This article is written by Harmanpreet Kaur, of Amity University Kolkata. This article focuses on the various rape legislation enacted and introduced for the protection of women. This article also talks about why there should be recognition of male rape legislation.
Rape is the fourth most common type of heinous crime committed in India. It is the crime, in which the victim instead of being sympathized is socially ostracized and morally degraded with a lifelong stigma on her dignity and character, affecting her physical and mental health. Despite various stringent laws and legislations, there has been no reduction in the cases of rape. According to National Crime Bureau’s 2020 report; there was an average of 87 rape cases daily and about 4- 5 lakh cases of rape in an annual year. The prevailing societal norms have always been blaming the victim for the crime committed and not the perpetrator. Recently, there have been various instances and cases, where there was reported violence on men. This article will focus on the various legislations of rape outlined for the protection of women, and the necessity for recognizing the laws and legislation for the protection of men from rape and violence. It was observed by the Guhawati High Court in the case of Nipun Saxena v Union of India, 2018 that “Rape is a crime against the basic human rights and the violation of victim’s Fundamental Rights’’.
Legislation of rape for women – An overview
“of late, crime against women in general and rape, in particular, is on the increase….Rape is not merely a physical assault- it is often destructive of the whole personality of his victim. A murderer destroys the physical body of the victim; a rapist degrades the very soul of the helpless female. The courts, therefore shoulder a great responsibility while trying an accused on the charges of rape” – Justice Arjit Pasayat, in the State Of Punjab v Gurmit Singh & Ors, 1996.
Women have been the victims of rape for centuries now; it is a violation of the personal space of a woman. If looked upon the statistics on the rape against women, the National Crime Bureau Records state that uniformly almost 75 percent of rapists are married men; 86 percent of women do not feel safe and secure in their respective cities and three out of every 10 rapists are either friends or relatives. According to the report published by the World Health Organization, every 4 minutes a woman is raped in India, whereas as per the Center for Development of women’s studies, 42 women are raped in India every 35 minutes.
The word ‘rape’ is derived from the Latin word ’rapio’ meaning ‘to seize’. It can be defined as the ravishment of women without their consent, by force, fear, or fraud.
Numerous laws were made and introduced by the legislature to punish the wrongdoer, who committed the offense of rape. Various laws introduced by the Legislature in the Indian Penal Code are as follows :
Section – 375 defines the term ’rape’. It states that “man is said to commit “rape” if he-
- Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
- Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
- Manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions”.
In other words, a man is said to commit the offense of rape if there is an unconsented penetration of any object or any body part into the vagina, urethra, and anus or any body part of a woman, without her consent and will.
Section- 376 states that if a person commits the offense of rape, then he shall be liable to punishment with scrupulous life imprisonment for a term which should not be less than seven years, and may even extend to life imprisonment, and shall also be liable for fine.
Section – 376 D defines the offense of ‘Gang Rape’ It states that when two or more persons in a group rape a woman with the same common intention of causing any kind of physical injury and hurt to the woman, are liable for the offense of rape. The offense of Gang Rape was criminalized by the Judiciary in the Criminal Amendment Act, 2013.
The persons committing the offense of ‘Gang Rape’ shall be liable with the punishment for a term of twenty years, extending to life imprisonment with the fine.
Section – 376 (2) defines the offense of “Custodial Rape”. It states that if any person, who is in a position of authority or any fiduciary relationship, a public servant, superintendent, or a jail manager or any hospital in the governmental centres or police custody commits the offense of rape on any women, shall be prosecuted under the offense of custodial rape. Any person committing the offense of custodial rape shall be punished with imprisonment for a term of 5years, extending to 10 years.
Marital Rape has not been criminalized under the Indian Penal Code this crime has been mentioned under the exceptions of rape. It states that if a man is engaged in sexual intercourse with his wife, not being under the age of 15 years, shall not be liable for rape.
Marital rape should be criminalized, and if a woman does not consent to sexual intercourse with his husband, and a man uses any kind of force and threat upon her, then he shall be liable for the offense of Marital Rape. The following misfeasance has been criminalized in the US, Sweden, Denmark, Australia, and the UK.
Tuka Ram v State of Maharashtra, 1979
In this case, a young girl named Mathura was called to the police station on an abduction report filed by her brother at the Desai Gunj Police station. When Mathura and her father were about to leave the police station, Mathura was kept back at the police station in the late hours and was raped by the police constables on March 26th, 1972, committing the offense of custodial rape.
The case was taken to the Sessions Court by the victim and her family, but the Judge pronounced the judgment in the favor of the accused and acquitted him of all the charges of rape, on the justification of tacit consent. The case was then taken to the Bombay High Court and the court contended the judgment of the Sessions Court and held the police constables guilty for the offense of rape. However, the Supreme Court reversed the judgment of the High Court and stated that since there were no marks of injury on the person, showed that the whole affair was a peaceful one, and acquitted the accused.
The judgment by the Supreme Court was widely criticized both inside and outside the Parliament, and there were huge protests in the nation. Consequently, the decision of the Supreme Court was nullified and the accused were held guilty of the offense of rape. The Mathura rape case brought some developments in the rape legislation. The developments made were:
- It enacted Section 114 A of the Indian Evidence Act stating that the presumption should be vested on the victim as to the aspect of consent.
- The offense of custodial rape was criminalized.
- The idea of the burden of proof was amended, stating that it would depend on the prosecution.
- It introduced Section- 228 A in the Indian Penal Code, prohibiting revealing and publish the identity of the victim in rape cases.
Nirbhaya Rape Case (Mukesh v. State NCT of Delhi), 2012
In this case, a woman was brutally raped repeatedly by five men and a juvenile on the night of 12th December 2012 in a bus. The rape created a lot of public outrage outside the parliament in order to grant justice to the victim. The four adults were sentenced to death, and a juvenile was sent to the juvenile center. After this case, the Indian Criminal law underwent multifaceted changes and various amendments were made to the rape laws, namely:
- The death sentence was made legalized.
- Gang rape was introduced and recognized as a criminal offense.
- The term consent was given a wider meaning and connotation under Section 375 of the Indian Penal Code.
Designing the Rape Laws for Men – An overview
The societal norms have a huge impact on the people, and due to this reason, people are of the view that the offense of rape can only be committed on a woman, holding a man liable to be a perpetrator of the heinous and brutal crime, and the woman as a victim. The legal provisions in India also do not criminalize the offense of male rape, thereby increasing the risks of violence upon the males.
There are a few societal myths regarding the male victims of rape, some of them are:
- Society is of the perception that in accordance with the masculine gender socialization, a man holds a dominant power in the society and is not vulnerable, thereby rapes on the male are not possible.
- It is also said that a man is not subjected to sexual assault because of the reasons that they are always in desire of sexual activities, or that they are very less subjected to the traumatization and the disturbance than the female abuse.
In the report published by the US Statista Research Centre, in December 2020, it was shown and reported that approximately 52,336 cases are registered, where men were raped or sexually assaulted among the countries in the world, thereby increasing the risk of male vulnerability.
It is thus required that the laws should be redesigned in order to protect innocent men from sexual assaults, violence, and rapes.
- The definition of rape under Section 375 should be amended and given a wider meaning as to the definition should include both man and woman as the primary victims of the offense of rape.
- The Legislation should recognize the crimes and laws related to man, and should also introduce various stringent laws for man.
- There should be setting up various NGOs and organizations, that would determine and take in its assistance the offense of rape for man, so that man is able to report any kind of violence committed on them.
- There is a need for gender-neutral laws in the society that would protect both men and women and also homosexuals from any kind of offense most commonly that of rape. This also is an essential element for the concept of equality under Article 14 of the Constitution.
- Male rapes should be recognized as a crime internationally and nationally, in accordance with the basic human rights as guaranteed under the United Nations Organization.
There are various instances where the males have actually spoken about the assaults and the rapes committed on them. The actor Rahul Raj has expressed that he was sexually abused verbally when 19. Internationally, an actor and activist named Asia Argento was accused of sexually assaulting a male actor, Jimmy Bennet, when he was 17.
It is thus required that the laws should be redesigned in order to protect innocent men from sexual assaults, violence, and rapes.
Suggestions for streamlining the Rape Laws
There are several suggestions or guidelines that should be prescribed for modernizing the rape laws:
- The anachronistic rape law should be redefined in terms of English law, which under Section 1 of the Sexual Offenses Act, 2003 makes both man and woman subject to rape.
- Consensual homosexuality between persons of 18 years or above should be legalized.
- The government should take appropriate and relevant measures in order to prevent the loss of vital forensic evidence in rape cases.
- There should be a provision made in the legislation for the requirement of a specialized second opinion as it happens in the UK before a decision is taken in the rape cases.
- Nowadays, there are various false complaints filed by women in order to create unnecessary harassment to the men or to seek revenge from them. The government should only take legal steps of arrest and detention when the authorities are justly convinced of the crime thus committed.
- There should not be a delay in pronouncing the judgment in rape cases.
- The proper kind of counselling should be provided to the rape victims so as to foster confidence in them and initiate action immediately without delay.
Grounds where male and female rape legislations should differ
There is a gender disparity in the rape laws. There are legal provisions that are only subjected to female rape cases, and in this process, the male rape cases either go unregistered or are not informed about the same to the police station. So there is a need for gender-neutral laws in the society that should be promulgated by the government and the legislative bodies in order to keep in pace the developments made in the society and also that the Constitutional mandates and legislations are not breached, which provide equality for both men and women.
The PIL for the gender-neutral laws was filed by the NGO named Criminal Justice Society of India by Advocate Ashima Mandla stating the contention to legalize gender-neutral laws in the context of rape, contending that the definition of ‘rape’ under Section 375 of the Indian Penal Code violates the basic Constitutional rights under Article- 14, Article-15, and Article- 21, as it does not provide protection for rape of men and transgender person and is thus held ultra vires and discriminatory on the Constitutional means. The Supreme Court however has rejected the plea of the NGO, stating that it does not fall within the jurisdiction of the court to make gender-neutral laws, and the power and the authority are only given to the Parliament for the same. Thus, there should be an introduction of gender-neutral laws in order to protect both men and women from the clutches of this horrendous crime of rape.
Thus, it can be concluded by saying that rape has become a culture among the masses, whether it’s upon the male, female, and transgenders. The parliament and the judiciary should not be always blamed upon the rate of the crime committed, because the legislative bodies are taking appropriate measures with advancing times and technologies to make stringent laws and legislations for the offenses of rape. However, it should take steps for the introduction of gender-neutral laws and legislations, so that there is no form of gender discrimination in society.
- Textbook on Indian Penal Code, sixth edition, KD Gaur., 2019
- Law relating to women and children, fourth edition, Mamta Rao, 2019
- Criminal Manual- Justice Khastgir, 2019
- The Constitution of India, 1950.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: