By Santhiya V[*]
Introduction
The Indian penal code was enacted in the year 1860. It has been more than one and a half-century, and what has changed during this time? Well, a lot, and what hasn’t changed much? Well, the IPC. Sure, it has evolved along with the changing times, an example of this is the Joseph Shine case, also known as the adultery case, where the court held that section 497 of IPC is unconstitutional and expressed that women are not to be considered as mere property. But this doesn’t mean that IPC is up to date with the societal changes. One such example is the lack of gender neutrality in the rape laws of India. The present rape laws in India were codified in a way that only women were considered to be the victims.
At present, we can see various instances where men have also been the victims of rape and sexual harassment. This does not mean that this issue wasn’t there until now, but it was such a taboo topic that no one tried to look into it. This is still a taboo topic and people still do not consider men as victims of rape, and so the trauma they go through is often neglected by others.
Men as Victims
It is well known that women are the main victims of rape and sexual harassment, but that doesn’t mean they are the only victims. Researches about male rape victims started only in the 1980s and it focused mostly on male children. The fact that men could also be victims of sexual violence is stigmatized a lot. Sexual violence against men mostly goes unreported, because of the reluctance of the victims and their families. This may be due to their feeling that they would be embarrassed and that it would hurt their pride. Sexual violence against men is more prevalent in prisons, war zones, etc.
Dr. Anne-Marie De Brouwer made a presentation in a symposium on 31st January 2018 on the topic of male sexual violence in conflict. In this presentation, she talked about Faustin-Kayihura, who was raped severally by a woman during the Rwandan genocide in 1994, when he was 13 years old, and she talked about the testimonies given by Faustin-Kayihura in his book titled, ‘The Men Who Killed Me: Rwandan Survivors of Sexual Violence’. Faustin-Kayihura was asked a few questions regarding the social issues of the male survivors of sexual violence, to which he replied that “In our culture, a man is considered to be powerful…So, in my case, of being raped by a woman, it left me with an understanding that I was not a man anymore. Feeling powerless and useless, I had no words in the midst of men … I felt isolated.” He also went on to say that, “Male victims of sexual violence suffer in silence because they are men and think that testifying about it will take away their dignity. Yes, they should speak out because otherwise they suffer in silence and this may cause post-traumatic disorders.”
Current Legal Position
As per the current law in India, rape is defined under section 375 of IPC. This section, begins with the phrase, ‘a man is said to commit rape‘; this portrays men as the perpetrators, and they are never considered to be the victims. According to this section, a man is considered to commit rape, when he penetrates his penis or any part of his body or any object, to any extent, or applies his mouth into the vagina, mouth, urethra or anus of a woman or manipulates her to do with him or with any other person. The main issue in this definition is that it does not include non-consensual sexual acts between people and always considers women to be the victims, and thus, has also resulted in the filing of fake rape cases against men.
The judiciary has at times talked about how rape is not an offence that can be committed only against women but against anyone. The Supreme Court in the case State of Punjab v. Ramdev Singh, said that rape is not only a crime against women, rather it is a crime against the entire society and against the basic human rights, and it violates Article 21 of the Indian Constitution.
Something that should also be looked into here is the rights of a Transgender Person. Section 18 (d) of the Transgender Persons (Protection of Rights) Act of 2019 provides that whoever acts in a way to cause sexual abuse to a transgender person, will be punished with imprisonment, for which the term should be between six months and two years, along with fine. When we compare this with section 376 of IPC, which describes the punishment of rape to be the imprisonment of a minimum of ten years, extending to life imprisonment, we can see the bias that the legislature has towards transgendered persons. The sexual abuse of a transgendered person is not considered to be a serious offence and the maximum term of imprisonment is two years. This is violative of Article 14 of the Indian Constitution, as transgendered persons ought to be treated with equality.
Legal Reforms
Based on a writ petition filed by an organisation called Sakshi, for issuing directions regarding the definition of the word ‘sexual intercourse’ under section 375 of the IPC, the Supreme Court asked the Law Commission to look into the issues that the petitioner brought before the court and suggest any recommendations, if required, for the amendment of the IPC. The 172nd Law Commission Report was the first one to highlight the situation of men, along with the gender-centric laws, and discussed the need for an amendment in those laws. Later, the Criminal Law (Amendment) Bill of 2012, proposed to replace the word ‘rape’ with ‘sexual assault’, to make it gender-neutral and so widening its scope. But this bill was not passed by the Parliament. It should also be noted that the Protection of Children from Sexual Offences (Amendment) Act, 2019 is gender-neutral except section 3 of the Act.
Conclusion
In this article, we have seen that what, primarily, is the law regarding rape in India and how it affects men and the third gender. Now comes the question, how can we overcome this? Adding a separate provision for men being a victim of sexual harassment and rape is not an effective solution, because this is still a very much tabooed topic and we still have a long way to make this an acceptable conversation. My suggestion would be to define rape as “a person is said to have committed rape when such person, without the consent of the other person, has sex with the other person, and even if such person got the consent through coercion or threat or when the other person is not in a stable mind because of intoxication or mental issues, such person is said to have committed rape.” This provision is gender-neutral and includes anyone, irrespective of their gender, to be the victim and the preparator.
[*] Student (Intern), BBA. LL.B. (H), Alliance University, Bengaluru