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WHY ONLY WOMEN, WHY NOT PERSON: NEED FOR GENDER-NEUTRAL LAW IN THE GENDER- NEUTRAL SOCIETY!

Author: Priyanshu Parasar, III year of B.A.,LL.B. from Lloyd Law College, Greater Noida


ABSTRACT

Section 375 and 376 of Indian Penal Code, 1860 deals with the heinous offence of rape. The present law makes it a gender specific law by treating only women as victim and a man as perpetrator. This is perception of the patriarchal society and orthodoxical understanding of sexuality. Through this paper the author had tried to establish a relationship between rape law and need to make it gender neutral. It never criticizes the current provisions of rape law in India but only recommended to increase the ambit of rape law to make it gender neutral. The basic idea of any law is to protect itscitizens from any crime against them without any discrimination. The paper started with explaining the condition of rape in India and then through some data tries to give a view of male rape in the world. Rape Law of different countries as compared to India is discussed. The alarming data on male rape demand a revisit to the definition of Rape. This paper seeks the attention of its readers towards the conditions of male rape in prisons. Through their numerous judgments, the judiciary is of the view that there should be a gender neutral law on rape but it is responsibility of our lawmakers to amend and to make it gender neutral.

Keywords: Rape, Gender neutrality, Indian rape law, Male rape.


INTRODUCTION

“I would not enter a male washroom because scared that I would be raped again…..I grew up having no self-esteem.It was, when I was 17 or 18 that I understand that what had been happening to me for so many years was wrong–so one day when he came to jump on me, I kicked him and said no. I told my mother, she was in shock; she said, ‘I never knew such things could happen with boys’ and that was the time I realised that boys and men are the forgotten gender. We tried to get some legal help but we realised that there’s no law against child sexual abuse for boys in the country. By the time I was 18, no laws applied to my case — so there was no justice”.

-Male Rape Survivor

The first thing that came to our mind, when we hear the word “Rape” is that the victim must be a women. We have a prejudice that rape can be committed with a women only and the perpetrators must be a men. Have you ever heard of rape with a man or story of a male rape survivor, for most of us the answer must be in negative. It is because we are never told about such crime, nor there were, muchcoverage about them; sometime these goes unreported because the survivor thinks this will raise question on his potency. NCRB data of 2018, shows more than 109 children are abused every day in our country.


It sounds a little disgusting for most of the people that even a men can be a victim of Rape. The bitter reality is that he could be a sufferer of sexual exploitation but it is hard to believe for this patriarchal society for whom men are the supreme and nothing wrong as such can be done with a man.According to them, only women are vulnerable and men uses their power to exploit women and women can never exploit men. Rape with men is always seen as a taboo and inperspective of manliness and masculinity in Indian society.


Even law of our country does not talk about rape with men, its evidence can be traced in the definition of rape mentioned under section 375 of the Indian Penal Code.According to which a rape can be committed against a women only and men can’t be raped, they can only be sodomised. Now, what the term, sodomy means; legal dictionary defines sodomy as, “Anal or oral intercourse between human beings, or any sexual relations between a human being and an animal, the act of which may be punishable as a criminal offense”[1].Though after Criminal Amendment of 2013, we have POSCO Act to protect child irrespective of their gender against sexual exploitation but yet there is no law for those who faces this after turning major.Let’s have a view of the position of male rape in the world.


DATA ON MALE RAPE

We can link the history of male rape to wartime. During war in the different part of world, male rape has been reported massively, though most of the perpetrators as well as their victims denied to share this. In a survey in 1980s, 76% of male political prisoners in El Salvador accepted that they have faced incident of sexual torture at least once and a study on 6,000 inmates in concentration-camp of Sarajevo found that 80% of men reported have been raped.[2]


In a survey report of 2010 conducted by Centers for Diseases Control and Prevention, it was found that a huge number of men had experience forceful penetration without their consent and 79.2% of victims reported female perpetrators; in 2013’s report on rape incidents,female perpetrators were reported in 34.7 percent of incidents with male victims and 4.2 percent of incidents with female victims.[3]The US Dept. of justice in a report said that an estimated 4.4% of prison inmates and 3.1% of jail inmates reported their experience of sexual victimization by another inmates, out of 39,121 male prison inmates 69% reported sexual abuse by female staff and additional 16% reported sexual activity with both female and male staff.[4]


Delhi based Center for Civil Society in a recent report founded that approximately 18% of Indian adult men were being coerced or forced to have sex and out of them 16% of them claimed a female perpetrators and 2% claimed male perpetrators. In a survey by Indian government in 2007, 57.3% boys and 42.7% girls reported their experience of severe sexual abuse.[5]


The reason for unreported cases of male rape can be understood through a small survey conducted by InsiaDariwala, they surveyed 1500 men out of which71% of men said they were abused, 84.9% said they had not told anyone about the abuse and The primary reasons for this were shame (55.6%), followed by confusion (50.9%), fear (43.5%) and guilt (28.7%)[6]. Most of the victims step back to report such crime because of shame and lack of support and services. Other reason could be that our legal system does not recognize it as a crime. Now, we have to see what our legal system says about rape.


INDIAN LAW ON RAPE

Section 375 of Indian Penal Code defines rape as, "complete or partial penetration of penis or any object in a woman’s vagina, mouth, urethra or anus against her will, without her consent, or consent taken by coercion, misrepresentation, fraud or at the time when she has been intoxicated or duped, or is of unsound state of mind and in any case if she is under 16 years of age." Though forceful sexual intercourse with a legally wedded wife is not recognized as rape in India but section 375 give a glimpse about it and categorize it as rape if wife is below the age of 15 years[7].


In a span of more than 150 years, the definition of rape was amended several times as after the incident that took place in the night of December 16, 2012 when a female physiotherapy intern was brutally assaulted and gang raped by six cold blooded men in a moving bus in south Delhi. It was felt that there is an immediate need to amend section 375 of IPCto set down stringent punishment for those who commits such brutal crime against women. For this,Criminal Law Amendment Act, 2013, popularly known as Nirbhaya Act was passed. This law amended the definition of Rape and included some more acts which falls under ambit of rape.


According to this law,act of penetration of penis or any other object or part of body 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 manipulates any part of body of woman or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, can be rape.[8] From above definitions we can deduct two things; rape can only be committed:

  • Against women, i.e. victim must be women only

  • By men, i.e. offender must be men only

Hence, Section 375 talks about rape against women only and nothing about rape with a male, it only gave protection to woman and not to the men. Even today,there is believe that men cannot be legally raped because only penetration of vagina by a man is rape. If a woman forces to have sexual intercourse with her, then she can’t be punished because it won’t be considered as rape, but if a man does so, it will be a crime.It clearly shows that even our legal system is notof the opinion that a male can be rape victim or can be raped by a woman.

Under section 377 of IPC Voluntarily carnal intercourse with man can be termed as sodomy and is defined as unnatural offence or an “act against god”but it states nothing about forceful sexual intercourse against men.[9]This all shows that even our lawmakers are of the opinion that ours is a patriarchal society, where only men exercise power to dominate over women; even transgender and non-binary people are excluded from the purview of rape law. Let’s go through the law of some other countries to found out their thought on rape.


RAPE LAWS IN OTHER COUNTRIES

More than seventy- seven countries in the world has recognized male rape as a crime and made it a gender neutral law. Most of these countries recognized crime against male gradually and then realized the need to amend the law, so that it could be gender neutral. Here we are going to discuss rape laws in some of the countries:


United States of America

Earlier Uniform Crime Report Summary Reporting System defines rape as the carnal intercourse with a female forcibly and against her will. In 2012, the definition was amended and redefined as, “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” [10]This definition recognized male rape and replaced the term ‘female’ with ‘person’ to make it as a gender neutral law and accepts that any gender can be victim or perpetrators. Through this, US became the first country to acknowledge even penetration with an object as rape, unlike other countries which make different statue for these two crimes. This law makes all types of penetration against any person as illegal.


United Kingdom

Male rape were first recognized through Criminal Justice and Public order Act,1994, which removed buggery and define rape as non- consensual anal as well as vaginal penile penetration and later, through Sexual offence Act, 2003 even non-consensual penetration through mouth is included. Section 142 of Criminal Justice and Public order Act, 1994 includes rape with a woman or man by a man is offence buttill now, the law of UK doesn’t admits women as perpetrators. In R v Ismail[11], it was held that the court could not make any distinction of punishment between anal, vaginal or oral rape and hence, all these three types of penetration are punishable.


Scotland and Northern Ireland

The Sexual Offence (Scotland) Act, 2009 redefines rape as, “The intentional or reckless penetration of the penis (to any extent) into the vagina, anus or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained”. In this definition also the term “female” was replaced by “person” and hence penalizes sexual offence committed against a man or a woman by any man, same as in UK.[12]


Criminal Justice (Northern Ireland) order, 1993 amended the definition of rape and replaced the term “non-consensual intercourse by a man’ with “non-consensual intercourse by a person” making it a gender neutral law. It recognized that any gender can committed such offence against any gender i.e. any gender can be victim and perpetrator. Oral rape was included in this law through Sexual Offences (Northern Ireland) order, 2008. [13]


Philippines

Revised Penal code (RPC) does not recognized male rape but Amendment of 1997 revised Article 266A of RPC and defines rape as, “act of sexual assault by any person either by inserting his penis into another person's mouth or anal orifice or inserting any instrument or object, into the genital or anal orifice of another person". This amendment legally recognized male rape by any man or woman. [14]

These are some amongst those countries which recognizes male rape and had tried to make this gender neutral law. If these countries can amend their laws to make rape gender neutral, why won’t we? Next we will see why there is a need to make rape law,gender neutral in India.


GENDER NEUTRAL LAW ON RAPE

The concept of having gender neutral rape law simply means recognizing the fact that even men, women or transgender can be victim as well as perpetrators. The data on male rape and third gender rape clearly shows that it is need of the hour to make rape law gender neutral in India. The demand to make the law gender neutral arises time to time.The only idea to have a gender neutral law is to give protection to the victim regardless of any discrimination of ground of sex.


The question of gender neutrality in Indian rape law was first dealt in the case of sudeshJhaku v K.C. Jhaku[15], where court opined that sexually assaulted man victim should be given equal protection as a women. In sakshi v Union of India[16], Supreme Court directed to constitute a commission to deal with this issue and hence, 172nd Law commission was formed. In their report submitted in March 2000, they recommended to make the Indian rape law gender neutral to protect male victims too but it seems that our lawmakers were not interested in making this law, gender neutral.


Later, Justice Verma Committee was constituted by the government to give report on necessary reform in rape laws. The committee recommended to make the law gender neutral and to increase the ambit of Section 375 of IPC by not restricting it only to penile- vaginal intercourse. Report of the committee were promulgated in Criminal Law Amendment Bill, 2013 but never became an act because of great criticism from numerous feminist groups, on the ground that it will increase the power of the male community.


One would ask whether it is legal on part of legislature to make such gender specific law? Article 14 of Indian Constitution gives Right to equality beforelawand equal protection of law regardless of discrimination on the grounds of race, sex, religion, caste or place of birth but Article 15 (3) provides power to state for making any special provisions for women and children. Soit is legal on state to make special laws for women but if we go by the statistics and reality of rape in India, there should be gender neutral law because men are equally sufferer of rape as women are and crime has no gender nor should our laws. Making gender biased law for such a heinous crime is grave violation of equalitarian nature of the constitution.


Apex Court in the case of State of Himachal Pradesh v Shri Kant Shekari,[17]&Narendra Kumar v State (NCT of India),[18]held that rape is an offence against fundamental rights of the victim entitled under Article 21 i.e. Right to life. Both men and women are entitled to Right to life and therefore, the violation of bodily integrity of both the sexes must be included in the legislation and male rape must be recognized as well.


The idea of making rape law gender neutral is to eradicate the differences between the two sexes and to give equal rights to every citizens. Gender neutrality of this law will definitely help the victims to report these offences without any hesitation. Presently, male victims hesitates to report these kind of offence because of social stigma.


CONCLUSION

The very purpose of any law is to give protection to the victim against the wrongdoers. In the heinous crime like rape considering only women as victim and male as perpetrators and ignoring others, violates the basic idea of the law, which give equality before law and equal protection of law. Though, many are not against the current law because they believes women were harassed since long time by their counterparts. But we should keep in mind that ours is a dynamic society which changes with time and there is a need to amend some laws accordingly and now because of these increasing data on male rape or rape with transgender or non- binary people, there is a need to increase the ambit of rape in Indian legal system to make it a gender neutral law.


The government should take immediate step to pass the bill passed by Mr. KTS Tulsias Criminal Amendment Bill, 2019 which recommended to make it a gender neutral law. It is demand of the situation to bring gender neutral law in India as in US, UK and people of India need to accept that victim or perpetrators of rape in not restricted to a specific gender only. It is therefore, the time to say that non-consensual sexual intercourse against any person is rape and the term woman should be replaced by any person.

Crime has no color. Crime has no type. Crime has no gender. The reason why crime doesn't end. It is being categorized to certain individuals that people who really commit it, get away with it, right under our noses.”

-De philosopher DJ K

[1]Available at: https://legal-dictionary.thefreedictionary.com/sodomy [2]Will storr, The Rape of Men: the darkest secret of war, THE GUARDIAN, visited on: 5 Apr. 2021, https://www.theguardian.com/society/2011/jul/17/the-rape-of-men [3]ConorFriedersdorf, The Understudied Female Sexual Predator, THE ATLANTIC (Nov. 28, 2016), https://www.theatlantic.com/science/archive/2016/11/the-understudied-female-sexual-predator/503492/ [4] Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09, Available at: https://web.archive.org/web/20130223165109/http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf [5] Available at: https://ccs.in/indias-law-should-recognise-men-can-be-raped-too [7]Age might vary from state to state because of state amendment. As in Manipur the age is fourteen. [8]https://www.lawyersclubindia.com/articles/new-definition-of-rape-after-the-criminal-law-amendment-act-2013-9000.asp [9]Available at: https://indiankanoon.org/doc/1836974/ [10] The United States Department of Justice Archives, available at: https://www.justice.gov/archives/opa/blog/updated-definition-rape [11](2005) All ER 216 [12] Michelle Lowe & Paul Rogers, The Scope of Male Rape: A Selective review of Research, Policy and Practice, RESEARCHGATE, June 2017, Available at: https://www.researchgate.net/publication/317729028_The_scope_of_male_rape_A_selective_review_of_research_policy_and_practice [13]Id. [14]Persida Acosta, Men and Women Can Now Both Cry Rape, THE MANILA TIMES(June 14 2015) Available at: https://www.manilatimes.net/2015/06/14/legal-advice/dearpao/men-and-women-can-now-both-cry-rape/191826/ [15]1998 CriLJ 2428 [16] (1999) 6 SCC 591 [17] (2004) 8 SCC 153 [18]CRIMINAL APPEAL NOs.2066-67 OF 2009