AMELIORATION OF RAPE LAWS: NEED OF THE HOUR

 The Author of this blog is Ms. Navsirat Kaur, a student of 3rd year, BA LLB(spz. Energy Laws) at University of Petroleum and Energy Studies, Dehradun, Uttarakhand 

 

“We live in a country where being raped is seen as a question mark on the victim’s masculinity, but not as a crime”.[1]

These are the words of a male rape survivor, who was raped by his hostel warden when he was just in 8^th class. When he complained to the principal, he was slapped and suspended for a week which made him consider it was his mistake for being raped. He adds, “It was difficult, but now I know I am not alone”.

A brief factsheet

In India, a girl is raped in every 20 minutes still such a grave crime that not only harms the victim physically but also traumatizes mentally possibly for her entire life, came into the hit list of the most heinous crimes that needs to have deterrent severe penalty inclusive of capital punishment only after the heart-wrenching case of Nirbhaya Gang Rape[2]. This infamous case wide opened the eyes of Indian legislation and judiciary which resulted in many amendments in the Indian rape laws against women. Still while amending the laws, a very alarming requirement of the current time was ignored i.e. “Not only women, but men and other genders can also be raped.” 

According to Section 375 of The Indian Penal Code, 1860, rape is a crime that is only committed by a man to a woman. The exclusive declaration of men as perpetrators and women as sole victims leaves no room for serving the justice to the rape survivors belonging to other genders apart from the female category while their rapists roam freely. The act of forceful sexual intercourse by a girl on a girl or by a girl on a man without the consent is ignored in toto. Not only men but transgender and non-binary people, who have an equal stake in our society, also live a life with no voice against sexual crimes.

Reasons behind gendered laws

In Indian society, women are considered as weak and lower gender which needs to be protected by the males of the family. Women are objectified as their husband’s property and the value of the property increases if she is ‘pure’ and ‘untouched’. The purity and chastity of a woman is celebrated in India. Males, on the other hand, are considered as the strongest of all the genders. A boy from his childhood is conditioned to act superiorly to the girls. The patriarchal nature of the society not only affects the women but also forces men to remain silent against injustice to prove their masculinity.

Laws are highly influenced by the society; therefore the laws against sexual crimes were made in favor of female. On the other hand, men being self-protective were left out to be a prey to such crimes.

Demand for gender-neutral laws

The demand for gender-neutral rape laws was firstly dealt within Sudesh Jhaku v K.C. Jhaku[3] (1996) in which the Delhi High Court held that, “Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and men should have the same protection as female victims, and women who sexually assault men should be as liable for conviction as conventional rapists.”

In the case of Priya Patel v State of M.P.[4] , this is significant for being the only case that questioned whether a woman can be prosecuted for committing gang rape. The High Court held that, “though a woman can not commit rape, but if she facilitated the act, she could be prosecuted for gang rape.”

Later on, in Sakshi v Union of India[5] the Apex court directed the matter to the 172^nd Law Commission. The Commission’s report was legislated into Criminal Law Amendment Bill, 2012, but before it could turn into Act, the incident of Nirbhaya Gangrape Case took place that shocked the whole nation. A lot of recommendations were proposed after that which included expanding the ambit of rape and making the laws gender-neutral.

The recommendation of gender-neutral rape law was highly criticized by the women groups. They argued that women of the nation are comparatively more vulnerable and such amendments will increase the power of the already powerful male community.[6] This led to the continuation of gender-specific laws.

 Instances that require legal provisions

In the Indian legal system, there are more than 40 laws in favor of women for their protection against sexual crimes but on the other side though the Indian Constitution guarantees equality of status and of opportunity to all the citizens[7], still there is a lack of laws for the protection of men.

Following are some of the situations where the protective laws for men are lacking-

Ø  Section 375 of IPC restricts the ambit of the law to one gender as the perpetrator and other as the victim. It states that only a man can force a woman to have sexual intercourse without her consent. A woman can also force a man into sexual intercourse without his consent. 

Ø Section 376-B criminalizes the act of sexual intercourse by husband upon his wife during separation which amounts to rape. What if the wife inflicts the sexual intercourse upon her husband during separation without his consent? There is no law to protect men from such crime. 

Ø  If a boy has sexual intercourse with a girl with the false promise of marriage, it will amount to rape. If a girl makes sexual relations with a boy under the false pretext of marriage, there is no law for his protection. Simply because such a situation is very hard for Indian society as well as legal system to believe.

Ø  When a girl is raped, her identity is hidden to save her reputation and for further protection but when a male is accused of such crime, his identity is disclosed along with his pictures. His and his family’s reputation and protection is put on stake, even before he is proved guilty

Ø  Often the false rape cases against men are filed by women, but there are no laws to deal with such situation resulting in wastage of court’s precious time and harming innocent person’s reputation.

Statistics

There are gender-neutral laws for the protection of children from sexual abuse in India. In the study conducted by the Ministry of Women and Child Welfare, supported by United Nations Children's Fund in 2007, 53.22% children faced one or more forms of sexual abuse among those the number of boys was 52.94%.[8]

Since rape against men is still not considered as a crime, there is no reliable data related to reported rape cases. A social survey was conducted to determine the number of men facing sexual crimes, and the study showed out of every 5 males one is raped or molested at least once in their lifetime.[9] In many cases, the perpetrators were women. Many among them were confused whether they were victims of molestation or rape.

Another study shows the reasons why the male rape victims choose to remain silent about the abuse. Following is a pie chart explaining several reasons for secrecy, that are shame (55.6%), confusion (50.9%), fear (43.5%) and guilt (28.7%).[10]

Conclusion and Suggestions

Not only the Indian legal system is at fault but the society equally shares the blame for the ignorance towards the sufferings of the males just because women are in such a place that needs more protection. “Not all the men are rapists, sometimes they can also be the victim; of the sexual offense or the false case.”

Following are some suggestions for the society-

1.    Families need to change their outlook and encourage the males of the family to open up about the fears and sexual offenses happening to them. Keeping quiet does not help in any way, it only promotes the crime.

2.   The legal system should identify the requirement of the society and make appropriate preventive laws in favor of men. The people of the society should also accept those laws as men also deserve empathy.

3.  Workshops in schools and colleges should be held to educate the males about sexual offenses and spread awareness.

At the end of the day, what matters the most is safety and security not just for a specific gender but for whole of the nation.

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[1] Sexual Abuse Of Males: Shrouded In The Shadows, https://www.gonewsindia.com/latest-news/health/sexual-abuse-of-males-shrouded-in-the-shadows-553

[2] Mukesh & Anr vs State For NCT Of Delhi & Ors on 5 May, 2017

[3] Sudesh Jhaku v KC Jhaku, 1998 Cri LJ 2428.

[4] Priya Patel v State of M.P. AIR 2006 SC 2639.

[5] Sakshi v. India and ors, 2000; ILDC 868 (IN2004).

[6]https://criminallawstudiesnluj.wordpress.com/2020/05/01/gender-neutral-rape-laws-need-of-the-hour/

[7]  INDIA CONSTI. Art 14

[8] https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala

[9] https://www.gonewsindia.com/latest-news/health/sexual-abuse-of-males-shrouded-in-the-shadows-553

[10] https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala