The suggested amendments to the Criminal Law Amendment Bill to make it gender neutral has divided activists and has surprisingly left out issues like marital rape.

The tweaking the definition of rape to make it gender neutral in the Criminal Law Amendment Bill 2011 has devolved into a debate that pitches gay right activists against those working for stringent implementation of women friendly laws.

If the current draft of the Bill becomes law, it is going to change the way the term ‘rape’ is used, misused and abused in India. The government plans to widen the ambit of rape to include ‘sexual assault’. It proposes to make sexual assault gender neutral by including sexual violence by man against man, woman against woman and the most controversial one- by a woman against man. The modifications to the Indian Penal Code (IPC) can alter the debates and studies on gender and law in the country.

Whether this is the right time for a gender-neutral law rape law in India or not, depends on whom you ask. The National Alliance to End Sexual Violence (NASV), a Washington based association working to end sexual violence notes that about 14 per cent of reported rapes in the US involve men or boys, that one in six reported sexual assaults is against a boy and one in 25 reported sexual assaults is against a man .

In India, data from the National Crime Records Bureau reveals there has been an eight fold increase in the number of rapes committed on women in the last four decades. The rise in the number of rape cases is the most rapid as compared to other serious crimes such as murder, robbery and kidnapping. Contrast this with hardly any reported cases of sexual violence against men.

D. Geetha, a Chennai based lawyer who specializes in women's issues, says Parliament is turning a blind to the more serious problem of violence against women and enacting a law that is out of sync with the country’s social realities.

“Where are the cases of sexual violence against men? Tackling sexual violence against women and the way they are treated in our society is the need of the hour. They are vulnerable at home, work and even in police stations. Rather than working for gender neutral law, we should work to strengthen the justice delivery mechanism for women,” she said.

“The law making machinery should respond to the need of the community and not the other way round,” Geetha said.

Mumbai-based women’s rights activist and lawyer Flavia Agnes believes that rather than helping any community, the law will leave the judiciary confused.

"I oppose the proposal to make rape laws gender neutral. There is physicality in the definition of rape, there is use of power and the victim has a stigma attached to her. If made gender-neutral, rape laws will not have the deterrence value and it will make it more complicated for judges in court," Agnes told The Times of India.

However, for some like Anjali Gopalan of Naz foundation, a Delhi-based NGO working for the cause of the LGBT community and has been lobbying for a gender-neutral law for more than a decade, this is a success.

She has been arguing that anyone who can be raped, including men, should have recourse to justice.

Rapes on men are as real as rapes on women but the former are not reported because of which there is no authentic data on such cases, said Gopalan.

“People from the LGBT community are looked down in our society. In cases of sexual violence, men feel helpless. They can approach no one. If some of them gather the courage to go the police station, the case is not registered. They make fun of the victim,” she said.

One of the presumptions made in the Bill that has left the activists divided, is that sexual violence that women victims face is comparable to that faced by male victims. Effectively, it means that the trauma, agony and the stigma faced by men in such cases is comparable to what is experienced by women, as highlighted by NASV.

According to senior Supreme Court lawyer Vrinda Grover, who is a strong opponent of the Bill, the only situation justifying a gender neutral law, is a repeal of section 377 of the Indian Penal Code relating to homosexual sex.

“If consensual sexual behaviour among adult men is allowed by the law, then you would have the need to introduce a law which criminalizes non- consensual sex between two adult men,” said she.

In June 2009, Delhi High Court decriminalized consensual sex among same sex adults, ruling that it violated the fundamental right and liberty mandated in the constitution. However, the order was challenged in Supreme Court, which is yet to pronounce its judgment.

The Bill also promulgates the theory that women can be the perpetrators of sexual violence against other women, men and children. If the definition of rape is widened to to include acts other than forced sexual penetration, which the current IPC definition says, then women are as capable of sexual violence against children as men are.

“But it certainly not be called rape,” said Gopalan.

Strangely enough, marital rape, an aspect of sexual violence that many women in India face, is not addressed by the legislation. The Bill though does propose to amend section 375 of IPC to increase the age of consensual sex for a married woman from 15 to 16 years.

“There is a clear contradiction here. The Child Marriage Act says that marriageable age of a girl is 18 years. But here, the government says that if a girl below 16 is having consensual sex, it is legitimate,” said Hasina Kharbih from Impulse, a human rights group.

“It is strange that the government is amending the rape law and it has nothing to put an end to marital rapes which is an open secret in India.” she added.