Revisiting gender assumptions in sexual offence law

I. Introduction

Sexual violence is among the gravest offences recognised by criminal law because it strikes at a person's bodily integrity, dignity, and autonomy. In India, the offence of rape has traditionally been defined as a gender-specific crime, with women recognised as victims and men as perpetrators. Despite the comprehensive overhaul of criminal laws through the Bharatiya Nyaya Sanhita, 2023 (BNS), this fundamental approach remains unchanged. The rationale behind retaining a gender-specific framework lies in the historical and social reality that women have been disproportionately affected by sexual violence and therefore require robust legal protection. At the same time, evolving legal discourse and comparative developments across jurisdictions have prompted renewed debate on whether the existing framework adequately addresses all forms of sexual victimisation and criminal responsibility.

One area of growing concern is the position of male victims of sexual violence. Since the statutory definition of rape under the BNS applies only where the victim is a woman, male victims cannot seek protection under this offence and must instead rely on other provisions of criminal law. This has led scholars and legal commentators to question whether the law sufficiently recognises the seriousness of sexual violence against men or whether it leaves an important gap in victim protection.

Another issue relates to the role of women in the commission of rape. Under the present legal framework, a woman cannot be prosecuted as the principal offender for rape. However, she may still incur criminal liability through doctrines such as abetment, criminal conspiracy, or common intention if she facilitates or assists the offence. Whether these forms of secondary liability adequately cover every situation involving active female participation remains open to debate. This raises broader concerns about consistency in criminal accountability and whether the law appropriately reflects the varying ways in which individuals may contribute to the commission of sexual offences.

Against this backdrop, this paper addresses two central research questions. First, does the gender-specific definition of rape under Indian criminal law adequately respond to sexual violence against male victims? Second, does confining female liability primarily to secondary forms of participation create accountability gaps within the law governing sexual offences? By examining these issues together, the paper evaluates whether the current legal framework remains both constitutionally defensible and practically effective.

The study adopts a doctrinal research methodology. It examines the relevant provisions of the Bharatiya Nyaya Sanhita, 2023, alongside the constitutional guarantees contained in Articles 14, 15, and 21 of the Constitution of India. It also analyses the recommendations of the 172nd Law Commission Report and the Justice Verma Committee Report, as well as relevant decisions of the Supreme Court of India. To place the Indian position in context, the paper briefly considers the approaches adopted in the United Kingdom and Canada, both of which have developed different models for regulating sexual offences. In addition, selected academic literature is reviewed to engage with the broader debate on gender neutrality, victim recognition, and criminal accountability.

The paper argues that although the gender-specific structure of rape law continues to serve an important protective purpose, it also gives rise to two significant doctrinal concerns. The first is a recognition gap affecting male victims of sexual violence, while the second is a potential accountability gap in cases involving certain forms of female participation in rape. Rather than advocating a purely ideological position, the paper critically examines whether these concerns can be addressed through carefully calibrated legal reforms that preserve strong protection against sexual violence while remaining faithful to constitutional principles of equality, dignity, and justice.

II. Historical and Doctrinal Foundations of India's Gender-Specific Rape Law

The offence of rape in India has, from its inception, been framed as a gender-specific crime. From the Indian Penal Code, 1860, to the Bharatiya Nyaya Sanhita, 2023 (BNS), the law has consistently recognised a woman as the victim and a man as the perpetrator. Although the definition has evolved, most notably through the Criminal Law (Amendment) Act, 2013, the basic structure of the offence has remained intact. The BNS largely carries forward this approach, reorganising the criminal law framework without fundamentally altering the legal conception of rape.

Section 63 of the Bharatiya Nyaya Sanhita defines rape through various forms of non-consensual penetration committed by a man against a woman. The provision covers acts committed against a woman's will, without her consent, by coercion, deception, intoxication, or where she is below eighteen years of age. It also adopts an affirmative standard of consent, requiring a clear and voluntary agreement to engage in the particular sexual act. As a result, the language of the statute expressly confines the principal offender to a man and the victim to a woman.

This legislative design is closely tied to the historical understanding of rape as an offence shaped by unequal social and power relations rather than a purely sexual act. Indian criminal law has long proceeded on the assumption that women face a disproportionate risk of sexual violence because of entrenched gender inequality and social vulnerability. The objective has therefore been to provide enhanced legal protection to women instead of creating a completely gender-neutral offence.

The same reasoning largely informed the recommendations of the Justice Verma Committee after the 2012 Delhi gang rape. The Committee proposed wide-ranging reforms, including a broader understanding of sexual violence, an affirmative model of consent, the removal of the marital rape exception, and stronger procedural safeguards for victims. Yet it stopped short of recommending a fully gender-neutral definition of rape. In its view, rape is fundamentally linked to patriarchal power structures and systemic violence against women, making it appropriate for the law to retain a gender-specific offence while strengthening legal protection for all survivors through related sexual offences.

A different approach had been suggested more than a decade earlier by the 172nd Law Commission of India. Instead of retaining the offence of rape in its traditional form, the Commission proposed replacing it with a broader offence of "sexual assault" that would apply irrespective of the sex of either the victim or the offender. It argued that criminal liability should turn on the violation of bodily autonomy and sexual integrity rather than the gender of the individuals involved. The Commission also recommended expanding the statutory framework to encompass a wider range of non-consensual sexual acts and different forms of penetration.

The differing recommendations of these two expert bodies show that the present legal position is the product of deliberate legislative choice rather than legislative oversight. While the Justice Verma Committee favoured preserving a gender-specific offence to address the realities of violence against women, the Law Commission advocated a gender-neutral model grounded in bodily autonomy and equal protection. Parliament ultimately adopted the former approach, and the Bharatiya Nyaya Sanhita continues to define rape in gender-specific terms.

Even so, the offence does not operate in isolation. The BNS contains general principles of criminal liability that apply regardless of gender. A person who instigates, intentionally aids, or conspires in the commission of an offence may be prosecuted under the provisions relating to abetment. Likewise, where several individuals act in furtherance of a common intention, each may be held criminally liable for the resulting act. These provisions become particularly relevant where a woman actively facilitates or assists the commission of rape, despite being incapable of committing the offence as the principal offender under the statutory definition.

Against this legal background, two issues arise for closer examination. The first is whether the gender-specific definition of rape leaves male victims without equivalent legal recognition under the existing criminal law framework. The second concerns the extent to which doctrines such as abetment and common intention adequately address situations involving active female participation in rape. The following chapters examine these questions through constitutional analysis, judicial interpretation, comparative perspectives, and contemporary academic scholarship.

III. Recognition Gap: Male Victims under the Present Legal Framework

The first research question examines whether the gender-specific definition of rape under Indian criminal law adequately addresses sexual violence against male victims. While the Bharatiya Nyaya Sanhita, 2023 (BNS) broadened the offence by recognising multiple forms of penetration and adopting an affirmative standard of consent, it continues to define rape as an offence committed by a man against a woman. As a consequence, a male victim subjected to an equivalent non-consensual sexual act cannot invoke the offence of rape, regardless of the gravity of the violation.

This does not mean that male victims are entirely without legal protection. Depending on the circumstances, conduct amounting to sexual violence may be prosecuted under other provisions of criminal law. Even so, those offences do not occupy the same legal position as rape. Rape has long been recognised as a distinct offence because it acknowledges a serious violation of bodily integrity, dignity, and sexual autonomy. Requiring male victims to rely on alternative offences, therefore, raises a broader question: does the existing legal framework recognise their victimisation with the same degree of seriousness, or does it leave an important gap in legal recognition?

The debate is not a recent one. In its 172nd Report, the Law Commission of India concluded that the existing offence of rape failed to capture every form of sexual victimisation and recommended replacing it with a gender-neutral offence of "sexual assault." The Commission argued that criminal liability should depend upon the violation of bodily autonomy rather than the gender of either the victim or the offender. It also proposed a broader statutory framework capable of covering different forms of penetration and other non-consensual sexual acts under a single offence.

The Justice Verma Committee reached a different conclusion. Although it recommended sweeping reforms to India's sexual offence laws, including an expanded understanding of consent, stronger procedural safeguards, and wider protection for victims, it stopped short of advocating a fully gender-neutral definition of rape. The Committee considered rape to be closely connected with patriarchal power structures and the systemic violence experienced by women. In its assessment, retaining a gender-specific offence remained justified, provided that the law offered adequate protection to other victims through separate offences where appropriate.

These contrasting recommendations make it clear that the present statutory framework reflects a conscious legislative choice rather than an absence of debate. Parliament ultimately accepted the Justice Verma Committee's approach, preserving the traditional definition of rape while reforming several other aspects of sexual offence law.

Whether that choice remains constitutionally sustainable requires closer examination. Article 14 guarantees equality before the law and equal protection of the laws, while Article 21 protects life, personal liberty, dignity, and bodily integrity. Although Article 15 expressly permits special provisions for women, such protection must still bear a rational connection to its constitutional purpose. The central constitutional issue is therefore not whether women should receive enhanced legal protection; they unquestionably should, but whether the continued exclusion of male victims from the offence of rape remains justified in light of contemporary understandings of equality, dignity, and sexual autonomy.

Useful guidance emerges from the Supreme Court's decision in Navtej Singh Johar v. Union of India. While the case did not concern rape law, the Court reaffirmed that constitutional morality must prevail over prevailing social attitudes and recognised dignity, privacy, equality, and sexual autonomy as essential facets of Article 21. The judgment also rejected the idea that constitutional rights depend upon the size of the affected class, emphasising that every individual is entitled to equal constitutional protection irrespective of social prejudice or entrenched stereotypes.9 Read in that broader constitutional context, Navtej Singh Johar lends support to the proposition that legal protection against violations of bodily autonomyshould not depend solely on traditional assumptions about gender.

At the same time, constitutional analysis cannot be divorced from social reality. Sexual violence continues to affect women at disproportionately higher rates, and women frequently encounter systemic barriers in reporting offences, pursuing prosecutions, and accessing institutional support. Those realities provide a compelling justification for maintaining specialised legal protections. The constitutional enquiry, therefore, is not simply whether rape should remain a gender-specific offence, but whether the existing framework sufficiently protects individuals who fall outside its statutory definition without weakening the safeguards available to women.

Academic opinion reflects this divide. Advocates of gender-neutral reform argue that sexual offences should be defined by the absence of consent and the infringement of bodily autonomy rather than by the gender of those involved. From this perspective, excluding male victims creates a recognition gap that sits uneasily with the constitutional commitment to equal protection. Others argue that rape should continue to remain gender-specific because it responds to a distinctive pattern of patriarchal violence that disproportionately affects women. In their view, complete gender neutrality risks overlooking the structural inequalities that originally justified specialised protection.

Taken together, these competing perspectives reveal both the strengths and the limitations of the current framework. The law continues to perform an important protective function for women, yet it leaves unresolved questions about the legal recognition afforded to male victims of sexual violence. Although alternative offences may criminalise comparable conduct, they do not necessarily convey the same legal or symbolic recognition associated with rape. The recognition gap identified in this paper, therefore, extends beyond the availability of criminal sanctions; it concerns whether comparable violations of bodily autonomy receive comparable legal acknowledgement. That question provides the foundation for considering whether future reforms should retain the existing gender-specific model or adopt a broader framework capable of recognising all victims while preserving effective protection for women.

IV . Accountability Gap: Female Participation in Rape Offences

The second research question considers whether limiting female participation in rape offences primarily to secondary liability creates accountability gaps within India’s sexual offence framework. Under the Bharatiya Nyaya Sanhita, 2023 (BNS), rape is defined in a manner that recognises only a man as the principal offender. A woman, therefore, cannot be prosecuted as the principal perpetrator of rape regardless of the extent of her involvement. This does not, however, place her outside the reach of criminal law. Depending on the facts, liability may arise through general principles such as abetment, criminal conspiracy, or common intention.

Abetment under the BNS is defined broadly to include instigation, intentional aid, or participation in a conspiracy that results in the commission of an offence. Likewise, where an offence is committed in furtherance of a common intention, each participant may be held liable as if she had committed the act herself. These provisions ensure that those who facilitate, encourage, or coordinate the commission of rape can still be brought within the ambit of criminal responsibility, even if they do not physically execute the act constituting the offence.

Yet the distinction between principal and secondary liability continues to raise doctrinal concerns. While both may attract similar sentencing outcomes in practice, the conceptual basis of liability differs. A principal offender is treated as the direct author of the crime, whereas an abettor or conspirator is held liable for contributing to another’s criminal act. In most cases, this distinction may not alter punishment, but it does shape how the law describes culpability and assigns legal labels to conduct. The question, then, is not whether women can be punished for involvement in rape; they clearly can, but whether derivative liability fully captures the nature and seriousness of every form of participation.

This becomes more evident when viewed against real-world scenarios. A woman may deliberately lure a victim to a secluded location with knowledge of an impending assault, administer intoxicants to impair resistance, physically restrain the victim during the offence, issue threats to secure compliance, or coordinate the actions of multiple offenders. In such cases, her role may be central to the commission of the offence itself. Although the law permits prosecution through abetment, conspiracy, or common intention, the legal characterisation of her role remains dependent on the principal offence committed by another. Whether this derivative framing adequately reflects the gravity of her conduct is therefore open to question.

Constitutional reasoning provides an additional lens. In Joseph Shine v. Union of India, the Supreme Court struck down the offence of adultery, holding that it was grounded in patriarchal assumptions that denied women independent agency. The Court rejected criminal provisions that treated women as passive actors within a gendered moral framework and reaffirmed that criminal law must conform to constitutional guarantees under Articles 14, 15, and 21. Although the case did not involve sexual offences, its broader reasoning underscores the need to scrutinise liability structures that rest on inherited assumptions about gendered roles rather than individual agency.

At the same time, the structure of rape law cannot be detached from its historical purpose. It was developed in response to a pattern of sexual violence overwhelmingly perpetrated by men against women, reflecting deep-seated structural inequalities. The retention of a gender-specific definition, therefore, reflects not an assumption about incapacity on the part of women, but a legislative response to persistent patterns of harm. The relevant question is not whether women are capable of participating in such offences, but whether the existing legal framework adequately articulates responsibility when they do.

Comparative approaches illustrate that different jurisdictions have addressed this issue in distinct ways. The United Kingdom retains a limited, gender-specific definition of rape under the Sexual Offences Act 2003, confined to penile penetration. At the same time, it creates a broader set of gender-neutral offences such as assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent. Liability for participation is further extended through general doctrines of aiding, abetting, counselling, or procuring offences. This structure preserves the traditional offence of rape while ensuring that serious sexual misconduct does not fall outside the scope of principal criminal liability.

Canada, by contrast, adopts a fully gender-neutral model. The Criminal Code replaces the notion of rape with the offence of sexual assault, applicable irrespective of the gender of either party. The focus shifts entirely to the absence of voluntary consent and the violation of sexual integrity, allowing any individual, regardless of sex, to be treated as a principal offender where the statutory elements are satisfied. These models demonstrate that criminal accountability can be structured in more than one coherent way. The UK preserves historical categories while expanding liability through supplementary offences, whereas Canada consolidates sexual offences into a unified, gender-neutral framework. Both approaches confirm that extending principal liability is not inconsistent with strong protection for victims of sexual violence.

In the Indian context, the existing framework does ensure that women who facilitate rape can be prosecuted under doctrines of secondary liability. The more difficult question is whether these doctrines always serve as an adequate substitute for principal liability, particularly in cases where the accused plays an active and indispensable role in the commission of the offence. The concern, therefore, is not one of sentencing or punishment, but of whether the structure of liability consistently reflects the degree of culpability involved in different forms of participation. It is this conceptual gap that remains relevant to any discussion on the future design of India’s sexual offence framework.

V . Comparative Perspectives and Towards a More Coherent Sexual Offence Framework

The preceding discussion indicates that India’s gender-specific rape law continues to serve an important protective function, while also giving rise to concerns regarding the legal recognition of male victims and the framework governing female participation in sexual offences. These concerns do not, in themselves, necessitate a departure from the existing structure. Rather, they invite closer scrutiny of whether alternative legislative approaches might better accommodate constitutional commitments to equality, dignity, and effective criminal accountability.

Comparative experience suggests that jurisdictions have approached the regulation of sexual offences in markedly different ways, shaped by distinct constitutional frameworks and social contexts. While these models cannot be transplanted wholesale, they nevertheless provide useful reference points for assessing the range of possible reforms.

The United Kingdom adopts a hybrid structure under the Sexual Offences Act 2003. The offence of rape remains defined in relation to penile penetration and is therefore not entirely gender-neutral in its formulation of the principal offence. At the same time, the statute creates a wider set of offences, such as assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent, which apply irrespective of gender. Liability for participation is further governed by ordinary principles of secondary liability, enabling prosecution of those who aid, abet, or encourage the commission of such offences. The result is a framework that preserves the traditional conception of rape while extending principal criminal liability across a broader spectrum of sexual violence.

Canada, in contrast, has moved towards a fully gender-neutral model. The Criminal Code replaces the historical offence of rape with sexual assault, defined primarily by the absence of voluntary consent and the violation of sexual integrity. Liability is determined without reference to the gender of either party, allowing any individual to be recognised as a victim or offender depending on the factual matrix. This approach reflects a commitment to grounding criminal responsibility in conduct rather than identity.

These comparative frameworks illustrate that the structure of sexual offence law is not fixed and that different doctrinal choices can still achieve robust protection against sexual violence. At the same time, any consideration of reform in India must be grounded in domestic realities. Sexual violence remains disproportionately directed against women, who also face entrenched barriers in reporting offences, accessing institutional support, and securing convictions. These conditions provide a continuing rationale for specialised legal protection and caution against reform proposals that rely solely on formal equality.

Within this debate, three broad approaches can be identified. One view supports retention of the existing framework without significant alteration, emphasising that the gender-specific definition of rape reflects the predominant pattern of sexual violence and ensures targeted protection for women. From this perspective, existing doctrines of abetment, conspiracy, and common intention are considered sufficient to address situations involving participation by persons other than the principal offender.

A second approach favours a fully gender-neutral definition of rape or sexual assault, broadly aligned with the Canadian model. Its central argument is that criminal liability should turn on the absence of consent and the nature of the act, rather than the gender of the individuals involved. On this view, equal recognition of victims and offenders better reflects constitutional principles of equality and bodily autonomy, although it is often accompanied by concerns regarding evidentiary safeguards and the potential for misuse in practice.

A third approach occupies a middle position. It retains the existing gender-specific offence of rape while expanding and strengthening the broader architecture of sexual offence law through gender-neutral provisions. Under this model, rape continues to function as a distinct offence reflecting the historical and structural realities of violence against women, while parallel offences ensure that other forms of non-consensual sexual conduct receive equivalent legal recognition. At the same time, the framework governing general criminal liability could be clarified to more precisely address cases involving substantial facilitation or participation in sexual offences, regardless of gender. Such an approach seeks to preserve the symbolic and protective function of the existing law while addressing concerns of recognition and accountability identified earlier in this paper.

The third model appears to offer the most coherent balance between competing considerations. It preserves the heightened protection afforded to women under the current framework, while also acknowledging that serious sexual violence should not go

unrecognised where it falls outside the traditional statutory definition. It further ensures that individuals whose conduct materially contributes to the commission of such offences are not relegated to an analytically secondary position where their role is, in substance, central to the offence itself. In this sense, reform is best understood not as a choice between mutually exclusive objectives, but as an exercise in calibrating legal responses to reflect both constitutional values and the lived realities of sexual violence.

VI. Conclusion

This paper examined whether the gender-specific structure of India's rape law continues to provide a coherent framework for addressing contemporary forms of sexual violence.

Through an analysis of the Bharatiya Nyaya Sanhita, 2023, constitutional principles, law reform reports, judicial decisions, and comparative legal frameworks, the study identified two important doctrinal questions concerning the recognition of male victims and the accountability of female participants in rape offences.

With respect to the first research question, the analysis demonstrates that although male victims of sexual violence may obtain protection under other provisions of criminal law, they remain excluded from the statutory definition of rape. This exclusion creates a recognition gap because the law does not acknowledge comparable violations of bodily autonomy through the same legal framework. While the gender-specific definition of rape is supported by the historical reality that women continue to experience disproportionate levels of sexual violence, the absence of equivalent recognition for male victims raises legitimate constitutional and policy concerns that merit continued legislative consideration.

Regarding the second research question, the study finds that the present legal framework does not leave female participants beyond the reach of criminal law. Women who intentionally facilitate, encourage, or assist the commission of rape may incur liability through doctrines such as abetment, conspiracy, and common intention. Nevertheless, questions remain as to whether these forms of secondary liability always reflect the full extent of culpability in situations where participation is substantial or indispensable. The issue is therefore not one of absolute immunity, but of whether the existing framework consistently attributes criminal responsibility in a manner that reflects the nature and gravity of the conduct involved.

Comparative experience from jurisdictions such as the United Kingdom and Canada demonstrates that different legislative models can effectively address sexual violence while balancing equality, victim protection, and criminal accountability. However, legal reform in India cannot simply replicate foreign approaches. Any future changes must remain sensitive to India's social realities, particularly the continuing prevalence of violence against women and the need to preserve strong legal safeguards for female victims.

The analysis undertaken in this paper suggests that the objective of criminal law should not be to choose between protecting women and recognising other victims. Rather, it should strive to develop a coherent legal framework that safeguards those who remain most vulnerable while ensuring that all victims receive appropriate legal recognition and all culpable participants are held accountable according to their role in the commission of the offence. A carefully calibrated approach of this nature would strengthen both the constitutional legitimacy and the practical effectiveness of India's sexual offence laws.

References

1.Bharatiya Nyaya Sanhita,

2.Bharatiya Nyaya Sanhita, 2023, s 63

3 Justice Verma Committee Report (2013)

4 Law Commission of India, 172nd Report on Review of Rape Laws (2000)

5 Bharatiya Nyaya Sanhita, 2023, s 45 (abetment) and s 3(5) (common intention)

6 Bharatiya Nyaya Sanhita, 2023, s 63

7 Law Commission of India, 172nd Report on Review of Rape Laws (2000)

8 Justice Verma Committee Report (2013)

9 Navtej Singh Johar v. Union of India (2018) 10 SCC 1

10 Bharatiya Nyaya Sanhita, 2023

11 Joseph Shine v. Union of India (2019) 3 SCC 39

12 UK Sexual Offences Act 2003

13 Criminal Code of Canada, ss 265 and 273.1

14 UK Sexual Offences Act 2003

15 Criminal Code of Canada, ss 265 and 273.1