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CAN WOMEN RAPE UNDER IPC?

INTRODUCTION

“Out of the six million crimes that police in India recorded between 1 January and 31 December last year, 428,278 cases involved crimes against women and a majority of the cases were of kidnappings and abduction, rapes, domestic violence, dowry deaths, and assaults.”[1] One of the most frequent crimes against women in India is rape. “As many as 65,025 rape cases were reported in 2021 in India according to the National Crime Records Bureau (NCRB) data.”[2]

India is known for its patriarchal mindset but does this mean that men cannot be sexually exploited? “During their lives, 1 in 33 men have experienced an attempted or completed rape; 75% occurred before the men were 18, and 48% before age 12.”[3] Rape has typically been seen to be the exclusive sexual exploitation of women by male offenders who represent a patriarchal system that supports rape. Indian laws are made in such a way that it only protects women from sexual offenses. Section 375[4] of the IPC defines rape and Section 376[5] of the IPC talks about punishment for rape. There are no legislations or statutes as such in India which protect men from an offense of sexual harassment or rape.

SODOMY OR RAPE?

Section 377[6] of IPC talks about unnatural offences and it is defined as whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal is said to commit unnatural offences against that person. Women cannot rape, but men can be “sodomised,” according to the law.

While rape is defined under section 375[7] but it only covers “penetration of vagina”, women cannot be accused of rape. Section 375[8] itself begins with a man being said to commit “rape” which shows the biased nature of this section. In a male-dominant country like ours, men are presumed to be the strongest of all and society thinks that getting raped by a woman is against their manliness and hence it is not possible. Many stereotypes about masculinity related to a specific gender made them silent victims of sexual offences.

THE INTRIGUING CASE OF PRIYA PATEL

In the case of Priya Patel vs State of M.P. & Anr.[9] an interesting question arose regarding the facilitation of rape by women. An intriguing issue came up before the Supreme Court regarding whether or not a woman may be charged with gang rape. The prosecutrix claimed that the accused-spouse appellant picked her up at the train station after she arrived at her destination and informed her that her father had instructed him to do so. She went to the accused’s house with him, where he raped her. The prosecutor requested assistance from the current appellant, but instead of complying, the accused-appellant smacked the prosecutor, locked the door of the residence, and departed the scene of the crime. Accordingly, both the husband and wife were charged with the offence of gang rape which is defined under section 376(2)(g)[10] of IPC.

A woman cannot be said to have the intention to commit rape. The counsel for the appellant is right in her submission that she cannot be prosecuted for the alleged commission of the offence punishable under Section 376(2)(g), the bench said and quashed the charges framed against the appellant.[11]

It is very clear from a straightforward reading of Section 375[12] of the IPC that only men are capable of committing rape. It is made clear in Section 375[13] of the IPC that “any person” cannot commit an act of rape; only “a male” and not “any person” may do so.

However, there is significant ambiguity around the “gang rape” committed by a woman. Section 376(2)(g)[14] of IPC refers to “Persons” instead of “man,” indicating that the legislators wanted to retain the provision gender-neutral.

GENDER NEUTRAL RAPE LAWS

In order to protect male victims as well, the 172nd Law Commission of India[15] proposed that India’s rape laws be rendered gender-neutral in March 2000. Its fundamental tenet is the assumption that rape will be desexualized and that the stain associated with it would fade. However, the ideas were not put into action by the government. Later in 2017, an advocate submitted a PIL to the Delhi High Court that contested the legality of the rape statutes in the Indian Penal Code (IPC). It was pleaded that:

“Gender neutrality is a simple recognition of reality — men sometimes fall victim to the same or at least very similar acts to those suffered by women…Male rape is far too prevalent to be termed an anomaly or a freak incident. By not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought.”[16]

The 2019 Criminal Law Amendment Bill was presented to parliament in July 2019 with the same justification by senior attorney KTS Tulsi, a member of the Rajya Sabha, to make India’s rape laws gender-neutral. He claims:

“Law needs to be balanced. The balance has been disturbed. All sexual offences should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of these offences. Men, women, and others need to be protected.”[17]

In order to allow gender-neutral terms like “any person” to replace terms like “any man” and “any woman” that are mentioned in “sections 354A[18], 354B[19], 354C[20], 354D[21], 375[22], and 376[23] of the IPC, the bill proposed necessary amendments to the Indian Penal Code (IPC), the Criminal Procedure Code, and the Indian Evidence Act. All genders, including men, women, and transgender people, would be protected as a result. “Addition to it also talks about the insertion of section 375A[24] in the IPC that defines sexual assault as intentionally touches the genitals, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper hygienic or medical purposes.”[25] The sexual assault definition in this section is expanded to include both inappropriate contact of female and male body parts. To widen the definition of sexually objectionable behavior and put it under the jurisdiction of the law of the land, all of these components are being asked.

CONCLUSION

Around the world, there is a lot of research being done on the sexual assault of men, and numerous nations have passed laws addressing the issue. It is time for our Indian courts to begin treating cases of sexual assault against men seriously and for laws to be passed to safeguard males from such crimes.

Why do people not raise their voices in protest when males are the victims of injustice when women are the victims? There shouldn’t be any discrimination based on gender and everyone ought to be treated equally before the law.

“According to Justice Krishna Iyer, A murderer kills the body, but a rapist kills the soul.”[26] Every day, men are being raped by women in India; it’s time for the populace to recognize this and assist.

Author(s) Name: Priyanshi Raj (Chanakya National Law University)

References:

[1]Geeta Pandey, ‘Rising crimes against Indian women in five charts’ (BBC, 13 September 2022) <https://www.bbc.com/news/world-asia-india-62830634> accessed 09 January 2023

[2]Singhda Choudhary; ‘Over 96% Rapes In India Committed By Persons Known To The Victims: NCRB Report’ (India, 05 September 2022) <https://www.india.com/news/india/over-96-per-cent-rape-cases-india-committed-by-persons-known-to-the-victims-ncrb-report-5613362/> accessed 09 January 2023

[3]Jahnvi Mehta, ‘Sexual Violence against Men in India’ (Legal Service India) <https://www.legalserviceindia.com/legal/article-4685-sexual-violence-against-men-in-india.html> accessed 10 January 2023

[4] Indian Penal Code 1860, s 375

[5] Indian Penal Code 1860, s 376

[6] Indian Penal Code 1860, s 377

[7] Indian Penal Code 1860, s 375

[8] Ibid

[9] Priya Patel v State of M.P. & Anr. (2006) AIR  SC 2639

[10] Indian Penal Code 1860, s 376(2)(g)

[11] Shweta, Sengar, ‘Can Women Be Charged For Rape in India?’ (India Times, 15 December 2021) <https://www.indiatimes.com/explainers/news/can-women-be-charged-for-rape-in-india-556642.html> accessed 10 January 2023

[12] Indian Penal Code 1860, s 375

[13] Ibid

[14] Indian Penal Code1860, s 376(2)(g)

[15]Law Commission of India, Review of Rape Laws (Law Com. No. 172 2000) <https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082487.pdf> accessed 10 January 2023

[16]Aayush Akar and Shubhank Suman ‘Critical Analysis of Rape of Male in India’ (IPleaders, 16 April 2020) <https://blog.ipleaders.in/critical-analysis-of-rape-of-male-in-india/> accessed 10 January 2023

[17] Ibid

[18] Indian Penal Code 1860, s 354A

[19] Indian Penal Code 1860, 354B

[20] Indian Penal Code 1860, 354C

[21] Indian Penal Code 1860, s 354D

[22] Indian Penal Code 1860, s 375

[23] Indian Penal Code 1860, s 376

[24] Indian Penal Code 1860, s 375A

[25]‘Bill in Parliament to make sexual crimes gender neutral’ (Times of India, 13 July 2019) <https://timesofindia.indiatimes.com/india/kts-tulsi-introduces-bill-in-rajya-sabha-to-make-sexual-crimes-gender-neutral-full-text-of-the-bill/articleshow/70202016.cms> accessed 10 January 2023

[26]Jahnvi Mehta (n 3)