This article has been authored by Dakshita Arora, a third-year student at UPES, Dehradun
This article studies the problem of male/male rape. It comes up with the major reasons as to why male/male rapes are not even considered rapes at all. There have been hundreds of write-ups on the subject of the heinous crime of rape on women. They talk about the existing laws in this regard. Also, how the legislature of India has been quite concerned about the victims and have, time and again, come up with strict laws to culminate the crime. The article explores these laws with an unbiased lens and puts forward the major lacunas of these provisions. It explores the way the law could have turned to be, had it been more gender neutral and what would have been its advantages to the society at large. Further, the article goes on to study the 172nd law report and it’s valuable suggestions. The author concludes by recommending a way out from this huge stigma that homosexuality is the result of every male/male rape.
The studies show that the vast majority of rapes are carried out "by familiars not strangers, by members of one's own ethnic group not others, at home not on the street. This is the prime reason of the fact that the number of rapes have grown rapidly around the world.
However, the definition itself of rape in Indian Criminal law (Indian Penal Code, 1860) leaves a class of victims behind. The definition as per section 375 of the Indian Penal Code states that a man commits a rape on a woman when he has sexual intercourse with her, manipulates her body parts, inserts any object or applies his mouth to her vagina, urethra or anus without her wilful consent in the given circumstances. The provision, however, does not even recognise the mere possibility of a man being raped leading to a clear miscarriage of justice.
A rape is sexual intercourse without the consent of a person. It can be committed with the following four combination- the rape by a man of a woman (male/female rape), the rape by a man of a man (male/male rape), the rape by a woman of a man (female/male rape) and the rape by a woman of a woman (female/female rape). Traditionally, the international community has been reluctant to address the issue of rape. There were tens of thousands of woman raped in armed conflicts even when it was expressly prohibited. It was only the extreme and widespread sexual violence that was happening in the conflicts in Rwanda and the former Yugoslavia in the 1990s that triggered the international community. This led to more rapes being addressed even in peacetime.
There are more reasons as to why male/female rapes are more addressed. Firstly, the stereotype of male dominance has been inculcated in the society for the longest time. The idea of a man being dominated and forced into a sexual act with force and without consent does not support the ‘masculinity’ that a man possesses as per the society. A male has to, and does, dominate female in sexual acts. This presumption made the acceptance of male/female rapes easier. Secondly, pregnancy is only possible in a combination of rape where both male and female are included. The statistics showed growing pregnancies of rape victims leading to acknowledgement of male/female rapes.
Another side of the coin demands the explanation as to why the problem of rapes on men are not addressed today. There are several reasons for the same. Firstly, rapes on men is a cause without a voice. There are a very few people who are able to and are willing to speak up. But since the number is too small, they do not get much importance like the LGBTQ Movements or The Feminism Movement did. The negligible number of such people makes the issue unreachable to the ears of those who can actually bring a change. Secondly, the notion of the society that a man who has been raped is less of a man now. They consider them as homosexuals and that, in a way, stains their ‘masculinity’. This stereotype results in very few number of victims who speak up. One such man admitted that he hadn’t told his wife of 30 years that he had been sexually assaulted. The current situation of this crime is so deteriorated that even the terminology is faulted. The term ‘homosexual rape’ has not been used etymologically but in a “everyday meaning”. It has been irrevocably tainted by years of use in a pejorative sense.. Etymologically, homosexual means ‘of the same sex’. So, it should mean rape of a man by a man. However, the everyday meaning has taken the term as rape in which either or both of the two parties is a homosexual. Thirdly, men are considered to be supreme in the society and the supreme being can never be a victim. In countries like India and Pakistan, the men who openly express their emotions are considered less “manly”. So, the society believes that only women can be raped. The idea of this stereotypical patriarchal assumption of toxic masculinity has affected the issue of male/male rape in its roots. Another side of the same problem is the denial of the fact that even men can be traumatised and affected by such acts. This idea leads to the misconception that men are not affected much even if such assaults are done upon them. Male victimisation is portrayed as aberrant or harmless which leads to stigmatisation of men who face sexual abuse. Fourthly, the misconception that a man always wants sex is also inculcated deep within the minds of the society. Apparently, men would never refrain himself from a sexual act and therefore, can never be a victim of the same. This is also the reason why even the false reports on male/female rapes get much more acknowledgement much easier.
Rape Laws in India
According to section 375 of The Indian Penal Code, 1860, a man is said to commit “rape” if he— 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
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
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will. Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
The major loophole in this provision is the fact that this law is not gender neutral. The punishment of rape is gender based but the crime is not. When a woman is raped, it is considered a crime and so there is a remedy. However, the crime of raping men or transgenders is not even considered a crime. The paper will suggest amendments to the same further in the course of discussion.
The only law under which the criminals of rape on men can be booked is under section 377 of the Indian penal Code, 1860. Only the Indian Penal Code 377 “carnal intercourse against the order of nature” might be employed if men are raped or sexually assaulted. The Indian Penal Code states “Unnatural offences. Whoever voluntarily has carnal inter-course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten 5 years, and shall also be liable to fine. This provision had criminalised “unnatural offences”, like homosexuality and reinforces heteronormativity. Therefore, the legislation is not gender-neutral. It discriminates male-survivors of rape and reinforces the heteronormative legal culture. Although the law on homosexuality under this provision has been decriminalised, no amendments have been made in the provision concerning rape.
Constitutional Law Dimension
The Constitution of India guarantees right to equality by prohibiting discrimination on the basis of religion, race, caste, sex or place of birth under article 15. Article 14 guarantees equality before law and equal protection of law. Article 21 of the Constitution guarantees right to life which has a wide scope now due to judicial precedents. Since the Constitution of India is the grundnorm, every law has to comply with it and must pass the test of constitutionality.
The pertinent question that must be raised here is why male/male rape cases are discriminated from male/female rapes and considered less of a crime. When the perpetrator rapes a man, the consequences are more or less the same except pregnancy. There is a non-consensual sexual act which generally, includes penetration. The emotional and mental suffering of a rape survivor also does not have anything to do with the gender of the victim. Further, the reaction of society towards the rape survivor is equally traumatising for men as it is for women. This infringes article 14 and article 15 of the Constitution. Article 21 guarantees right to life. In the case of Maneka Gandhi v Union of India, the apex court held that right to life included right to live with human dignity. A male rape victim’s dignity is harmed during a non-consensual sexual act. A judge once said that “a rape is a matter of “deathless shame” This infringes their right to life as well.
All the provisions related to sexual offences in the Indian Criminal law including section 354A, 354B, 354C, 354D, 375 and 376 have only women as the victim and men as the perpetrators, which is the case mostly. However, the less number of reported cases of male/male rapes is not a satisfactory reason to discriminate between the two crimes. The plight of a male rape survivor shall not be given less value than to the plight of a female rape survivor.
It can be, therefore, argued that the rape laws in India are unconstitutional. These provisions infringe the right to equality and right to life of male rape survivors.
The Unheard Victims
Siddharth Narrayan while addressing the plight of the rape victims who are not women puts forward a pertinent question. “Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal inner space, a lesser injury to mind, spirit and sense of self?
The studies conducted in developed countries indicate that 5-10% of men have reported a history of childhood sexual abuse. In a few studies conducted with adolescents in developing countries, the percentage of males reporting ever having been the victim of a sexual assault ranges from 3.6% in Namibia and 13.4% in the United Republic of Tanzania to 20% in Peru. Studies from both industrialized and developing countries reveal that forced first intercourse is not infrequent. Unfortunately, there are a few reliable statistics on the number of boys and men raped in settings such as schools, prisons and refugee camps.
It is quite difficult to find out the exact number of male rape survivors in India due to lack of a proper law in this regard. However, this is not the case for child sexual abuse. The Protection of Children from Sexual Offenses (POCSO) Act, 2012 protects children of all genders from sexual offences. So in 2007 while studying the child sexual abuse specifically, the Indian government did find that, of the total surveyed children who reported experiencing severe sexual abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls. Recently, the Delhi-based Centre for Civil Society found that approximately 18% of the total adult men in India surveyed reported being coerced or forced to have sex. 16% of those claimed a female perpetrator and 2% claimed a male perpetrator.
In a report that highlighted the problems of under trial prisoners in India, it was observed that male/male gang rapes were common in Indian prisons. Recently, Delhi gang rape case accused, Ram Singh who was found hanging in his prison, claimed that other male prisoners raped him. The crime that is not considered worthy of punishment even when done on those who are free, how the victims in prison imagine justice for them?
The 172nd Law Commission Report
In 1997, a writ petition was filed by a Non-Governmental Organisation named ‘Sakshi’. This NGO worked for issues concerning women. It sought to make changes in the then existing laws on sexual offences. On 13th January, 1998. the Supreme Court ordered the Law Commission to indicate its response with respect to the issues raised in the concerned writ petition. Then on 28th August, 1998 the Law Commission filed an affidavit stating that the issues raised in the petition have already been dealt with in its 156th report on Indian Penal Code. The apex court was not satisfied and further directed the petitioner to come up with summarised and precise issues. On 9th August, 1999 the commission was again asked by the court to analyse the issue afresh. Finally, in 2000, the Law Commission of India came up with its 172nd Report.
A part of that report suggested to substitute the definition of `rape' with the definition of `sexual assault' and make it gender neutral. The object was to widen the scope of the offence. The expression `consent' was also sought to be defined. A new section, section 375A with the heading `Aggravated sexual assault' was sought to be created. This new offence seek to synthesise the offences now categorised under sub-section (2) of section 376 as well as sections 376B to 376D.
This report did suggest to make the rape laws in India gender neutral. However, at that time neither the judiciary nor the legislature acted upon the same. Later, in 2012, the Union Cabinet through the Criminal Law (Amendment) Bill, 2012, had proposed to make rape a gender-neutral offence by replacing the term ‘rape’ with that of ‘sexual assault’. But, again, it did not pass to become a law.
The only way towards remedying this worsening situation of male/male rape is accepting homosexuality, not only in the provisions of law but also in the society by removing the stigma attached to it. By accepting homosexual men “manly” enough, the society would give the strength to the male rape survivors of coming out of the closet without being labelled as any less of a man. The NGO and intergovernmental organisations shall take it upon themselves and educate people about the difference in “male/male rape” and “homosexual rape”. The correct knowledge about this etymology alone can do wonders in making people understand that every male rape survivor is not a homosexual.
As far as the prevailing laws are concerned, there needs to be some pertinent reforms in the provisions of rape law. The term ‘woman’ shall be changed to ‘person’. This would make the law gender neutral and unbiased towards to remaining class of rape survivors including men and transgenders. The rape laws of many countries including many states of USA have amended their laws to be unbiased with the changing society. After taking a huge step towards societal development by decriminalising homosexuality, this is what needs to be done next!
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