors to the periphery. Dalit women, for example, are subject to a triple oppression both as women, as Dalits, and as sexual violence survivors. As Sharmila Rege has contended, “Dalit women’s testimonies are not just ignored they are structurally disbelieved.”³⁸ Such disbelieving is commonly compounded by police indifference, media silence, and judicial bias, producing what Veena Das refers to as a “zone of abandonment”³⁹ where violence becomes normalized, and justice is postponed. Therefore, any demand for reform must locate intersectionality as a methodological and political imperative.

Reparative Justice and Non-Carceral Futures

Even as the mainstream discussion regarding gender-neutral rape laws in India continues to be framed within the criminal justice paradigm, it is necessary to question the confines of penal legal responses and conceive more innovative futures. Conventional criminal law, even when supplemented with gender neutrality, tends to perpetuate a carceral logic that prioritizes retribution over reparation. This reasoning not only does not serve the elaborate needs of survivors but also does nothing to address the cultural and structural underpinnings of sexual violence. A non-carceral model of justice presents a critical shift from state-focused retribution to survivor-focused redress, focusing on healing, accountability, and community change rather than punishment. Reparative and transformative justice models challenge us to reimagine justice outside of the guilty and innocent, perpetrator and victim paradigms. They understand that sexual violence tends to happen in the contexts of structural and interpersonal inequality, and that the response with criminal penalties alone can obscure underlying patterns of harm and dispossession. Researchers like Ruth Morris and Mariame Kaba have long supported models cantering on healing, dialogue, and social transformation, as opposed to incarceration. Within this paradigm, gender-neutrality is not merely about adding more identities to the sights of punitive state gaze but ensuring all survivors whether of any gender or any gender identity have access to justice without retraumatizing or further marginalizing them. Finally, community accountability processes already practiced within many feminist and queer communities provide a roadmap for alternative models of justice. These models foreground the survivor’s agency, pursue recognition of harm, and strive to change through education, mediation, and material reparations. These processes problematize the assumption that justice needs to be punitive to be meaningful, especially if the state itself is implicated in systemic gender-based violence. Introducing gender-neutrality to this wider vision therefore becomes not just a legal change but an ethical and political affirmation of non-violent, empathetic, and inclusive redressal. For the Indian context, where carceral justice and patriarchal moralities tend to intertwine, non-carceral futures make it possible for the dismantling of punitive hierarchies and the build-up of solidarities across caste, gender, and sexual identities.

The Road Ahead: Constitutional Imperatives and the Politics of Legal Reform

Justice, in its truest sense, must transcend the limitations of a gendered binary and recognize and acknowledge harms inflicted upon the spectrum of identities. The present rape law in India, being progressive in parts, continues to represent a very entrenched patriarchal and heteronormative framework that limits recognition and redress. As this essay has made clear, Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 builds an imaginary of sexual violence under law that erases men, trans individuals, and the non-binary as potential victims, thus reinforcing a narrow, biologically essentialist conception of vulnerability and victimhood. The outcome is a jurisprudence that does not only fail in terms of inclusion, but in providing substantive justice. Gender-neutral rape legislation is not only about expanding the victim category but also about reshaping the entire structure of criminal law to better represent lived experiences. Opponents of gender-neutral rape legislation argue that neutrality may weaken protections for cisgender women, particularly in a country where violence based on gender is widespread. Yet this articulation creates a false dichotomy between protection and inclusion, an argument that does not value the diversity of harms and the requirement of context-sensitive but identity-inclusive legal provision.⁴⁰ As Jyoti Puri, legal scholar, reminds us, feminist politics in India needs to avoid becoming “gatekeepers of victimhood”⁴¹ and instead join wider coalitions involving trans, queer, and male survivors of sexual violence. In addition, the selective empathy of the criminal justice system wherein some victims are presumed more easily than others remain in operation. The “ideal victim” continues to be gendered, catered, and classed.⁴² Reforms in law may still be symbolic unless this imagination is deconstructed. Intersectional feminist analyses, especially those cantered by Dalit and queer scholars, bring to mind that law is never a neutral ground but a field of power, silence, and resistance.⁴³ Gender-neutral rape legislations in this context are to be followed by structural changes within policing, judicial sensitization, and institutional responsibility so that there is access to justice for all victims. Comparative analysis also shows that several jurisdictions Canada, South Africa, and the UK, for instance, have defaulted towards gender-neutral definitions of sexual offences, finding a balance between abuse concerns and protection for the due process. India’s constitutional philosophy, as codified in Articles 14 and 15, requires the state to eliminate legal distinctions and ensure the extension of protection to all regardless of gender. Failure to do so to address rape laws even for cisgender women constitutes a denial of equal protection under the law. In summary, gender-neutral rape laws are no magic bullet. They will not, in and of themselves, change a fundamentally broken criminal justice system. Reform must be guided not simply by the necessities of inclusion, but also by the epistemologies of the excluded themselves. In this way, the law is able to shift albeit incrementally from a device of exclusion to a language of acknowledgment, reparation, and resistance.