Rape: Could It Be Gender Neutral
This Blog is written by Pallabi Choudhury from KIIT School of Law, Odisha. Edited by Prakriti Dadsena.
Generally, when we come across the word rape the first thing that strikes our mind that the woman is the victim and the man is the perpetrator. Our Indian constitution always talks about gender equality, equal protection of law but when it comes to rape it is quite gendered biased and our Indian law also told only about penal penetration. If a man raped by a woman or by a transgender or a woman raped by a woman then there is less option to redress the matter. In a survey of 222 men, it had reported that 16.1% of the respondent forced into sex by adult women, 2.1% reported having been forced into sex by men. Some of the sociologists told that rape against men can happen where the woman has more power like in fiduciary relation like when the woman is the boss or else the man is smaller than a woman in the matter of age. In a society like strong masculine custom, it is very difficult to report any sexual assault by woman and man on man. There are some cases like this but the victims could not come to any complaint as there is no such provision in our Indian law for protection for man victims. Out of the 96 countries have rape or sexual assault laws written in a gender-neutral language and in 27 countries rape is completely gender-specific (where women are the victim and men is the perpetrator) and in 6 had partly gender-neutral law (where the victim could be a male or female but the perpetrator should be a male). There is always raised some argument against gender-neutral rape laws that is women cannot rape man, men are more powerful than women so rape is all about power third is that men are not similarly affected as women by rape. By making rape gender-neutral it not only help man but also the woman in case of same-sex rape.
Male-on-female rape: After the Criminal Law (Amendment) Act, 2013, Section 375 of the
Indian Penal Code reads such:
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
(b) 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 do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person,
Consensual intercourse is not punishable anymore under section-377 of the Indian Penal Code. It should not be against her will and if happened then with her consent only. After amendment this rape law for women used in a wider sense than before. But sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape, in this case also a lot of criticism is there.
Male-on-male rape: Section 377 of the Indian Penal Code reads such:
“Unnatural offense: Whoever voluntarily has carnal intercourse 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 years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.”
The law has been understood to criminalize “oral sex, anal sex, and penetration of other orifices. That means the consensual sexual relationship between two adult homosexuals, heterosexual, or lesbian is no more offense. But there should be carnal intercourse or else this provision also cannot be applied.
Female-on-female rape: The law on gang rape (Section 376D) reads thus:
“Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offense of rape and shall be punished with rigorous imprisonment…”
It means it is possible to convict a woman of raping a woman as part of a gang. But in case of female-on-female rape is not punishable under the law since even under Section 377 because penile penetration is a necessary condition.
Transgendered/transsexual rape: This too can only be punishable under Section 377 provided there is penile penetration.
Female-on-male rape: In the Criminal Law (Amendment) Ordinance, 2013, the crimes of rape and sexual harassment were gender-neutral. The term “rape” was removed entirely and was substituted with “sexual assault”. However, strong objections were raised by women. After a lot of controversies, the Act ended up making the offense of rape and sexual harassment gender-specific. Women can no longer rape or even sexually harass men. Thus only male-on-female rape is acknowledged and clearly defined under the law in India.
In the case of Sudesh Jhaku v. K.C. Jhaku gender neutrality in India was established. Where the court said that sexually assault men should be given the same protection as the woman victims are given by law.
After that in the case of Sakshi v. Union of India the apex court directed the whole issue to the law commission. Then the 172nd law commission recommended making the rape law unbiased. Then in the Criminal Law Amendment Bill, 2012 the recommendation took form legislation. But before the bill could have become an act, the Nirbhaya rape incident happened and it acquires a lot of attention. After this, the Government of India established the Justice Verma Committee (JVC) and assigned the committee to submit a report by making necessary reforms to be made in rape laws. JVC report recommended increasing ambit of the definition of rape under Section 375 of IPC, 1860 by not keeping it concise to penile-vaginal intercourse. Interestingly, it also recommended making rape laws gender-neutral. These recommendations were promulgated in Criminal Law Amendment Bill 2013. The second recommendation welcomed a number of criticism from several women groups. As per the women community, Gender-neutral rape provisions would increase the power of the already powerful male community. This criticism led the government to adjust its stance and gender-specific nature of rape laws was kept intact in the criminal Law Amendment Act, 2013. The latest development in this regard is the bill presented by Mr. KTS Tulsi which seeks to make rape laws gender-neutral which hasn’t been passed yet and there is no such update even.
ARGUMENT AGAINST THE GENDER NEUTRALITY OF RAPE LAW
Men are not similarly affected by rape: Rape does not affect men and women identical way. In our society women’s purity always judge by their virginity but in the case of men it not like that and in our society the seriousness can be diminished when the rapist marries the victim. Women face more serious consequences than men physically, mentally, and sociologically.
Rape is all about power: Men’s power act as a weapon against women, his will, and her fear. His forcible entry into her body despite her physical protest and struggle proves his superior strength. She considers “emotional coercion” rape, and believes it is only men who can emotionally coerce women into having sex, because of the social hierarchy and expected feminine behavior. If we neutralize the law then it is difficult to prove who has initiated the act.
Women cannot rape men: Woman cannot rape men because man has to feel the emotion to able to have sex with a woman. If a woman is forcing a man to rape then the man will get so frightened and disorientated that he won’t really be able to do it. In such circumstances, the man won’t be able to be in a proper state of mood that he can do sexual intercourse. And another thing arousal implies consent. But after some research it has seen that arousal does not imply consent; and, arousal is not necessary for rape. It is, then, quite possible for a woman to rape a man.
Men are not raped on a daily basis: Internationally it is shown that the rape of men is lesser than the rape of women. In India specifically, a lot of cases of rape are there which is very terrified. It is seen by the survey that rape men in prison and armed forces is common. A common societal belief that males always want sex. In a case, it has been seen that when a man is sad because of the sexual intercourse which happened without his consent but in that same case his friend enjoyed that intercourse which was happened with him also.
WHY THE NUMBER OF MALE RAPE IS LESS?
There are two reasons for this question
– one is the anti-masculine stigma. This patriarchal social construct restricts the men to file complaints of them getting sexually assaulted when the perpetrator is a woman.
-another thing is there is no legislation to punish the female convicts on male rape. But according to section 377 of the Indian Penal Code unnatural offense is punishable. In the case of small children, the POSCO act is there which protects both the boy and girl against any sexual assault. So POSCO is a gender-neutral act.
There are a lot of men who suffered sexual assault and rape. By not having gender-neutral rape law we are denying justice to the sufferer. Rape is criminalized not because it takes away its virginity but it attacked bodily integrity. By not having a gender-neutral rape law women get benefited by this in some cases. May be its effect is not similar but the consequence is a dangerous approaching. In the case of women they can open up in front of the court of law and society on demand of justice but in the case of males, it’s a taboo to speak up against this. By this male community is avail their basic human right. I am not saying that women and men suffer in the same proportions and also not claiming that the number of this kind of offense is the same but my view is that the ambit if rape should be increased so that the male community also can get protection against this.
 Indian Penal Code, 1860
 Sudesh Jhaku v. K.C. Jhaku
 Sakshi v. Union of India
 Nirbhaya case