By Satya Muley
We often read about women being raped in India and elsewhere. However, men and different genders being raped or sexually assaulted is less highlighted and often kept hidden, and laws also ignore this horrendous act.
There is a need for rape laws to be gender neutral. Rape is a heinous crime that can happen to anyone, regardless of their gender or sexual orientation. However, many rape laws around the world are gender-specific and only recognise women as victims of rape, while men and those of other genders are excluded from legal protection in the context of rape or other forms of sexual violence/harassment.
This gender-specific approach to rape laws not only ignores the reality of male and different genders rape victims, but also reinforces harmful gender stereotypes that perpetuate the idea that only women can be victims of sexual violence.
By making rape laws gender neutral, all victims will receive equal legal protection and recognition under the law, regardless of their gender or sexual orientation. This will help to break down harmful gender stereotypes and promote gender equality. It is important to note that gender neutral rape laws do not mean that all forms of sexual violence are the same, but rather that the law recognises different forms of sexual violence and the different ways they can affect victims, regardless of their gender.
In India, rape or sexual violence related laws are not gender neutral. The India Penal Code (IPC) recognises only women as victims of rape and men as perpetrators. Section 375 of the IPC defines rape as “sexual intercourse with a woman against her will or without her consent”.
However, in 2013, the Indian government passed the Criminal Law (Amendment) Act, which introduced amendments to the rape laws in IPC. These amendments expanded the definition of rape to include acts of sexual violence other than penile-vaginal penetration and increased the punishment of rape, including the introduction of the death penalty in certain cases.
While these amendments represent a step forward in addressing sexual violence in India, they do not make the rape laws gender-neutral. In recent years, there have been calls from activists and civil society organisations to make rape laws in India gender-neutral to ensure that all victims of sexual violence receive equal legal protection and recognition under the law.
In 2020, the Indian government formed a committee to review the criminal laws related to sexual offenses and recommended change to the rape laws, including making them gender-neutral. However, as of March 2023, no such changes have been implemented.
Rape of males and other gender individuals is an underreported crime due to social stigma and lack of awareness about these victims. However, there have been some high-profile cases of rape of males in India. Such cases often get registered under the POCSO Act or the Section 377 (carnal intercourse against the order of nature). Such cases highlight the need for greater awareness and legal protection for these victims. It is important to note that the number of cases that are likely to go unreported may be unimaginably high.
In 2018, a 25-year-old man in Mumbai filed a complaint of rape against a woman he had met on a dating app. According to the complaint, the woman had invited him to her house, where she allegedly spiked his drink and sexually assaulted him while he was unconscious. The accused was arrested and charged under Section 376 of the IPC which deals with rape.
Such cases highlight the importance of recognising male victims’ sexual violence and providing them adequate legal protection and support. It is important to note that this is just one reported case; there may be many more cases of male rape by females that go unreported due to societal attitudes.
But can a female rape a male or those of other genders? Yes, it is possible. Rape is defined as non-consensual sexual activity and therefore any person, regardless of gender, can be a perpetrator or a victim of rape.
Sexual violence is a serious issue and anyone who has experienced sexual assault or rape, regardless of their gender, should seek support and help from a trusted friend, family member or a professional therapist and also approach the police.
In India, there are several constitutional provisions that support gender-neutral rape laws. Right to Equality under Article 14 of the Constitution provides for the right to equality before the law and equal protection of the law. This means that men and women should be treated equally before the law and should not be discriminated against on the basis of their gender.
Article 21 also guarantees the right to life and personal liberty to every person, which includes the right to life, free from any form of violence or discrimination. Non-discrimination based on gender also finds a place in Article 15 (1) which prohibits discrimination on the grounds of gender. Article 15(3) allows for the State to make special provisions for women and children. This includes protection against sexual violence, which can be extended to men and other genders as well. The Directive Principles of State Policy enshrined in Part IV of the Constitution call for the State to promote gender equality.
There are several countries where rape laws are gender neutral. Rape laws in US are gender-neutral and apply equally to men and women. US laws define rape as any form of non-consensual sexual activity, regardless of gender of the perpetrator or victim. The Criminal Code of Canada defines sexual assault as any unwanted sexual contact, including touching and kissing and includes males, females and other genders. In Australia and the UK too rape laws are gender neutral. The same goes for Sweden.
However, while many countries have gender-neutral laws, their implementation and enforcement may vary. Efforts must be made to prevent and respond to these crimes regardless of the gender of the victim or perpetrator.
While India has made some progress in creating gender-neutral rape laws, there have been instances where their implementation has fallen short, leading to devastating consequences. Rape victims of all genders should be treated with compassion, dignity and respect.
—The writer is an Advocate in the Supreme Court and the Bombay High Court and is the founder of law firm Satya Muley & Co.