Abstract

Rape was crime in Ancient time, crime done by men solely women only, but by the passage of time many changes in society, it has been that other gender such as males, homosexuals and transgender community are also equally affected by this crime. Rape is happened to any age, gender, sexual attitude. We have to accept the fact that the victim and perpetrator of a rape can be of any gender and it can take place anywhere such as school, office, prisons, workplaces, coaching, collage, place, etc.

The study of male rape victims started only after 1980s ,and that too was mostly focused on child sexual assaults. The Centers for Disease Control and Prevention (CDC) in the United States (US) conducted a study in 2010-2012 and found that one in 17 men reported being forced to penetrate at some point in their lives.

National Human Right Commission has observed that sexual abuse is one of the primary reason why prison inmates commit suicide. Homosexual people can also be rape victims. Transgender community can also be rape victims.

The Indian law on rape, in Section – 375 of Indian Penal Code ,1860[1]. This section speaks of the only man as the accused , and women as the victim.

POCSO Act which criminalises sexual assaults against male child, but there is no such provision for adult male. Sexual assault against a male child is dealt completely different from a sexual assault against an adult male. The reason behind such partiality is unknown. If India can have the provision for rape of a male child only. Around seventy-seven countries of the world have established and accepted the gender neutral laws. United States, United Kingdom, Australia and Denmark are out of those seventy-seven countries which have gender neutral laws in their territory. In its 172^nd Report on Review of Rape Laws, the Commission has recommended changes for widening scope of the offence in Section 375 of Indian Penal Code and to make it gender neutral.

Introduction

Rape is the fourth most prominent crime in India, a serious issue throughout the World. Mainly rape is a crime that is assumed to be done women by a man but have we ever thought vice versa. In ancient time rape is crime done by men solely against women only but by the passage of time many changes in society, it has been that other gender such as males, homosexuals and transgender community are also equally affected by this crime. Rape is happened to any age, gender, sexual attitude. Rape done with persons other than females mostly go unreported thus people have a low knowledge about it but it is need of the our that people should know about such crimes and proper law and order should be maintained to get rid of such a heinous crime. First of all, we have to accept the fact that the victim and perpetrator of a rape can be of any gender and it can take place anywhere such as school, office, prisons, workplaces, coaching, collage, place, etc.

The constitution of India provides prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.(1) It also provides for social justice[2].

The major issue against the neutralising of laws against sexual offences is that more often than not, men are the perpetrators. The Indian law on rape, in Section – 375 of Indian Penal Code ,1860[3]. This section speaks of the only man as the accused , and women as the victim. The same position is held by all laws in India regarding sexual offence, except in the case of gang rape, which only a women as victim, but “one or more person” as the accused. Section -354 of Indian Penal Code 1860[4]. Assaults or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any women, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not less than one year but which ay extent to five years and shall also be liable to fine.

Male, Homosexuals and Transgender Rape.

The study of male rape victims started only after 1980s ,and that too was mostly focused on child sexual assaults. The 21st century it is difficult for a male rape victim to report sexual assault because we live in a society where men are considered to have potential to protect themselves as well as others, they are considered to have strong masculine power, so most people fear that reporting their sexual assault will raise a question on their potency or they will be considered as homosexual, if raped by a male. The Centers for Disease Control and Prevention (CDC) in the United States (US) conducted a study in 2010-2012 and found that one in 17 men reported being forced to penetrate at some point in their lives. Among male victims who were raped by being penetrated, 86.5 percent reported that the perpetrators were male.[5]

In societal notion only women are week and they victims ALWAYS. They can’t be perpetrators. Another presumption men is too strong to be subdued. victim of sexual offence are weak. This thinking in society stigmatize a male victim and prevent from reporting the offence , they are fearful of society. Due to the female centric Definition of Rape Law and ignorance of offence in case of man, crime against and victim don’t get justice. A 17-year- old student was inserted an iron road in his rectum in Ghazibad, case was registered under section -377 of Indian Penal Code,1860 only. National Human Right Commission has observed that sexual abuse is one of the primary reason why prison inmates commit suicide. Homosexual people can also be rape victims. Transgender community can also be rape victims.

INDIAN LAWS ON RAPE

In India according to Section 375[6] of the Indian Penal Code (IPC) rape is defined as-

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

applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

From the above mentioned definition in Section 375 of Indian Penal Code, it can be clearly assumed that rape is always committed by a man against a woman. If a woman forces a man to have intercourse with her, it is not considered as a rape, but the same done by a man to a woman is considered as a rape.

Thus, in India there is not any particular law for a male victim of rape. Section -377[7] of Indian Penal Code,1860. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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 offence described in this section.

In case of Naz Foundation v. Govt. of NCT of Delhi.[8]In this case Hon’ble Delhi High Court holding S.377 of the IPC as violation of Article 14,15,and 21 of the Indian Constitution rule that this section denies a persons dignity and criminalises his or her core identity solely on account of his or her sexuality.

RAPE LAWS IN OTHER COUNTRIES

Around seventy-seven countries of the world have established and accepted the gender neutral laws. United States, United Kingdom, Australia and Denmark are out of those seventy-seven countries which have gender neutral laws in their territory.

Scotland ,in 2009 redefined their rape laws .”The international or reckless penetration of the penis ( to any extent) into the vagina, anus, or mouth of another person, without that person consenting and without any reasonable belief that consent was obtained””women “ was replace by “person”

Northern Ireland also amended rape law to replace the earlier term.” Non – consensual intercourse by a man” with “ non consensual intercourse by a person”.

United States – In US, the definition of rape does not include the word woman or girl. The word “person” is used there is making the definition of rape gender neutral, criminalising all types of penetration without consent illegal, which is different as the definition of rape under Section 375 of Indian Penal Code 1860.

United Kingdom – UK did not use to have gender neutral laws earlier but after the R v. Ismai.[9] it was held that court should make no distinction in penalty between vaginal, anal or oral rape and hence, every type of penetration in anus, mouth, vagina has been made punishable. Section 142 of Criminal Justice and Public Order Act 1994 became the first to lead this development and recognize male-victim rape and as per the section “It is an offence for a man to rape a woman or another man.”[10]

Gender Neutral Laws v. Constitution

Article- 14[11] of Indian Constitution says that the state shall not deny to any person equality before the law or equal protection of law within the territory of India.

Article-15(1)[12] the state shall not discriminate against any citizen on ground only of religion, race, caste. Sex, place of birth or any of them. One may argue that Article 15(3)[13]– Nothing in this article shall prevent the State from making any special provision for women and children. But we need to balance between Article-15(1) and 15(3).

Punishment of sexual Assault on Male child, but No provision for Adult Male. Only two Laws Recognize that male can also be victim of sexual offence. 1. POCSO- Protection of children form sexual offences. 2. Sexual Harassment of Women at Workplace Act. Recognize men are also subjected to lots of sexual harassment along with women at the workplace.

Law commission 172th report

The Law Commission of India has recommended review of rape laws to prevent custodial rape and crime of sexual abuse against youngsters. In its 172^nd Report on Review of Rape Laws, the Commission has recommended changes for widening scope of the offence in Section 375 of Indian Penal Code and to make it gender neutral.[14]

Fake case registered on rape by Women

Tilak Raj v. State of Himachal Pradesh[15]
Malti Chauhan v. State (Govt. of NCT of Delhi) and Ors[16]
Raghuvinder Harna v. State of NCT of Delhi[17]
Jai Bhagwan v. State (Govt. Of N.C.T. Delhi)[18]

On the basis of above four judgements relating to false rape, it can be concluded that sometimes women use the law in an unfair manner and as a result of which victim is put behind bar even though when he had not committed the crime. It leads to mental trauma of accused since the mark of rape accused stays with him throughout his life, even after the acquittal society still sees him as a culprit. Memories of the case and the time spent in jail also haunts the victim. His life never remains same as earlier even after receiving compensation.[19] Though various laws were made to protect women but laws to protect men from rape and false rape allegations are yet to be made. The protection of both, men and women from rape and false rape conviction is possible only when gender-neutral laws will be implemented in the country.

ANALYSIS

Indian Parliament has repeatedly ignored and rejected the idea of making gender neutral laws against rape. In India a male rape victim is not considered as a victim at all. The problem of male is increasing at a greater pace and is seen to be taking place in prisons cell mostly and in our civil society as well. Delhi gang rape accused, Ram Singh who was found hanging in his prison, claimed that other male prisoners raped him.[20]G. Pramod Kumar, a writer for the website Firstpost, has quoted in his article that The People’s Union of Civil Liberties had this to say about Tihar way back in 1981: “When a young boy enters, the prisoners have been known to have bid a price for the boy. The price offered is in terms of ‘bidis’, soap or charas. Often prisoners have been divided into camps and the groups have fought each other on the issue of who shall have the new entrant”

Complaints of male victims are not heard, so unless or until they are having serious physical injuries, they try to hide, refuse or deny their victimization, similar to female victims. There are several instances where it has also been found that women had filed false cases. It is found that many women file fake rape cases due to family pressure, revenge, etc. There are a number of false rape cases filed in India on a daily basis. Jagmohini v State(Gnct Of Delhi)&.on 6 August,2013.[21]

This appeal under Section 372 of the Code of Criminal Procedure against an order of acquittal for offences under Sections 452/342/376 (2) (g) /377/511/506/34 IPC by a victim brings to the fore a classic case where false allegations of rape and attempt to carnal intercourse against the order of nature have been levelled by a lady to settle a personal score with her neighbour without caring for the disrepute it brings to a lady and the harassment a person is put to because of all such serious allegations. Such case when is included in the rapes allegedly committed in this capital brings shame to the city as also to the residents who have to hear of this city being termed as the rape capital of the country. There are numerous cases filed in this Court for quashing the FIRs for an offence under Section 376 IPC; the story put forth in some of these cases is so illogical and a blatant lie that the society will have to ponder as to what should be the moral punishment to the lady indulging in a false accusation of this nature.

Judicial perspective

Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty.[22]

In this case Hon’ble Supreme Court held that “rape is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights”. Especially, Right to Life under Article 21 is grossly violated.

Smt. Sudesh Jhaku vs K.C.J. And Others[23]

In this case Hon’ble Court held that was required to determine whether the previous definition of rape (before 2013) could be interpreted to include non-penetrative sexual acts or not? However, the court went beyond its mandate to opine on the issue of gender neutrality as well. Justice Jaspal Singh clearly stated that the nature of the issue raised cannot be tackled by the judiciary as it is purely a legislative requirement. Only the legislature can successfully carve out and draft gender-neutral plans. The judge also noted that the offence of rape needs statutory reconstruction.

Mukesh v. state for NCT of Delhi(Nirbhaya case)[24]

In 2012,the heart wrenching Nirbhaya Rape case was brought few amendments. After. This case, there were protests throughout the country .Finally, the Criminal Law Amendment Act,2013 was passed section 375 of IPC , 1860 was amended along with Criminal Procedure Code and Evidence Act. The definition of rape was broadened. The degree of punishments was incressed. Capital punishment was prescribed for rape cases that have to lead to the death of the victim or in a persistent vegetative state ,.Minimum of 20 years imprisonment was provisioned for gang rape case.

The 2012 bill was once again criticised on various grounds such as it didn’t include any other gender in the victim category. Secondly, it didn’t recognise marital rape as a law. The male perpetrator category remained unchanged.

In a case Kerala High Court Held that-

“While there are an increasing number of cases of men allegedly tricking women into a sexual relationship on false promise of marriage, what happens if a woman does the same, this was the concern reportedly raised by the Kerala High Court recently which further orally observed that section 376 of the IPC — which lays down the punishment for the offence of rape — should be gender neutral”[25].

Conclusion

The punishment for a crime should be as heinous as the crime committed and it should not be restricted to a specific class. It should be applicable to all citizens irrespective of their gender. Suffering is incomparable, it is same for all. The survivor whether a male, female or transgender, homosexual, suffers from the same physical, mental and emotional pain. But a male cannot file a case of rape against women due to the use of gendered language. The gendered language means that a man cannot claim the sexual assault by a woman because according to the definition of rape it can be committed only by a man, this can be referred through the use of the word ‘his’ in the definition. A man can file a case under violence or assault but not under rape and the punishment for it won’t be equal to rape even though the act was the same.

Men and women are made to coexist and to supplement each other for their survival as well as that of society. But this relationship that is the basic foundation of society, unfortunately, has become the most abused aspect in social life.

It can be concluded that one of the first aspects to be tackled in order to make gender equality a reality is the recognition of all kinds of genders and abandon the constricted definitions of gender.

“Gender-neutral reforms are not designed to make gender irrelevant in our understanding of sexual violence; in fact, gender is central to any understanding of how and why sexual violence occurs. What is clear, however, is that while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law.”[26]

The legislation in India is adapting and is making changes which can be to make India a successful country so why should they lack behind in provision relating to male rapes. So, Indian parliament must bring gender-neutral rape laws as countries like United States, Bhutan and United Kingdom have gender-neutral laws. Indian legal system and its citizens need to accept that even women are capable of raping men.

1. The Constitution of India 1950, Article-15

[2] Preamble to the Constitution of India.

[3] Indian Penal Code, 1860,Section 375.

[4] Indian Penal Code, 1860,Section 354.

[5] https://theaseanpost.com/article/taking-male-rape-seriously

[6] Indian Penal Code,1860,Section 375.

[7] Indian Penal Code,1860,Section-377.

[8] 2010 Cr LJ 94(Del.)

[9] [2005] All ER 216.

[10] Criminal Justice and Public Order Act, Section 142 (1992).

[11] The Constitution Of India 1950,Article 14.

[12] The Constitution Of India 1950,Article15.