This article is written by Aayush Akar and Shubhank Suman, students of NLU, Orissa. In this article, they critically analyze the rapes of males in India.

Introduction

Rape in general defined as the crime committed by men against women. It has been conceptualized as sexual victimization of women by male preparators that manifest the rape-supportive patriarchial society. However, in reality, it has been found that there is a significant number of rapes and other sexual violence victims are male too but the mindset that rape cannot happen with men distanced these rape survivors from the research spotlight. 

The rape of males is seen as taboo in the society which has a negative connotation among heterosexual men. The rape of males is always seen with the perspective of manliness and masculinity. Consequently, most of the victims feared to report sexual assault they experienced. 

They are generally worried that people will doubt their sexual identity and label them homosexual or may call them unmasculine if they open up about the assault. [1] This fear forced thousands of male victims to hide and deny their victimization that results in thousands of rape cases goes unreported. Myths regarding males in society played an important role in this. The various myths are:

Men are not Vulnerable

In the male dominant society like India and Pakistan. Men are seen as the strongest of all because of which they are not supposed to do the things that go against their manliness, not even allowed to openly cry. This perception of society that men are strongest among human beings depicts that males cannot be raped nor even that they are vulnerable to it. These societies believe that only women can be raped. [2]

Men Always Want Sex

Another stereotype regarding male gender in society is that they always want sex, they always get aroused easily. This created a notion in society that most of the sexual intercourse between men is voluntarily in nature and can happen only if they are willing to enjoy any sexual activity. [3]

Traumatization

Another notion among the society regarding males is, males are subjected to less traumatization. Hence, they are less likely to get affected by any kind of abuse. 

These stereotypes about masculinity made men silent victims of sexual offences. However, now most of the country has recognized that men can be raped too and criminalized it.

Laws Regarding Rape of Male in Different Countries

In the UK, initially “Criminal Justice and Public Order Act, 1994” made changes in laws regarding rape that removed buggery from the statue and add the term “non-consensual anal as well as vaginal penile penetration”. Through this act, it was for the first time effort was made to recognize the rape of males in the UK legal system. Later “Sexual Offences Act, 2003 (England and Wales)” redefined it further, to include even non-consensual penetration through the mouth and removed the vague provision of indecent assault. However, the definition of rape still requires penile penetration. Hence, rape laws of the UK are still not gender-neutral as women cannot be penalized for raping men as per the current definition. [4]

In Scotland, the “Sexual Offences (Scotland) Act, 2009” brought serious changes in their rape laws and redefined it as:

“The intentional or reckless penetration of the penis (to any extent) into the vagina, anus or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained”. [5]

In this definition gender-specific term “women” was replaced by “person” to include male victims in the ambit of definition. Similarly, in Northern Ireland also rape laws have been changed to recognize the rape of men. The earlier definition of rape includes the term “non-consensual intercourse by a man” which was later replaced by “non-consensual intercourse by a person” under “Criminal Justice (Northern Ireland) Order, 2003” to provide justice to male victims of rape and make the law gender-neutral. Further “Sexual Offences (Northern Ireland) Order, 2008” extended this definition to include oral rape. [6] Just like these Common law countries, Civil law countries like the USA, Canada also attempted to make their rape laws more gender-neutral so that it includes men also. Definition of rape as per (United States Department of Justice, 2012) is:

“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” [7]

This concept of rape includes all gender of victims and offenders and not limited to women raped by men. Besides that, US legislation now also admits that rape with an object can be as serious and distressing as non-consensual penile penetration. The US was the first country to equated object penetration with penile penetration and considered it rape, unlike other countries where penetration of object is considered different from the penetration of penis and generally provides separate statues for it. In making the rape laws more gender-neutral, Canadian govt. has gone even further. In 1983 “Bill C-127” was passed by the Canadian legislature that abolished offence of rape and provided three graded categories of sexual assault. Aligning with US laws, Canadian Law also recognizes penetration through object constitutes rape and penile penetration cannot be the sole ground for the offence of rape. [8]

Despite the changes in rape and sexual offences of these countries, there are still some countries like India, Pakistan where rape is continued to be seen as a gendered crime.

Male Rape and Indian Laws

In India rape is considered as the act of penile penetration, or any foreign object into the vagina without the consent of women or girl. Sec 375 [9] of IPC mentions about rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case, if she is under 18 years of age”. If we analyze the definition then we find that it makes two clear, albeit subtle inferences:

• A rape offender is necessarily a man.
• A victim of rape is necessarily a woman.

Hence, the whole definition is considering the rape of only women and there’s no clause for the rape of male. It manifests that in India there’s no particular law if a male rapes another male or a female rapes a male. At, the most they can be sodomised under sec 377 [10] of IPC that is modelled on Buggery Act, 1533 where unnatural sex is an “Act against god”. [11] Except for this section, all other laws and sections are meant only for females. This Inequality in the treatment of rape of male from rape of female affecting the equalitarianism of our constitution. Though there’s POCSO (“Protection of Children from Sexual Offences”) for the sexual assault of male child such provision does not exist for an adult male. [12] There’s no reason, why instances of sexual assault on a male child are treated differently from a similar act committed against an adult male. If we made the provision for the rape of male child then why can’t we make similar provision for men also? The basic idea behind it is men in India considered as invulnerable and as ones who use their power to exploit women. However if we consider the ground reality that is reflected in the survey of Insia Dariwala which surveyed 1500 male out of which 71% of men surveyed said they were abused, 84.9% said they had not told anyone about the abuse and The primary reasons for this were shame (55.6%), followed by confusion (50.9%), fear (43.5%) and guilt (28.7%). [13]

Since the interpretation of rape in India is only restricted to insertion of penis or object in the vagina, the cases of rape and sexual assault of male has been rising continuously there were very instances where the male was subjected to such crime but because of the paucity of law, nothing happened [14] for instance on 16th of June 2018, a 20-year-old boy had to endure the sexual assault by five men in Ghaziabad and a foreign object was inserted into his rectum but since our law does not account for such offence, the case was registered under section 377 of IPC. Similarly, there are lots of cases in the armed forces where men are subjected to lots of sexual violence. [15]

The major flawed in the paucity of laws for the safeguard of the male from sexual assault is in the constitution itself. Article 14 [16] states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Further as per Article 15 [17], “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Besides, clause 3 of Article 15 which states that “nothing in this article shall prevent the State from making any special provision for women and children”. Thus it is legal on the part of the state to make the women-centric definition of rape which is stated in Section 375 IPC. But if we go by this logic state through an amendment in Section 375 IPC can protect male as mentioned in Article 15. The state can introduce the rape laws that are more gender-neutral as we have to realise sexual assault is neither about sex nor about gender. At present, there are only two laws that realize male can also be sexually assaulted.

• First one is the “Protection of Children from Sexual Offences” (POSCO) that address the sexual abuse committed against both male and female child.
• The second one is the UGC “Sexual Harassment of Women at Workplace Act” that recognizes men are also subjected to lots of sexual harassment along with women at the workplace. [18]
• This paucity of rape laws for male raised the demand for gender-neutral rape laws in India.

Gender Neutrality of Rape Laws

The 172nd law commission of India in March 2000 recommended that rape laws in India should be made gender-neutral to protect male victims too. The underlying principle behind it is a presumption that offence of rape will be desexualized and the stigma attached to it will vanish. [19] However, the government did not act to implement the suggestions. Later in 2017, a PIL was filed at the Delhi High Court by adv. Sanjiv Kumar, which challenged the constitutionality of the rape laws under the Indian Penal Code (IPC). In his petition he stated:

“Gender neutrality is a simple recognition of reality — men sometimes fall victim to the same or at least very similar acts to those suffered by women…Male rape is far too prevalent to be termed as an anomaly or a freak incident. By not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought.” [20]

On the same reasoning on July 2019 KTS Tulsi, a senior lawyer and Parliamentarian in the Rajya Sabha also brought a gender-neutral bill (“Criminal Law Amendment Bill, 2019”) before parliament to make the rape laws gender-neutral in India. As per him:

“Law needs to be balanced. The balance has been disturbed. All sexual offences should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected.” [21]

The basic idea behind the bill is to propose necessary changes in Indian Penal Code (IPC), the Criminal procedure Code and the Indian Evidence Act so that the gender-specific words like “any man” and “any woman” likewise, mentioned in 354A, 354B, 354C, 354D, 375 and 376 of IPC to be replaced by gender-neutral words like “any person”. [22] This would provide protections to all gender i.e women, men and transgender. Addition to it also talks about the insertion of sec 375A in the IPC that defines sexual assault as “intentionally touches the genitals, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper hygienic or medical purposes.” [23] This section ensures that not only inappropriate touching of female parts constitute sexual assault but inappropriate touching of the male part also constitutes it. Further, this bill also calls for the insertion of section 8A in section 354 of IPC which defines modesty.

The demand for insertion of all these sections is only to increase the scope of the acts that are sexually violative and bring them under the ambit of law of the land.

Resistance to Gender Neutral Sexual Offences

In 2013, the centre passed a criminal amendment act under the recommendation of Justice Verma Committee which replaced the term “rape” from “sexual assault” to cover all the genders however later changes were reversed due to the criticism and resistance from feminists and women’s group. These groups see a call for gender-neutral laws as an attack on feminism and believe rape is an explicitly patriarchal crime. [24]

Conclusion 

We have witnessed over the years, criminal laws in India have been revised by lawmakers to meet the requirements for society. Over the years, the amendment becomes an important tool to serve the need of the hour. We can see The amendments within the ambit of sexual offences against women after the onset of the Nirbhaya Case have contributed tremendously towards the safety of women. It recognized various acts which weren’t offences earlier, thus giving scope to every women victim to access justice but since the bill limits itself to only women. The need for Gender Neutral Rape laws becomes the need for the hour. Hence putting in all into perspective, the Criminal Law (Amendment) Bill, 2019 aims to make such progress, when its calls for a gender-neutral section that punishes any form of sexual assault.

In India, criminal laws have been repeatedly revised over the years to meet the need of the hour. The new laws in the field of sexual offences against women after the Nirbhaya incident continued have made a massive contribution to women’s rights. It accepted various crimes that were not prior offences, thus offering each victim scope for access to the courts. Even when the Apex Court declared Section 377 to be outlawed, various pertinent questions remained unanswered. The Top Court while legalizing consensual gay sex but did not notice the loophole present in Section 375 IPC which recognizes female as victim and male as the perpetrator. Thus, there is a legal gap in this section when both victim and perpetrator are male or female. Even the Supreme Court does not entertain pleas which call for gender-neutral rape laws by stating that legislation will look into the concerned issue. Because of non-availability of gender-neutral laws, most of the cases go unreported or the offender gets minimal punishment. Even most of the feminist groups are against the call for gender-neutral laws. Hence, the Criminal Law (Amendment) Bill, 2019, putting everything into point of view, seeks to make such development when it calls for a gender-neutral segment punishing any sort of sexual abuse.

References

[1] India's law should recognise that men can be raped too, Centre For Civil Society (2014), https://ccs.in/indias-law-should-recognise-men-can-be-raped-too (last visited Apr 14, 2020).

[2] Owen Jones, Male rape survivors suffer in silence. We need to help them talk | Owen Jones, The Guardian, January 16, 2020, https://www.theguardian.com/commentisfree/2020/jan/16/male-rape-victims-sexual-abuse-support (last visited Apr 14, 2020).

[3] Id.

[4] (PDF) The scope of male rape: A selective review of research, policy and practice, ResearchGate, https://www.researchgate.net/publication/317729028_The_scope_of_male_rape_A_selective_review_of_research_policy_and_practice (last visited Apr 14, 2020).

[5] Id.

[6] Id.

[7] Jones, supra note 2.

[8] (PDF) The scope of male rape, supra note 4.

[9] Indian Penal Code 1860, Sec 375.

[10] Indian Penal Code 1860, Sec 377.

[11] Gazala Parveen, “Ought The Rape/Sexual Assault Law In India Be Gender-Neutral?, iPleaders (2019), https://blog.ipleaders.in/rape-sexual-assault-law-india-gender-neutral/ (last visited Apr 14, 2020).

[12] Aneesha Mathur New Delhi July 13, 2019UPDATED: July 13 & 2019 23:44 Ist, Bill to make sexual crimes gender neutral introduced in Parliament, India Today, https://www.indiatoday.in/india/story/bill-to-make-sexual-crimes-gender-neutral-introduced-in-parliament-1568504-2019-07-13 (last visited Apr 14, 2020).

[13] Rituparna Chatterjee, “The mindset is that boys are not raped”: India ends silence on male sex abuse, The Guardian, May 23, 2018, https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala (last visited Apr 14, 2020).

[14] Patrizia Riccardi, Male Rape: The Silent Victim and the Gender of the Listener, 12 Prim. Care Companion J. Clin. Psychiatry (2010), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3067991/ (last visited Apr 14, 2020).

[15] Dhananjay Mahapatra | TNN | Dec 24, 2006, & 23:11 Ist, Rape, sodomy equal before law? | India News- Times of India, The Times of India, https://timesofindia.indiatimes.com/india/Rape-sodomy-equal-before-law/articleshow/915960.cms (last visited Apr 14, 2020).

[16] Constitution of India 1950, Article 14.

[17] Constitution of India 1950, Article 15.

[18] DelhiJuly 13, July 13, and Ist, supra note 12.

[19] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37 Econ. Polit. Wkly. 844–847 (2002), https://www.jstor.org/stable/4411809 (last visited Apr 14, 2020).

[20] ccl nluj, The Criminal Law (Amendment) Bill, 2019 and Gender-Neutral Sexual Offences in India, The Criminal law Blog (2020), https://criminallawstudiesnluj.wordpress.com/2020/03/27/the-criminal-law-amendment-bill-2019-and-gender-neutral-sexual-offences-in-india/ (last visited Apr 14, 2020).

[21] DelhiJuly 13, July 13, and Ist, supra note 12.

[22] ccl nluj, supra note 20.

[23] Bill in Parliament to make sexual crimes gender-neutral: Read full text | India News- Times of India, https://timesofindia.indiatimes.com/india/kts-tulsi-introduces-bill-in-rajya-sabha-to-make-sexual-crimes-gender-neutral-full-text-of-the-bill/articleshow/70202016.cms (last visited Apr 14, 2020).

[24] Parveen, supra note 11.