Letter and spirit

India's law should recognise that men can be raped too

To view the crime exclusively as a man violating a woman is an injustice to those whose stories do not fit this mould.

An article published in India Today on August 14 entitled "Teacher among four booked for sodomy in Muzaffarnagar" is just one more example of a peculiar distinction that has remained firmly ensconced in Indian parlance: the idea that men can be sodomised but not raped.

As Section 375 of the Indian Penal Code stands, rape is something that only a man can do to a woman. There is no room for adult male victims, much less female perpetrators. Although child survivors of both sexes are covered by the Protection of Children from Sexual Offences Act 2012, current rape laws leave out a large swathe of male victims, who cannot come forward for fear of stigma and a lack of legal recourse.

As a former director of an Lesbian Gay Bisexual Transgender counselling and sexual health centre in New Delhi, I can attest firsthand to the dozens of such male and transgender survivors in the nation’s capital. They have also been well documented in legal cases, such as Naz Foundaiton vs the Government of National Capital Territory of Delhi and in reporting by domestic human rights organisations. Why, then, this inertia around a word as antiquated as "sodomy"?

New impetus 

The potential for a change in discourse and in law came in the wake of Nirbhaya's gang-rape in 2012, which saw a heavy increase in national attention directed towards the crime of rape. Then, male rape survivors (I will not say "sodomy" survivors) also began to speak out, including one Chennai-based man whose blog post about his memory of being raped quickly went viral.

In 2013, the Centre passed its stop-gap Criminal Law (Amendment) Ordinance, which substituted "sexual assault" for "rape" and made the crime gender-neutral from the aspect of both perpetrator and victim. Yet this was, in effect, a mixed bag. While the recognition of male victims and female perpetrators was solved, it did not use the word "rape", which was a significant omission.

A vociferous lobbying force achieved a reversal on both counts that same year with the Criminal Law (Amendment) Act. These groups argued that rape was an explicitly patriarchal crime, directly stemming from the grotesque abuse of male power and privilege.

Thus, for charges to stick, the perpetrator must be male and the victim female. The exception to this rule has been, somewhat oddly, the retaining of gender-neutral language for the perpetrators of gang-rapes only.

I would not so much quibble with the notion that rape is based on power ─ although I do concur with others who believe that lust and sexual desire do play roles ─ but rather that the crime of rape is exclusively patriarchal by definition. Even if it were, I would further dispute the idea that crimes of patriarchy affect biological women only.

Limited definition

In understanding what constitutes rape, international law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the last legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape.

It would by current Indian legal standards as well. Yet if the setting had been an Indian women’s jail and the exact same violation had occurred by fellow prisoners, there would be no rape. To be sure, it would be an assault-based crime of some form, but not rape. This, even though the victim would have been forcefully penetrated in a sexual manner by her assailants.

The same result would also come about if the victim were a child, as the PCSOA would allow for a charge of sexual assault, but not one of penetrative sexual assault, codified as male-only. Many parliamentarians and some activists argue that only members of one sex can rape and only the other can be raped, for rape is only ever patriarchal.

Yet even as parliament declares that women are apparently incapable of committing crimes of power over each other, the Bombay High Court found itself grappling in May with a case involving the alleged molestation of one woman by another. Perhaps the drawbacks of gendered language in the law have become clear. Perhaps not.

With regards to the existence of both male and female survivors, the US's Centers for Disease Control in Atlanta has estimated that 18.3% of American women and 1.4% of American men have experienced rape at some point in their lives. Both percentages are likely to be underestimations due to stigma attached to reporting the crime.

Indian statistics needed

Of those convicted of rape, the US Department of Justice has stated that 99% are men, and 1% are women. Ideally, India would be able to provide its own numbers for statistical comparison. However, given that rape by legal definition cannot be committed against men, there is no good way of determining just how many male survivors exist in India.

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. More recently, 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.

The only way to bring any form of justice to these male survivors has at times been charges under Section 377 of the IPC, India’s recently reinstated anti-sodomy law. Problematically, however, this law both does not consider “sodomy” as actual rape and makes no distinction between consensual and non-consensual sexual acts between two male adults; its conviction statistics tell us very little. For those who were violated in a non-penile manner, not even this recourse exists.

Gender-neutral crime

In response to the possibility of making rape a gender-neutral crime, the Centre for Civil Society’s Jai Vipra has noted that the opposition has raised two distinct issues: the idea of rape being divorced from female-specific consequences for the survivor and the exploitation of gender-neutral language by men.

In looking at the former, it is obvious enough that, apart from feelings of humiliation and shame experienced by both genders, there are certain burdens placed on female survivors, such as the higher value Indian society places on maintaining female virginity.

Yet by the same token, there are burdens placed on male survivors, such as being perceived as effeminate or perhaps even homosexual, unfortunately taboo topics for men, that would not be equally felt by female survivors.

At a broader level, do not all crimes affect different types of victims in different ways? Yet, with few exceptions, we prosecute based on the sameness of the crime, and not the sameness of the effect. The latter would essentially imply that certain victims matter more than others, flying in the face of equality before the law.

The second critique regarding the abuse of gender neutrality is certainly possible but its probability and effectiveness are suspect. Many, for example, fear the possibility of a male rapist’s counter-accusation of, “She raped me!” in response to a female survivor’s initial reporting. Again, while this is technically possible, there are a plethora of other counteraccusations that can be, and often are, employed by male rapists, ranging from consensual sex to fabricated allegations.

An accusation of rape by any party must, in any court of law, be supported by proof. For women, a rape kit test can be proof enough. A male’s accusation against a woman, whether in response to a woman’s accusation or not, would be entirely more difficult to prove and a false accusation risks committing crimes of perjury and giving false statements to police.

Some clarifications

It is also important to note that where rape is a gender-neutral crime, this kind of exploitation by men is almost non-existent for the reasons just listed. The survivors who are legally aided by gender-neutrality, however, are substantial.

Finally, while I have spent considerable time advocating making rape a gender-neutral crime, it is important to note what I am not claiming. I am not claiming women and men suffer rape in equal proportions, for that is not the case. I am not claiming that men and women commit rape in equal numbers, for they do not.

I am also not saying that rape is completely separate from an often violent patriarchy, for it is not. Lastly, I am not claiming that feminist groups and others have not done a phenomenal job in keeping rape in the national discourse, for they certainly have.

However, the 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. As these survivors have finally found the courage to share their stories with us, legislating on such an impulse is in itself a criminal act.

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