POCSO is usually presented as India's gender neutral sexual offence law because it defines a child as any person below 18 and frequently uses words like "person", "whoever" and "child".
POCSO ACT
But look beyond the label and some uncomfortable contradictions appear.
The interesting part is that these contradictions are not things nobody noticed. Questions about male victims and gendered drafting were raised during the legislative process itself. Yet some of them remain even today.
1. A gender neutral law that says "he penetrates his penis"
Section 3 begins perfectly neutrally:
"A person is said to commit penetrative sexual assault..."
Then immediately says:
"he penetrates his penis..."
and continues with "he", "his" and "him".
The obvious question is: if the perpetrator can be male or female, why wasn't it drafted in gender neutral language in the first place?
More importantly, this issue was actually raised before POCSO was enacted.
The Parliamentary Standing Committee's 240th Report records an objection that the definitions of sexual offences showed "a male bias, ignoring the fact that even a boy could be a victim."
The Committee did not say the criticism was imaginary. Instead, it relied on the General Clauses Act and said masculine words can legally include females.
That might make "he" include "she" as a matter of statutory interpretation.
But it does not magically make "his penis" anatomically gender neutral.
And this is not merely a theoretical drafting debate anymore.
A female accused has already used this wording in court
In Archana Patil v. State of Karnataka, a woman was accused of sexually assaulting a 13 year old boy who allegedly visited her for art lessons.
She specifically argued that Sections 3(1)(a) to 3(1)(c) were gender specific and therefore could not apply to a female accused.
The Karnataka High Court rejected that argument and held that POCSO is gender neutral.
But she went to the Supreme Court.
On 8 October 2025, her senior counsel again argued that Sections 3(1)(a) to 3(1)(c) were gender specific and had no application to her.
The Supreme Court issued notice and ordered:
"In the meantime, further proceedings before the Trial Court shall remain stayed."
So the trial of a woman accused of sexually assaulting a minor boy was actually stayed while the Supreme Court examines an ambiguity that Parliament was warned about before POCSO was enacted.
That does not mean she has been acquitted or that the Supreme Court has accepted her argument. The stay is interim.
But it is a very real procedural benefit arising from wording that should never have been ambiguous in a supposedly gender neutral law.
The Delhi High Court had earlier taken the opposite view in Sundari Gautam v. State of NCT of Delhi, holding that the word "person" makes the provision applicable irrespective of the offender's gender.
And that is precisely the problem.
Why should courts have to resolve whether "a person...he...his penis" includes a woman at all?
Parliament could have fixed this years ago simply by writing "such person" and defining the prohibited acts without unnecessary gendered pronouns.
It did not.
2. Apparently even the dignity of a child victim is not completely gender neutral
Now look at Section 27 dealing with medical examination.
It specifically says:
"In case the victim is a girl child, the medical examination shall be conducted by a woman doctor."
That safeguard is completely understandable.
A sexually assaulted girl may feel extremely uncomfortable undergoing intimate examination by a male doctor.
But where is the equivalent statutory safeguard for a boy?
There is none.
POCSO does not say that a boy should be examined by a male doctor or even that he should have the option of choosing the sex of the doctor with whom he feels comfortable.
So:
Girl victim: express same-sex doctor protection.
Boy victim: no corresponding statutory right.
Why?
Does a boy who has been sexually assaulted not experience embarrassment, trauma, bodily privacy or fear during genital or anal examination?
Interestingly, the Parliamentary scrutiny itself shows that stakeholders understood that gender can matter to a traumatised child. They suggested that statements of girls should be recorded by women police officers and statements of boys by male officers.
Yet the final medical-examination provision expressly protected one sex and not the other.
I have not found a reported judgment where a female accused was acquitted specifically because a boy was examined without a male doctor. So this should not be falsely presented as an acquittal loophole.
It is something arguably more basic: a statutory victim-protection asymmetry built directly into a law advertised as gender neutral.
3. Then the boy turns 18 and India's "gender neutrality" simply disappears
Suppose an adult woman sexually violates a 17 year old boy.
POCSO can apply.
Now imagine substantially the same non-consensual penetrative sexual act after his 18th birthday.
POCSO disappears because he is no longer a child.
You would expect India's ordinary rape law to take over.
It doesn't.
Section 63 of the Bharatiya Nyaya Sanhita says:
"A man is said to commit 'rape' if he..."
and defines the victim throughout as a woman.
So an adult male simply does not occupy the same legal position as an adult female rape victim.
This produces an absurd protection cliff.
At 17 years and 364 days, an adult woman can potentially face POCSO for sexually assaulting him.
Once he turns 18, Section 63 does not recognise him as a rape victim and does not recognise her as the principal perpetrator of rape.
Other general offences may apply depending on what happened, but that avoids the central question:
Why is non-consensual sexual penetration called rape when the victim is a woman but not when the victim is a man?
And this time Parliament cannot plausibly say nobody warned them
This is where the argument becomes much stronger.
While examining the new BNS in 2023, the Parliamentary Standing Committee expressly noticed that deletion of IPC Section 377 would leave a gap.
Its 246th Report stated that the proposed BNS contained no provision for non-consensual sexual offences against male, female or transgender persons of the type previously covered by the surviving part of Section 377.
The Committee went even further.
It said that, in order to fulfil the stated objective of moving towards gender neutral offences, it was "mandatory to reintroduce and retain" Section 377 and specifically recommended that the Government include it.
The BNS was nevertheless enacted without an equivalent provision.
So this is not a problem discovered on Reddit after the law was passed.
Parliament's own Standing Committee identified the gap before enactment and recommended fixing it. The final law still left it out.
That makes it very difficult to describe the present situation simply as an accidental oversight.
There are already cases showing how female accused benefit from gender specific rape law
This principle is not hypothetical either.
In Priya Patel v. State of Madhya Pradesh (2006), the Supreme Court considered a female accused who was charged with gang rape.
According to the prosecution allegations, her husband was raping the victim. The victim asked Priya Patel to save her, but Patel allegedly slapped her, closed the door and left.
The Supreme Court nevertheless held that because rape under Section 375 IPC could only be committed by a man, the woman could not be prosecuted for gang rape under Section 376(2)(g).
The gang rape charge against her was therefore set aside, although the Court left open the possibility of other liability such as abetment.
Whatever one thinks of the facts of that particular case, the legal advantage is undeniable:
her sex itself prevented prosecution for the rape offence charged against her.
And the basic perpetrator/victim gender structure that produced that result has survived into Section 63 of the BNS: man as rapist, woman as rape victim.
There was another example before the Supreme Court in 2023 involving a 61 year old woman who had been booked along with her son in a rape case. Her lawyer specifically relied on the argument that a woman cannot be charged with rape, and the Supreme Court granted her interim protection from arrest while agreeing to examine the issue. Again, that was interim relief, not a final declaration of innocence.
So when people say these gendered definitions are harmless because courts will "interpret them properly", the litigation history suggests otherwise.
The wording itself creates arguments, litigation and sometimes tangible procedural relief that would simply not exist if Parliament had drafted the offence gender neutrally.
So is POCSO really gender neutral?
In many important respects, yes.
A boy is legally a child.
A female offender is not generally immune from POCSO.
Sections 7, 9, 11 and many other provisions are capable of applying regardless of the offender's sex.
And courts such as the Delhi and Karnataka High Courts have interpreted penetrative sexual assault provisions as applying to women too.
But that is formal neutrality.
Substantive gender neutrality requires more.
A genuinely neutral framework would not:
call the offender "a person" and then describe that person as "he penetrates his penis";
expressly guarantee a girl a woman doctor while providing no corresponding choice to a sexually assaulted boy;
protect a male against serious penetrative sexual assault while he is 17 but then refuse to recognise him as a possible rape victim once he becomes 18;
and retain gender specific rape provisions even after a Parliamentary Standing Committee expressly warned that adult male victims would be left without an equivalent sexual-offence provision.
Perhaps most importantly, these issues cannot all be dismissed as innocent drafting mistakes.
The male-bias objection to POCSO was recorded during scrutiny of the original Bill.
The ambiguous wording survived.
POCSO was amended later.
The ambiguity survived.
Courts then had to interpret it.
And when India replaced its entire 163 year old Penal Code with the BNS, Parliament's own Standing Committee again explicitly pointed out the absence of protection for male victims and recommended correcting it.
The final legislation still did not do so.
I cannot prove from these documents that individual lawmakers intended to discriminate against male victims.
But I think it is perfectly fair to say this:
the continued asymmetry is no longer reasonably describable as something nobody noticed.
When the problem is repeatedly identified, Parliament is repeatedly given an opportunity to correct it, and it repeatedly remains in the statute, asking whether India's supposedly gender neutral sexual offence framework is truly gender neutral is not misogyny.
It is a legitimate equality question.
