The Author, Nikhil Mishra, 2nd Year B.A. LL.B. (Hons.) student at Central University of South Bihar. He is currently interning with Jasra & Jasra Law Firm.

INTRODUCTION

Rape is the fourth most prominent crime in India and a serious issue throughout the world. Mainly rape is a crime that is assumed to be done against women by a man but have we ever thought vice versa? Historically, rape is considered as a crime done by men solely against women only but by the passage of time it has been seen that other genders such as males, homosexuals and transgender community are also equally affected by this crime. Actually, rape can happen to anyone regardless of their age, gender, sexual attitude. Though there are large number of such cases but most of them go unreported as people fear that reporting such cases will raise a question on their potency. Rape done with persons other than females mostly go unreported thus people have a low knowledge about it but it is need of the hour that people should know about such crimes and proper law and order should be maintained to get rid of such a heinous crime. First of all, we have to accept the fact that the victim and perpetrator of a rape can be of any gender and it can take place anywhere such as school, office, prisons, workplaces, coaching, etc. Only after leaving stereotype thoughts about sexual offences that it can be done only against women, one can understand this issue and its seriousness.

MALE RAPES

The study of male rape victims started only after 1980s and that too was mostly focused on child sexual assaults. Even in the 21st century it is difficult for a male rape victim to report sexual assault because we live in a society where men are considered to have potential to protect themselves as well as others, they are considered to have strong masculine power, so most people fear that reporting their sexual assault will raise a question on their potency or they will be considered as homosexual, if raped by a male. But now there are some brave men who have courage to come forward and share their experience but there are still many men who never report their rape due to the fear of society. A study conducted by The Centres for Disease Control and Prevention in the United States (US) found that 1 in 17 men reported were being forced to penetrate at some point in their lives and among these rape victims, around 86.5 percent reported that the perpetrators were male[i]. Nearly 1 in every 38 men have experienced an attempted or completed rape during his lifetime[ii] but this patriarchal society does not believe that a man can be raped too and most often they deny to agree to such incidents. In a recent case happened in Mumbai, India a RPF constable was charged under sodomy for the rape of a taxi driver as he refused to drop him.[iii] According to psychologist Sarah Khan, fewer than 1 in 10 male-male rapes are recorded as male rape victims lack support and services and legal systems often lack to deal with this type of crime.

INDIAN LAWS ON RAPE

In India according to Section 375[iv] of the Indian Penal Code (IPC) rape is defined as-

A man is said to commit "rape" if he: ––

  1. 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
  2. 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
  3. 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
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

From the above mentioned definition in Section 375 of Indian Penal Code, it can be clearly assumed that rape is always committed by a man against a woman. If a woman forces a man to have intercourse with her, it is not considered as a rape, but the same done by a man to a woman is considered as a rape.

The definition of rape given under Section 375[v] of Indian Penal Code has mainly two problems, that are, it does not take into account the non-consensual sexual acts on a man by a woman and it always considers woman as victim because of which many false rape cases are filed against men to take revenge or undue advantage. It lacks gender-neutrality.

Thus, in India there is not any particular law for a male victim of rape. Section 377 of IPC[vi] is an exception to women favouring laws which defines unnatural offences and criminalises carnal intercourse against the order of nature with any man, woman or animal. Other than this, there is POCSO Act which criminalises sexual assaults against male child, but there is no such provision for adult male. Sexual assault against a male child is dealt completely different from a sexual assault against an adult male. The reason behind such partiality is unknown. If India can have the provision for rape of a male child, it definitely should have the provision for rape of adult men. But the conservative idea that it is only men who uses power to exploit women, has left the males vulnerable. With all such provisions of law for sexual assault and offences against women and children, a sense of equality guaranteed under Article 14[vii] of the Indian Constitution also seems to be missing. All laws should be gender-neutral and hence all the laws with stronger intentions to protect women also need to know the proximity of sexual offences against men and other genders.[viii]

RAPE LAWS IN OTHER COUNTRIES

Around seventy-seven countries of the world have established and accepted the gender neutral laws. United States, United Kingdom, Australia and Denmark are out of those seventy-seven countries which have gender neutral laws in their territory. Indian Constitution is a borrowed constitution and Indian laws are much like that of laws in United States and United Kingdom. So, it, here, is relevant to look at laws relating to rape in United States and United Kingdom.

  • United States – In US, the definition of rape does not include the word woman or girl. The word “person” is used there making the definition of rape gender neutral, criminalising all types of penetration without consent illegal, which is different as the definition of rape under Section 375 of Indian Penal Code 1872.
  • United Kingdom – UK did not use to have gender neutral laws earlier but after the R v. Ismail[ix] it was held that court should make no distinction in penalty between vaginal, anal or oral rape and hence, every type of penetration in anus, mouth, vagina has been made punishable. Section 142 of Criminal Justice and Public Order Act 1994 became the first to lead this development and recognize male-victim rape and as per the section “It is an offence for a man to rape a woman or another man.”[x]

ANALYSIS

Indian Parliament has repeatedly ignored and rejected the idea of making gender neutral laws against rape. In India a male rape victim is not considered as a victim at all. The problem of male is increasing at a greater pace and is seen to be taking place in prisons cell mostly and in our civil society as well. Delhi gang rape accused, Ram Singh who was found hanging in his prison, claimed that other male prisoners raped him.[xi] G. Pramod Kumar, a writer for the website Firstpost, has quoted in his article that The People’s Union of Civil Liberties had this to say about Tihar way back in 1981: “When a young boy enters, the prisoners have been known to have bid a price for the boy. The price offered is in terms of ‘bidis’, soap or charas. Often prisoners have been divided into camps and the groups have fought each other on the issue of who shall have the new entrant”.[xii]

Complaints of male victims are not heard, so unless or until they are having serious physical injuries, they try to hide, refuse or deny their victimization, similar to female victims. There are several instances where it has also been found that women had filed false cases. It is found that many women file fake rape cases due to family pressure, revenge, etc. There are a number of false rape cases filed in India on a daily basis. Few cases relating to false rape are as below:

  1. Tilak Raj v. State of Himachal Pradesh[xiii]
  2. Malti Chauhan v. State (Govt. of NCT of Delhi) and Ors[xiv]
  3. Raghuvinder Harna v. State of NCT of Delhi[xv]

On the basis of above three judgements relating to false rape, it can be concluded that sometimes women use the law in an unfair manner and as a result of which victim is put behind bar even though when he had not committed the crime. It leads to mental trauma of accused since the mark of rape accused stays with him throughout his life, even after the acquittal society still sees him as a culprit. Memories of the case and the time spent in jail also haunts the victim. His life never remains same as earlier even after receiving compensation.[xvi] Though various laws were made to protect women but laws to protect men from rape and false rape allegations are yet to be made. The protection of both, men and women from rape and false rape conviction is possible only when gender-neutral laws will be implemented in the country.

CONCLUSION

The punishment for a crime should be as heinous as the crime committed and it should not be restricted to a specific class, it should be applicable to all citizens irrespective of their gender. Suffering is incomparable, it is same for all. The survivor whether a male, female or trans suffers from the same physical, mental and emotional pain. But a male cannot file a case of rape against women due to the use of gendered language. The gendered language means that a man cannot claim the sexual assault by a woman because according to the definition of rape it can be committed only by a man, this can be referred through the use of the word ‘his’ in the definition. A man can file a case under violence or assault but not under rape and the punishment for it won’t be equal to rape even though the act was the same.

The legislation in India is adapting and is making changes which can be to make India a successful country so why should they lack behind in provision relating to male rapes. So, Indian parliament must bring gender-neutral rape laws as countries like United States, Bhutan and United Kingdom have gender-neutral laws. Indian legal system and its citizens need to accept that even women are capable of raping men. Law should recognise men as victims too and not just the perpetrators. There is a necessity to take the issue of sexual harassment of males to the government, to the society and bring about a change in the stereotypical thinking of society[xvii]. The pain of male victims need to be heard.

References:

[i] Athira Nortajuddin, Taking male rape seriously, The Asean Post (Sep. 12, 2020, 07:28 PM), https://theaseanpost.com/article/taking-male-rape-seriously

[ii] Sexual Violence is Preventable, Centers for Disease Control and Prevention (Sep. 12, 2020, 08:03 AM), https://www.cdc.gov/injury/features/sexual-violence/index.html

[iii] Press Trust of India, Mumbai cop rapes cab driver for refusing ride to red-light area, The New Indian Express (Sep. 13, 2020, 10:32 PM), https://www.newindianexpress.com/nation/2020/jan/13/mumbai-cop-rapes-cab-driver-for-refusing-ride-to-red-light-area-2089026.html

[iv] Indian Penal Code, Section 375 (1860).

[v] Ibid.

[vi] Indian Penal Code, Section 377 (1860).

[vii] Constitution of India, Article 14 (1949).

[viii] Sanjana Kiran, Bridging The Gender Gaps: Rape Laws in India, Black White Legal (Sep. 16, 2020, 09:37 PM), https://www.whiteblacklegal.co.in/bridging-the-gender-gaps-rape-laws-in-india-by-sanjana-kiran/ 

[ix] [2005] All ER 216.

[x] Criminal Justice and Public Order Act, Section 142 (1992).

[xi] G Pramod Kumar, Ram Singh's death: Rape and ugly sexual violence in Indian jails, Firstpost, (Sep. 18, 2020, 03:42 PM) https://www.firstpost.com/india/ram-singhs-death-rape-and-ugly-sexual-violence-in-indian-jails-657071.html

[xii] Ibid.

[xiii] AIR 2016 SC 406.

[xiv] 2016 (1) JCC 343.

[xv] 2016 (1) JCC 99.

[xvi] Dhananjay Shrikant Shinde, Identify and Critically Analyse Gender Biased Rape Laws in India, Black White Legal (Sep. 20, 2020, 08:51 AM), https://www.whiteblacklegal.co.in/identify-and-critically-analyse-gender-biased-rape-laws-in-india-by-dhananjay-shrikant-shinde/

[xvii] Prashanti, Sexual Harassment of Men, Legal Services India (Sep. 23, 2020, 10:12 PM), http://www.legalservicesindia.com/article/2039/Sexual-Harassment-of-Men.html

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Nikhil Mishra