History has displayed numerous instances of glorification of man muscle. Society romanticized the brave knight in shining armour dashing to save his damsel in distress, worshipped Hercules as the protector of the weak, and exalted the way Alexander swayed his sword. Exhibition of strength by men was made the ideal touchstone for determining the suitor, be it at Sita’s swayamwar or at Draupati’s for that matter. These idealizations gave birth to general expectations associated with gender. Society reckoned men to be strong, brave, and ‘fearless’. This pre-modern mindset has grown too far that the failure to acknowledge a man’s fears has become one of the many unspoken mistakes of the society at present.
India’s journey through the 21st Century has indeed been liberalising from a relative standpoint. The country witnessed several legal reforms such as The Criminal Law Amendment Act, 2013, decriminalization of homosexuality, announcing the right to privacy as fundamental, and propounding that constitutional morality dominates social morality. Through these reforms, India’s legal environment has significantly pierced the narrow bounds of society to become rather inclusive in nature. However, even amidst such advancements, both the social as well as legal atmosphere has turned mute upon certain crucial aspects that need reconsideration. One such is the sexual abuse and assault of men.
The Indian Penal Code, while criminalizing sexual offences, mirrors the idea of women being the victims and men being the offenders. There is no legislation in India, yet, to acknowledge sexual offences committed against men. This manifests the failure of society and the State to understand that rape and other sexual offences are gender-neutral in nature. This article intends to highlight the vexation in non-recognition of men as victims of sexual offences.
Rape Laws In The Indian Penal Code
Section 375 of the IPC defines what amounts to the offence of ‘Rape’. The very beginning of the provision uses the statement ‘A man is said to commit ‘rape’ if he…’ thereby painting a gender associated with the offence. The nomenclature put forth by this provision claims for three possible justifications. They are:
- It is physically impossible for a woman to be the offender of rape
- Forcefully penetrating is rather serious than being forced to penetrate.
- Rape is a gendered crime.
This article, however, argues that none of the above stated justifications is adequate to explain the non-criminalization of male rape, thereby rendering them mere bigoted presumptions.
The generalization of offenders of rape based on gender is arbitrary
Quoting the anatomical differences between men and women to exclude women offenders of rape is nonsensical because mere sexual arousal cannot account for ‘consent’. The exhibition of physiological signs of sexual arousal is biological in nature and it is displayed by any individual during sexual intercourse, irrespective of whether they are victims of rape or not. Therefore, it would be futile to say that signs of arousal are equivalent to ‘consent’ with respect to male as well as female victims.
Moreover, male victims of rape cannot be ignored or unheard on the account of physical strength of men in general. The assumption that ‘if a man did not want to involve in the intercourse, he would have overpowered the woman’, cannot stand correct because it nullifies all the possibilities where the particular male victim might be physically weaker than the particular female offender. It also eliminates the possibilities where the particular male victim might not be in a position to give consent, such as intoxication or being duped about the identity of the woman offender. Furthermore, if the argument that physical resistance as an essential evidence to sustain a conviction in rape is accepted; it would be a reminiscence of the law that existed prior to the Criminal Amendment Act, 2013[1].
Presumption undermining the seriousness of being forced to penetrate is unreasonable
It is baseless to argue that forcefully penetrating is rather serious than being forced to penetrate owing to the risk of pregnancy. The factor of pregnancy cannot be the yardstick to determine the seriousness of rape irrespective of the gender of the victim. Oral/anal sex, rape of a sterile woman or post-menopausal woman, and rape with effective use of contraception do not carry the risk of pregnancy, yet hold utmost seriousness within the ambit of Section 375, of the IPC.
Moreover, the amount of bodily hurt can also not be the criteria for assessing the rate of the offence when it comes to rape. This is particularly because rape is categorised as an offence for denial of sexual integrity as a human.[2] The ingredients of Section 375 nowhere mention the degree of hurt caused by any form of penetration. Therefore, it is the ‘consent’ that holds primacy and not the degree of hurt.
Rape cannot be construed as a gendered crime
It is been argued by certain philosophers such as Susan Brison, that rape is a moral injury to all women, and gender-motivated violence perpetrated against women to keep them in a constant position of fear. The sad state of women being more prone to sexual offences, and the continued increase of rape against women is something to which we can’t turn a blind eye.
However, it cannot be the ground to completely ignore the instances of male rape and to generalise male individuals as the sole offenders of rape. A study by the Centre for Civil Society, based in Delhi, reveals that about 18% of Indian adult men reported coercion into sexual intercourse. Out of these, 16% were the cases where females perpetrated such coercion, and 2% were perpetrated by males.[3]
Rights provided by the Constitution are not limited to what appears to be a majority.[4] Thus merely because male sexual abuse victims constitute a minuscule of the population, the protection of their sexual dignity cannot be undermined solely because of their gender.
Other Sexual Offences Under The Indian Laws
Sections 354 A, B, C, and D criminalise Sexual harassment, assault/criminal force with intent to disrobe, voyeurism, and stalking respectively. These provisions were inserted by virtue of the 2013 Amendment Act. These provisions hold the man to be the offender and women to be the victim. Sexual harassment at the workplace is governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that is formulated after the case of Vishaka v. State of Rajasthan.[5] As the very name of the Act suggests, these regulations are also applicable only to instances of female victims.
Its noted that all of the above said offences are capable of humiliating any person irrespective of gender. The victims or the offenders can be of any gender, including transgender and gender-fluid persons. Thus holding a strict nomenclature specifying the victims and offenders based on gender is unjustifiable.
In The 2012 Delhi Rape case[6], which led to the formulation of the Criminal Law Amendment Act 2013, the victim and her male companion were not only brutalised but were disrobed as well. Disrobing is equally painful, embarrassing, and revolting to both the sexes. However, it is in fact disappointing to note that as per the Amendment Act, the same offence would go unpunished when committed against men.
Conclusion
As put forth by Justice V R Krishna Iyer, rape is the killing of the soul. It tarnishes one’s dignity and self-worth. The victims of sexual assault, irrespective of their gender, cannot possibly ‘get over’ it; they proceed to live with it.
Associating sexual offences with a particular gender not only renders injustice to the excluded ones, but also mutes their voices when they fall prey to such offences. It is urged that the nation must reconsider the adequacy of the 1860’s document in the 21st century and make laws regulating sexual offences to be gender-neutral to protect the dignity of every human irrespective of gender.
[1] Pramod Suryabhan Pawar v. The State Of Maharashtra, (2019) 9 SCC 608.
[2] Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
[3] https://ccs.in/indias-law-should-recognise-men-can-be-raped-too
[4] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
[5] Vishaka v. The State of Rajasthan, (1997) 6 SCC 241.
[6] Mukesh and Ors v. NCT Delhi, (2017) 6 SCC 1.