This article has been written by Adv. Nikunj Kulshreshtha and updated by Kalyani Pandey, a student of Dharmashastra National Law University, Jabalpur.

Introduction

“It is better that ten guilty persons escape then one innocent suffer”- Sir William Blackstone[i]

On this quote, rests the entire foundation of common law based criminal law. The rationale behind this principle is that the suffering of an innocent person hurts the cause of society by breaking the faith of humanity in the rule of law.

The purpose of this dissertation is to discuss whether we need gender-neutrality in the framing of laws related to rape and sexual assault in India.  The historical legal position in India as well as in the rest of the world has focused on women as victims and men as perpetrators when it comes to a rape offence. Rape of a male instead has remained a sensitive issue for a long time and the existence of a patriarchal society has hindered its recognition by society as well as the criminal justice system. This is in spite of the fact that sodomy of males by men as war crimes have been documented in world history since time immemorial.[ii]

The advent of feminism and rising female empowerment has also led to the recognition that a growing number of women have been found guilty of violating the sexual autonomy of men. Moreover, with the acceptance of homosexuality as a natural sexual orientation, there is increasing concern on converting the gendered law on rape into a gender-neutral one.[iii] There is no denying that a large number of victims of rape are women; however, crime statistics are increasingly reflecting a rise in rape crimes against men. The Bureau of Justice Statistics under the US Department of Justice revealed in its 2003 report that 9% of the total sexual assault and rape victims are men.^[iv] The Ministry of Justice in the UK released a report in 2013 that in the previous year approximately 85000 women and 12000 men were raped.^[v] This can be partially attributed to the change in statutory law in the US and the UK as well the growing recognition of male sexual victimisation globally. Despite such significant numbers, male rape remains unrecognised in the largest democracy of the world.

This dissertation aims to address the lacunae that exist in the current laws on rape and sexual assaults and the various issues impacting them, in the backdrop of rising recognition of sexual crimes against men. Further, the essay will dwell upon whether amending the rape law into a gender-neutral one will help the fight against sexual violence effectively. The methodology in the research would predominantly be doctrinal and theoretical where relevant scholarly literature will be engaged with, to answer the research question. Simultaneously, we will be analysing the jurisprudence and relevant judicial precedents across India, the UK and the USA for the purposes of determining the interpretation of courts.

We will begin the dissertation with an assessment of the contemporary position of rape laws in India and in the United Kingdom. The reason for selecting the UK along with India is that the UK legal position holds a lot of persuasive value in Indian courts. The Indian law on rape has been largely female centric. An exception to this is the sodomy law under section 377 of the IPC which criminalises acts against the order of nature through penetration. This section was largely used by police forces to harass sexual minorities in India since it targeted consensual acts as well.[vi] However, the provision was decriminalised to the extent of consensual acts by the Supreme Court in 2018.[vii] The legal position in the UK, on the other hand, has changed since 1994, when the Criminal Justice and Public Order Act was introduced. We will assess the reasons for the change and/or the status quo of the contemporary position. We will then critically analyse the interconnected issues surrounding male rape, such as patriarchy, male experience of sexual assault, and phallus-centric framing of laws.

When we look at patriarchy, we will determine how the socio-cultural fabric of India, while placing men as the head of the family, hinders the recognition of male rape. There exists a stereotypical notion of men that they are too strong to be subdued, whereas the likelihood of being raped centres around the idea that the victim is weak. This notion prevents the male victim from seeking legal recourse due to the likelihood of an embarrassment. For the purposes of determining the same we will engage in theoretical analysis of relevant academic literature.

Next, we will consider how bodily responses to sexual stimulation lead to presumption of consent in sexual assault cases. An engorged penis is often assumed as an indicator of consent on behalf of men, this assumption is as erroneous as the presumption of consent on behalf of women in case she has vaginal lubrication during the assault. We will examine specialised literature relating to medical science which assert that human control on physiological reactions such as responses to sexual stimulation through engorgement of penis or lubrication of vagina occur even when one does not consciously consent to the act.

We will then look at how certain civil society movements such as those of radical feminists protest against gender-neutrality in rape law.[viii] Radical Feminists such as Florence Rush, Catherine Mackinnon and Christine Boyle consider gender-neutrality as a backlash against the feminist movement and that its inclusion would result in degradation of women`s rights. This is ironical, considering that renowned feminists such as Susan Brownmiller[ix] and Rosemarie Tong have long supported the recognition of male rape.

Once we have engaged with the issues surrounding the lack of gender-neutral laws, we will move on to assessing the need for gender-neutrality in the law. This will be done firstly by analysing the principle of equality under Article 15 of the Indian Constitution which prohibits the state from discriminating between citizens on the grounds of religion, race, caste, sex, and place of birth. There are certain special provisions for women and children, but these were framed keeping in mind the socio-economic circumstances in the 1950`s.[x] In the 21^st century, with the increasing empowerment of women in society, many of these relaxations may seem anachronous.  We would then try to argue why gender-neutral laws are necessary to prevent undermining of the existing women-centric laws. The lack of recognition of male rape coupled with malicious use of existing laws can potentially lead to dilution of the existing law as it happened in the case of section 489A[xi], which undermined the recognition of sexual violence itself.

We would conclude by proposing possible solutions for inclusion of all genders in the fight against sexual violence. This can be achieved by framing sexual violence statutes which account for all kinds of sexual assault rather than adhering to the traditional phallus-centric law. There is also a need to conduct gender sensitisation programmes for the entire society especially for the law enforcement machinery be it the judiciary, police officials, or legislators, which would take sustained time, money and efforts. We would finally end the dissertation by assessing the case for converting the present rape law in India into a gender-neutral one.

Laws which are not gender-neutral

India before independence was mainly a male-dominated patriarchal society where women were there in society to support men. There was wide inequality in areas of social, political, educational, with respect to women, but this mindset changed when women participated in the freedom struggle imparting equal efforts similar to men. When India got independence, the Constitution was formulated in such a way to provide equal rights to both men and women. Various provisions have been enacted for women to bring them to par with men, and also to weaken the roots of patriarchal society. Articles in the Indian constitution, Sections in IPC, and some other specific legislation are formulated to uplift the status of women. This legal framework helped in the advancement of women. Since society shifted towards feminism which aimed for the betterment of every section of society but this concept is being misinterpreted considering it as a step for the betterment of only one gender. Due to misinterpretation of this concept of feminism, the legislation made failed to adopt a practical approach to uplift every section of society. Hence, as a result, specific legislation is made for the protection of women only, but no particular legislation for men to protect them against sexual crime. 

Section 375 of IPC, 1860: This section provides the definition of rape starting with a word a man is said to commit rape has sexual intercourse with a woman considering that rape can only be committed by man against woman. This section has been amended many times but still, it is attached with old thought where the victim will always be women and the perpetrator will always be men. Earlier, this section considered rape only to the act of sexual intercourse but due to occurrence of the several heinous crimes in the country, it has been amended to extend its scope. In the case of Sakshi v Union of India, the Supreme Court directed the Law Commission to consider this issue, and as a result, the 172nd Law Commission released their report. The report recommended making the rape laws unbiased and suggested changes to IPC, CrPC, Indian Evidence Act, and also in the POCSO Act. This report extended the scope of constituting an offence of rape by clarifying that lack of physical resistance is irrelevant to consider it as a rape. This report also extended the scope of Section 376 of IPC by including members of the army, relatives, guardian, or any person who will be in a position of trust or if rape committed during communal violence and rape of a woman less than 16 years of age will also become under the ambit of section 376. Later on, the Criminal Law Amendment Act, 2013 enacted by Parliament including suggestions of J.S.Verma Committee. But, the recommendation of the committee to make rape laws gender-neutral and it has not incorporated in Criminal Law Amendment Act, 2013 making the Act again gender-specific only protecting the interest of women not of men and transgender.

Recommendation of J.S.Verma committee report rejected: It was rejected because of notion in the society that female cannot commit a rape of a man and man can never become the victim of rape or any sexual crime. On the contrary, there was a survey conducted which reported that the out of 28.6% of men who are sufferers of sexual assault, 54.8% of females was reported as the perpetrator. Another survey conducted by PUCL Karnataka reported that transgender community and man also becomes a victim of rape. It was found in their report that among the college’s students 10.5% men were raped and 10.5% men suffered from an attempt to rape. A survey conducted by the Centre for Disease Control and Prevention in which 67.4% of females were reported as perpetrators of sexual assault. This shows that men are also the sufferers of sexual crimes but due to the notion of society, they are not getting remedy against sexual crimes. In the case of Priya Patel v State of Madhya Pradesh women was accused of gang rape, but the court denied by stating that “women cannot be said to have an intention to commit rape.” Similarly, there are many cases being registered in Police stations as well but due to this old mindset, these cases are not taken seriously. Due to the advancement of society and women are also becoming equal to men nowadays there is a need to make laws gender-neutral providing equal protection to everyone. There is no single legislation to redress the grievances of man and hence stands violative of Right to Equality stipulated under the Indian Constitution.

Sexual harassment laws: These laws are also gender-specific. The Sexual Harassment of Woman at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 protects only women from sexual harassment at the Workplace. Under this Act, employee includes every female who is working with the workplace for the purpose to earn remuneration for the temporary period or permanent. Under this Act, if any men will be aggrieved party then he will not be covered under the scope of this law. Even though, sexual harassment cases against men is a reality which has been taken very lightly in our society and every complaint is considered as a false claim, and always put under the carpet. Sexual harassment at the workplace can occur with anyone, and it is more about the authority or any person sitting superior to you. A person who is working under anyone can be harassed easily in the workplace irrespective of their gender. There are several incidences where a man is sexually harassed by his female employee who is working superior to him but these cases are not reported and the man is not being heard. So, this law should also be amended to provide a remedy to men and a transgender section of society as well at the workplace. There is no legal provision for the protection of male and transgender counterparts against sexual harassment. The only recourse for them, the relief they can get from the Sexual harassment policy at workplaces. Due to this lack of any legal recourse, several crimes get muffled and mindset in the society that the men never become a victim of sexual offences will not drive away from society. 

Section 47 of The Code of Criminal Procedure 1973: This section provides the power to police to enter into the residence of any person or break when they have a reasonable belief that the person to whom they have to arrest has entered or is within that residence or place. But, this section has an exception in it; that if the place of residence is of a woman who does not appear in public following their customs then the police is duty-bound to give prior notice to withdraw from that place before entering or breaking that residence. This depicts that this section is gender-biased because men are not given prior notice similar to women, and hence Right to the privacy of men gets infringed. According to the judgment given in K.S. Puttaswamy v. Union of India, Right to Privacy is a fundamental right of every citizen. This section needs amendment to respect the privacy of men as well and Right to Privacy of men should also be protected. Any person residing inside their home has complete freedom to do anything except which is against the law, they can enjoy privacy without any interruption. If any man will be arrested by the police just based on reasonable belief without giving prior notice before entering into his/her house then his Right to privacy will be infringed. Hence, the word “person” should be introduced in this section to include everyone man, woman and transgender to respect their right to privacy and gender-neutrality can also be maintained.

The occurrence of Sexual Violence in some special situations: Sexual violence in some special situations such as war, communal conflicts, and prisons occurred irrespective of gender identities. These cases of sexual violence show that identities of religion, caste becomes the dominant irrespective of their gender. During Khairlanji massacre in Maharashtra where four members of households including mother, daughter and two sons were dragged out of their home, women were being gang-raped and two brothers were asked to rape their sisters, but on a refusal, their penises were being cut off. Women also found to be the active perpetrators of sexual assault in communal riots such as, during Gujarat riots in the year 2002 Gujarati women were found to be an active partner in serious crimes against Muslim community. Condition of under-trial prisoners is worse, homosexual gang rapes are common in Indian prisons. Example of this case can be seen that one of the accused Ram Singh of Nirbhaya gang-rape who was hanging in prison claimed that other male prisoners raped him. Male Rape and Human Rights study of Lara Stemple observed that male suffered the sexual violence during the times of war in countries such as Chile, Greece, Croatia, Iran, Kuwait, the former Soviet Union and the former Yugoslavia. This study shows that apart from females, male counterparts are also the sufferer of sexual violence and hence protection should be given to them.

Importance of gender-neutral harassment laws

Legislations are being framed to protect the rights bestowed to individuals but here in the present scenario, there are so many existing legal provisions which are women-specific. So, due to change in society, there is a need to protect men as well as under the Constitution of India they also have equal right to get protection. Indian constitution granted the Right to equality which states that everyone should get equal rights. Nobody should be discriminated on the basis of sex, gender, religion, place of birth, etc, but we don’t have legislation to hear and redress the grievances of sexual harassment against men stands violative articles of Indian constitution. So, to maintain constitution validity and give equality to every section of society there is a need to make laws gender-neutral. 

The fact of today’s situation depicts that society is shifting from patriarchal society. Also, the two-section of society Men and Transgender are being ignored so to maintain the constitutional rights legislations have to be re-analyzed. With the advancement of the socio-legal framework in India, there is a need to acknowledge the rights of men, transgender and LGBTQ community. As we have seen that to protect some rights of Transgender Government has passed the Transgender Persons (Protection of Rights) Bill, 2019, similarly other laws need to be analyzed to make them gender-neutral.

The most important customary international law Universal Declaration of Human Rights (UDHR) declares everyone is entitled to all freedom and rights which are enshrined in the declaration without any distinction on any ground including sex. UDHR states that every person is equal before the law and entitled to receive equal protection from the law without any differentiation. Article 8 of UDHR states that every person has a right to avail remedy from the national tribunal in case of violation of any law or fundamental rights. These international laws using gender-neutral language contends for uniform implementation of the law. Article 2 especially contends that laws should be formulated which are gender-neutral.

Importance of gender-neutral laws has been also identified in the 172nd Law Commission Report stated above. Justice Verma Committee formed in 2012, favoured the gender-neutral laws, and there were some other sections like stalking, voyeurism, has been added in Indian Penal Code. The Gazette of India published the Criminal Law (Amendment) Ordinance 2013 containing the view of the committee. But, later on, this ordinance was repealed and replaced by the Criminal Law (Amendment) Act 2013 which is again gender-specific.

So, development in society has many times reflected that there is a need for gender-neutral laws but major steps have not been taken yet. The Union government has taken one step to make laws gender-neutral. KTS Tulsi, Parliamentarian and Senior Lawyer introduced a private member’s bill before Rajya Sabha in July 2019 to make the sexual offences laws gender-neutral. In that bill, he proposed that the word, ‘man’ and ‘woman’ should be replaced with ‘any person’ so that anyone who is sexually harassed can seek remedies under criminal laws. By including the word any person will include transgender also since they are not an exception they can also be sexually harassed by someone. So, if this bill will come out as an Act then it will help other sections of society to seek a remedy.

Contemporary Laws on Rape

India

Historically, rape as an offence has been recognised as female centric worldwide, and particularly in India. The Indian law on rape defined under section 375, speaks of only man as the perpetrator.[xii] Even sexual offences such as stalking, voyeurism, and sexual harassment refer solely to men as perpetrators. The only exception to the female centric laws, is the sodomy law under section 377 of the IPC. The section criminalised acts against the order of nature through penetration, even if it was consensual. This offence was a major hindrance in the recognition of homosexuality rights in India and was used by police forces to harass sexual minorities.[xiii] However, the provision was decriminalised to the extent of consensual acts by the Hon`ble Supreme Court in 2018.[xiv]

The laws regarding rape in India have been shaped largely by three specific incidents of rapes committed on women by men, which shocked the conscience of the common man and garnered nationwide attention. The first rape occurred in 1971, when a police constable raped a tribal girl in the police station and was later acquitted by the Supreme Court, presuming consent on the part of the victim since she did not raise any cries for help.[xv] The decision of the Indian Supreme Court was widely criticised and this resulted in the government amending the rape law and Evidence Act to presume no consent on the part of the woman if she says so once the factum of intercourse has been established.[xvi]

The second rape occurred in 1992 where a village woman, who was working as a social worker against child marriage, thwarted the plan of a few ‘upper caste’ men from her village to conduct a child marriage. Enraged by the audacity of the ‘lower caste’ woman, she was gang-raped in front of her husband by five men. This was followed by an apathetic treatment meted out to her by police officials and government doctors. To add insult to her injuries, the accused men were acquitted by the trial court citing complete disbelief in the story of the victim. The reasoning of the trial judge reeked of patriarchy and misogyny, who gave absurd reasoning such as: “A nephew wouldn’t rape a woman in front of his own uncle or that upper caste men would not rape a lower caste woman.” This decision led to widespread protests across the country and also resulted in an NGO “Vishakha” filing a PIL for preventing sexual harassment of women at the workplace.[xvii] Subsequently, the Supreme Court framed guidelines for preventing sexual harassment at workplace which were framed by the government as statutory law in 2013.[xviii]

The third rape took place in 2012, when a student of physiotherapy was brutally gang raped by six men including a juvenile, in a moving bus, and who later died from the injuries. The case garnered international attention and led to massive protests nationwide. It resulted in successful conviction of all the defendants whose death penalty was confirmed by the Hon`ble Supreme Court.[xix] The government immediately formed a three-member Committee to recommend changes in the laws relating to sexual offences committed on women, which ultimately formed part of the Criminal Law Amendment Act, 2013.[xx] The revised legislation now defined various kinds of rapes such as gang rape[xxi], and rape by person in fiduciary position.[xxii] The definition of rape was also extended to include oral and digital rape apart from the traditional penetration. Further, women are now being prosecuted for being an accomplice in a gang rape.[xxiii]

The Act provided for stricter punishments for the offences, and introduced new offences of stalking[xxiv], sexual harassment[xxv] and voyeurism[xxvi]. Certain changes were made in the Evidence Act as well. The law regarding juvenility was also amended to charge boys above the age of 16 with rape and other heinous offences, despite there not being adequate evidence of youth offenders committing such crimes in the past.[xxvii] However, the perpetrator in each of the above offences were men. Despite the committee recommending that at least certain offences like stalking, sexual harassment, and voyeurism should be made gender-neutral, the government disregarded the suggestion. Recently, in a forensic guide published for criminal investigators issued by the NICFS, the part on how to deal with sex offences is articulated by taking only female victims into account.[xxviii]

Thus, with regard to the legal position in India, it can be reasonably said that the existing law is highly skewed against recognition of any form of rape except the one than can be committed by males on females only.

United Kingdom

English Law traditionally recognised the widely established form of male-on-female rape via penetration only. The Criminal Law Revision Committee (CLRC) in the 15^th Report on Sexual Offences was unanimously of the view that the definition of rape should remain as penile penetration of the vagina.[xxix] Though some members of the committee preferred expansion of the offence to favour a gender-neutral approach covering a wide range of penetrative acts, it was finally decided to keep the definition limited to non-consensual vaginal penetration by the penis.[xxx] Any form of integration between rape, indecent assault and buggery was largely opposed.[xxxi] The rationale for the same was that majority of perpetrators of rape were men and the law needed to reflect the same, however, women could be charged as accomplices.[xxxii] Moreover, public perception of the crime was also on those lines. While framing the Criminal Justice and Public Order Act, 1994, male rape was recognised only to the extent that a male could rape another male through anal penetration.[xxxiii]

Subsequently in 1999, the home office set up a review committee to update the law on sexual offences which culminated into a report known as ‘Setting the Boundaries’.[xxxiv] The report substantiated the reasons for keeping the definition of rape law restricted, and was reproduced under the new Sexual Offences Act, 2003. The reasoning for a restricted definition given was that the risk of disease transmission and pregnancy originates from penetration by penis, and the fact that majority of such crimes were being committed by men.[xxxv] However, this rationale appears weak considering the apparent lacunae pointed out by Jennifer Temkin that neither CLRC nor SOR made any attempt to determine public views through the means of referendum, survey or research.[xxxvi] Even today, females in the United Kingdom cannot be legally charged with rape of males, they can only be charged for sexual assault, assault by penetration[xxxvii] or causing sexual activity without consent[xxxviii]. The differentiation is that while rape carries a term of life imprisonment, all offences with which females can be charged can result only in a maximum sentence of 10 years.

Thus, while there have been certain developments in the UK with regard to male-on-male rape through anal penetration, female-on-male rape is not yet recognised. Laws in the jurisdictions of Canada, all states of Australia, the Republic of Ireland, Finland, Sweden and most states of the USA have framed gender-neutral rape laws. We will now analyse the various reasons for not recognising female on male rape.

Critical analysis of the issues surrounding male rape

Patriarchy

Patriarchy is a system of society where the male lineage is considered primary for succession and leading the family. Indian society is essentially a patriarchal society where men are expected to behave and perceive emotions in a preconceived manner. Deviating from this norm invites ridicule and social ostracization from other males. This, perhaps is the reason why most men even if they support gender equality, fail to follow it in the true spirit due to societal and peer pressures. Not only does this lead to issues of gender inequality, but men themselves also suffer the negative effects. One of the ways in which a patriarchal society affects men is that they are expected to be interested in sexual intercourse all the time and the concept of consent for male is presumed non-existent.

Research conducted with college students in 1988 concluded that both men and women often face a lot of unwanted coerced sexual activity.[xxxix] The study reflected on the fact that men themselves feel pressured to have sex due to society`s internalised standards regarding male behaviour. A man never refuses a woman`s advances, for fear of not being considered a “real man” or worse still, he may even be perceived as gay. Patriarchy asserts a lot of pressure on men to have sexual experiences and considers virginity a sign of failure. The most common reason for sexual coercion among men is the belief amongst the opposite sex that “Men are out for only one thing”. Zilbergeld, in his book published in 1978, determined that one of the consequences of such male stereotypes is that men often felt sex as a burden imposed upon them.[xl] Expectations of being able to achieve erection with anyone, anywhere, anytime and failure to achieve the same created a self-fulfilling prophecy that men are meant to have no sexual autonomy.

In another research consisting of two studies conducted on the prevalence and impact of non-consensual sexual interactions with women revealed that even when men acknowledged that they had been violated, the feeling of negative emotions was not too strong.[xli] This was because acknowledging their inability to stop a woman`s sexual coercion posed a threat to their self-esteem, ultimately resulting in denial or underestimation of any negative psychological impact it may have on them. In both the studies, taking undue advantage of a man`s inability to offer resistance due to intoxication was frequently reported as an aggressive strategy in comparison to non-aggressive methods such as verbal coercion. This study leads us to the conclusion that men also often feel coerced into unwanted sexual experiences. 

Patricia Novotny, in her article, points out the contradiction in the contemporary definition of gender-neutrality.[xlii] It is no longer news if women practise law, drive trucks, shave their heads or play sports; but if men start to exhibit feminine characteristics, it becomes difficult for them to be accepted by the society. Men who buy groceries are given hard stares, and contributing to domestic work brings ridicule from a man`s peers. Thus, gender-neutrality brings masculinity to everyone irrespective of the gender. This idea makes women more assertive in sexual relationships but the downside remains that men may not always be interested in sex and if they engage in it reluctantly, they may end up hurting themselves.

Further, it is argued that a lot of women also support patriarchy. This can be explained by the concept of ‘paternalistic dominance’ coined by Kamla Bhasin in her book on patriarchy.[xliii] Bhasin contends that slavery survived for centuries through the tacit cooperation of slaves themselves. The British East India company ruled India for two centuries by employing local Indians as civil servants, policemen and soldiers. Similarly, “cooperation from women in engagement for general and systemic oppression of women is achieved through various means like gender indoctrination, educational deprivation, by defining respectability and deviance according to women’s sexual activities, by restraints and outright coercion, by discrimination in access to economic resources and political power, and by awarding class privileges to conforming women.”

Thus, by playing one woman against the other, patriarchy ensures that their individual power is never threatened. It was kind of an implicit understanding where men would share power with women, under their tutelage, to exploit women and men of lower caste. In order to retain these privileges, women are constantly renegotiating their bargaining powers even at the cost of other women.[xliv] This arrangement was described quite graphically to the author by a rural woman. She said that in our society, men are like the sun with all resources such as financial, mobility and the freedom to take decisions whereas women are like satellites without any light of their own. They only shine when they are close to the sun and this induces constant competition with other women to have a bigger share of resources. Without the sun (man) the woman`s life would be barren, dark and end quickly.[xlv]

From the above researches and studies, one can deduce that patriarchy and its notions regarding male behaviour seems to be a clear roadblock in incorporating gender-neutrality in sexual offences.

Do Men Experience Sexual Assault differently?

It is generally argued by critics of gender-neutrality in rape law that men react differently to sexual assaults than women and therefore keeping male standards and reactions in events of rape would put women at a disadvantage. Radical feminists like Patricia Novotny[xlvi] and Joan McGregor[xlvii] have repeatedly asserted that introducing gender-neutrality in rape law would be detrimental to the interest of women`s rights. However, no evidence whether empirical or theoretical, regarding perceived male behaviour in such sexual assaults have been adduced by these critics. Janet Halley, a legal scholar and a self-described feminist, noted in her book that ignoring harms caused to men is a steady theme in the writings of several feminist groups, particularly radical ones.[xlviii]

Contrary to their reasoning, numerous studies have reported that men react in the same helpless manner to such attacks as women. A study conducted in 1989 by two American researchers brought forth the idea that men reacted in a similar manner to women in cases of sexual assault.[xlix] Many characteristics of the victim, nature and reactions to the assault were similar to women victims. Most of the victims reacted with frozen helplessness and passive submission to the attacker due to being overwhelmed with fear. However, men, after the attack found it difficult to report to public authorities due to reasons like fear of being branded as weak or as liars, and politicisation of rape as solely a feminist issue.

Since the 1980s, there has been a growing number of researches in the field of unwanted sexual experiences by men. One such research indicates that women employ similar sexual coercion tactics such as seduction of unwilling partners, physical force, use of intoxicating substances, and even emotional manipulation.[l] The study concluded, by adding to the growing body of evidence, that women are no different from men in terms of the range of tactics employed to engage in coercive sexual activity. The study also indicated that prior sexual abuse did play some role in motivating both males and females into coercive sexual activities. However, one place where differentiation occurs is the motivations for employing coercive tactics. The study asserted that while men engaged in coercive tactics primarily driven by power, dominance and control, women who engaged in these were driven primarily by feelings of compulsivity and only secondly motivated by the desire for sexual dominance. The reason for male need for power, dominance and control can be explained by the concept of ‘Hegemonic Masculinity’ defined by Raewyn Connell which conditions men to behave and feel in a typical fashion.[li]

Karen Weiss, in her article on male rape and sexual assault experiences, talks about society`s constant focus on hypermasculinity, patriarchy, and ways in which men are expected to behave; this is so well established that to imagine men as victims requires a complete overhaul of our preconceived notions regarding sexual violence and gender.[lii] She pointed out that 9% of rape and sexual assault victims in 2003 were male according to the Bureau of Justice Statistics (DOJ, US). She referred to the NCVS data which revealed a similarity in the experiences of males between rapes and attempted rapes where the perpetrator felt entitled to sex and refused to budge. Despite evidence to the contrary, society finds it difficult to accept that men can be victims and moreover, victims themselves are ashamed to report such crimes for the fear of being perceived unmanly.

NCVS interviewers noted than interviewees were embarrassed and uncomfortable to describe the incidents and tried to frame the incident in a manner so as to avoid decreasing their masculinity. Subjects often gave the excuse being heavily drunk for not being able to resist the sexual assault or lied about fighting back the perpetrator violently, in order to fit the socially defined role of “masculinity”.[liii] Two primary reasons were noted for non-reporting of incidents by male victims: One is the shame associated with being unable to prevent assault by a female in clear violation of societal description of females as weak, non-threatening and not capable of causing injury and second is the behaviour of police who presume that only gay men get raped. The study concluded by reiterating the need to educate both men and women about sexual victimisation. A pervasive silence regarding male rape only exacerbates the belief that men cannot be raped.

Another study conducted in various colleges in Greece on men and women revealed that both men and women receive unwanted sexual coercion.[liv] Both conceded that it was either pointless to stop an aroused partner, or were coerced by endless arguments or by taking alcohol or drugs. However, women were more likely than men to report physical assault. This resulted in men suffering from depression due to predefined gender roles in society and these incidents made them question their masculinity.

A recent research conducted on sexual coercion experienced by 284 diverse males in schools and colleges attempted to consider diversity in ethnicities which have been largely overlooked in previous studies on male rape.[lv] The study contended that most studies about sexual violence largely take physical hurt such as penetration into account and tend to overlook other forms of violence such as coercion by unwanted seduction, blackmail, verbal coercion, or even drugs and alcohol. Research is usually focused on forcible penetration, and steers away from other types of sexual victimisation which result from social obligation or peer pressure. Participants in the study showed signs of visible psychological distress but one differentiation was noted that men`s self-esteem is not affected by sexual coercion unlike females, plausibly due to societal roles regarding male sexuality. The study also noted that cultural differences matter in reporting of sexual coercion. Asians were least likely to report events due to a high emphasis on chastity. Similarly, African men were least likely to report sexual coercion due to the hyper aggressive and masculine image portrayed by pop and R&B cultures. The effects of culture and notions of masculinity on the experiences of male sexual assault victims were further corroborated by the findings of another recent study by Charlotte Petersson and Lars Plantin.[lvi]

From the plethora of researches, studies, and articles on male sexual victimisation, it can be reasonably said that men experience sexual assault similarly to women. Hence, there is an imperative need to address sexual violence as it is, rather than through prisms of gender.

Opposition from Feminist Groups

One of the issues with the recognition of male rape is the opposition from a section of feminist groups known as radical feminists[lvii] such as Catherine Mackinnon, Patricia Novotny and Nagire Naffaire. Their opposition stems from a lot of reasons such as potential dilution of their influential base, or dilution of the importance given to women`s rights and issues.[lviii]

Florence Rush, another leading proponent of radical feminism, wrote about the ways in which men are undermining the feminist movement.[lix] Rush believes that the men`s liberation movement rose from the rib of the feminist movement with Warren Farrell being the chief architect. She contends that the reason men supported the feminist movement was to serve their own selfish interests; men suddenly realised that having an earning, independent spouse brought them more time to spend with children, release from alimony and child support and the ability to divorce women with no guilt. She further contends that Farrell had no idea of the ground realities, considering that men have always exploited women`s labour and finances whether they are working or not. She also noted that men hardly spend their leisure time with children, and rarely meet their obligations on alimony and child support.

What is mind boggling here is the extent to which Rush seems out of touch with the ground realities of the legal system of the USA, the system on which her research is based. Not only is a man liable to be imprisoned for failing to pay child support, but he can be sued even if he was an underage male.[lx] Rush then proceeds to totally disregard any suggestion that women can rape men. According to Rush, only homosexual and heterosexual men rape men because they feminize their victims, driven by heterosexual dominance and subordination. Towards the end, Rush does recognise that a very miniscule number of women sexually harass and molest men, but that does not justify converting the rape law into a gender-neutral one. One can only assume that the only reason she seems to acknowledge even a miniscule number of female perpetrators is possibly to fend off being labelled as polemic.

Catherine Mackinnon objects to gender-neutrality on the premise that it diverts the focus away from female victimisation;[lxi] however, her views are contradictory when she proposes a gender-neutral ordinance against pornography, where she states: “In this definition, the use of men, children, or transsexuals in the place of women is also pornography.”[lxii] Catherine`s views about the ill effects of gender-neutrality for female victims is supported by other scholars and critics like Christine Boyle.[lxiii] However, these objections seem to be driven by loyalty to some ideology rather than being based on scholarly literature or empirical evidence.

Another objection raised by critics of gender-neutrality is based on the argument that there are not enough male victims to justify amendment of the law.[lxiv] The inherent lacuna in that argument is that very little research has been done in the area of male sexual victimisation. This creates the classic chicken and egg problem which was pointed out by the small community of researchers in that area. Gregory and Lees remarked that there has been very little research dedicated to studying sexual assaults on men.[lxv] They referred to a survey conducted by King which concluded that the stigma attached to male rape is much greater than female rape.[lxvi] Most homosexual victims feared approaching the police due to victim shaming and heterosexual victims feared approaching authorities due to the fear of being classified as gay. Research on male rape indicates that sexual violence has got more to do with power and domination rather than sexual gratification as is commonly understood. The purpose of rape is mainly to humiliate, denigrate and crush the victim`s spirit. This understanding of rapist psychology was used in discussions while passing of the Criminal Justice and Public Order Act, 1994.

Lees also indicated that a lot of victims feared reporting to the police due to fear of homophobia or myths perpetrating in the forces regarding promiscuity of gays. Criminological and Police studies have often revealed that unless law enforcers are sensitised to handling an emotionally sensitive victim, it would push the victim into further trauma and depression. The authors noted that since 1990, police forces have been regularly trained to deal with male and female rape victims.[lxvii] The Metropolitan Police set up 26 specialists who had completed sexual offences investigative techniques course to deal with male sexual abuse. This served the twin purposes of providing a supportive atmosphere for the victims, as well as to gain the best investigation possible.

As discussed earlier, men are just as unlikely as women to resist the attack. This finding is directly in conflict with the opposition from feminists’ groups who believe that men always fight back in any sexual attack despite empirical evidence to the contrary. However, one must note that this opposition is coming from new age radical feminists who seem to be interested in playing a divide and rule gender policy to further their narrow-vested interests. Liberal feminists such as Susan Brownmiller have often supported the idea of recognition of male rape; in fact, in her eminent book on female rape ‘Against our Will’, she acknowledged the reality of male sexual victimisation-

“While the penis may remain the rapist’s favourite weapon, his prime instrument of vengeance, his triumphant display of power, it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the “natural” thing. And as men may invade women through their orifices, so, too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral sex or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self? All the acts of sex forced on unwilling victims deserve to be treated in concept as equally grave offenses in the eyes of the law, for the avenue of penetration is less significant than the intent to degrade. Similarly, the gravity of the offence ought not to be bound by the victim’s gender. That the law must move in this direction seems clear.”[lxviii]

Similarly, Rosemarie Tong, another feminist philosopher, questioned the negative characterisation of gender-neutrality by radical feminists. Tong contends that the hindrance in recognition of male rape lies in the assumption by radical feminists that it would lead a dilution of the importance given to female rape victims on the premise that since it affects both genders now, it is no longer a pressing concern.[lxix] Tong acknowledges the argument as a possible concern, but counters it with the argument that if the masses are educated that rape is inherently a crime of the powerful against the weak, then there will be no erroneous beliefs regarding the same. Thus, it is evident from above that the opposition to recognition of male victimisation by radical feminists seems to be based on theoretical assumptions regarding the effects of introducing gender-neutral law on sexual assault rather than on empirical or theoretical research.

Phallus Centric Framing of Laws on Rape and Sexual Assault

One of the major issues with rape laws is the obsession with the penetrative act, as traditionally, the perpetrator has been male. The Rape law in India described under Section 375 explicitly begins with the words- “A man is said to have committed rape”[lxx] the reason being that traditionally men are largely seen as perpetrators and a woman sexually coercing a man to make him penetrate her is unfathomable in a patriarchal society.

One reason that can be given for too much emphasis on male perpetrators is the fact that traditionally, women have been victimised by men in offences involving rape and sexual assault. However, it seems to have created a victimised mindset among women and they are therefore unable to imagine men as victims. Ruth Graham, in her article contended that there are several key elements in the process of recognising male rape victim.[lxxi] Some of them are- emphasis on the experience of victims, comparison of male victims with female victims, and the definition of male rape itself. The definition of male rape seems to be systemic issue because it concerns itself with assault through penetration, thus maintaining the traditional phallus centric approach.

The definition is key here for legal discourse because legal research centres on the categories and meaning of crime which is one of the reasons why male rape is seen as essentially an issue of homosexuality rather than that of sexual violence. This narrow, gender discriminatory approach has been constantly defended by various officials and law commission members. They use statistics to assert that sexual assault is normally a problem for females only.[lxxii] Thus, when men come into the picture, it is considered an anomaly which is ironical considering that sodomy of men has been occurring since ancient era as war crimes.[lxxiii] Further, in England, the same sexual assault had different sentencing for men and women, for women; the maximum punishment was 25 years whereas for men it was 10 years. Thankfully, this approach was changed by the UK Supreme Court in R v Ismail.[lxxiv]

Another reason for the focus on the phallus centric framing of law is the erroneous understanding of the notion of harm.[lxxv] The notion of harm is typically based on physical hurt whereas emotional trauma the victim goes through is not given adequate consideration.[lxxvi] When the justice system places undue emphasis on physical harm as evidence of violative harm, it becomes difficult in cases of male sexual assault unless anal penetration was done. This creates difficulties for the prosecution because it weakens their case if physical harm has not occurred, and if it has, it needs to be self-evident.

Gregory and Lees in their book[lxxvii] have referred to the research[lxxviii] of American Psychologist Kinsey who contended that erection during male rape is often considered as consent for the act. This belief is in complete contrast to the knowledge of human body which suggests that anal penetration stimulates the prostate gland, resulting in an erect penis automatically. What results from such experience is an identity crisis for males, and it is often observed that heterosexual victims have often sought gay men post such experience. The authors also noted that male rapes often involve lesser forms of sexual assault such as oral sex rather than anal penetration. This is because anal penetration is difficult without a consensual partner plus there is fear of HIV unless protection is used.

Graham, in her article, raises the point that having just the bare application of the gender-neutrality principle is insufficient to the recognition of male rape.[lxxix] There is a greater need to develop the literature on sexual assault in terms of male rape rather than rely on ambiguous definitions of sexual harm. Graham concludes by advocating greater harmony between male and female researches of sexual assault so that all kinds of victims can be accommodated in the analysis. Similar discourse on the law of rape was also advocated by Susan Estrich in her article, where she analysed how there is disharmony between various stakeholders in the criminal justice system, in the way law is drafted by legislators, interpreted by courts, applied by police officials and enforced by prosecutors.[lxxx]

Siobhan Weare has also advocated the need for change in the way in which we participate in legal discourse regarding rape.[lxxxi] The socio-legal discourse regarding rape has traditionally focused on men as perpetrators and the penis as a primary weapon of offence. Further, there is an assumption in society that it is not possible for men to get raped because a man can only get arousal when he is consenting to the sexual activity out of his free will.[lxxxii] This belief is in absolute contrast to empirical evidence which suggests that just like women can achieve vaginal lubrication and climax, men can also achieve erection and orgasm during sexual assault. It is the body’s natural response to sexual stimuli whether such stimuli are voluntary or coercive, because such responses are controlled by the subconscious brain of humans.[lxxxiii]

Weare further discussed that the effect of sexual assault on men is similar to that on women whether it was physical or mental harm. She stated that there are three standard ways in which women coerce men for sexual relations- verbal pressure, persuasion and coercion. One can conclude from her article that while there is no denying that the female gender disproportionately suffers this crime, it is still to be acknowledged that the existing gendered definition of rape reinforces the paradigm that women can only be victims and men can only be perpetrators.

Weare`s views were corroborated by a recent article by Natasha Mckeever where she vociferously argued for the legislature to move past the traditional fixture on penis as the root cause of all problems.[lxxxiv] Thus, there is a need to engage in legal discourse which moves away from the exclusive definition to an inclusive one for framing an apt law which defines sexual violence. There is also a need to engage in extensive research on how this crime affects men in order to end the fixation on framing phallus centric laws concerning sexual violence.

Presumption of Forever Consent on behalf of Men

In this section, we will assess how hyper sexualisation of male behaviour by society hinders men from reporting rape. There appears to be an inadequate understanding of sexual stimulation and its effects on the human body in the legal system, be it among legislators, police or lawyers. Erection or sexual stimulation during sexual assault is often used by defence lawyers to save offenders in cases of sexual violence. They typically try to exonerate their clients by implying consent on the basis of vaginal lubrication, penile erection, orgasms and ejaculations. However, research and medical science have proven time and again that arousal during sexual assault can occur even involuntarily as a natural body process. For example, during rape when a man forcibly enters a woman`s vagina, there is secretion of lubricating fluids in the vaginal area to prevent injury due to the friction caused by penetration to the body. This release of lubrication is not a voluntary act or necessarily consent on behalf of the woman but is an act of the autonomous nervous system similar to breathing, dilating pupils or even regulating heart rate.[lxxxv]

This was explained in an article published by two clinicians where it was reported that a majority of male rape victims do not report the crime due to feeling of confusion or guilt because they ejaculated or had an erection during the assault.[lxxxvi] Similar experiences were reported during assaults on female victims as well. The prevailing opinion on sexual stimulation seems to be driven by a lack of understanding of human body or based on anecdotal experiences rather than empirical. The research contended that orgasm is felt at a physical and mental level, sometimes individually too. So, one can experience sexual pleasure physically even when the mental state is that of inhibition.

The research also said that multiple subjects achieved sexual stimuli in unusual manners such as by the stroking of eyebrows, blowing the hair gently or even by applying pressure to the teeth. A range of activities were conducted with reference to individual sensitivity to sexual stimulation. It was found that if enough activities are conducted, it was possible to achieve sexual stimulation without active mental will. Laboratory studies indicated that in a sexual assault, the fight-or-flight response gets activated by the nervous system causing release of adrenaline in the body, resulting in excessive blood flow and lubrication in genital areas. Thus, a woman or man being sexually assaulted will not have unresponsive genitals when they are afraid. In males, a study conducted in 1982 conclusively argued that men do get erections during sexual assaults unwillingly.[lxxxvii]

What is baffling to note here is the proclivity of defence lawyers to establish consent on behalf of the victim of sexual assault on the basis of her achieving sexual arousal. This position is taken despite the fact that courts in the USA have long held that achieving orgasm during sexual assault will be irrelevant for determining consent.[lxxxviii] On the other hand, in an English case, a man-initiated divorce proceeding against his wife, claiming coercive sexual intercourse as cruelty. The judge on hearing that the man had an erection during the act determined that the act was consensual and dismissed the appeal.[lxxxix] In his widely renowned article, Siegmund Fruchs discussed that having an erection during rape does not mean consent.[xc] The complex relation between sexual desire and physical stimulation along with judicial treatment of such behaviour results in denial of justice and rehabilitation to male victims.

Fruchs begins by discussing the contemporary issue of stigma in male reporting, where preconceived notions of male sexuality prevent victims from reporting such crimes. He referred to the article of Fred Pelka which talked about a male rape victim who was mocked by the police officials for reporting the crime just because he was a male.[xci] Another case was of Gonsalves, where a father was unable to comprehend why his teenage son did not resist the attacker.[xcii] Pelka also referred to previous studies which have conclusively established that almost all male victims had an erection during sexual assault. Fruchs also discussed the fact that many perpetrators of sexual assault purposely induce the victims to climax for multiple reasons – to discredit the victim’s testimony during trial by damaging his credibility, to establish complete and absolute dominance over the victim and to reaffirm the perpetrator`s fantasy that the act was consensual.[xciii]

Fruchs also notes that the victims tend to wilfully climax to quickly end the ordeal with the perpetrator. An example of this is an Indian case, where a famous movie director allegedly performed oral sex on an American research scholar. The victim made it clear in her testimony that she resisted and dissuaded him many times but he refused to listen so she faked an orgasm to end the ordeal quickly. The director was convicted by the trial court, but the appellate court overturned the conviction contending that a feeble no by the woman could not establish a lack of consent for the perpetrator.[xciv] What one gathers from such an experience by the victim is that both men and women during a sexual assault can wilfully climax to end their ordeal faster.

From a pure biological standpoint, erection can result from a variety of emotions such as fight-or-flight, fear, anger, or excitement. However. the social conditioning of men causes them to associate penis with sexuality which results in penis being the centre piece of all sexuality for men. This is the crux of Stoltenberg`s theory of Erection Learning which explains why men get an erection while being sexually assaulted. This theory is line with the research conducted by Mezey and King mentioned previously that the need for gender-neutral definition of rape is to prevent excessive focus on sexuality of the crime and instead shift focus to the violent nature of the act itself.[xcv] Further, Fuchs referred to a catena of judgments from various states in the USA such as Tennessee[xcvi], South Dakota[xcvii], Massachusetts[xcviii] and New York[xcix] where courts have started recognising that males sustain erection during non-consensual sexual assault as well. Currently, apart from the states of New York[c], Georgia[ci] and Mississippi[cii], all other states of the USA have gender-neutral rape legislations. While these three states acknowledge the reality of male rape, gender specific rape statutes have still been upheld.

In an article by Clayton Bullock and Mace Beckson, it was asserted that physiological studies have confirmed that erections are only partially under voluntary control and can occur due to various emotional states such a fear, stress, and excitement.[ciii] From the above studies and researches, it can be said that engorgement of the penis is often misinterpreted as consent on behalf of males just like lubrication of the vagina is in the case of females. There is a need for society and courts to move past this.

Portrayal of Male Victims in Media

“Whoever controls the media, controls the mind”- Jim Morrison[civ]

There is no denying that in this day and age, the portrayal of gender roles in the media influence the social conditioning of youth in our society. Men are usually not shown as victims of sexual assault by mainstream media. Even if they are, it is portrayed as if they are responsible for their own assault. This kind of social conditioning is pervasive, especially in a country like India, where it is famously said that three things influence Indians – Cricket, Films and Weddings.

Oxfam India, in its 2017 report titled ‘The Irresistible & Oppressive Gaze’, contended the ill effects of films on the Indian youth.[cv] It reported that around 86% of the films made in India used sexist humour. Comedy is often used to reduce the seriousness of misogyny and violence against women. Among the list of things that are supposed to be comical as per Indian cinema are Voyeurism, Rape Jokes (the movie “3 Idiots”), Negative stereotypes about Women and Queer people (“Pyaar Ka Punchnama”) and explicit sexual assault (“Kambakkht Ishq”). The situation is similar for men as well where molestation of men is considered a laughing matter (“Badrinath Ki Dulhania”) and a man landing another man as a life partner is a downgrade (“Zero”). Thus, the portrayal of men in Indian movies perpetuates the stereotypical image of a patriarchal male who is hypersexualised and has no empathy.

The situation is not very different in the supposedly progressive Hollywood films as well. Movies often depict men as hyper sexual beings whose sole aim to lose their virginity or those who consider women solely as sexual conquest. Consider the following situation from the movie “Forty Days and Forty Nights”. The protagonist takes a pledge to abstain from sex during the holy month of Lent. On the last day, in order to prevent himself from breaking the pledge he chains himself to his bed and falls asleep. However, his ex-girlfriend sneaks in the house, takes advantage of his unconscious and vulnerable state and rapes him. When he wakes up, he is not shown to be traumatised or affected by it. The entire scene is played out in a comical fashion. Now the viewers need to question themselves whether the reaction to the act would have been the same if the roles were reversed. Would reversing the gender roles still be considered comical? Would it change the meaning of rape?

In the movie “Breaking the Waves”, a quadriplegic husband requests his wife to satisfy her desires by seeking other men. She seeks a man on a public bus by quietly masturbating to him without so much as a hello and then gets down and pukes. There is no depiction of what happens to the man who is assumed to have gone home singing merrily. In the movie Bruce Almighty, the theory of retributive rape is practically preached. The protagonist Jim Carrey demands an apology from a street gang leader whose gang previously assaulted him. On his refusal, Bruce uses his god powers to make a monkey come out of his anus. The scene ends with the monkey running behind the scared perpetrator and Bruce celebrating.

The situation is similar with respect to books as well. Claire Cohen, a prominent author on the subject of male rape victims, professes that male rape victims are often feminised so that the readers will be more accepting of the possibility of a female perpetrator.[cvi] She discusses the example of the book “Deadly Temptation”, which is an explicit pornographic story with shades of BDSM and assault.[cvii] She contends that the book perpetuates the myth that male rape victims are weak or are unable to defend themselves. This prevents many victims from speaking about their assaults.

Media therefore plays an enormous role in the social conditioning of our society. There is an immediate need to condition society in a manner which is inclusive of all genders along with apprising filmmakers to put an end to the stereotypical depiction of genders in films and advertisements.

Is there any need for such a change in the Law?

The Principle of Equality

The idea of treating every citizen as equal before the state and in the eyes of the law has been enshrined in the Indian Constitution since its adoption in 1950. Article 15 of the Indian Constitution states:

“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public,

(3) Nothing in this article shall prevent the State from making any special provision for women and children,

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”[cviii]

The jurisprudence behind the enactment of this section was based on the caste system largely prevalent among the followers of Hinduism in India. The ‘lowest caste’ people of society, also known as ‘untouchables’ were discriminated against and socially ostracised. During the drafting of the Indian Constitution, several constituent assembly debates took place regarding Article 15. Many of the constituent assembly members suggested providing separate public access of government facilities such as schools, wells etc. to the ‘lower caste’ members.[cix] However, these suggestions were overruled by the Chairman of the Drafting Committee, Dr B.R. Ambedkar, who opined that the purpose of introducing this section is to make society all inclusive. If caste-based segregations are made, then the purpose of introducing the article itself would become redundant.

Similarly, if one analyses the socio-economic status of women in society during independence era, the enactment of special provisions for women seemed appropriate. However, in the 21^st century, with the advent of feminism and women empowerment, it would be appropriate that society readjusts itself to providing equal opportunities to both genders. Seeking special favours in a situation where we talk of equal opportunities for women may not only appear inconsistent but also to an extent hypocritical. There is no denying that discrimination against women exists even now, however, an appropriate balance has to be achieved in society. Misandry is not the answer to misogyny. Undue favours to women in areas where women are equally equipped to compete will only result in more misogynistic feelings among men and push regressive attitudes further in society. Thus, there is a need to create an inclusive society which provides equal opportunities to all not only in letter but also in spirit of the Indian Constitution.

Recognition of Male Sexual Victimisation

The recognition of male sexual victimisation has been reported since the past four decades. Some researches indicate an increase in reported instances of male on male rapes in the 1970s in the USA.[cx] Cindy Struckman-Johnson conducted a research in 1988 where she studied the prevalence of forced sex on males during dates.[cxi] She opined that the underreporting of the problem stems from the myth perpetrating in society that men cannot be raped.

Johnson reported that this myth is one of the prime reasons why no data on male rape exists and the topic does not even form part of any research on sexual violence. The FBI, since 1986, started maintaining a data on people arrested for forcible rape by both men and women.[cxii] However, the definition of rape with the agency remained the same traditional male-on-female rape till 2012. Johnson carried out a survey on some college going students regarding sexual coercion during dates.[cxiii] The results indicated that a significant percentage of men stated being forced to have sex at least once in their lifetime. Further, a questionnaire following the survey revealed the standard four categorical tactics used by women to coerce men into sex during dates- Psychological pressure, psychological pressure with physical restraint or force, physical force and no consent due to intoxication. She concluded her research by advocating more research be undertaken by academicians, states and universities so that the problems of male rape can be addressed. 

Christina Faulkner in her article has advocated the need for analysis on the interaction between gender and professional authority in cases of misconduct.[cxiv] However, she notes that a vast amount of literature in this arena is focused on male perpetrators and female victims only. She cautions that overlooking any misconduct by a professional authority of the female gender cannot be accepted. Her research also analysed the perpetrators with respect to their family environment, mental health and the environment in which they function. Her findings indicate that a number of factors such as the isolated work environments in which forensic science workers function, lack of sufficient training, emotional vulnerability among female workers or an inappropriate sense of rescuing patients can result in sexual transgressions at work. One such case has actually happened where a female volunteer for prison board was convicted of misconduct for engaging in sexual relations with prisoners.[cxv] Faulkner concluded by advocating a need for free and open dialogue with employees on the matter so that these issues can be nipped in the bud.

Statistics from the Bureau of Statistics, USDOJ[cxvi] and the Ministry of Justice, UK[cxvii] do give some hope for changing times considering that more and more men are coming forward to report sexual crimes. However, in India, the situation is still in nascent stages. In India, the mindset still remains that boys cannot get raped, despite rising instances of men getting raped being reported  in the media.[cxviii] Namita Bhandare, in her column, talks about the growing need to recognise that men can be raped too.[cxix] However, the old age notions of stereotypical male behaviour among law enforcement bodies prevent adequate mental support to male rape victims even in countries such as the UK where it has been recognised over the past three decades.[cxx]

Preventing Undermining of Women Centric Law

In India, over the past decade, there has been a sudden rise in frivolous and malicious litigation with respect to allegations of sexual assault. In a shocking revelation by the Delhi Commission for Women (DCW), it was held that 53.2% of the rape cases filed between April 2013 and July 2014 in Delhi were found to be false.[cxxi] Such unscrupulous women significantly undermine the fight against sexual violence. When such a large proportion of cases are found to be false, it creates a negative social effect where even genuine victims are suspected and come under the scanner. The system then starts doubting every incidence, thereby hurting the rule of justice and creating a situation where victims even fear approaching the police due to apprehension that their experience would be disbelieved.

When the system introduces reactive measures fuelled by populism due to any heinous crime without any rational basis, the genuine victims end up suffering. An example of this situation would be the plight of dowry victims in India.  Dowry is a form of money or gifts given by the bride`s family to the groom`s family as a compensation because a girl is considered a financial burden on the groom`s family due to her being a non-earning member. This practise leads to a lot of girls from poor families being harassed and tortured for not bringing enough money during or even after marriage. This issue was first addressed by the enactment of the Dowry Prohibition Act, 1961.

However, the implementation was ineffective due to dowry being ingrained in the culture of society and no complaints were made. Further, the Dowry Prohibition Act, 1961 was the only remedy available to women in such cases until 1983. In 1983, due to the public uproar following the Mathura Gang Rape case[cxxii], the government passed the Criminal Law Amendment Act, 1983 where new sections for dowry victims were introduced such as 304B and 498A in the IPC. Sections 113A and 113B were added in the Indian Evidence Act, 1872 for presumption of dowry death for any woman dying within seven years of marriage and additional presumption for dowry death in case the woman was subjected to cruelty before dying.

The above enactments on the face of it, appear bona fide and were enacted for the protection of women. In particular, Section 498A provided sweeping powers to the police to immediately arrest the accused persons to prevent continuation of the offence.[cxxiii] However, due to lack of adequate checks and balances, this provision was largely misused by police officials and unscrupulous families into extorting money from the groom families. There is a large number of cases where innocent distant relatives, and senior citizen in-laws were maliciously arrested in order to defame and extort money from them.[cxxiv] The rampant abuse of dowry prevention provisions reached such astronomical levels that the courts were forced to take notice and they subsequently gave directions that no automatic arrests should be made in dowry harassment cases.[cxxv]

The dilution of dowry harassment law continued, with a more recent directive of the Supreme Court of India giving directions to prevent further misuse of the law.[cxxvi] The bottom line is that sustained misuse of this law over the years coupled with comatose response to such abuse by all the three pillars of democracy has resulted in denial of justice to the real victims.[cxxvii] The contemporary situation is such that no dowry related complaint is taken seriously, courts very easily provide bail and quash cases and the victim`s credibility has been damaged socially. The result is that victims continue to suffer and we are back to square one from where we originally started.

Misuse of the law against any gender needs to be stopped. Otherwise, if we allow such abuse of process of courts to continue, then it won`t be far away when the law on female rape is diluted to the point of uselessness. Our legislators need to understand that ‘Misandry is not the answer to Misogyny’. If we try to douse fire with fire, the social harmony and fabric of our society will burn down to the ground. There is a serious need to punish malicious prosecution in India; a recent law commission report recommends the same, but the legislative changes in India are slow to come by.[cxxviii] Therefore, in the fight against sexual violence all genders need to fight together as a team and avoid succumbing to divisive tendencies. Every single time when a woman files a malicious case against a man for vengeance, the credibility of every woman victim is affected. We do not live in a utopian world and we form opinions based on what we witness. Punishing woman who file malicious cases will go a long way in garnering support from men and making them more empathetic towards women issues.

In Favour of Women`s Rights

The movement for gender-neutrality is often piped as a backlash against feminism or something that would detract people from the fight for women`s rights. The narrow ideologies of radical feminists are hurting the progress and harmony of society. However, with the right kind of approach, gender-neutrality can actually be in favour of the feminist movement and women’s rights.   In the fight against sexual violence, it is necessary that both men and women unite and fight together. This is essential not only for the greater recognition of male sexual victimisation, but also to prevent undermining of laws to protect women.

“We must learn to live together as brothers or perish together as fools”- Martin Luther King Jr.[cxxix]

The above statement aptly coveys the essence of cooperation and unity, which is applicable in all spheres of life, and particularly in the movement towards gender-neutrality. The importance of synergy and collective strength cannot be overstated. Further, there is a need for men to empathise with women`s issues and vice versa, even more so in a patriarchal society. An analogy would be appropriate here.

Abraham Lincoln abolished slavery during his presidential tenure because he despised such an inhuman treatment of people. His tenacity and empathy for slaves could be traced to a famous incident. Lincoln was travelling down the Mississippi river along with his friends when he happened to notice a market of slaves where humans were being bought and sold. He famously remarked “Boys, if I ever get a chance to hit that thing[slavery], I’ll hit it hard”.[cxxx] Three decades later, he redeemed his oath. A White man then was empathetic towards the pain and suffering of the black race, and it did great benefit to them. This is not to undermine the efforts of Martin Luther King, Rosa Parks or Nelson Mandela.  However, in a society run primarily by whites at that time, Abraham`s actions had a far significant impact.

Similarly, the solution to women`s emancipation lies in the enlightenment of men to their problems and vice versa.  When women become aware of men`s issues with sexual violence, it would make them more empathetic and willing to fight alongside men in this battle. At the same time, men will be more willing to support women’s rights. This approach seems logical not only from a moral and equality perspective but from an economic perspective. The state has limited resources and by dealing with all kinds of sexual violence victims under the same umbrella we will be able to better utilise existing resources for providing speedy justice.

The words of Emma Watson`s ‘He for She’ Campaign is apt here ‘When men are liberated from the pressure of being men, women will be automatically liberated”.[cxxxi]

Possible Solutions 

Changes in Framing the Laws

One of the first things that needs to be done for recognising the reality of male sexual victimisation is a change in the framing of laws. This needs to be achieved not only for the Indian Penal Code, 1860 but also for other laws such as domestic violence and family laws. In the era where gendered behaviour is a changing norm and homosexuality has been recognised as a normal human sexual preference, we cannot be working with Victorian era definitions of crime. We cannot be working in the 21^st century legal system with 20^th century tools and jurisprudence. As we noted earlier, there is a need to shift away from the phallus-centric approach to framing of laws into a gender-neutral one such as ‘sex without consent’ coined by David Archard[cxxxii] or the Swedish definition of ‘enforced sexual intercourse’[cxxxiii].

There is an immediate need to engage in discourse where male sexual assault experiences have to be considered while framing the law. We cannot have gendered definition of rape law in the 21^st century for two simple reasons- firstly it is not coherent with the LGBT rights campaign, and secondly its foundations are based on the Victorian jurisprudence of common law which places undue importance on hurt for establishing rape. Therefore, the legislators need to direct the law commission to conduct researches and assessment of all types of victims of sexual violence independent of gender.

Attempts to introduce gender-neutral rape law has been made since a long time. The first attempt was made by the recommendation of the Law Commission of India in 2000 which was ignored by the government at the time.[cxxxiv] In the year 2012, a new bill was introduced to amend the criminal law to make in gender-neutral.[cxxxv] During the drafting of the bill, a parliamentary report sought a response from the National Commission of Women in India which responded by raising objections that rape is a gendered crime largely affecting women and any attempt to make it gender-neutral would compromise the interests of women.[cxxxvi] Similar views were expressed by the Verma committee set up post the 2012 gang rape.[cxxxvii]

What is particularly amusing is that whenever attempts have been made by public spirited individuals to file petitions in the Supreme Court of India to direct the government to amend the rape law into a gender-neutral one, the government and the interested parties report back having no need for the law.[cxxxviii] However, it is interesting to note that no research or survey has been undertaken to substantiate this view. The government just seems to be taking a diplomatic stance to avoid displeasing powerful women voters. This assumption seems to be similar to the one used by the Criminal Law Revision Committee in the UK which ultimately recommended enacting male on male rape only because the society views rape as a gendered crime which males commit on females. Just like in the Indian situation, no research or survey substantiated this view.

In a survey carried out by the Indian Government in 2007 on child sexual abuse, it was reported that more than 50% boys reported being raped or sodomised. Similarly, in another survey carried out by Centre for Civil Society (CCS) a think-tank based in the capital city it was reported that one fifth of the men were coerced into having sex of which majority perpetrators were women.[cxxxix] Thus, there is no denying that there is an immediate need to reform the entire repertoire of statutory laws whether it is the Indian Penal Code, The Indian Evidence Act or allied family laws such as domestic violence act into a gender-neutral one.

Gender Sensitisation Training for the entire Legal Machinery

Alongside amending the definition of rape law, we need to sensitise the entire legal machinery in order to deal with the 21^st century reality of the ungendered world. This is required so that victims do not feel any hesitation in reporting violations to the police officials. Police forms the first authority in the legal machinery whom victims’ approach. However, police officials’ apathy is so widely known among the general public that it dissuades victims from speaking up.

In the UK, the Stern Review was setup to examine certain issues within the criminal justice system.[cxl] One of the primary issues examined was about the response of public authorities to rape complaints and how more victims can be encouraged to report. The report contended that though the attitudes, practises of the police have changed for the better, the implementation of the same is still patchy. Stern contended that there is so much focus on the justice process that we tend to ignore the victim who suffered this violent crime. Even the medical staff dealing with victims post the horrific encounter were reported to have poor communication skills. Convictions remain low because the review process for performance of a police officer or prosecutor does not involve considering how well the victim was handled. Stern recommended that Independent Sexual Violence Advisors (ISVA) be appointed for each case whose job would be to take care of the needs of the victims along with coordinating with the police and prosecuting bodies.

One can understand why most rape victims, especially male, feel hesitant to report rape. Further researches have also corroborated the grim reality that male rape victims seeking help have been turned away from rape crisis centres considering there are no systematic provisions in place even though these centres are publicly funded by the Ministry of Justice, UK.[cxli]

In India, such apathy of police forces came to light while assessing the facts of Bhanwari Devi rape case. In this case, the police officials demanded submission of the skirt the victim was wearing, at the police station as evidence. The police did not provide any alternate clothing which forced the unfortunate victim to use her husband`s turban to cover herself up while walking back to her house. She faced even more apathy when the doctor on duty at the primary health care centre refused to examine her in the absence of a female doctor. At the city hospital she was referred to, the doctor refused to examine her without an order from the local magistrate. The vaginal swab was taken after more than 48 hours even though the Indian law requires it to be taken within 24 hours.

Considering the ignominious and apathetic behaviour of the police in such a sensitive case, one can only imagine what image exists of a police officer in the mind of any woman. Gardiner Harris, a reporter for New York Times noted in her article^[cxlii] that even in cases of heinous crimes, the police is concerned with settling the matter in order to avoid bad press rather than bringing the offender to justice. Thus, one arrives at the inevitable conclusion that gender sensitisation training and handling of victims for police officials needs to be done on an urgent basis.

Similar training would be appropriate for judicial officers considering that they live a reclusive life and are susceptible to narrow views about sexuality and human behaviour. One such ugly incident happened during the Bhanwari Devi rape case in Rajasthan in 1992. The Judicial Officer of the trial court while dismissing the case made really absurd and unfortunate observations for acquitting the accused. Some of the reasons for acquittal given were – the head of a village cannot rape, men of different castes cannot participate together in gang rape, a higher caste male cannot rape a lower caste woman because of reasons of purity and Bhanwari Devi’s husband couldn’t have quietly watched his wife being gang-raped, among other such ridiculous reasons.

Such unfortunate comments by the judicial officer remind us that reclusiveness adhered to by the judicial officers can have negative consequences on their outlook of society. These officers need to be gender sensitised so that they are well-versed with the changing social realities. One may be tempted to presume that considering that the incident is pretty old, things would be different now. However, another set of unfortunate observations made by the judicial officers of an esteemed High Court brought back the haunted memories of Bhanwari Devi. In an appeal against conviction by the accused in the OP Jindal rape case, while granting bail, the judicial officers made certain unfortunate comments about the victim on the lines of victim shaming.[cxliii] Some of these observations were:

“The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.” and

“We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind.”

The words of Eminent Jurist Justice VR Krishna Iyer come to mind here when he warned in Rafiq v State of UP that ‘the strategy for a crime free society should not be draconian severity in sentencing but institutional sensitivity, processual celerity and prompt publicity among the concerned community’.[cxliv] Thus, even at the risk of sounding like a broken record, it cannot be emphasized enough that there is a need to sensitise the entire criminal justice administration so that justice can be delivered not only in letter but also in the spirit of equality under the Indian Constitution.

Analysis and suggestions

According to the present scenario and analysis of various laws, it can be concluded that due to the development of society there is a need for formulating legislation which should be gender-neutral. Basically, sexual harassment is a crime which can occur with anyone because it is more about power or authority. Anyone who is superior to you or if you are working under, anyone who has certain authority to oppress you they can sexually harass you. The mentality that only women can become victims and men will always be predators should be removed from the mindset of society. The government should make gender-neutral rape laws to maintain the constitutional structure as well. 

The government tried to amend laws to make them gender-neutral but this view of making whole laws gender-neutral would not be a wise idea during this time. Making whole laws gender-neutral would create a harmful environment to female rape victims because the situation of women in India at present is not so advanced which allow us to make all laws gender-neutral. To maintain Right to equality and to address the issue of sexual violence against males and transgender government try to move slowly towards achieving the feat of having gender-neutral laws. The government should try to protect all identities present in society while keeping in mind the situation of vulnerable sections of society i.e. women. 

Laws related to sexual crimes at the workplace should be amended to include man and transgender also as a victim. Since the survey which has been conducted stated above in the article proves that men can also be a victim and women can also be a perpetrator. We know that women have empowered now and in workplaces, there is an almost equal ratio of working men and women which means both are capable enough to harass anyone. Hence, authority or power plays a major role and based on that any person can harass anyone irrespective of the gender. Providing a remedy through the law to every person (including men and transgender) against sexual crimes will help in maintaining equality, which can be done by formulating laws gender-neutral. So, making gender-neutral laws is a necessity because “Right to work with dignity and protection against Sexual harassment at the workplace is a universal declared a human right.”

Apart from sexual harassment laws at the workplace, there is also a need to consider men as victim in crimes like rape. Sections concerning rape laws should be amended in such a manner to consider everyone as a victim including men and transgender, but laws related to perpetrator should be gender-specific to maintain a positive environment for female rape victims as well. Women have been empowered but still, there are some regions in India where women are not so empowered to fight for their rights, so if whole rape laws will become gender-neutral this vulnerable section of society will never be able to become equal to men. Men should also be considered as a victim and allow men to file any complaint under these rape laws apart from filing under those laws which are gender-neutral. When laws will become gender-neutral with respect to the victim then, men will be allowed to file a complaint under these sections of rape laws and will be treated as a victim similar to women. If any case comes where women will be perpetrator then they will also get stricter punishment prescribed under these rape laws. But, when a man will file a case, the burden of proof will be on men to prove that crime was committed against him. To provide a remedy to men, making gender-neutral laws with respect to the victim would suffice the purpose. Hence, making whole law gender-neutral would not be a wise decision during this time. 

There are some special situations explained above in which sexual violence occurred with men and women equally. This situation where gender is irrelevant for committing sexual crime and identities of religion, caste, communal conflicts becomes the reason for the crime. Women also recognized as the perpetrator of gang rapes and as an accomplice in rape and men also suffered from these crimes equally in these situations. Prisons are not safe and measures should be taken immediately to solve this situation. So, this situation leads us to make laws for the protection of every section. This situation can be solved by making separate legislation for the crimes committed under these situations and provisions should be framed which are gender-neutral. Both women and men are seen as a perpetrator and victim in these situations, punishments to be prescribed in those provisions should be equal for both genders. No privilege should be granted to the vulnerable section if crime rates committed are in an equal ratio for this particular situation. In this way, the remedy will be granted to everyone through legislation, and each gender will get protection without any discrimination.

Conclusion

In this journey of determining the need for gender-neutrality in Rape/Sexual Assault laws, we have tried to explore various areas that have not been studied adequately by governments and academicians. We assessed several interconnected subjects and critically analysed issues surrounding male rape.

There are many presumptions regarding male rape in society which have been evaluated in this dissertation and one reaches the inevitable conclusion that the need for gender-neutrality in rape and sexual assault law in India is not only immediate but is also indispensable. Patriarchy may appear to be advantageous to men on the surface of it, but it affects them quite negatively in reality. What is particularly surprising is that the knowledge of sodomy of males as war crimes has been in the public domain since time immemorial, however, legislative thought process did not consider this problem systemic enough to seek a resolution.[cxlv]

We also saw that contrary to popular perception, men do not experience sexual assault differently than women. Patriarchy dictates that men have the strength or the instinct to fight back during sexual assault, however research proves otherwise. On the issue of opposition from radical feminists, we noted that many schools of feminism including eminent feminists like Brownmiller have acknowledged and advocated the recognition of male rape. As evident from our research, there is an urgent need to shift from the contemporary phallus-centric framing of laws which restrict the discourse on rape law. Further, we analysed how a lack of understanding on the part of defence lawyers with respect to bodily response to sexual stimuli can result in miscarriage of justice in courts. There emerges a serious need to educate the justice system as well as the general public about the reality of how sexual stimuli can be achieved without conscious consent for any sexual act.

Further, the tendency of media to create and maintain stereotypical images of genders and their respective behaviour needs to be rewired to reflect social realities. A man can have feminine qualities and a woman can have masculine qualities and media needs to advocate and showcase the same. There is no denying that media has no statutory duty for societal upliftment, but considering the systemic effect it has on the conditioning of society and masses, a moral duty cannot be denied. As far as the need for a gender-neutral law is concerned, the rationale lies not only in the constitutional dictum of Article 15, but also to prevent undermining the value of consent in sexual autonomy and bodily integrity. By including men in the fight against sexual violence in recognition of growing male sexual victimisation, the importance of consent will be reaffirmed systemically without the prejudice of gender.

The solution for the recognition of male rape lies first in framing all the existing laws in a gender-neutral language so as to affirm the idea that gender is no longer the cornerstone for determining legal wrongs. Secondly, since law is nothing but the collective will of society, the need to gender sensitise the entire justice machinery and update legal tools for investigative agencies is a sine qua non. If a society has to be inclusive in spirit, there is a need to inculcate diversity and inclusiveness not only in thought but also in action. Last but not the least, creating laws and training policemen are the maximum a government can do; the real change will come only when the collective will of the people reflect the same. To summarise this dissertation, the words of Robert F Kennedy seems appropriate:

 “Laws can embody standards, governments can enforce laws but the final task is not a task for government. It is a task for each and every one of us. Every time we turn our heads the other way when we see the law flouted when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy, or too frightened, when we fail to speak up and speak out we strike a blow against freedom and decency and justice.”[cxlvi]

Endnotes

[i] English Jurist William Blackstone expressed the maxim in his seminal work “Commentaries on the Laws of England (1765-1769). The ratio of 10:1 is also known as the Blackstone’s ratio in criminal law.

[ii] Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18(2) European Journal of International Law 253. 

[iii] Navtej Singh Johar v Union of India (2018) 10 SCC 1.

[iv] Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and Masculinities 275.

[v] Ministry of Justice, Home Office and the Office for National Statistics (2013) An Overview of Sexual Offending in England and Wales: Statistics Bulletin.gov.uk. <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexual-offending-overviewjan-2013.pdf> (accessed 28 June 2019).

[vi] People`s Union for Civil Liberties, ‘Human rights violations against sexuality minorities in India’<https://web.archive.org/web/20090725200649/http://www.altlawforum.org/PUBLICATIONS/PUCL%20REport%201> accessed 23^rd July 2019.

[vii] Ibid 3.

[viii] Radical Feminisim is a School of thought within Feminism which calls for radical change in society by removing all male supremacy from all societal contexts. They contend that patriarchal society created by men is the root cause of all problems for women as opposed to legal systems or class conflicts advocated by liberal and social feminists respectively.

[ix] Susan Brownmiller, ‘Against Our Will: Men, Women & Rape’ (Ballantine Books 1975).

[x] Article 15(3) of the Indian Constitution.

[xi] Section 498A of the Indian Penal Code, 1860.

[xii] Section 375 of the Indian Penal Code, 1860.

[xiii] Ibid 6.

[xiv] Ibid 3.

[xv] Tukaram Ganpat v State of Maharashtra (1979) 2 SCC 143.

[xvi] Section 114A of the Indian Evidence Act, 1872.

[xvii] Vishakha v State of Rajasthan (1997) 6 SCC 241.

[xviii] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[xix] Mukesh and Anr. v State of NCT of Delhi (2017) 6 SCC 1.

[xx] JS Verma Committee on Amendments of Criminal Law. <https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf> accessed 11^th July 2019.

[xxi] Section 376D of the Indian Penal Code, 1860.

[xxii] Section 376B of the Indian Penal Code, 1860.

[xxiii]<https://www.indiatoday.in/india/story/woman-rapes-woman-first-case-of-same-sex-assault-after-section-377-verdict-1448534-2019-02-05> accessed 23^rd July 2019.

[xxiv] Section 354D of the Indian Penal Code, 1860.

[xxv] Section 354A of the Indian Penal Code, 1860.

[xxvi] Section 354C of the Indian Penal Code, 1860.

[xxvii] Salil Bali v Union of India (2013) 7 SCC 705; Ipsita Chakravarty, ‘Changing juvenile law won’t help victims of heinous crimes: legal expert Mrinal Satish’ <https://scroll.in/article/777620/changing-juvenile-law-wont-help-victims-of-heinous-crimes-legal-expert-mrinal-satish> accessed 20^th July 2019.

[xxviii] A Forensic Guide for Criminal Investigators, Page 58-66 <http://nicfs.gov.in/?p=15475> accessed 23^rd July 2019.

[xxix] Home Office, 15^th Report: Sexual Offences (Cmnd 9213) (1984).

[xxx] CLRC Para 45.

[xxxi] Jennifer Temkin, ‘Rape and the Legal Process’ (2005, 2^nd Edition, Oxford University Press).

[xxxii] Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.5.

[xxxiii] Section 143 of the Criminal Justice and Public Order Act, 1994.

[xxxiv] Home Office, Setting the Boundaries (2000) <https://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/vol1main.pdf?view=Binary> accessed 31^st July 2019.

[xxxv] Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.4.

[xxxvi] Jennifer Temkin, ‘Literature Review of Research into Rape and Sexual Assault in Home Office, Setting the Boundaries (2000) Volume II, 83.

[xxxvii] Section 2 of the Sexual Offences Act, 2003.

[xxxviii] Section 4 of the Sexual Offences Act, 2003.

[xxxix] Charlene Muehlenhard and Stephen Cook, ‘Men’s Self-Reports of Unwanted Sexual Activity’ (1988) 24 Journal of Sex Research 52.

[xl] Bernie Zilbergeld, Male Sexuality: A Guide to Sexual Fulfillment (Little Brown & Co 1978).

[xli] Barbara Krahe, Renate Scheinberger-Olwig and Steffen Bieneck, ‘Men’s Reports of Non-consensual Sexual Interactions with Women: Prevalence and Impact’ (2003) 32(2) Archives of Sexual Behaviour 165.

[xlii] Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?’ (2002) 1(3) Seattle Journal for Social Justice 62.

[xliii] Kamla Bhasin, ‘What is Patriarchy?’ (Kali for Women 1993).

[xliv] Ibid 43.

[xlv] Ibid 43.

[xlvi] Ibid 42 at 744.

[xlvii] Joan McGregor, ‘Is it Rape: on acquaintance rape and taking women’s consent seriously’ (Routledge 2005).

[xlviii] Janet Halley, ‘Split Decisions: How and Why to Take a Break from Feminism’ (Princeton University Press 2006).

[xlix] Gillian Mezey and Michael King, ‘The effects of sexual assault on men’ (1989) 19 Physiological Medicine 205.

[l] Elizabeth Murphy, Danielle A. Harris, Raymond Knight and Michael A. Milburn, ‘Sexual Coercion in Men and Women: Similar Behaviors, Different Predictors’ (2009) 38 Archives of Sexual Behaviour 974.

[li] RW Connell and James Messerschmidt, ‘Hegemonic Masculinity’ (2005) 19(6) Gender & Society 829.

[lii] Ibid 4.

[liii] Ibid 4.

[liv] Mary Larimer, Amy Lydum, Britt Anderson and Aaron Turner, “Male and Female Recipients of unwanted sexual contact” (1999) 40 Sex Roles 295.

[lv] Bryana H. French, Jasmine D. Tilghman, and Dominique A. Malebranche, “Sexual Coercion Context and Psychosocial Correlates Among Diverse Males” (2015) 16 Psychology of Men & Masculinity 42.

[lvi] Charlotte Petersson and Lars Plantin, ‘Breaking with Norms of Masculinity: Men Making Sense of their experience of sexual assault’ [2019] Clinical Social Work Journal 1.

[lvii] Ibid 8.

[lviii] Catherine Mackinnon, ‘Liberalism and the Death of Feminism’ in Dorchen Leidholdt and Janice G. Raymond (eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press 1990), 166.

[lix] Florence Rush, ‘Many Faces of Backlash’ in Dorchen Leidholdt and Janice G. Raymond (eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press 1990), 3.

[lx] Hermesmann v Seyer 847 P.2d 1273 (Kan. 1993).

[lxi] Ibid 58.

[lxii] Catherine Mackinnon, ‘Only Words’ (Harvard University Press 1996).

[lxiii] Christine Boyle, ‘Sexual Assault and the Feminist Judge’ (1985) 1 Canadian Journal of Women and the Law 93.

[lxiv] Ibid 6 at 743.

[lxv] Jeanne Gregory and Sue Lees, ‘Policing sexual assault’ (Routledge 1999).

[lxvi] Ibid 49.

[lxvii] Ibid 29.

[lxviii] Ibid 9.

[lxix] Rosemarie Tong, ‘Women, Sex and the Law’ (Rowman & Littlefield Publishers 1989).

[lxx] Section 375, Indian Penal Code, 1860.

[lxxi] Ruth Graham, ‘Male Rape and the careful construction of the male victim’ (2006) 15(2) Social & Legal Studies 187.

[lxxii] Ibid 5.

[lxxiii] Ibid 2.

[lxxiv] [2005] All ER 216.

[lxxv] Ibid 71, 200.

[lxxvi] Similar issues were raised by the Stern Review in 2010.

[lxxvii] Ibid 65.

[lxxviii] Alfred Kinsey, ‘Sexual Behavior in Human Male’ (Indiana University Press 1948).

[lxxix] Ibid 71, 195.

[lxxx] Susan Estrich, ‘Rape’ (1986) 95 Yale LJ 1087.

[lxxxi] Siobhan Weare, ‘Oh you’re a guy, how could you be raped by a woman, that makes no sense’ (2018) 14 International Journal of Law in Context 110.

[lxxxii] Philip Rumney and Morgan Taylor, ‘Recognizing the Male Victim: Gender-neutrality and the Law of Rape: Part Two’ (1997) 26 Anglo-American Law Review 330.

[lxxxiii] Philip Sarrel and William Masters, ‘Sexual Molestation of Men by Women’, (1982) 11(2) Archives of Sexual Behavior 117.

[lxxxiv] Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it matter?’ [2018] Criminal Law and Philosophy 1.

[lxxxv] Jenny Morber, ‘What Science says about arousal during rape’ (2013) <https://www.popsci.com/science/article/2013-05/science-arousal-during-rape/> accessed 30 June 2019.

[lxxxvi] Roy Levin and Willy Burlo, ‘Sexual arousal and orgasm in subjects who experience forced or non-consensual sexual stimulation’ (2004) 11 Journal of Clinical Forensic Science 82.

[lxxxvii] Ibid 83.

[lxxxviii] Curtis v State, 223 S.E.2d 721.

[lxxxix] Willan v Willan [1960] 1 WLR 624.

[xc] Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and Consent’ (2004) 51 Cleveland State Law Review 93.

[xci] Fred Pelka, ‘Raped: A Male Survivor Breaks His Silence, in Rape and Society: Readings on the Problem of Sexual Assault’ 250 (Patricia Searles & Ronald J. Berger eds., 1995 Westview Press).

[xcii] Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).

[xciii] Steve Pokin, ‘Rape: When the Victim’s a Man; It’s happened in homes, on city streets, in

bars and parks’ (1995) The Press-Enterprise D01.

[xciv] Mahmood Farooqui v State (Govt. of Delhi) 2017 SCC Online Del 6378.

[xcv] Ibid 49.

[xcvi] State v Tizard, 897 S.W.2d 732 (1994).

[xcvii] State v Karlen, 589 N.W.2d 594 (1999).

[xcviii] Com. v Tatro, 42 Mass.App.Ct. 918 (1997)

[xcix] People v Liberta, 64 N.Y.2d 152 (1984).

[c] Ibid 99.

[ci] Lamar v State, 254 S.E.2d 353 (Ga. 1979).

[cii] Harper v State, 463 So. 2d 1036, 1038-39 (Miss. 1985).

[ciii] Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’ (2011) 39 The Journal of the American Academy of Psychiatry and the Law 197.

[civ]<https://www.brainyquote.com/quotes/jim_morrison_167304> accessed 20^th July 2019. Jim Morisson is an American singer, songwriter and poet.

[cv]<https://www.oxfamindia.org/sites/all/themes/oxfamindia/images/Impact%20of%20films%20on%20VAWG_Research_clean%20version.pdf> accessed 4^th July 2019.

[cvi] Claire Cohen, ‘Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape’ (Palgrave Macmillan 2014).

[cvii] Ny`Chel Dior, ‘Deadly Temptation’ (True Glory Publications 2014). 

[cviii] Article 15 of the Constitution of India.

[cix] Samaraditya Pal, ‘India`s Constitution: Origins and Evolution’ (Volume 1, 1^st Edition, Lexis Nexis 2014).

[cx] Kaufman, A., Divasto, P., Jackson, R., Voorhees, D., & Christy, J. ‘Male rape victims: Non-institutionalized assault’ (1980) American Journal of Psychiatry 137.

[cxi] Cindy Struckman-Johnson, ‘Forced Sex on Dates: It happens to men, too’ (1988) 24 The Journal of Sex Research 234.

[cxii] Crime in United States: Uniform Crime Reports, US Department of Justice 1986.

[cxiii] Ibid 111.

[cxiv] Christina Faulkner, ‘Sexual Boundary Violations committed by female forensic workers’ (2011) 39 The Journal of American Academy of Psychiatry and the Law 154.

[cxv] Regina v Belton [2011] QB 934.

[cxvi] Ibid 4.

[cxvii] Ibid 5.

[cxviii] Rituparna Chatterjee, ‘The mindset is that boys are not raped’: India ends silence on male sex abuse’ <https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala> accessed 17^th July 2019.

[cxix] Namita Bhandare, ‘It’s time we recognised that men can get raped too’ <https://www.hindustantimes.com/columns/it-s-time-we-recognised-that-men-can-get-raped-too/story-tlIiUihV1T0gMHbqHfGaIM.html> accessed 17^th July 2019.

[cxx] Aliraza Javaid, ‘The Unknown Victims: Hegemonic Masculinity, Masculinities, and Male Sexual Victimisation’ (2017) 22 (1) Sociological Research Online 1.

[cxxi]<https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-delhi-commission-of-women-233222-2014-12-29> accessed 9^th July 2019.

[cxxii] Ibid 15.

[cxxiii] Section 498A is cognizable offence and police has power to arrest accused persons without an arrest warrant under section 41A of the Code of Criminal Procedure, 1973 in cognizable offences.

[cxxiv] Mohammad Miyan v. State of UP (2018) SCC OnLine SC 1976; Mangesh Bhoir v. Leena Bhoir (2015) SCC OnLine Bom 6258.

[cxxv] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.

[cxxvi] Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443.

[cxxvii] Andrew Marszal, ‘Indian bride burnt alive by husband’s family because her skin was too dark’ <https://www.telegraph.co.uk/news/2016/06/09/indian-bride-burnt-alive-by-husbands-family-because-her-skin-was/> accessed 10^th July 2019.

[cxxviii] Law Commission of India, ‘Wrongful Prosecution’ (Report no. 277, August 2018).

[cxxix] Martin Luther King Jr. in a speech at St Louis, 22 March 1964, in St Louis Post-Dispatch 23 March 1964.

[cxxx]<http://www.authorama.com/life-of-abraham-lincoln-7.html> accessed 8^th July 2019.

[cxxxi]<https://www.heforshe.org/en> accessed 8^th July 2019.

[cxxxii] David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical Quarterly 374.

[cxxxiii] Section 1, Chapter 6 of the Swedish Penal Code, 1962.

[cxxxiv] <https://www.legal-tools.org/doc/1c639d/pdf/> accessed 19^th July 2019.

[cxxxv]<https://www.prsindia.org/sites/default/files/bill_files/Criminal_Law_%28A%29_bill%2C_2012.pdf> accessed 19^th July 2019.

[cxxxvi]<http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Home%20Affairs/167.pdf> accessed 19^th July 2019.

[cxxxvii]<https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf> accessed 19^th July 2019.

[cxxxviii]<https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-375ipc-gender-neutral/> accessed 19^th July 2019.

[cxxxix]<https://ccs.in/indias-law-should-recognise-men-can-be-raped-too> accessed 19^th July 2019.

[cxl] Baroness Vivien Stern CBE, Government Equalities Office UK <https://webarchive.nationalarchives.gov.uk/20110608162919/http://www.equalities.gov.uk/pdf/Stern_Review_acc_FINAL.pdf> accessed 20^th July 2019.

[cxli] Catherine Pitfield, ‘Male Survivors of Sexual Assault: To tell or not to tell?’, <https://repository.uel.ac.uk/download/7114928707ffdc81db2b052b20765be5b5c8eae24c2bca074e79f9a60966ce67/3605459/2013_DClinPsych_Pitfield.pdf> accessed 25^th July 2019.

[cxlii] Gardiner Harris, ‘For Rape victims, police are often part of the problem’ NYTimes (New Delhi, 22^nd January 2013) <https://www.nytimes.com/2013/01/23/world/asia/for-rape-victims-in-india-police-are-often-part-of-the-problem.html>accessed 9^th January 2019.

[cxliii] Cr.M.No. 23962 of 2017 in Cr.A.No. S-2396-SB of 2017, High Court of Punjab and Haryana at Chandigarh.

[cxliv] (1980) 4 SCC 262.

[cxlv] Ibid 2.

[cxlvi] <https://www.bartleby.com/73/1746.html> accessed 24^th July 2019.

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