Introduction

Women and children can afford to be careless, but not men.

This quote, from the movie, The Godfather, very aptly depicts the socio-cultural fabric of India – the society that places men at the head of the family and hinders the recognition of men as victims of sexual offences. There exists a notion that a man is too strong to be subdued, and victims of sexual offences are weak. This notion prevents a male victim from reporting the offence, due to the fear of society, and the loss of one’s manhood. Similarly, the notion that women are the weaker sex, that requires protection, makes the idea of a woman being the perpetrator of such offences rather absurd. This essay will explore the patriarchal aspect of Indian society, and how patriarchy provides hindrance in extending the scope of laws against sexual offences, to include all genders, rather than just women.

A major setback in a case of proving sexual offence against a man, are physiological factors. It is contended that an engorged penis is proof of consent. This contention is as incorrect as saying that a woman had consented to a sexual act because she had vaginal lubrication during it. Reliance shall be placed on medical literature asserting that physiological factors, like an erected penis or lubricated vagina, are responses to sexual stimuli, and are out of control of a person –thus, not a proof of conscience consent for the sexual act. Some radical feminists like Christine Boyle claim that making such laws gender-neutral would be against the feminist movement, and would be dangerous to the women community, whereas other feminists support the recognition of male rape. Ideas from feminist literature, both – in favour of, and against – neutralising laws against sexual offences shall be discussed.

This essay would address the lacunae in existing laws and highlight the need for gender-neutral laws against sexual offences. The Constitution of India prevents the State from discriminating on the grounds of religion, race, caste, sex, and place of birth.[1] It also provides for social justice,[2] and society consists of more than one gender.

Sexual offences have been recognised as women-centric in India. 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 the Penal Code, 1860[3], speaks of the only man as the perpetrator, and woman as the victim. The same position is held by all laws regarding sexual offences, except in the case of gang rape, which regards only a woman as victim, but “one or more persons” as the perpetrator, and Section 354 of the Penal Code[4], that states that whoever assaults or uses criminal force to any woman, 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 may extend to two years, or with fine, or with both. But in these cases, as well, only a woman is identified as the victim.

Hurdles in Gender Sensitising the Law

Patriarchy

Oxford English Dictionary defines patriarchy as a society, system, or country that is ruled or controlled by men. Indian society is essentially a patriarchal society, whereby men are expected to behave in a certain predetermined way, any deviation from this way gives rise to ridicule from society – mainly other men. Some examples of how society wants an “ideal man” to behave include the notion that a man cannot show his emotions and cannot cry in public, he has to remain strong at all times, or that a man feels no pain. This gives rise to gender inequality and is the reason why some men, even if they support gender equality, are embarrassed to speak out about it. One other notion that a patriarchal society has against men is that they are expected to be interested in sexual intercourse all the time, thus negating the concept of the man’s consent in a sexual act.

Men themselves feel pressured to have sex due to society’s existing opinion about men and sex, and the idea that refusing to have sex would make them less of a man, or they might be perceived as gay.[5] The expectation of having an erection anytime, anywhere, with anyone, gives rise to the idea that men have no sexual autonomy. There are contradictions in the existing definition of gender neutrality concerning men and women. In the 21st century, it is not unusual for a woman to practice law, drive a truck, wrestle, or do any of the more masculine tasks. But if a man shows a feminine side, or has hobbies that are considered to be feminine by society, it is frowned upon.[6] Thus, today’s gender neutrality brings masculinity to everyone, irrespective of gender.

The patriarchal mindset of society prevents men from coming out and speaking up about incidents of sexual offences against them. Therefore, there exists no authoritative data showing the existence of men becoming victims of sexual offences. The need of the hour is for men to speak up about such incidents, in a magnitude to the likes of the magnitude of the feminist movement, to make laws against sexual offences gender-neutral.

It has also been continuously asserted that men react differently to sexual assault than women do. Ignoring harm caused to men is a steady pattern seen in the writings of radical feminist writers.[7] Radical feminists often claim that introducing gender neutrality to laws relating to sexual offences would be detrimental to the interests of women.[8] However, no evidence of the same, or of how men act differently in these situations, has been given by these authors.

Contrary to the prevalent opinion, a study conducted in America, in 1989, shows that the reaction of men in cases of sexual assaults is similar to that of women.[9] The characteristics of the victim and the reaction were noted to be the same. However, men found it difficult to report these incidents because of the stigma that sexual assaults are a woman-centric issue, or because of the fear of being branded as weak, or less of a man.

Misinterpretation of physiological factors

Without dwelling on data and statistics, it would be safe to conclude three things about sexual assaults. Firstly, men make up the larger portion of those who commit rape, however, a significant minority of women do commit acts of sexual offences. Secondly, the fact that women are statistically at a much greater risk of sexual assaults than men are, does not negate the risk faced by men. Thirdly, more men and boys are subject to sexual assaults than we are aware of. Many believe that male sexual assault is not a significant problem, mainly because of  lack of reported incidents. The reason for this lack of reported incidents is the lack of laws under which such incidents can be reported.

A constantly recurring argument against men in cases of sexual assault is that the man had an erected penis and/or that the man ejaculated, which leads to the assumption of the presence of consent on the part of the man. A majority of males also feel confused or guilty because they ejaculated, or had an erection, during the assault.[10] Laboratory studies indicate that during instances of sexual assault, a fight or flight response gets activated by the nervous system and adrenaline is released, resulting in excessive blood flow and lubrication in genital areas. Thus a person will not have unresponsive genitals during sexual assault if they are scared. The study conclusively argued that men do get erections unwillingly during sexual assaults.[11] It has been already established by courts in the USA that having an orgasm during the sexual assault will be inconclusive as proof of consent.[12]

In this respect, it is pertinent to understand the relationship between physical arousal and sexual pleasure. Men, right from puberty, are persuaded into believing that the penis is their sexual centre.[13] In many ways, this persuasion leads to the belief that an erection is the signifier of consent. But a man having an erection may be the result of the familiarity of the sexual act of penetration, or other activities related to sexual assault, and may not be the sign of consent. Physical and biological responses are not indicators of the emotional status of a person.

For centuries, it has been noted that hanged men often display an erection after they are dead.[14] This would not be an indicator of sexual desires. Evidence shows that this erection is the result of physiological response emanating from a combination of excitatory and inhibitory innervations that converge upon the lumbar cord reflex centre during asphyxiation.[15] Apart from this, there are various ancient incidents where men were forced to indulge in sexual activities. For example, in Bosnia, during the civil war, men were forced to engage in sexual conduct with each other.[16] Also, during the reconstruction period in southern parts of America, blackmen were forced to have sexual intercourse with women, while being whipped on their backs.[17] While all these acts would not be possible without an erected penis, characterising them as erotic scenarios would be misunderstanding and undermining the situations in which these erections occur. Thus, nothing biologically definitive is proven by the presence or absence of physical arousal.[18] In conclusion, an erection is not proof of consent.

Gender stereotyping by the media

In today’s day and age, the media plays an important role in shaping the minds of the people. The mainstream Indian media does not show men as victims of sexual assault and paints an unrealistic picture of an ideal man. The iconic dialogue of the most renowned Indian actor, stating that a real man feels no pain,[19] is still the yardstick of masculinity in the minds of the people. Indian movies use sexist humour and use comedy to dilute the seriousness of sensitive issues like misogyny. The stereotyping and harassment of gay and transgender characters is another concerning issue, which is used comically by the Indian media. The issue of molestation of a man has also been used comically. The only Bollywood movie to address the issue of sexual offences against men that gained popularity is the movie Aitraz, where the protagonist’s boss’ wife tries to sexually assault him.

The situation is the same for books. Claire Cohen, a prominent author, says that male rape victims are often feminised so that the readers be more accepting of female perpetrators.[20]

Thus, there is an immediate need to condition the Indian society to be accepting of all genders and to confront the directors and filmmakers about the stereotypical depiction of different genders, and the usage of serious issues in a comic way.

The reality of sexual offences

This scenario of male domination and crimes against women that once existed has now changed over the years and we are at a point in time where such legislations are no longer serving the purpose but rather neglecting and harming the other genders against whom false allegations and false cases are being framed simply because the laws that are in place today recognise women as the victims of sexual offences and ignore not only the possibility of them being the perpetrators but also of men being the victims, bringing in the question of the violation of the principle of equal protection of all persons under the law.

In a recent study it was found that out of 222 Indian men surveyed, 16.1% had been coerced into having sex. Despite the rape of men not researched as widely as a rape of a female, there are several statistics to suggest that men are raped and the prevalence of men rape is wider than is generally presumed. There are no statistics, surveys or reported cases of men being sexually harassed, which is because of the fear of mockery by the people around them. The male if harassed by a female is considered timid and if harassed by another male then people ridicule his manhood, keeping the premise intact that men are not sexually harassed.

Men are overwhelmingly responsible for sexual harassment against women in the workplace, but men are also the targets of sexual harassment far more common than typically assumed by researchers or the community at large. Many cases of female child abuse are accidentally discovered due to pregnancy, and familial abuse is stopped by marriage, but the disclosure rate among boys seems to be lower and accidental disclosure becomes more of a rarity leading to years of abuse.[21]

Several male rape myths have been posited to exist in the literature. These are summarised by Turchik and Edwards (2012) that men cannot be raped, “real” men can defend themselves against rape, only gay men are victims and/or perpetrators of rape, men are not affected by rape (or not as affected as women are), a woman cannot sexually assault a man, male rape only happens in prisons, sexual assault by someone of the same sex causes homosexuality,  homosexual and bisexual individuals deserve to be sexually assaulted because they are immoral and deviant, if a victim physically responds to an assault he must have wanted it.[22] In this way, society and community also become offenders by displaying unsupportive behaviour.[23]

In India, instances of sexual assault which do not conform to the male-on-female paradigm occur far more frequently than one could imagine.  Goa Police recently arrested a Delhi woman for wrongfully confining and sexually assaulting a French woman.[24] While official statistics in this regard are hard to come by, prominent feminist scholars like Laxmi Murthy acknowledge that “men too can be sexually assaulted- by men, as well as by women (in rare cases)” and that “women to are capable of perpetrating sexual assault on men”.[25] This impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose own rape stories do not fit the typical mould that is easiest for us to understand.[26]

One of the arguments for making the laws gender neutral can be that the concept of men being dominant in the hierarchy of society needs to be changed. In light of such gendered history, feminists conceptualise rape exclusively in the context of the deeply entrenched power inequalities between men and women[27].

In this regard:

Gender neutrality within rape statutes means the concept that the criminal law should recognise that (…) men and women (and transgender persons) can be rape victims as well as perpetrators. It reflects modern understandings of the nature, effects and dynamics of non-consensual penetrative (and non-penetrative) sex acts.[28]

There is an argument that Indian society, being male dominant, is not ready for the concept of gender-neutral laws. The men accused will use the laws in filing counter-complaints against female victims and will defeat the purpose of the women protective laws. But not changing the outdated laws and moving forward with the static notion will end up harming the other side, that is the male victims who remain silent without speaking out to the world their side of the story. The legislators need to amend laws with the changing circumstances and pay equal heed to the sexual assaults faced by the men.

In looking at child sexual abuse specifically, the Indian Government did find in 2007 that, of surveyed children who reported experiencing severe sexual abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls. The Delhi based Centre for Civil Society found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.[29]

Sexual offences and the law

The males are not the only class ignored by the legislators in this regard. It is a fact that transgenders also face crimes related to rape and sexual assault. The need for a holistic amendment in criminal law is required to make basic laws available to the victims irrespective of their gender. In State of Punjab v. Ramdev Singh[30], the Supreme Court observed:

Rape is not only an offence against the person of a woman rather a crime against the entire society. It is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the Constitution of India.

While interpreting the above observation of the Supreme Court, the simple understanding can be that the crime of rape is against the whole society in which we are living. Also, the notion that the person of a woman only can be the victim/survivor of rape needs to be eradicated. Further with the acceptance of homosexuality as a natural sexual orientation, there is increasing concern on converting the gendered law on rape into a gender-neutral one.[31]

The Ministry of Justice in the UK released a report in 2013 that in the previous year approximately 85,000 women and 12,000 men were raped.[32] Despite such noteworthy statistics globally, sexual assaults against genders other than females remain unrecognised in the largest democracy of the world.

The Transgender Persons (Protection of Rights) Act, 2019, under Chapter  8 Section 18(d)[33] provides punishment to whoever tends to act causing sexual abuse to a transgender person, making them liable to imprisonment for a term which shall not be less than six months but which may extend to two years and with fine. This clearly shows the neglect on the part of the legislature towards transgender persons. The smell of discrimination can be sensed as the sexual abuse has been categorised as a petty offence punishing the abuser only for a maximum of two years and fine, whereas a similar offence against a cisgendered woman, the prescribed punishment may extend up to imprisonment of a lifetime. Incorporating gender-neutral laws in the IPC itself would, therefore, guarantee equal protection to victims of sexual offences, irrespective of their gender, which would align with the constitutional provisions.

The sexual harassment cases and the Government’s response for taking into consideration gender neutrality are perplexing. It was the 172nd Law Commission Report[34], where, for the first time, the plight of men was highlighted in light of the laws which are gender-centric and need a thoughtful amendment in the same, and later, by the Criminal Law (Amendment) Bill, 2012[35], it was proposed that the word “rape”, wherever it occurs, be replaced by the word “sexual assault”, to make the offence gender-neutral and also to widen its scope. But unfortunately, these guidelines were given no heed except by the University Grants Commission (UGC). The UGC after the notification of the Ministry of Human Resource Development exercised its power and made regulations against sexual offences in universities.

The UGC in the exercise of its power under Sections 26(1)(g) and  20(1) of the University Grants Commission Act, 1956[36] made these regulations apply to all the higher educational institutions in India. Regulation 3(d) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 provides that:

it will be the responsibility of all the higher education institutions to act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.[37]

The above regulation is a step towards gender neutrality besides the Protection of Children from Sexual Offences Act, 2012[38]. It is worth noting here that the whole of the  Protection of Children from Sexual Offences (Amendment) Act, 2019[39] is gender-neutral except Section 3 of the Act which mentions only penetrative sexual assault.

Conclusion

In this article, we have tried to discuss and evaluate the various presuppositions regarding rape and other sexual offences, which have led to the conclusion that the need for making laws against sexual offences is not only urgent but also indispensable. Patriarchy may look advantageous for men on the face of it, but in reality, it has several drawbacks for men too. Notably, sodomy as a war crime has been known and recognised since time immemorial, yet, the Indian legislators choose to turn a blind eye towards this issue, and refuse to acknowledge that any person, irrespective of gender, can be a victim of sexual assault, or a perpetrator.

Further, the approach of the media in creating and maintaining the stereotypical gender images needs to change, to reflect reality. The media needs to show that a man can have hobbies that are considered “feminine”, and not be less of a man, and women can have “masculine” hobbies and behaviour and continue to be female. It is true that the media, as such, does not have a statutory duty to do so, but considering the wide impact, it has on society, a moral obligation for uplifting society should be made. The need for a gender-neutral law is not only reflected in Article 15 of the Indian Constitution but also to promote the importance of consent in sexual autonomy and bodily integrity, be it of any gender.

We also observed that as opposed to the popular perception, men do not encounter rape differently in contrast to ladies. Male controlled society directs that men have the quality or the intuition to retaliate during rape, whereas studies demonstrate something else. On the issue of resistance from radical feminist activists, we noticed that numerous schools of the feminist movement, including prominent activists like Brownmiller, have recognised and acknowledged the existence of male assault. As clear from our article, there is an urgent need to move from the contemporary phallus-centric laws which limit the talk on assault law. Further, we investigated how an absence of comprehension on the part of defence lawyers concerning bodily response to sexual acts can result in the miscarriage of justice in courts. There rises a genuine need to educate the justice system as well as the overall population about the truth of how sexual stimuli can be accomplished without conscious consent for sexual activity.

The solution for the recognition of sexual assault or all genders lies first in reframing all the current laws in a sexually neutral language to affirm the idea that sex is never again the foundation for deciding legal wrongs. Also, since the law is nothing but the collective will of society, the need for gender sensitise the whole justice system and update legitimate devices for investigative agencies is a sine qua non. To create an inclusive society, there is a need to instil diversity and comprehensiveness in thought as well as in real life. Last, however not least, making laws and preparing police officers are the most extreme a legislature can do; the genuine change will come just when the collective will of the individuals mirror the same.


*Students, National University of Study and Research in Law, Ranchi.

[1] Article 15, Constitution of India.

[2] Preamble to the Constitution of India.

[3] Penal Code, 1860, Section 375.

[4] Section 354 IPC.

[5] Charlene Muehlenhard and Stephen Cook, Men’s Self-Reports of Unwanted Sexual Activity, Vol. 24, Journal of Sex Research 52, (1988).

[6] Patricia Novotny, Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance? 1(3) Seattle Journal for Social Justice, Vol. 62, (2002), available at <https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1427&context=sjsj>, last seen on 20-12-2020.

[7] Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism, (2006).

[8] Joan McGregor, Is it Rape: On Acquaintance Rape and Taking Women’s Consent Seriously (1st Edn. 2005).

[9] Gillian Mezey and Michael B. King, The Effects of Sexual Assault on Men: A  Survey of 22 Victims, 19 Physiological Medicine 205 (1989).

[10] Roy Levin and Willy Burlo, Sexual arousal and orgasm in subjects who experience forced or non-consensual sexual stimulation, 11 Journal of Clinical Forensic Science 82, (2004).

[11] Philip Sarrel and William Masters, Sexual Molestation of Men by Women, 11(2) Archives of Sexual Behaviour 117 (1982).

[12] Curtis v. State, 223 SE 2d 721.

[13] Steve Pokin, Rape:  When the Victim’s a Man; It’s happened in homes, on city streets, in bars and parks.  Far more underreported than attack on women, male rape leaves many victims feeling powerless, alone and suicidal, The Press Enterprise (Riverside, CA.), 10-9-1995, at D01.

[14]Harvey L.P. Resnik, Eroticised Repetitive Hangings: A Form of Self-Destructive Behaviour, 26 AM. J. Psychotherapy 4, 10 (1972).

[15] Lisa Cardyn, Sexualised Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, Vol. 100 Mich L Rev 675, 760 (2002).

[16] Siegmund Fred Fuchs, Male Sexual Assault: Issues of Arousal and Consent, Vol.  51 Clev St L Rev 93 (2004), available at <https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1305&context=clevstlrev>, last seen on 21-12-2020.

[17] Lisa Cardyn, Sexualised Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Mich L Rev 675, 760 (2002).

[18] Susan Bordo, The Male Body: A New Look at Men in Public and in Private, 65 Farrar, Straus and Giroux 1st Edn. (1999).

[19] Amitabh Bachchan in the movie Mard (1985).

[20] Claire Cohen, Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape, (2014).

[21] Uma Chakravarti, Conceptualising Brahmanical Patriarchy in Early India: Gender, Caste, Class and State, 28 Economic and Political Weekly (1993), available at <https://www.epw.in/journal/1993/14/special-articles/conceptualising-brahmanical-patriarchy-early-india-gender-caste>, last seen on 20-12-2020.

[22]Turchik, J.A., & Edwards, K.M., Myths about Male Rape: A Literature Review, Psychology of Men & Masculinity, 13 (2012).

[23]Anderson, Irina and Doherty, Kathy, Accounting  for Rape, Routledge-US (2008).

[24] Mohua Das, Goa Police Book Delhi Woman for Sexual Assault on French Woman, Times of India (2021) available at <https://timesofindia.indiatimes.com/city/delhi/delhi-based-lgbt-activist-held-in-goa-after-sexual-assault-complaint-by-french-woman/articleshow/81300736.cms>.

[25] Partners for Law in Development (PLD), Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000 at 3, online: PLD, <http://pldindia.org/wp-content/uploads/2013/04/comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf> (PLD, “Comments by Laxmi Murthy”).

[26]John Stokes, India’s Law Should Recognise that Men Can Be Raped Too, Scroll.in, available at <https://scroll.in/article/676510/indias-law-should-recognise-that-men-can-be-raped-too#:~:text=To%20view%20the%20crime%20exclusively,do%20not%20fit%20this%20mould.&text=As%20Section%20375%20of%20the,victims%2C%20much%20less%20female%20perpetrators>, last seen on 12-12-2020.

[27] Nivedita Menon, Gender Just, Gender Sensitive, Not Gender Neutral Rape Laws, Kafila, available at <https://kafila.online/2013/03/08/gender-just-gender-sensitive-not-gender-neutral-rape-laws/> last seen on 15-12-2020.

[28] Philip Rumney, In Defence of Gender Neutrality Within Rape, Seattle Journal for Social Justice 481 at 481, (2007).

[29] Supra Note 25, at 6.

[30] (2004) 1 SCC 421, 424 

[31] Navtej Singh Johar  v. Union of India, (2018) 10 SCC 1.

[32] An Overview of Sexual Offending in England and Wales, Ministry of Justice, Home Office and the Office for National Statistics, available at <https://www.gov.uk/government/uploads/system-offending-overviewjan-2013.pdf>, last seen on 20-12-2020.

[33] Section 18, Transgender Persons (Protection of Rights) Act, 2019.

[34] Law Commission of India, Report No. 172  on Review of Rape Laws (March, 2000) .

[35] Criminal Law (Amendment) Bill, 2012.

[36] University Grants Commission Act, 1956

[37] Regn. 3(d), University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015

[38]Protection of Children from Sexual Offences Act, 2012 

[39] Protection of Children from Sexual Offences (Amendment) Act, 2019.

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