Open Access Research Article
GENDER-SPECIFIC RAPE LEGISLATION
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GENDER-SPECIFIC RAPE LEGISLATION
AUTHORED BY - ARNEET KANG
Punjabi University, Patiala
Abstract
Rape is one of the most heinous crimes in the world today. Due to the
patriarchal nature of our society and the fact that men are seen as the
stronger and more dominant sex, it is widely believed that women are the only
victims of rape and other sexual crimes and that men are the perpetrators.
Although this belief is widespread, it is not true. Statistics show that men
are just as vulnerable to sexual violence as women. Reports of male sexual
violence have become common in recent years, but the number of reports is
believed to be far lower than the actual number of cases of male sexual
violence. The society's belief that men are strong and that only weak men cannot
protect themselves from sexual violence explains why most of the sexual
violence crimes against men go unreported. Homophobia towards male victims is
another reason why victims are afraid to come forward. In addition to these the
current state of the legislation also provides no incentive to male victims to come
forward. Currently there are very few countries where male rape is even
recognized as a crime. Among these countries too only a handful have any
punitive legislation for the perpetrators of male rape. These laws mostly
punish only men for sexually assaulting other men, there are almost no laws to
deal with women offenders of rapes. In most countries, it is considered
conceptually impossible for a woman to rape a man, even the definition of rape
is gender specific in most countries. The Indian rape legislation are also
gender- specific and there are no provisions for punishing the offenders for
raping a male. These gender-specific laws must be amended and new legislation should
be enacted to bring justice to all rape victims, regardless of their gender.
Introduction
The word rape always makes us think of women as victims and men as
perpetrators. Rape has always been considered a crime against women. Sexual
violence against women is seen as a way of subjugating them to patriarchal
authority. All over the world, several legislation exist to punish the culprits
of rape, but only for committing rape of women. But in reality, even men are
victims of rape and many other forms of sexual violence. But the idea that men are
our protectors or they can't be raped has resulted in non-existence of
legislation to punish the rape of men. Most sexual violence legislation include
language that refers to women as victims and men as perpetrators. Most laws use
gender-specific terms instead of gender-neutral ones. In addition, male victims
of sexual violence are seen as weak and pathetic, and society questions their
sexual orientation and masculinity, which makes male rape victims less likely
to report the cruelty they suffered. They fear the condemnation of the society
for the sexual violence they have suffered. The few reported cases result in
little or no punishment for the perpetrators due to the lack of rape
legislation for male victims. In recent years, although some countries have
recognized and even criminalized male rape, punitive legislation for it are
still lacking.
What is rape?
“Since then I’ve always thought that under rape in dictionary it should
tell the truth. It is not just forcible intercourse; rape means to inhabit and
destroy everything.”
~ Alice
Sebold, Lucky
The word rape comes from the Latin rapere, which means to seize or take
by force. It is basically the non-consensual, and often forced, use of the
genitals of another person.
Merriam-Webster defines rape as
"an unlawful sexual activity and usually sexual intercourse carried out
forcibly or under threat of injury against a person’s will or with a person who
is beneath a certain age or incapable of valid consent due to mental illness,
mental deficiency, intoxication, unconsciousness or deception.”[i]
The Supreme Court of India observed
in Nippun Saxena v. Union of India[ii], "Rape is not merely a physical assault,
it is often destructive of the whole personality of the victim. A murderer destroys
the physical body of his victim, a rapist degrades the very soul of the
helpless female.”
Is rape a gender-neutral crime?
Contrary to the popular belief that only women can be raped, men can be
raped too. The following data shows that not only women but men are also
victims of sexual violence. It is estimated that approximately one in six men
were sexually abused as children.[iii]
According to WHO, world report on violence and health, between 5% to 10% of men
throughout the world reported that they were sexually abused as a child[iv].
According to a report published by US statista research centre, in December
2020, around 52,336 cases of sexual violence against men were registered
worldwide[v].
It is obvious that these numbers are far less than the real number of cases as
due to the taboo attached to male victims of sexual violence, most males do not
even report the sexual violence they suffered. Furthermore men and women are
raped in prisons too. Men on men rape has also been documented as war rape i.e.
rape is used as a weapon of terror in warfare[vi]
according to the times “one in every 21 men had been forced to penetrate an
acquaintance or a partner, usually a woman; had been the victim of an attempt
to forced penetration; or had been made to receive oral sex.”[vii]
Female on male rape is another form of sexual violence which is ignored
by the society at large. As penal penetration is considered as the only form of
rape, it is believed that female on male rape is not a possibility. But that is
in fact not the real truth. In 2008 a study was conducted in which 98 men were
interviewed by the United States national crime victimization survey in which
it was found that 46% of men who
reported some form of sexual victimization were victimized by women.[viii]
Legal definitions of rape;
Under Indian penal code[ix],
rape is defined under sec 375 as follows:
Sec 375- 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 to 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 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 part of body of such woman or makes her to do so with him or any other
person; or
(d) applies his mouth to the
vagina, anus, urethra of a woman or makes her to do so with him or any other
person.
Against her will or without her
free consent.
So according to the definition of
rape given under Sec 375 of IPC, rape is a crime that can be committed solely against
a woman by a man.
As defined under English law
Sec 1 of sexual offences Act 2003[x],
rape is a statutory offence which is created by a person (A) if
(a) He intentionally penetrates
the vagina, anus or mouth of another person with his penis,
Without (B’s) free consent. The 2003 legislation recognizes rape as a
gender-neutral crime when it comes to the victims of rape but the perpetrator
under English law is still believed to be a male when it comes to sexual
crimes.
In US rape is defined by
the US department of justice[xi]
as, “penetration, no matter how slight, of the vagina or anus with any body
part or object, or oral penetration by a sex organ of another person, without
the consent of the victim.” This definition of 2012 makes rape a gender neutral
crime. The previous definition from 1927 focused only on vaginal penetration,
but the new definition also includes anal or oral penetration. Under Singapore's statutory
definition of rape[xii],
which came into force on 1 January 2020, both men and women can be victims of
rape, but only men can be charged with rape under Section 375 of the Penal
Code. If the perpetrator is a woman, she will be charged with sexual assault
with penetration in accordance with article 376 of the Penal Code.
Rape is a crime not only against women but also against men and other genders,
and this has been recognized by many countries. India also needs to change the
definition of rape to make it gender neutral. The world must recognize rape as a
gender-neutral crime.
Effects of rape
Rape is a crime that not only
affects the victim physically, but also psychologically. Rape causes, in most
cases, physical injuries, especially to the victim's genitals as a result of
the use of force. Male victims are often threatened with weapons. A study by
Stermac and colleagues found that 45% of male sexual assault victims who were
admitted to hospital had suffered some form of physical injury[xiii].
Moreover, rape victims also suffer psychological effects. Most rape victims are
prone to post-traumatic stress disorder[xiv].
Rape victims are also at risk of suicide, and this is not only the fault of the
perpetrator, but also of our society and its sick mentality. These effects are
possible in all rape victims, regardless of gender. It is actually stated that
suicide rate among male victims of sexual violence is 14 to 15 times higher
than suicide rate among female victims of sexual violence.[xv]
The reason for this is toxic masculinity and the idea that a man who cannot
avoid being sexually assaulted is weak or not manly enough. The ridicule and the
homophobia male rape victims have to go through are another reason for the high
suicide statistics of the male rape victims. Since the consequences of the rape
are the same regardless of gender; definitions, penalties and legislation must
also apply to all victims, regardless of their gender.
Punishments for the offence of rape
Rape is considered as one of the
most heinous crimes and is severely punished in most countries. Rape robes the
victim of his/her honour and dignity. It’s an infringement of the victim’s
rights and liberty. The consequences of rape for victims are dire. This
barbaric crime must be punished severely. Strict laws should be enacted and the
existing laws should be enforced strictly to stop this cruelty. Penalties for rape
vary by jurisdiction, but in most countries, penalties consist primarily of
imprisonment, fines, and the death penalty. In some countries, punishment for
rape can differ from maximum to minimum depending on the circumstances of the
particular case. In most countries, only males are punished for committing rape
because most people believe that rape can only be committed by men.
Countries such as Saudi Arabia,
Afghanistan and North Korea impose the death penalty for rape[xvi].
In China, rapists are sentenced to death or castration[xvii].
In the United States, under the federal law the punishment for rape ranges from
fines to life imprisonment. In some aggravating circumstances, such as when the
rape victim is a child, death penalty may also be allowed. In Australia, United
Kingdom and Canada, the maximum sentence for committing rape is life
imprisonment, but the actual sentence is determined by the various mitigating
and aggravating circumstances of each case. In France, the penalty for rape is
15 to 30 years in prison. In Indonesia, the maximum penalty for raping a woman
is 12 years[xviii]
whereas in the commentary by R.Soealio on paragraph 285 of Indonesian Penal Code it is stated that the
law need not determine the punishment for a female perpetrator who forced a
male to have intercourse with her as such action is deemed as not harmful or
bad for male victims, such as in females like pregnancy. [xix]
India
In India under sec 376 (1) of IPC[xx]
punishment for the offense of rape is from 7 years of imprisonment to life
imprisonment with fine.
Under Sec 376(2)[xxi]
a person who is in the position of power over the victim like, a police officer
or a public servant, committing the crime of rape can be punished for a term
which may not be less than 10 years but can extend up to life imprisonment,
along with fine. Under this section a culprit who commits rape on a pregnant
woman knowing her to be pregnant or commits rape on a woman under 12 years of
age or commits gang rape is also punished with similar sentence.
Under Sec 376 B[xxii]
the offence of custodial rape can be punished with imprisonment for a term of
which may extend up to 5 years and shall also be liable to fine
Under sec 376 D[xxiii]
offenders of gang rape are punished with imprisonment for a term of twenty
years which can be extended to life imprisonment with fine.
Sec 377 Unnatural offences[xxiv].—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.
Previously Sec 377 punished for all the unnatural offences mentioned
supra but in Navtej Singh Johar vs Union of India[xxv]
the constitutional validity of Sec 377 IPC was challenged and on September 6,
2018 a five-judge bench of Supreme court partially struck down Sec 377 of IPC,
decriminalizing same-sex relations as it violated Article 14,15,19 and 21 of
the Indian constitution. Consequently now people of third gender can engage in
consensual intercourse legally. The court upheld Sec 377 till the extent that
it punishes sexual acts against animals.
Gender neutral laws in India
Under the “Protection of Children from Sexual Offences Act” (POSCO) sexual
abuse committed against a child of any gender is punishable. Sec 2(d) under
this Act defines “child” as any person below the age of 18 years.[xxvi]
The POSCO is the only legislation in India that includes gender-neutral
punishment for the victims of sexual abuse. But it only includes victims aged
under 18 years. Currently, there is no legislation for the adult male victims
of sexual violence.
Article 14[xxvii]
of the Indian Constitution provides for equality before the law and equal
protection of the laws within the Indian territory. Further, article 15[xxviii]
of the Indian Constitution forbids discrimination or bias on the basis of
religion, race, caste, gender, or place of birth. The fact that only females
get protection of law against sexual related crimes is discriminatory on the
basis of gender.
The Supreme court of India in the case of Sakhshi vs Union of India[xxix]
directed the Indian law commission to investigate the issue of gender-neutral
rape laws. The law commission submitted its 172nd report[xxx]
in March 25 of 2000 on “Review of Rape Laws” urging that the definition of rape
should be amended to include all the genders and should provide protection to
all.
In the case of Priya Patel vs State of Madhya Pradesh and another[xxxi]
the Supreme Court ruled that a woman cannot be punished under Sec 376(2) for
gang rape even when she facilitated the offence. In the present case the
husband of the appellant raped the victim. While the victim was at the
appellants home, Priya entered the room where her husband was raping the victim,
the victim begged Priya for help but instead of helping the victim, Priya
slapped her and then bolted the door of the room from outside. The trial court
charged Priya for hurt u/s 323 IPC and for gang rape under section 376(2)(g)
IPC along with her husband who was charged for gang rape too. Priya challenged
the decision of trial court in MP High court but her appeal was dismissed by
the honourable high court stating that a woman can be charged under sec 376 (2)
for facilitating rape. Priya then challenged the order in the apex court of India.
Allowing the appeal, the Supreme Court quashed the charges framed against the
appellant. The bench held that “a woman cannot be said to have committed rape.
The counsel for the appellant is right in her submission that she cannot be
prosecuted for alleged commission of the offence punishable u/s 376(2)(g).”
Further, the bench stated its opinion by saying, “ a bare reading of
section 375 of the IPC makes the position clear that rape can be committed only
by a man.”
Justice Pasayat noted in the judgement that according to the explanation
given u/s 376(2), “when a woman is raped by one or more in a group of persons
acting in furtherance of their common intention, each such person shall be
deemed to have committed gang rape within the subsection. That cannot make a
woman guilty of committing rape. This is conceptually inconceivable.”
Why this lack of legislation for male rape victims?
The reason for there being almost no legislation for the protection of
males against sexual violence is the belief of society that only women can be
raped or sexually violated. Our patriarchal society holds the belief that since
men are physically stronger and hold a dominating position, they cannot be the
victims of sexual violence. Most men who are the victims of sexual violence do
not even report the crime as the society criticise and make fun of the male
victims, their sexuality is questioned and they are considered as weak. Another
reason for this is that sexual violence against men is considered as a joke.
Most people believe that since men enjoy sexual activities they cannot be
raped, people think that even being in a non-consensual intercourse must be fun
for men. Recently a man in Jalandhar, Punjab was raped by 4 women[xxxii],
they kidnapped him and kept him hostage for 11 hours and during that time they
repeatedly raped him after inducing him some drugs. Instead of taking this as a
serious issue, posts on social media were mocking the incident, some posts
applauded women while others posted how it must have been an enjoyable
experience for the male victim. Not only on social media but even on TV shows
and movies men’s sexual assaults are treated as a joke and we laugh at them
without realising that sexual violence against men is a real thing and not just
a myth. It is as degrading, as humiliating and as hurtful for other genders too
as much it is for women. It’s the need
of the hour that legislation for the protection of all genders be brought
forward. Gender neutral laws should be made and implemented so that culprits of
rape can be punished without any gender bias and this heinous crime can be
curbed.
Some instances where offenders of male rapes were punished;
In September 2013 a Chicago women was charged with armed robbery and
sexual assault for raping a man at gunpoint.[xxxiii]
Reynhard Sinaga who is thought as the UK’s most
“prolific rapist” ever[xxxiv]
and most probably the world’s most prolific rapist preyed on young men for
several years. He was caught in 2017, until then he had raped at least 190 men
out of which 48 men appeared in court against him. He was found guilty for
drugging, rapping and sexually assaulting all 48 of them. He would lure young
men who were out partying at the neighbourhood night clubs to his flat. These
men were typically in their late teens or in their 20’s. His built was small
and non intimidating which along with his cheerful smile worked in his favour.
He was charged of 159 sex offences out of which 136 were rapes.
These cases show that men are as susceptible to sexual violence as
women. Protection of men against sexual violence is need of the hour. Our world
is changing day by day and not in a positive way.
What should be done?
From all the above stats and prevailing legislation all over the world
it is clear that passing new gender neutral laws for penalising rape and other
forms of sexual violence is the pressing priority of the moment. Amendments
should be made in the existing rape laws to make them gender-neutral so that all
the victims of rape get justice regardless of their gender. Fast-track courts
should be made for all genders like they exist for female rape survivors. National
and State Commissions should be set up for men on the lines of existing
commissions for women. Help for all the sexual violence victims without any
bias of gender should be available at all levels. Stigma against rape victims
either men, women, 3rd gender or transgender should be stopped and instead we
as a society should be there for the victims of these heinous crimes in every
way possible. United Nations should also put efforts by organising conventions
and enacting rules for protection of men against sexual crimes.
[i] Merriam-Webster
Dictionary
[iii] “Sexual
abuse statistics” Government of
New Jersey. Zero Abuse Project.
Retrieved 20 March 2023.
[iv] See WORLD HEALTH ORG., WORLD
REPORT ON VIOLENCE AND HEALTH 154 (Etienne G. Krug et al. eds., 2002)
(asserting that the rape of men "has largely been neglected in
research")
[v] Statista
research centre Number of rape or sexual assault victims in the US per year
from 2000 to 2021, by gender
[vi] The
rape of men; society; the observer. London: Guardian.co.uk. Sexual violence is one of the most horrific weapons of war, an
instrument of terror used against women. Yet huge numbers of men are also
victims.
[vii] The
New York Times; Men struggle for rape awareness
[viii] "Male
Sexual Victimization: Examining Men's Experiences of Rape and Sexual Assault". Men and Masculinities
[x] Sec 1 of Sexual
Offences Act 2003
[xii] Singapore's statutory definition of rape; Penal Code,1871
[xiii] S. McDonald
and A. Tijerino (Research and Statistics Division-Department of Justice Canada.
2013;
[xviii] Kitab
Undang-Undang Hukam Pidana 2013-12-05
[xix] R.Soesilo 1996 Kitab Undang-Undang Hukam Serta
Komentar-Komentarnya Lengkap Pasal Demi Pasal". Bogor: Politea. (in Indonesian) Pidana
[xxvii] Article 14
Indian Constitution
[xxviii] Article 15
Indian Constitution
[xxxii] Jalandhar
Male Rape: Are men safe in India? The Daily Guardian
Article Information
GENDER-SPECIFIC RAPE LEGISLATION
Authors: ARNEET KANG
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/19
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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