ABSTRACT
This paper offers a critical analysis of male rape in India. The law does not recognize male rape. History demonstrates that rape affects males as well as gays and transgender people, proving that it is not just a crime against women. Rape is defined by law as a crime between a male offender and a female victim, even under the Indian Penal Code. The paper aims to show the significant disparity between the reality of male rape and the legal protections available. It talks about the incidence of rapes that even happen to men.
KEYWORDS – Gender Neutral, Male Rape, Patriarchy, Inclusivity
INTRODUCTION
According to justice Krishna Iyer, “ A murderer kills the body but a rapist kills the soul.” [1]This implies that rape is a graver crime than killing someone. According to section 375 of the Indian Penal Code[2], rape is often understood to be an act of sexual assault by a man against a woman. However, Roberta Chinsky Matusan disagrees, saying, “Many people mistakenly believe that harassment is limited to females.”
Men are also victims of rape in India; it is time for the public to recognize this, assist male victims of sexual assault when they come forward with reports, and ensure that those who commit acts of sexual violence, both men and women, face the same legal penalties for this heinous crime.
The famous quote by Martin Luther King Jr., “Our lives begin to end the day we become silent about the things that matter,” aptly describes the devastating effect of silence on the fight for justice, especially when it comes to supporting gender neutrality in rape legislation. Each minute of silence perpetuates a system that refuses equal protection and justice to all victims of sexual abuse, regardless of gender. We give hope and progress in life by speaking up and breaking this silence in favour of change. Gender neutral legislation must be adopted by society in order to address the vulnerable status of both men and women, whether they are infants, adults, or even senior citizens.
RESEARCH METHODOLOGY
This paper is based on descriptive analysis.Several secondary sources, including journal articles, legal reports, and newspaper articles, have been consulted in order to properly analyse the subject.
LITERATURE REVIEW
Rape incidents have been documented for as long as history has been kept. The gendered lens is used to view rape. It is true,as history records, that women have experienced sexual assault. They deserved to be recognized and given justice because their anguish and suffering were genuine. It is equally true though, that men have experienced sexual assault.
There are historical examples of males using male rape as a strategic terror tool in warfare. The shame associated with rape, particularly male rape, discourages both the offender and the victim from speaking out. It was often thought that men who are sexually assaulted lost their manhood. Sexual assault by men is not exclusive to the military. It occurs in day-to-day living as well.
Nothing about this has changed over time. Patriarchy persists to the point where male rape victims are embarrassed to speak about their experiences. In India, there is few, if any, research that systematically gathers testimonies of male rape victims. Since even the conversation around this matter is hushed.
It is beyond the realm of my practical comprehension to expect the government to conduct a survey on the reports of male sexual assault. Though it may take some time, the optimistic mind believes that India will eventually arrive at a situation where rape laws would be recognized legally as gender neutral.
METHOD
CURRENT STATUS OF RAPE LAWS IN INDIA
Rape laws in India are female centric. The Indian Penal Code,1860 contains no provision protecting men from the offence of rape. The underlying premise of these laws is that women are the victims of rape, whereas men commit the crime. The other way around is far from people’s imagination.
Section 375 of Indian Penal Code,1860[3] reads as:
A man is said to commit “rape” if he–
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following 7 descriptions: —
First, —Against her will.
Secondly, —Without her consent.
Thirdly, —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly, —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. —With or without her consent, when she is under eighteen years of age.
Seventhly. —When she is unable to communicate consent.
Explanation 1. —For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2. —Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. —A medical procedure or intervention shall not constitute rape
The phrase “man” rather than “person” in section 375 of the IPC,1860 makes it evident that the law is prejudiced towards women.
Exception 2. —Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape
Section 377 of Indian Penal Code,1860[4] reads as:
“Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
It is the only area where male victims of sexual assault may perhaps find relief.
In the case of Navtej Singh Johar v. Union of India[5], The Five Judge Bench declared Section 377 IPC, 1860 unconstitutional, insofar as it criminalises consensual sexual acts of adults in private.
Section 376D of Indian Penal Code,1860[6] reads as:
“Gang Rape – Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.”
This section makes use of the word “person” which gives rise to the question that whether women can be held liable for the offence of gang rape. The following two judgments attempt to answer this question.
- Priya Patel v. State of MP[7] – The Supreme Court ruled that section 375 of the IPC specifically states that the crime of rape may only be committed by a “man” and not “any person.” The court also found that a woman cannot have an intention to rape since it is conceptually inconceivable, and hence she cannot be held liable for rape or gang-rape.
- Sunita Pandey v State of UP[8] – The Allahabad High Court held that if a woman facilitates the act of rape with a group of people, she can be prosecuted for the offence of gang rape under Section 376D of the IPC. Furthermore, the court noted that since the definition of gang rape under Section 376D does not include the accused’s gender, a woman may be held accountable for the crime if she helps a group of males commit rape.
Other female on-female rape is not punishable under law since even under Section 377, penile penetration is a necessary condition.
THE ROAD TO GENDER NEUTRAL RAPE LAWS IN INDIA
The developments in the recent years have brought to light the occurrence of men being victims of rape. However, the actions taken by the government are deemed insufficient in addressing the needs of non-female members of society. Previous judicial rulings and legislative changes lack clear evidence of thorough consideration of the conflicting legal principles at play. This situation only serves to underscore a larger problem that remains overshadowed in a patriarchal society.
In the case of Sudesh Jhaku vs. KC Jhaku[9] in 1996, the issue of gender neutrality in rape laws was raised for the first time where justice Jaspal Singh advocated for redefining the offense of rape in gender-neutral terms. He quoted the following passage from the California law article: “Men who are sexually assaulted should have the same protection as female victims, and women who sexually assault men or other women should be as liable for conviction as conventional rapists.”
In 1997, Sakshi[10], a Delhi based group in its writ petition requested the Supreme Court of India to review the issues raised in the Jhaku case. In 1999, the Supreme Court of India emphasised the issues to be considered by the Law Commission of India.
In March 2000, 172nd report of the Law Commission of India[11] recommended a substantial change in the legal framework by suggesting that the offence of rape be substituted with a completely gender-neutral offense of “sexual assault.”
However, there was no legislative amendment based on this recommendation until 2012. The Criminal Law (Amendment) Bill, 2012[12] proposed a gender-neutral definition of rape.
The 2012 Nirbhaya Case[13] resulted in the re-evaluation of the 2012 bill thereby preventing it from becoming law. The parliament constituted the Justice Verma Committee[14] in response to the widespread outrage that ensued in the nation.
The report of JVC recommended that the offence of “rape” shall not be substituted with “sexual assault”. It also suggested making the offence partially gender neutral from the perspective of the victim.
Following these developments the legislature made a decision of introducing the Criminal Law (Amendment) Ordinance, to adopt a gender-neutral definition of rape. This decision was highly criticised by the feminist groups.
Finally, the ordinance was replaced by Criminal Law (Amendment) Act,2013[15] wherein gender specific definition of rape was retained overlooking the previous recommendations.1n 2017 NALSA held a national consultation on access to justice for transgender individuals. The consultation furthered the cause of gender-neutral rape laws in India.
The developments outlined above clearly showcase that despite numerous reports and amendments, the issue of gender neutrality of rape laws has not been addressed properly.
NEED FOR GENDER NEUTRAL RAPE LAWS
Gender neutrality of rape laws is the need of the hour. With time society has changed so much that men and people from the LGBTQ community are facing sexual assault. But the law hasn’t changed adequately to provide adequate protection to these individuals.
Crime does not discriminate on the basis of gender. An offence can be committed by anyone against anyone regardless of their gender. Law should also not discriminate. It shouldn’t be assumed that only men are capable of committing a certain offence and that they can never experience the agony the offence unleashes.
Male rape victims are not recognized as victims under the existing rules, in spite of pleas for equality and inclusion in the judicial system. Male victims suffer just as much as female victims. The patriarchal mentality that holds that males cannot be sexual assault victims undermines their suffering.
It was held in the case of State of Himachal Pradesh v. Shree Kant Shekari[16] that the crime of rape violated the victim’s basic Right to Life under Article 21 of the Indian Constitution[17]. Since men also have the right to life, the law should likewise protect them from violations of that right. Rape laws should be redrafted to provide protection to both men and women.
Article 14 of the Indian constitution[18] mentions the right to equality. It states that in order to uphold the sentiment of equality law should be just and reasonable. Gender-neutral policy advocates align with these constitutional standards by supporting legislation that prohibit discrimination based on gender.
Discrimination on the grounds of religion, race, caste, sex, or place of birth is forbidden by Article 15 of the Indian Constitution[19]. This implies that no individual or case may be given a different treatment because of these characteristics.
It is true that there are far more female sexual assault cases than male ones. Less incidences do not lessen the seriousness of the offence, but for the few instances that do occur, men need legislation to protect themselves. There is no merit to the claim that because there are fewer cases, they shouldn’t still be protected.Providing men with a forum to discuss their attacks and the option to record occurrences would lessen the toxic masculinity associated with it, which would reduce the number of assaults on women, as the fundamental cause of violence against women is the assertion of dominance.
Men fear getting judged by the patriarchal society which assumes men cannot be the victims of sexual assault. Due to this fear of judgement, they hide their emotions and experiences of sexual assault.It is high time for the Indian legislature to do justice to the male victims of sexual assault by making the rape laws completely gender neutral.
CHALLENGES IN IMPLEMENTING GENDER NEUTRAL RAPE LAWS
- Patriarchy
Opposition to gender-neutral rape legislation is frequently caused by deeply rooted patriarchal ideas in society. These ideas are rooted in conventional wisdom that perpetuates the stereotype that only women may become victims of sexual assault by depicting males as the main aggressors and women as helpless victims. In addition to undermining the experiences of male survivors, this constrictive viewpoint feeds negative stereotypes that stigmatise and silence them.
Also , because gender-neutral laws upend the current power structure, patriarchal views may oppose them out of concern that they would take away their authority or influence over women. In order to achieve gender equality and guarantee that all victims of sexual abuse receive the assistance and justice they are entitled to, it is imperative that these patriarchal barriers be removed.
2.Feminism
Gender-neutral rape laws are not universally opposed by the varied feminist movement. Some feminist viewpoints, however, could voice worries that this legislation will lessen the emphasis on how commonplace violence against women is. Some opinions contend that laws that are gender-neutral may hide the parts of sexual assault that are distinctive to a certain gender, which may result in a failure to recognize and address the vulnerabilities that women and girls confront.
From this vantage point, some feminists support keeping rape legislation gender-specific in order to address the systematic and historical basis of violence against women. They contend that legislation that are gender-neutral might lessen awareness of sexual assault, which disproportionately affects women.
3.Media’s role in perpetuating gender stereotypes
The public’s opinion of gender-neutral rape law in India and the perpetuation of gender stereotypes is significantly influenced by the media. The media frequently reflects and reinforces societal beliefs, including biases linked to gender. When the media presents rape cases in a way that is gender prejudiced, it is inevitable that the public will be affected. Decisions on policy are then shaped by public opinion.
It’s critical to confront prejudices in media, especially movies, in order to promote a more inclusive society in India. Filmmakers may make more responsible films if they are confronted with gender stereotypes.Media reports of men as the perpetrators and women as the victims in rape cases reinforces gender stereotypes.
4.Incorrect interpretation of physiological factors
Males who are sexually assaulted are frequently accused of having an erected penis and/or ejaculating, which gives the impression that they provided consent. Blood flow and lubrication to the genital organs rise when a sexual attack stimulates the nervous system and releases adrenaline. A person’s genitalia won’t become unresponsive under fear.
An erection is seen to be a sign that consent has been granted. In addition, a man may get an erection if he has had sexual penetration or other actions associated with sexual assault. They fail to express a person’s emotions.
It’s critical to understand that a sexual reaction does not always imply permission. Regardless of the victim’s bodily reaction, consent must be offered voluntarily and enthusiastically. Any sexual activity carried out without consent is regarded as assault. The assent of a male ought to be just as important as that of a woman.
CASE STUDIES
1.The Hindustan Times reported, “women tie husband to bed, burn him with cigarettes in UP, arrested.”.[20] She was taken into custody on suspicion of burning her spouse with cigarettes while tying him to a bed. The incident, which was captured on CCTV cameras, shocked the local community and highlighted the issue of domestic violence.
2.Two Bangladeshi men were reportedly raped and assaulted by three men in the Shakurpur neighbourhood of Delhi, according to NDTV[21], which detailed the upsetting occurrence. The victims—members of the LGBTQ community—went through this horrific trauma, highlighting how vulnerable minority groups are to crimes this serious.
A case was registered against the three men under section 323 of Indian Penal Code,1860[22] which mentions voluntarily causing hurt and section 377 of Indian Penal Code,1860[23] which mentions unnatural offences.
3.An article by The First Post[24] covers the case of Jalandhar male rape wherein four women in their 20s were alleged of raping a man after abducting him. The man also stated that he was kept hostage for eleven hours before being released in a forested area at around 3 am. He was also drugged by the women.
The taboo surrounding the issue of male rape is the reason that there are very few stories in circulation. Most of the incidents of sexual assault of non-female members of society goes unreported. The legislation surrounding rape in India does not cater to the Significant portion of society.
SUGGESTIONS
In light of the pressing need for a more inclusive legal framework, the following recommendations highlight important factors for the adoption of gender-neutral rape law.
1. Redrafting rape laws in a gender-neutral manner to guarantee that sex never becomes the basis for analysing legal wrongs.
2. The media should show a moral commitment to helping society, even if it is not legally obliged. It is absolutely necessary to inform the public and the legal system about how sexual stimulation can be obtained without conscious permission for sexual involvement.
3. Further research is needed to learn more about the experiences of male rape victims.
4. Lack of data makes it harder to establish the prevalance of male rape in india thus survey should be conducted to get insight into the reality of this issue.
5. Awareness campaigns should be launched to debunk myths and stereotypes regarding male rape and the significance of gender-neutral rape legislation.
CONCLUSION
There is currently a legal vacuum in section 375 of the IPC[25] where both the victim and the predator are male or female. This section acknowledges females as victims and males as perpetrators. Article 14 of the Indian Constitution[26] discusses the right to equality. The issue that comes up in this situation is: Why are the interests of males not taken into consideration when drafting various statutes? They solely seem to protect the rights and dignity of women.
The law should treat everyone equally, and bigotry should not be tolerated in the name of gender equality. Thus, Gender-neutrality must replace women-centricity in the legislative process.
Name – Deepti Wadhwa
College – Trinity Institute of Professional Studies, Dwarka
[1] Rafiq v State of Uttar Pradesh, AIR 559 SCC 1981
[2] Indian Penal Code, 1860, § 375, No.45, Acts of Parliament,1860 (India)
[3] Indian Penal Code, 1860, § 375, No.45, Acts of Parliament,1860 (India)
[4] Indian Penal Code, 1860, § 377, No.45, Acts of Parliament,1860 (India)
[5] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
[6] Indian Penal Code, 1860, § 376D, No.45, Acts of Parliament,1860 (India)
[7] Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639
[8] Writ Petition (PIL) No. 132 of 2014 (India).
[9] Sudesh Jhaku v. KC Jhaku, AIR 1995 SC 375
[10] 1999 (6) SCC 591
[11] India Penal Code | Law Commission of India | India, Lawcommissionofindia.nic.in (2015), https://lawcommissionofindia.nic.in/cat_indian_penal_code/ (last visited May 14, 2024).
[12] The Criminal Law (Amendment) Bill, 2012, PRS Legislative Research (2024), https://prsindia.org/billtrack/the-criminal-law-amendment-bill-2012 (last visited May 14, 2024).
[13] Mukesh and Anr v. State of NCT of Delhi and Ors., AIR 2017 SC 2161
[14] Committee Reports, PRS Legislative Research (2024), https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary (last visited May 14, 2024).
[15] Criminal Law Amendment Act, 2013, No. 13, Acts of Parliament, 2013 (India)
[16] State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 376
[17] INDIA CONST. art.21
[18]INDIA CONST. art.14
[19] INDIA CONST. art.15
[20] Manjiri Chitre, Bijnor: Woman ties husband to bed, burns him with cigarettes in UP, arrested,Hindustan Times (2024),(last visited May 14, 2024).
[21] English, NDTV, NDTV.com (2023), https://www.ndtv.com/india-news/3-men-arrested-for-raping-assaulting-2-bangladeshi-men-in-delhi-police-4496241 (last visited May 14, 2024).
[22] Indian Penal Code, 1860, § 323, No.45, Acts of Parliament,1860 (India)
[23] Indian Penal Code, 1860, § 377, No.45, Acts of Parliament,1860 (India)
[24] Sreemoyee Piu Kundu, Four women “rape” a man in Jalandhar: Gender-neutral laws are crying need of hour, Firstpost (2022), https://www.firstpost.com/opinion-news-expert-views-news-analysis-firstpost-viewpoint/four-women-rape-a-man-in-jalandhar-gender-neutral-laws-are-crying-need-of-hour-11747931.html (last visited May 14, 2024).
[25] Indian Penal Code, 1860, § 375, No.45, Acts of Parliament,1860 (India)
[26] INDIA CONST. art.14