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RAPE AGAINST MEN BY WOMEN – NO NEUTRAL LAW IN INDIA

INTRODUCTION

Rape is an involuntary sexual relationship without the consent of the individual or against the individual’s will. Consent is defined as the clear and voluntary communication that a woman gives for a particular sexual act. Marital rape is an exception to consent since it is not a crime under the Indian Penal Code, as long as the woman is over the age of 18. Rape can happen to anybody, regardless of age, gender, or sexual behaviour. It is based on the principle that the person who commits a crime is always a man and the victim is always a woman. Rape is not only an act to satisfy the sexual desires of the perpetrator, but is also an act made to demonstrate superiority or dominance over another person. However, it has been observed that there are a large number of rapes and other victims of sexual abuse who are men too but the mentality that rape cannot happen with men has distanced these survivors away from the spotlight. It does harm not just the victim, but society as a whole. Gender-neutral laws are laws that treat all people equally without favouring any particular gender. The law of sexual violence in India is primarily focused on women to reduce the inequalities and brutality they face. According to the psychologist, less than one out of ten male rapes is registered because male rape victims lack support, and justice systems often lack the means to combat this type of crime.

Indian Statutes on Rape

Section 375 of the Indian Penal Code defines rape as “sexual intercourse against the woman’s will, without her consent, coercively, falsely or fraudulently, or at the time she was intoxicated or deceived, or whose mental health is precarious and, in any event, if she is less than 18 years of age.”[1]Consequently, the entire definition only takes into consideration the rape of women and there is no provision for the rape of men. According to Indian laws, “rape means something which can be committed only by a man to a woman”[2]. With the definition of rape limited to “male penetration of the vagina”, women cannot be found guilty of rape. At most, they may be convicted of sexual assault or unnatural forced sexual intercourse under section 377 of the IPC[3]. Just as men cannot be legally raped, women cannot be alleged of rape. While India modified rape laws in the year 2013, it broadened the definition of rape but continued to exclude men and trans as victims. Yet, sexual violence is all too common among LGBTQ and transgender communities, it remains outside the ambit of justice. These people have been neglected, mistreated, and discriminated against for decades. They are confronted with sexual violence, threats of acid attacks, disfigurement, and other forms of physical violence. The explanation of rape provided in the Indian Penal Code[4] has essentially two problems, that are:

  • It excludes non-consensual sexual acts committed by a woman against a man, and
  • It always considers a woman as a victim as a result of which numerous cases of false rape are filed against men for revenge or undue advantage. Therefore, it lacks gender impartiality.

Thus, in India, there is no specific legislation for a man who has been raped. Section 377 of the IPC[5] is an exception to the fact that women favor laws that set out unnatural offenses and criminalize sexual intercourse against the order of nature with a man, woman, or animal. Under the law of India, men can’t be raped, they can only be sodomized. Apart from that, there is the “Protection of Children from Sexual Offences Act” (POCSO) 2012, which criminalizes sexual assault of a male child, but there is no such provision for adult males. The reason for such partiality is not known. While India may have a provision for the rape of a male child, it should certainly have a provision for the rape of adult men. However, the conservative idea that only men use power to exploit women has left men vulnerable. A sense of equality enshrined in Article 14 of the Indian Constitution[6] also seems to be absent. All laws should be gender neutral and, therefore, all laws with stronger intentions to protect women should also be aware of the proximity of sexual offenses committed against men and other genders. In India, laws are strictly aimed at protecting women from sexual harassment and rape. There are no laws or regulations to protect men from brutal acts of sexual harassment or rape. The bottom line is that to commit sexual abuse, the perpetrator and the victim can be of any gender. Contrary to what is cited in sections 354-A to 354-D and in section 375 of the Indian Penal Code, which stipulates that only a man can be the wrongdoer.

Sexual Harassment Against Men in the Workplace

When we hear the expression sexual harassment our mind goes directly to the principle that the victim is a woman and the perpetrator is a man. One of the major areas of sexual violence is the workplace. Over the years, many laws and legislation such as “The Sexual Harassment of Women at Workplace Act, 2013” and “The Vishakha Guidelines” have been enacted for the prevention of sexual abuse against women in the workplace. However, no redress has been provided for men who are sexually harassed at work. This does not imply that men are not victims of sexual harassment at work. Laws have been introduced to protect women from the evil of sexual harassment, but we continue to forget that men get harassed in the workplace too. The only difference is that women have remedies against such harassment, while men have to suffer in silence. It is time to create equality and eradicate these gender-based laws with the implementation of gender-neutral laws. The protection of men’s rights at work has to be accorded the same importance as the protection of women’s rights and men should be engulfed in the Sexual Harassment at Workplace Act, 2013 at the earliest opportunity. Sexualabuse against men done by women is coming out more and more, which raises the question of whether we need gender-neutral sexual harassment legislation in India[7].

CONCLUSION

Over the years we have witnessed that Indian criminal laws have been revised by lawmakers to meet the demands of society. As time goes on, modification becomes an important tool to meet the needs of an hour. We can see that the changes in the scope of sexual offenses against women after the onset of the Nirbhaya case have made an enormous contribution to women’s safety. It recognized various acts that were not offenses in the past, allowing all female victims to have access to justice, but meanwhile, this bill limits itself only to women. Women may suffer much as a result of patriarchy, but so do men. And, uniquely as they are expected to be gender stereotypical. Thus, need for gender-neutral rape laws are now a necessity. While there are an increasing number of cases of men purporting to mislead women in a sexual relationship over the false promise of marriage, what happens if a woman does the same thing, this was the concern reportedly raised by the High Court of Kerela recently, which pointed out verbally that section 376 of the IPC, which establishes the sentence for the rape offense, should be gender neutral. Rapes committed by persons other than women are generally not reported because people are concerned that reporting such cases raises a question about their potency. Even in today’s era, reporting sexual abuse by victims of male rape is difficult because we live in a society where if a man is subjected to sexual violence, people believe he can protect himself with strong masculine power. However, in the recent past, Indian courts have begun to recognize crimes against men and also punish women who make false allegations against men and, consequently, defame and harass them.

Finally, to conclude, India’s law should now acknowledge that men can also be raped. Ensuring that rape laws are gender neutral means standing up for the lives, equality, and dignity of men, transgendered, and homosexuals along with protecting women. Putting everything into perspective, The Government of India has also introduced legislation in the year 2019 to amend the criminal law, which proposes to neutralize rape law in India and make provisions that punishes sexual assault in any form. Therefore, the shortage of rape laws for men has increased the demand for rape laws across the board in India.

Author(s) Name: Mushkan Mangla (Indian Institute of Legal Studies)

References:

[1] Prof. S.N. Misra, Indian Penal Code (22nd Edition, Central Law Publications, 2021).

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

[3] Prof. S.N. Misra, Indian Penal Code (22nd Edition, Central Law Publications, 2021) 785.

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

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

[6] Dr. J.N. Pandey, Constitution of India (57th Edition, Central Law Agency,2020).

[7] Devika Agarwal, ‘Vijay Nair sexual harassment case: Rising incidents against men emphasise need for gender-neutral laws in India’( Firstpost, 17th May, 2017) <https://www.firstpost.com/india/vijay-nair-sexual-harassment-case-rising-incidents-against-men-emphasise-need-for-gender-neutral-laws-in-india-3452286.html> accessed 15 September,2022.