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NIKUNJ KULSHRESHTHA
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Table of Contents
List of Abbreviations ......................................................................................................3
Introduction ......................................................................................................................4
Contemporary Laws on Rape .......................................................................................8
India ...............................................................................................................................8
United Kingdom......................................................................................................... 11
Critical analysis of the issues surrounding male rape .......................................... 13
Patriarchy.................................................................................................................... 13
Do Men Experience Sexual Assault differently? ................................................. 16
Opposition from Feminist Groups ......................................................................... 20
Phallus Centric Framing of Laws on Rape and Sexual Assault .......................24
Presumption of Forever Consent on behalf of Men ........................................... 28
Portrayal of Male Victims in Media ........................................................................ 32
Is there any need for such a change in the Law? ................................................... 35
The Principle of Equality..........................................................................................35
Recognition of Male Sexual Victimisation............................................................37
Preventing Undermining of Women Centric Laws.............................................. 40
In Favour of Women`s Rights ................................................................................. 43
Possible Solutions ........................................................................................................ 45
Changes in Framing the Laws ................................................................................ 45
Gender Sensitisation Training for the entire Legal Machinery ........................48
Conclusion ..................................................................................................................... 52
Bibliography ................................................................................................................... 54
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List of Abbreviations
Introduction
“It is better that ten guilty persons escape then one innocent suffer”- Sir
William Blackstone1
On this quote, rests the entire foundation of common law based criminal law.
The rationale behind this principle is that the suffering of an innocent person
hurts the cause of society by breaking the faith of humanity in the rule of law.
The advent of feminism and rising female empowerment has also led to the
recognition that a growing number of women have been found guilty of
violating the sexual autonomy of men. Moreover, 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.3 There is no
denying that a large number of victims of rape are women; however, crime
statistics are increasingly reflecting a rise in rape crimes against men. The
Bureau of Justice Statistics under the US Department of Justice revealed in its
2003 report that 9% of the total sexual assault and rape victims are men.4 The
1
English Jurist William Blackstone expressed the maxim in his seminal work “Commentaries
on the Laws of England (1765-1769). The ratio of 10:1 is also known as the Blackstone’s ratio
in criminal law.
2
Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18(2)
European Journal of International Law 253.
3
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
4
Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and Masculinities 275.
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Ministry of Justice in the UK released a report in 2013 that in the previous year
approximately 85000 women and 12000 men were raped.5 This can be
partially attributed to the change in statutory law in the US and the UK as well
the growing recognition of male sexual victimisation globally. Despite such
significant numbers, male rape remains unrecognised in the largest
democracy of the world.
This dissertation aims to address the lacunae that exist in the current laws on
rape and sexual assaults and the various issues impacting them, in the
backdrop of rising recognition of sexual crimes against men. Further, the essay
will dwell upon whether amending the rape law into a gender-neutral one will
help the fight against sexual violence effectively. The methodology in the
research would predominantly be doctrinal and theoretical where relevant
scholarly literature will be engaged with, to answer the research question.
Simultaneously, we will be analysing the jurisprudence and relevant judicial
precedents across India, the UK and the USA for the purposes of determining
the interpretation of courts.
5
Ministry of Justice, Home Office and the Office for National Statistics (2013) An Overview of
Sexual Offending in England and Wales: Statistics Bulletin.gov.uk.
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexu
al-offending-overviewjan-2013.pdf> (accessed 28 June 2019).
6
People`s Union for Civil Liberties, ‘Human rights violations against sexuality minorities in
India’<https://web.archive.org/web/20090725200649/http://www.altlawforum.org/PUBLICATI
ONS/PUCL%20REport%201> accessed 23rd July 2019.
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to the extent of consensual acts by the Supreme Court in 2018.7 The legal
position in the UK, on the other hand, has changed since 1994, when the
Criminal Justice and Public Order Act was introduced. We will assess the
reasons for the change and/or the status quo of the contemporary position.
We will then critically analyse the interconnected issues surrounding male
rape, such as patriarchy, male experience of sexual assault, and phallus-
centric framing of laws.
We will then look at how certain civil society movements such as those of
radical feminists protest against gender-neutrality in rape law.8 Radical
7
Ibid 3.
8
Radical Feminisim is a School of thought within Feminism which calls for radical change in
society by removing all male supremacy from all societal contexts. They contend that
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Once we have engaged with the issues surrounding the lack of gender-neutral
laws, we will move on to assessing the need for gender-neutrality in the law.
This will be done firstly by analysing the principle of equality under Article 15
of the Indian Constitution which prohibits the state from discriminating between
citizens on the grounds of religion, race, caste, sex, and place of birth. There
are certain special provisions for women and children, but these were framed
keeping in mind the socio-economic circumstances in the 1950`s.10 In the 21st
century, with the increasing empowerment of women in society, many of these
relaxations may seem anachronous. We would then try to argue why gender-
neutral laws are necessary to prevent undermining of the existing women-
centric laws. The lack of recognition of male rape coupled with malicious use
of existing laws can potentially lead to dilution of the existing law as it
happened in the case of section 489A11, which undermined the recognition of
sexual violence itself.
patriarchal society created by men is the root cause of all problems for women as opposed to
legal systems or class conflicts advocated by liberal and social feminists respectively.
9
Susan Brownmiller, ‘Against Our Will: Men, Women & Rape’ (Ballantine Books 1975).
10
Article 15(3) of the Indian Constitution.
11
Section 498A of the Indian Penal Code, 1860.
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dissertation by assessing the case for converting the present rape law in India
into a gender-neutral one.
India
The laws regarding rape in India have been shaped largely by three specific
incidents of rapes committed on women by men, which shocked the
conscience of the common man and garnered nationwide attention. The first
rape occurred in 1971, when a police constable raped a tribal girl in the police
station and was later acquitted by the Supreme Court, presuming consent on
the part of the victim since she did not raise any cries for help.15 The decision
of the Indian Supreme Court was widely criticised and this resulted in the
government amending the rape law and Evidence Act to presume no consent
on the part of the woman if she says so once the factum of intercourse has
been established.16
12
Section 375 of the Indian Penal Code, 1860.
13
Ibid 6.
14
Ibid 3.
15
Tukaram Ganpat v State of Maharashtra (1979) 2 SCC 143.
16
Section 114A of the Indian Evidence Act, 1872.
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The second rape occurred in 1992 where a village woman, who was working
as a social worker against child marriage, thwarted the plan of a few ‘upper
caste’ men from her village to conduct a child marriage. Enraged by the
audacity of the ‘lower caste’ woman, she was gang-raped in front of her
husband by five men. This was followed by an apathetic treatment meted out
to her by police officials and government doctors. To add insult to her injuries,
the accused men were acquitted by the trial court citing complete disbelief in
the story of the victim. The reasoning of the trial judge reeked of patriarchy and
misogyny, who gave absurd reasoning such as: “A nephew wouldn’t rape a
woman in front of his own uncle or that upper caste men would not rape a
lower caste woman.” This decision led to widespread protests across the
country and also resulted in an NGO “Vishakha” filing a PIL for preventing
sexual harassment of women at the workplace.17 Subsequently, the Supreme
Court framed guidelines for preventing sexual harassment at workplace which
were framed by the government as statutory law in 2013.18
The third rape took place in 2012, when a student of physiotherapy was
brutally gang raped by six men including a juvenile, in a moving bus, and who
later died from the injuries. The case garnered international attention and led
to massive protests nationwide. It resulted in successful conviction of all the
defendants whose death penalty was confirmed by the Hon`ble Supreme
Court.19 The government immediately formed a three-member Committee to
recommend changes in the laws relating to sexual offences committed on
women, which ultimately formed part of the Criminal Law Amendment Act,
2013.20 The revised legislation now defined various kinds of rapes such as
17
Vishakha v State of Rajasthan (1997) 6 SCC 241.
18
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
19
Mukesh and Anr. v State of NCT of Delhi (2017) 6 SCC 1.
20
JS Verma Committee on Amendments of Criminal Law.
<https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20
committe%20report.pdf> accessed 11th July 2019.
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gang rape21, and rape by person in fiduciary position.22 The definition of rape
was also extended to include oral and digital rape apart from the traditional
penetration. Further, women are now being prosecuted for being an
accomplice in a gang rape.23
The Act provided for stricter punishments for the offences, and introduced new
offences of stalking24, sexual harassment25 and voyeurism26. Certain changes
were made in the Evidence Act as well. The law regarding juvenility was also
amended to charge boys above the age of 16 with rape and other heinous
offences, despite there not being adequate evidence of youth offenders
committing such crimes in the past.27 However, the perpetrator in each of the
above offences were men. Despite the committee recommending that at least
certain offences like stalking, sexual harassment, and voyeurism should be
made gender-neutral, the government disregarded the suggestion. Recently,
in a forensic guide published for criminal investigators issued by the NICFS,
the part on how to deal with sex offences is articulated by taking only female
victims into account.28
Thus, with regard to the legal position in India, it can be reasonably said that
the existing law is highly skewed against recognition of any form of rape except
the one than can be committed by males on females only.
21
Section 376D of the Indian Penal Code, 1860.
22
Section 376B of the Indian Penal Code, 1860.
23
<https://www.indiatoday.in/india/story/woman-rapes-woman-first-case-of-same-sex-
assault-after-section-377-verdict-1448534-2019-02-05> accessed 23rd July 2019.
24
Section 354D of the Indian Penal Code, 1860.
25
Section 354A of the Indian Penal Code, 1860.
26
Section 354C of the Indian Penal Code, 1860.
27
Salil Bali v Union of India (2013) 7 SCC 705; Ipsita Chakravarty, ‘Changing juvenile law
won't help victims of heinous crimes: legal expert Mrinal Satish’
<https://scroll.in/article/777620/changing-juvenile-law-wont-help-victims-of-heinous-crimes-
legal-expert-mrinal-satish> accessed 20th July 2019.
28
A Forensic Guide for Criminal Investigators, Page 58-66 <http://nicfs.gov.in/?p=15475>
accessed 23rd July 2019.
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United Kingdom
29
Home Office, 15th Report: Sexual Offences (Cmnd 9213) (1984).
30
CLRC Para 45.
31
Jennifer Temkin, ‘Rape and the Legal Process’ (2005, 2nd Edition, Oxford University Press).
32
Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.5.
33
Section 143 of the Criminal Justice and Public Order Act, 1994.
34
Home Office, Setting the Boundaries (2000)
<https://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/vol1
main.pdf?view=Binary> accessed 31st July 2019.
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penis, and the fact that majority of such crimes were being committed by
men.35 However, this rationale appears weak considering the apparent
lacunae pointed out by Jennifer Temkin that neither CLRC nor SOR made any
attempt to determine public views through the means of referendum, survey or
research.36 Even today, females in the United Kingdom cannot be legally
charged with rape of males, they can only be charged for sexual assault,
assault by penetration37 or causing sexual activity without consent38. The
differentiation is that while rape carries a term of life imprisonment, all offences
with which females can be charged can result only in a maximum sentence of
10 years.
Thus, while there have been certain developments in the UK with regard to
male-on-male rape through anal penetration, female-on-male rape is not yet
recognised. Laws in the jurisdictions of Canada, all states of Australia, the
Republic of Ireland, Finland, Sweden and most states of the USA have framed
gender-neutral rape laws. We will now analyse the various reasons for not
recognising female on male rape.
35
Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.4.
36
Jennifer Temkin, ‘Literature Review of Research into Rape and Sexual Assault in Home
Office, Setting the Boundaries (2000) Volume II, 83.
37
Section 2 of the Sexual Offences Act, 2003.
38
Section 4 of the Sexual Offences Act, 2003.
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Patriarchy
Research conducted with college students in 1988 concluded that both men
and women often face a lot of unwanted coerced sexual activity.39 The study
reflected on the fact that men themselves feel pressured to have sex due to
society`s internalised standards regarding male behaviour. A man never
refuses a woman`s advances, for fear of not being considered a “real man” or
worse still, he may even be perceived as gay. Patriarchy asserts a lot of
pressure on men to have sexual experiences and considers virginity a sign of
failure. The most common reason for sexual coercion among men is the belief
amongst the opposite sex that “Men are out for only one thing”. Zilbergeld, in
his book published in 1978, determined that one of the consequences of such
male stereotypes is that men often felt sex as a burden imposed upon them.40
Expectations of being able to achieve erection with anyone, anywhere,
anytime and failure to achieve the same created a self-fulfilling prophecy that
men are meant to have no sexual autonomy.
39
Charlene Muehlenhard and Stephen Cook, ‘Men's Self-Reports of Unwanted Sexual
Activity’ (1988) 24 Journal of Sex Research 52.
40
Bernie Zilbergeld, Male Sexuality: A Guide to Sexual Fulfillment (Little Brown & Co 1978).
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14
Patricia Novotny, in her article, points out the contradiction in the contemporary
definition of gender-neutrality.42 It is no longer news if women practise law,
drive trucks, shave their heads or play sports; but if men start to exhibit
feminine characteristics, it becomes difficult for them to be accepted by the
society. Men who buy groceries are given hard stares, and contributing to
domestic work brings ridicule from a man`s peers. Thus, gender-neutrality
brings masculinity to everyone irrespective of the gender. This idea makes
women more assertive in sexual relationships but the downside remains that
men may not always be interested in sex and if they engage in it reluctantly,
they may end up hurting themselves.
Further, it is argued that a lot of women also support patriarchy. This can be
explained by the concept of ‘paternalistic dominance’ coined by Kamla Bhasin
in her book on patriarchy.43 Bhasin contends that slavery survived for centuries
through the tacit cooperation of slaves themselves. The British East India
company ruled India for two centuries by employing local Indians as civil
41
Barbara Krahe, Renate Scheinberger-Olwig and Steffen Bieneck, ‘Men’s Reports of Non-
consensual Sexual Interactions with Women: Prevalence and Impact’ (2003) 32(2) Archives
of Sexual Behaviour 165.
42
Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of
Resistance?’ (2002) 1(3) Seattle Journal for Social Justice 62.
43
Kamla Bhasin, ‘What is Patriarchy?’ (Kali for Women 1993).
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15
Thus, by playing one woman against the other, patriarchy ensures that their
individual power is never threatened. It was kind of an implicit understanding
where men would share power with women, under their tutelage, to exploit
women and men of lower caste. In order to retain these privileges, women are
constantly renegotiating their bargaining powers even at the cost of other
women.44 This arrangement was described quite graphically to the author by
a rural woman. She said that in our society, men are like the sun with all
resources such as financial, mobility and the freedom to take decisions
whereas women are like satellites without any light of their own. They only
shine when they are close to the sun and this induces constant competition
with other women to have a bigger share of resources. Without the sun (man)
the woman`s life would be barren, dark and end quickly.45
From the above researches and studies, one can deduce that patriarchy and
its notions regarding male behaviour seems to be a clear roadblock in
incorporating gender-neutrality in sexual offences.
44
Ibid 43.
45
Ibid 43.
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16
Contrary to their reasoning, numerous studies have reported that men react in
the same helpless manner to such attacks as women. A study conducted in
1989 by two American researchers brought forth the idea that men reacted in
a similar manner to women in cases of sexual assault.49 Many characteristics
of the victim, nature and reactions to the assault were similar to women victims.
Most of the victims reacted with frozen helplessness and passive submission
to the attacker due to being overwhelmed with fear. However, men, after the
attack found it difficult to report to public authorities due to reasons like fear of
being branded as weak or as liars, and politicisation of rape as solely a feminist
issue.
Since the 1980s, there has been a growing number of researches in the field
of unwanted sexual experiences by men. One such research indicates that
46
Ibid 42 at 744.
47
Joan McGregor, ‘Is it Rape: on acquaintance rape and taking women's consent seriously’
(Routledge 2005).
48
Janet Halley, ‘Split Decisions: How and Why to Take a Break from Feminism’ (Princeton
University Press 2006).
49
Gillian Mezey and Michael King, ‘The effects of sexual assault on men’ (1989) 19
Physiological Medicine 205.
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17
Karen Weiss, in her article on male rape and sexual assault experiences, talks
about society`s constant focus on hypermasculinity, patriarchy, and ways in
which men are expected to behave; this is so well established that to imagine
men as victims requires a complete overhaul of our preconceived notions
regarding sexual violence and gender.52 She pointed out that 9% of rape and
sexual assault victims in 2003 were male according to the Bureau of Justice
Statistics (DOJ, US). She referred to the NCVS data which revealed a similarity
in the experiences of males between rapes and attempted rapes where the
perpetrator felt entitled to sex and refused to budge. Despite evidence to the
contrary, society finds it difficult to accept that men can be victims and
moreover, victims themselves are ashamed to report such crimes for the fear
of being perceived unmanly.
50
Elizabeth Murphy, Danielle A. Harris, Raymond Knight and Michael A. Milburn, ‘Sexual
Coercion in Men and Women: Similar Behaviors, Different Predictors’ (2009) 38 Archives of
Sexual Behaviour 974.
51
RW Connell and James Messerschmidt, ‘Hegemonic Masculinity’ (2005) 19(6) Gender &
Society 829.
52
Ibid 4.
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53
Ibid 4.
54
Mary Larimer, Amy Lydum, Britt Anderson and Aaron Turner, “Male and Female Recipients
of unwanted sexual contact” (1999) 40 Sex Roles 295.
55
Bryana H. French, Jasmine D. Tilghman, and Dominique A. Malebranche, “Sexual Coercion
Context and Psychosocial Correlates Among Diverse Males” (2015) 16 Psychology of Men &
Masculinity 42.
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19
56
Charlotte Petersson and Lars Plantin, ‘Breaking with Norms of Masculinity: Men Making
Sense of their experience of sexual assault’ [2019] Clinical Social Work Journal 1.
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20
One of the issues with the recognition of male rape is the opposition from a
section of feminist groups known as radical feminists57 such as Catherine
Mackinnon, Patricia Novotny and Nagire Naffaire. Their opposition stems from
a lot of reasons such as potential dilution of their influential base, or dilution of
the importance given to women`s rights and issues.58
Florence Rush, another leading proponent of radical feminism, wrote about the
ways in which men are undermining the feminist movement.59 Rush believes
that the men`s liberation movement rose from the rib of the feminist movement
with Warren Farrell being the chief architect. She contends that the reason
men supported the feminist movement was to serve their own selfish interests;
men suddenly realised that having an earning, independent spouse brought
them more time to spend with children, release from alimony and child support
and the ability to divorce women with no guilt. She further contends that Farrell
had no idea of the ground realities, considering that men have always exploited
women`s labour and finances whether they are working or not. She also noted
that men hardly spend their leisure time with children, and rarely meet their
obligations on alimony and child support.
What is mind boggling here is the extent to which Rush seems out of touch
with the ground realities of the legal system of the USA, the system on which
her research is based. Not only is a man liable to be imprisoned for failing to
pay child support, but he can be sued even if he was an underage male.60
Rush then proceeds to totally disregard any suggestion that women can rape
men. According to Rush, only homosexual and heterosexual men rape men
57
Ibid 8.
58
Catherine Mackinnon, ‘Liberalism and the Death of Feminism’ in Dorchen Leidholdt and
Janice G. Raymond (eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press
1990), 166.
59
Florence Rush, ‘Many Faces of Backlash’ in Dorchen Leidholdt and Janice G. Raymond
(eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press 1990), 3.
60
Hermesmann v Seyer 847 P.2d 1273 (Kan. 1993).
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61
Ibid 58.
62
Catherine Mackinnon, ‘Only Words’ (Harvard University Press 1996).
63
Christine Boyle, ‘Sexual Assault and the Feminist Judge’ (1985) 1 Canadian Journal of
Women and the Law 93.
64
Ibid 6 at 743.
65
Jeanne Gregory and Sue Lees, ‘Policing sexual assault’ (Routledge 1999).
66
Ibid 49.
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22
Lees also indicated that a lot of victims feared reporting to the police due to
fear of homophobia or myths perpetrating in the forces regarding promiscuity
of gays. Criminological and Police studies have often revealed that unless law
enforcers are sensitised to handling an emotionally sensitive victim, it would
push the victim into further trauma and depression. The authors noted that
since 1990, police forces have been regularly trained to deal with male and
female rape victims.67 The Metropolitan Police set up 26 specialists who had
completed sexual offences investigative techniques course to deal with male
sexual abuse. This served the twin purposes of providing a supportive
atmosphere for the victims, as well as to gain the best investigation possible.
As discussed earlier, men are just as unlikely as women to resist the attack.
This finding is directly in conflict with the opposition from feminists’ groups who
believe that men always fight back in any sexual attack despite empirical
evidence to the contrary. However, one must note that this opposition is
coming from new age radical feminists who seem to be interested in playing a
divide and rule gender policy to further their narrow-vested interests. Liberal
feminists such as Susan Brownmiller have often supported the idea of
recognition of male rape; in fact, in her eminent book on female rape ‘Against
our Will’, she acknowledged the reality of male sexual victimisation-
“While the penis may remain the rapist’s favourite weapon, his prime
instrument of vengeance, his triumphant display of power, it is not in fact his
only tool. Sticks, bottles and even fingers are often substituted for the “natural”
thing. And as men may invade women through their orifices, so, too, do they
67
Ibid 29.
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23
invade other men. Who is to say that the sexual humiliation suffered through
forced oral sex or rectal penetration is a lesser violation of the personal, private
inner space, a lesser injury to mind, spirit and sense of self? All the acts of sex
forced on unwilling victims deserve to be treated in concept as equally grave
offenses in the eyes of the law, for the avenue of penetration is less significant
than the intent to degrade. Similarly, the gravity of the offence ought not to be
bound by the victim’s gender. That the law must move in this direction seems
clear.”68
68
Ibid 9.
69
Rosemarie Tong, ‘Women, Sex and the Law’ (Rowman & Littlefield Publishers 1989).
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One of the major issues with rape laws is the obsession with the penetrative
act, as traditionally, the perpetrator has been male. The Rape law in India
described under Section 375 explicitly begins with the words- “A man is said
to have committed rape”70 the reason being that traditionally men are largely
seen as perpetrators and a woman sexually coercing a man to make him
penetrate her is unfathomable in a patriarchal society.
One reason that can be given for too much emphasis on male perpetrators is
the fact that traditionally, women have been victimised by men in offences
involving rape and sexual assault. However, it seems to have created a
victimised mindset among women and they are therefore unable to imagine
men as victims. Ruth Graham, in her article contended that there are several
key elements in the process of recognising male rape victim.71 Some of them
are- emphasis on the experience of victims, comparison of male victims with
female victims, and the definition of male rape itself. The definition of male
rape seems to be systemic issue because it concerns itself with assault
through penetration, thus maintaining the traditional phallus centric approach.
The definition is key here for legal discourse because legal research centres
on the categories and meaning of crime which is one of the reasons why male
rape is seen as essentially an issue of homosexuality rather than that of sexual
violence. This narrow, gender discriminatory approach has been constantly
defended by various officials and law commission members. They use
statistics to assert that sexual assault is normally a problem for females only.72
Thus, when men come into the picture, it is considered an anomaly which is
ironical considering that sodomy of men has been occurring since ancient era
as war crimes.73 Further, in England, the same sexual assault had different
70
Section 375, Indian Penal Code, 1860.
71
Ruth Graham, ‘Male Rape and the careful construction of the male victim’ (2006) 15(2)
Social & Legal Studies 187.
72
Ibid 5.
73
Ibid 2.
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25
sentencing for men and women, for women; the maximum punishment was 25
years whereas for men it was 10 years. Thankfully, this approach was changed
by the UK Supreme Court in R v Ismail.74
Another reason for the focus on the phallus centric framing of law is the
erroneous understanding of the notion of harm.75 The notion of harm is
typically based on physical hurt whereas emotional trauma the victim goes
through is not given adequate consideration.76 When the justice system places
undue emphasis on physical harm as evidence of violative harm, it becomes
difficult in cases of male sexual assault unless anal penetration was done. This
creates difficulties for the prosecution because it weakens their case if physical
harm has not occurred, and if it has, it needs to be self-evident.
Gregory and Lees in their book77 have referred to the research78 of American
Psychologist Kinsey who contended that erection during male rape is often
considered as consent for the act. This belief is in complete contrast to the
knowledge of human body which suggests that anal penetration stimulates the
prostate gland, resulting in an erect penis automatically. What results from
such experience is an identity crisis for males, and it is often observed that
heterosexual victims have often sought gay men post such experience. The
authors also noted that male rapes often involve lesser forms of sexual assault
such as oral sex rather than anal penetration. This is because anal penetration
is difficult without a consensual partner plus there is fear of HIV unless
protection is used.
Graham, in her article, raises the point that having just the bare application of
the gender-neutrality principle is insufficient to the recognition of male rape.79
There is a greater need to develop the literature on sexual assault in terms of
74
[2005] All ER 216.
75
Ibid 71, 200.
76
Similar issues were raised by the Stern Review in 2010.
77
Ibid 65.
78
Alfred Kinsey, ‘Sexual Behavior in Human Male’ (Indiana University Press 1948).
79
Ibid 71, 195.
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26
male rape rather than rely on ambiguous definitions of sexual harm. Graham
concludes by advocating greater harmony between male and female
researches of sexual assault so that all kinds of victims can be accommodated
in the analysis. Similar discourse on the law of rape was also advocated by
Susan Estrich in her article, where she analysed how there is disharmony
between various stakeholders in the criminal justice system, in the way law is
drafted by legislators, interpreted by courts, applied by police officials and
enforced by prosecutors.80
Siobhan Weare has also advocated the need for change in the way in which
we participate in legal discourse regarding rape.81 The socio-legal discourse
regarding rape has traditionally focused on men as perpetrators and the penis
as a primary weapon of offence. Further, there is an assumption in society that
it is not possible for men to get raped because a man can only get arousal
when he is consenting to the sexual activity out of his free will.82 This belief is
in absolute contrast to empirical evidence which suggests that just like women
can achieve vaginal lubrication and climax, men can also achieve erection and
orgasm during sexual assault. It is the body’s natural response to sexual
stimuli whether such stimuli are voluntary or coercive, because such
responses are controlled by the subconscious brain of humans.83
Weare further discussed that the effect of sexual assault on men is similar to
that on women whether it was physical or mental harm. She stated that there
are three standard ways in which women coerce men for sexual relations-
verbal pressure, persuasion and coercion. One can conclude from her article
that while there is no denying that the female gender disproportionately suffers
this crime, it is still to be acknowledged that the existing gendered definition of
80
Susan Estrich, ‘Rape’ (1986) 95 Yale LJ 1087.
81
Siobhan Weare, ‘Oh you’re a guy, how could you be raped by a woman, that makes no
sense’ (2018) 14 International Journal of Law in Context 110.
82
Philip Rumney and Morgan Taylor, ‘Recognizing the Male Victim: Gender-neutrality and the
Law of Rape: Part Two’ (1997) 26 Anglo-American Law Review 330.
83
Philip Sarrel and William Masters, ‘Sexual Molestation of Men by Women’, (1982) 11(2)
Archives of Sexual Behavior 117.
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rape reinforces the paradigm that women can only be victims and men can
only be perpetrators.
84
Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it matter?’ [2018] Criminal
Law and Philosophy 1.
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85
Jenny Morber, ‘What Science says about arousal during rape’ (2013)
<https://www.popsci.com/science/article/2013-05/science-arousal-during-rape/> accessed 30
June 2019.
86
Roy Levin and Willy Burlo, ‘Sexual arousal and orgasm in subjects who experience forced
or non-consensual sexual stimulation’ (2004) 11 Journal of Clinical Forensic Science 82.
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The research also said that multiple subjects achieved sexual stimuli in
unusual manners such as by the stroking of eyebrows, blowing the hair gently
or even by applying pressure to the teeth. A range of activities were conducted
with reference to individual sensitivity to sexual stimulation. It was found that if
enough activities are conducted, it was possible to achieve sexual stimulation
without active mental will. Laboratory studies indicated that in a sexual assault,
the fight-or-flight response gets activated by the nervous system causing
release of adrenaline in the body, resulting in excessive blood flow and
lubrication in genital areas. Thus, a woman or man being sexually assaulted
will not have unresponsive genitals when they are afraid. In males, a study
conducted in 1982 conclusively argued that men do get erections during
sexual assaults unwillingly.87
87
Ibid 83.
88
Curtis v State, 223 S.E.2d 721.
89
Willan v Willan [1960] 1 WLR 624.
90
Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and Consent’ (2004) 51
Cleveland State Law Review 93.
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reporting such crimes. He referred to the article of Fred Pelka which talked
about a male rape victim who was mocked by the police officials for reporting
the crime just because he was a male.91 Another case was of Gonsalves,
where a father was unable to comprehend why his teenage son did not resist
the attacker.92 Pelka also referred to previous studies which have conclusively
established that almost all male victims had an erection during sexual assault.
Fruchs also discussed the fact that many perpetrators of sexual assault
purposely induce the victims to climax for multiple reasons - to discredit the
victim’s testimony during trial by damaging his credibility, to establish complete
and absolute dominance over the victim and to reaffirm the perpetrator`s
fantasy that the act was consensual.93
Fruchs also notes that the victims tend to wilfully climax to quickly end the
ordeal with the perpetrator. An example of this is an Indian case, where a
famous movie director allegedly performed oral sex on an American research
scholar. The victim made it clear in her testimony that she resisted and
dissuaded him many times but he refused to listen so she faked an orgasm to
end the ordeal quickly. The director was convicted by the trial court, but the
appellate court overturned the conviction contending that a feeble no by the
woman could not establish a lack of consent for the perpetrator.94 What one
gathers from such an experience by the victim is that both men and women
during a sexual assault can wilfully climax to end their ordeal faster.
91
Fred Pelka, ‘Raped: A Male Survivor Breaks His Silence, in Rape and Society: Readings on
the Problem of Sexual Assault’ 250 (Patricia Searles & Ronald J. Berger eds., 1995 Westview
Press).
92
Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).
93
Steve Pokin, ‘Rape: When the Victim’s a Man; It’s happened in homes, on city streets, in
bars and parks’ (1995) The Press-Enterprise D01.
94
Mahmood Farooqui v State (Govt. of Delhi) 2017 SCC Online Del 6378.
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95
Ibid 49.
96
State v Tizard, 897 S.W.2d 732 (1994).
97
State v Karlen, 589 N.W.2d 594 (1999).
98
Com. v Tatro, 42 Mass.App.Ct. 918 (1997)
99
People v Liberta, 64 N.Y.2d 152 (1984).
100
Ibid 99.
101
Lamar v State, 254 S.E.2d 353 (Ga. 1979).
102
Harper v State, 463 So. 2d 1036, 1038-39 (Miss. 1985).
103
Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’ (2011) 39 The Journal
of the American Academy of Psychiatry and the Law 197.
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There is no denying that in this day and age, the portrayal of gender roles in
the media influence the social conditioning of youth in our society. Men are
usually not shown as victims of sexual assault by mainstream media. Even if
they are, it is portrayed as if they are responsible for their own assault. This
kind of social conditioning is pervasive, especially in a country like India, where
it is famously said that three things influence Indians - Cricket, Films and
Weddings.
Oxfam India, in its 2017 report titled ‘The Irresistible & Oppressive Gaze’,
contended the ill effects of films on the Indian youth.105 It reported that around
86% of the films made in India used sexist humour. Comedy is often used to
reduce the seriousness of misogyny and violence against women. Among the
list of things that are supposed to be comical as per Indian cinema are
Voyeurism, Rape Jokes (the movie “3 Idiots”), Negative stereotypes about
Women and Queer people (“Pyaar Ka Punchnama”) and explicit sexual
assault (“Kambakkht Ishq”). The situation is similar for men as well where
molestation of men is considered a laughing matter (“Badrinath Ki Dulhania”)
and a man landing another man as a life partner is a downgrade (“Zero”). Thus,
the portrayal of men in Indian movies perpetuates the stereotypical image of a
patriarchal male who is hypersexualised and has no empathy.
104
<https://www.brainyquote.com/quotes/jim_morrison_167304> accessed 20th July 2019. Jim
Morisson is an American singer, songwriter and poet.
105
<https://www.oxfamindia.org/sites/all/themes/oxfamindia/images/Impact%20of%20films%
20on%20VAWG_Research_clean%20version.pdf> accessed 4th July 2019.
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Lent. On the last day, in order to prevent himself from breaking the pledge he
chains himself to his bed and falls asleep. However, his ex-girlfriend sneaks in
the house, takes advantage of his unconscious and vulnerable state and rapes
him. When he wakes up, he is not shown to be traumatised or affected by it.
The entire scene is played out in a comical fashion. Now the viewers need to
question themselves whether the reaction to the act would have been the
same if the roles were reversed. Would reversing the gender roles still be
considered comical? Would it change the meaning of rape?
In the movie “Breaking the Waves”, a quadriplegic husband requests his wife
to satisfy her desires by seeking other men. She seeks a man on a public bus
by quietly masturbating to him without so much as a hello and then gets down
and pukes. There is no depiction of what happens to the man who is assumed
to have gone home singing merrily. In the movie Bruce Almighty, the theory of
retributive rape is practically preached. The protagonist Jim Carrey demands
an apology from a street gang leader whose gang previously assaulted him.
On his refusal, Bruce uses his god powers to make a monkey come out of his
anus. The scene ends with the monkey running behind the scared perpetrator
and Bruce celebrating.
The situation is similar with respect to books as well. Claire Cohen, a prominent
author on the subject of male rape victims, professes that male rape victims
are often feminised so that the readers will be more accepting of the possibility
of a female perpetrator.106 She discusses the example of the book “Deadly
Temptation”, which is an explicit pornographic story with shades of BDSM and
assault.107 She contends that the book perpetuates the myth that male rape
victims are weak or are unable to defend themselves. This prevents many
victims from speaking about their assaults.
106
Claire Cohen, ‘Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape’
(Palgrave Macmillan 2014).
107
Ny`Chel Dior, ‘Deadly Temptation’ (True Glory Publications 2014).
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35
The idea of treating every citizen as equal before the state and in the eyes of
the law has been enshrined in the Indian Constitution since its adoption in
1950. Article 15 of the Indian Constitution states:
“Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them, be subject to any disability, liability, restriction or condition with
regard to
(a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public,
(3) Nothing in this article shall prevent the State from making any special
provision for women and children,
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes.”108
The jurisprudence behind the enactment of this section was based on the
caste system largely prevalent among the followers of Hinduism in India. The
‘lowest caste’ people of society, also known as ‘untouchables’ were
discriminated against and socially ostracised. During the drafting of the Indian
Constitution, several constituent assembly debates took place regarding
Article 15. Many of the constituent assembly members suggested providing
separate public access of government facilities such as schools, wells etc. to
108
Article 15 of the Constitution of India.
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109
Samaraditya Pal, ‘India`s Constitution: Origins and Evolution’ (Volume 1, 1st Edition, Lexis
Nexis 2014).
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The recognition of male sexual victimisation has been reported since the past
four decades. Some researches indicate an increase in reported instances of
male on male rapes in the 1970s in the USA.110 Cindy Struckman-Johnson
conducted a research in 1988 where she studied the prevalence of forced sex
on males during dates.111 She opined that the underreporting of the problem
stems from the myth perpetrating in society that men cannot be raped.
Johnson reported that this myth is one of the prime reasons why no data on
male rape exists and the topic does not even form part of any research on
sexual violence. The FBI, since 1986, started maintaining a data on people
arrested for forcible rape by both men and women.112 However, the definition
of rape with the agency remained the same traditional male-on-female rape till
2012. Johnson carried out a survey on some college going students regarding
sexual coercion during dates.113 The results indicated that a significant
percentage of men stated being forced to have sex at least once in their
lifetime. Further, a questionnaire following the survey revealed the standard
four categorical tactics used by women to coerce men into sex during dates-
Psychological pressure, psychological pressure with physical restraint or
force, physical force and no consent due to intoxication. She concluded her
research by advocating more research be undertaken by academicians, states
and universities so that the problems of male rape can be addressed.
Christina Faulkner in her article has advocated the need for analysis on the
interaction between gender and professional authority in cases of
110
Kaufman, A., Divasto, P., Jackson, R., Voorhees, D., & Christy, J. ‘Male rape victims: Non-
institutionalized assault’ (1980) American Journal of Psychiatry 137.
111
Cindy Struckman-Johnson, ‘Forced Sex on Dates: It happens to men, too’ (1988) 24 The
Journal of Sex Research 234.
112
Crime in United States: Uniform Crime Reports, US Department of Justice 1986.
113
Ibid 111.
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Statistics from the Bureau of Statistics, USDOJ116 and the Ministry of Justice,
UK117 do give some hope for changing times considering that more and more
men are coming forward to report sexual crimes. However, in India, the
situation is still in nascent stages. In India, the mindset still remains that boys
cannot get raped, despite rising instances of men getting raped being reported
in the media.118 Namita Bhandare, in her column, talks about the growing need
to recognise that men can be raped too.119 However, the old age notions of
stereotypical male behaviour among law enforcement bodies prevent
114
Christina Faulkner, ‘Sexual Boundary Violations committed by female forensic workers’
(2011) 39 The Journal of American Academy of Psychiatry and the Law 154.
115
Regina v Belton [2011] QB 934.
116
Ibid 4.
117
Ibid 5.
118
Rituparna Chatterjee, ‘The mindset is that boys are not raped': India ends silence on male
sex abuse’ <https://www.theguardian.com/global-development/2018/may/23/indian-study-
male-sexual-abuse-film-maker-insia-dariwala> accessed 17th July 2019.
119
Namita Bhandare, ‘It’s time we recognised that men can get raped too’
<https://www.hindustantimes.com/columns/it-s-time-we-recognised-that-men-can-get-raped-
too/story-tlIiUihV1T0gMHbqHfGaIM.html> accessed 17th July 2019.
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adequate mental support to male rape victims even in countries such as the
UK where it has been recognised over the past three decades.120
120
Aliraza Javaid, ‘The Unknown Victims: Hegemonic Masculinity, Masculinities, and Male
Sexual Victimisation’ (2017) 22 (1) Sociological Research Online 1.
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In India, over the past decade, there has been a sudden rise in frivolous and
malicious litigation with respect to allegations of sexual assault. In a shocking
revelation by the Delhi Commission for Women (DCW), it was held that 53.2%
of the rape cases filed between April 2013 and July 2014 in Delhi were found
to be false.121 Such unscrupulous women significantly undermine the fight
against sexual violence. When such a large proportion of cases are found to
be false, it creates a negative social effect where even genuine victims are
suspected and come under the scanner. The system then starts doubting
every incidence, thereby hurting the rule of justice and creating a situation
where victims even fear approaching the police due to apprehension that their
experience would be disbelieved.
When the system introduces reactive measures fuelled by populism due to any
heinous crime without any rational basis, the genuine victims end up suffering.
An example of this situation would be the plight of dowry victims in India.
Dowry is a form of money or gifts given by the bride`s family to the groom`s
family as a compensation because a girl is considered a financial burden on
the groom`s family due to her being a non-earning member. This practise leads
to a lot of girls from poor families being harassed and tortured for not bringing
enough money during or even after marriage. This issue was first addressed
by the enactment of the Dowry Prohibition Act, 1961.
121
<https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-delhi-commission-of-
women-233222-2014-12-29> accessed 9th July 2019.
122
Ibid 15.
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in the IPC. Sections 113A and 113B were added in the Indian Evidence Act,
1872 for presumption of dowry death for any woman dying within seven years
of marriage and additional presumption for dowry death in case the woman
was subjected to cruelty before dying.
The above enactments on the face of it, appear bona fide and were enacted
for the protection of women. In particular, Section 498A provided sweeping
powers to the police to immediately arrest the accused persons to prevent
continuation of the offence.123 However, due to lack of adequate checks and
balances, this provision was largely misused by police officials and
unscrupulous families into extorting money from the groom families. There is
a large number of cases where innocent distant relatives, and senior citizen
in-laws were maliciously arrested in order to defame and extort money from
them.124 The rampant abuse of dowry prevention provisions reached such
astronomical levels that the courts were forced to take notice and they
subsequently gave directions that no automatic arrests should be made in
dowry harassment cases.125
The dilution of dowry harassment law continued, with a more recent directive
of the Supreme Court of India giving directions to prevent further misuse of the
law.126 The bottom line is that sustained misuse of this law over the years
coupled with comatose response to such abuse by all the three pillars of
democracy has resulted in denial of justice to the real victims.127 The
contemporary situation is such that no dowry related complaint is taken
123
Section 498A is cognizable offence and police has power to arrest accused persons without
an arrest warrant under section 41A of the Code of Criminal Procedure, 1973 in cognizable
offences.
124
Mohammad Miyan v. State of UP (2018) SCC OnLine SC 1976; Mangesh Bhoir v. Leena
Bhoir (2015) SCC OnLine Bom 6258.
125
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
126
Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443.
127
Andrew Marszal, ‘Indian bride burnt alive by husband’s family because her skin was too
dark’ <https://www.telegraph.co.uk/news/2016/06/09/indian-bride-burnt-alive-by-husbands-
family-because-her-skin-was/> accessed 10th July 2019.
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seriously, courts very easily provide bail and quash cases and the victim`s
credibility has been damaged socially. The result is that victims continue to
suffer and we are back to square one from where we originally started.
128
Law Commission of India, ‘Wrongful Prosecution’ (Report no. 277, August 2018).
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“We must learn to live together as brothers or perish together as fools”- Martin
Luther King Jr.129
The above statement aptly coveys the essence of cooperation and unity, which
is applicable in all spheres of life, and particularly in the movement towards
gender-neutrality. The importance of synergy and collective strength cannot
be overstated. Further, there is a need for men to empathise with women`s
issues and vice versa, even more so in a patriarchal society. An analogy would
be appropriate here.
129
Martin Luther King Jr. in a speech at St Louis, 22 March 1964, in St Louis Post-Dispatch
23 March 1964.
130
<http://www.authorama.com/life-of-abraham-lincoln-7.html> accessed 8th July 2019.
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The words of Emma Watson`s ‘He for She’ Campaign is apt here ‘When men
are liberated from the pressure of being men, women will be automatically
liberated”.131
131
<https://www.heforshe.org/en> accessed 8th July 2019.
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Possible Solutions
One of the first things that needs to be done for recognising the reality of male
sexual victimisation is a change in the framing of laws. This needs to be
achieved not only for the Indian Penal Code, 1860 but also for other laws such
as domestic violence and family laws. In the era where gendered behaviour is
a changing norm and homosexuality has been recognised as a normal human
sexual preference, we cannot be working with Victorian era definitions of
crime. We cannot be working in the 21st century legal system with 20th century
tools and jurisprudence. As we noted earlier, there is a need to shift away from
the phallus-centric approach to framing of laws into a gender-neutral one such
as ‘sex without consent’ coined by David Archard132 or the Swedish definition
of ‘enforced sexual intercourse’133.
Attempts to introduce gender-neutral rape law has been made since a long
time. The first attempt was made by the recommendation of the Law
Commission of India in 2000 which was ignored by the government at the
time.134 In the year 2012, a new bill was introduced to amend the criminal law
132
David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical Quarterly 374.
133
Section 1, Chapter 6 of the Swedish Penal Code, 1962.
134
<https://www.legal-tools.org/doc/1c639d/pdf/> accessed 19th July 2019.
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135
<https://www.prsindia.org/sites/default/files/bill_files/Criminal_Law_%28A%29_bill%2C_20
12.pdf> accessed 19th July 2019.
136
<http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Ho
me%20Affairs/167.pdf> accessed 19th July 2019.
137
<https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%
20committe%20report.pdf> accessed 19th July 2019.
138
<https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-375ipc-gender-
neutral/> accessed 19th July 2019.
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139
<https://ccs.in/indias-law-should-recognise-men-can-be-raped-too> accessed 19th July
2019.
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Alongside amending the definition of rape law, we need to sensitise the entire
legal machinery in order to deal with the 21st century reality of the ungendered
world. This is required so that victims do not feel any hesitation in reporting
violations to the police officials. Police forms the first authority in the legal
machinery whom victims’ approach. However, police officials’ apathy is so
widely known among the general public that it dissuades victims from speaking
up.
In the UK, the Stern Review was setup to examine certain issues within the
criminal justice system.140 One of the primary issues examined was about the
response of public authorities to rape complaints and how more victims can be
encouraged to report. The report contended that though the attitudes,
practises of the police have changed for the better, the implementation of the
same is still patchy. Stern contended that there is so much focus on the justice
process that we tend to ignore the victim who suffered this violent crime. Even
the medical staff dealing with victims post the horrific encounter were reported
to have poor communication skills. Convictions remain low because the review
process for performance of a police officer or prosecutor does not involve
considering how well the victim was handled. Stern recommended that
Independent Sexual Violence Advisors (ISVA) be appointed for each case
whose job would be to take care of the needs of the victims along with
coordinating with the police and prosecuting bodies.
One can understand why most rape victims, especially male, feel hesitant to
report rape. Further researches have also corroborated the grim reality that
male rape victims seeking help have been turned away from rape crisis centres
140
Baroness Vivien Stern CBE, Government Equalities Office UK
<https://webarchive.nationalarchives.gov.uk/20110608162919/http://www.equalities.gov.uk/p
df/Stern_Review_acc_FINAL.pdf> accessed 20th July 2019.
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In India, such apathy of police forces came to light while assessing the facts
of Bhanwari Devi rape case. In this case, the police officials demanded
submission of the skirt the victim was wearing, at the police station as
evidence. The police did not provide any alternate clothing which forced the
unfortunate victim to use her husband`s turban to cover herself up while
walking back to her house. She faced even more apathy when the doctor on
duty at the primary health care centre refused to examine her in the absence
of a female doctor. At the city hospital she was referred to, the doctor refused
to examine her without an order from the local magistrate. The vaginal swab
was taken after more than 48 hours even though the Indian law requires it to
be taken within 24 hours.
Similar training would be appropriate for judicial officers considering that they
live a reclusive life and are susceptible to narrow views about sexuality and
human behaviour. One such ugly incident happened during the Bhanwari Devi
rape case in Rajasthan in 1992. The Judicial Officer of the trial court while
141
Catherine Pitfield, ‘Male Survivors of Sexual Assault: To tell or not to tell?’,
<https://repository.uel.ac.uk/download/7114928707ffdc81db2b052b20765be5b5c8eae24c2b
ca074e79f9a60966ce67/3605459/2013_DClinPsych_Pitfield.pdf> accessed 25th July 2019.
142
Gardiner Harris, ‘For Rape victims, police are often part of the problem’ NYTimes (New
Delhi, 22nd January 2013) <https://www.nytimes.com/2013/01/23/world/asia/for-rape-victims-
in-india-police-are-often-part-of-the-problem.html>accessed 9th January 2019.
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dismissing the case made really absurd and unfortunate observations for
acquitting the accused. Some of the reasons for acquittal given were - the head
of a village cannot rape, men of different castes cannot participate together in
gang rape, a higher caste male cannot rape a lower caste woman because of
reasons of purity and Bhanwari Devi's husband couldn't have quietly watched
his wife being gang-raped, among other such ridiculous reasons.
The words of Eminent Jurist Justice VR Krishna Iyer come to mind here when
he warned in Rafiq v State of UP that ‘the strategy for a crime free society
should not be draconian severity in sentencing but institutional sensitivity,
143
Cr.M.No. 23962 of 2017 in Cr.A.No. S-2396-SB of 2017, High Court of Punjab and Haryana
at Chandigarh.
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144
(1980) 4 SCC 262.
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Conclusion
There are many presumptions regarding male rape in society which have been
evaluated in this dissertation and one reaches the inevitable conclusion that
the need for gender-neutrality in rape and sexual assault law in India is not
only immediate but is also indispensable. Patriarchy may appear to be
advantageous to men on the surface of it, but it affects them quite negatively
in reality. What is particularly surprising is that the knowledge of sodomy of
males as war crimes has been in the public domain since time immemorial,
however, legislative thought process did not consider this problem systemic
enough to seek a resolution.145
145
Ibid 2.
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The solution for the recognition of male rape lies first in framing all the existing
laws in a gender-neutral language so as to affirm the idea that gender is no
longer the cornerstone for determining legal wrongs. Secondly, since law is
nothing but the collective will of society, the need to gender sensitise the entire
justice machinery and update legal tools for investigative agencies is a sine
qua non. If a society has to be inclusive in spirit, there is a need to inculcate
diversity and inclusiveness not only in thought but also in action. Last but not
the least, creating laws and training policemen are the maximum a government
can do; the real change will come only when the collective will of the people
reflect the same. To summarise this dissertation, the words of Robert F
Kennedy seems appropriate:
“Laws can embody standards, governments can enforce laws but the final
task is not a task for government. It is a task for each and every one of us.
Every time we turn our heads the other way when we see the law flouted when
we tolerate what we know to be wrong, when we close our eyes and ears to
the corrupt because we are too busy, or too frightened, when we fail to speak
up and speak out we strike a blow against freedom and decency and
justice.”146
146
<https://www.bartleby.com/73/1746.html> accessed 24th July 2019.
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Bibliography
Cases:
1. Tukaram Ganpat v State of Maharashtra (1979) 2 SCC 143.
2. Mukesh and Anr. v State of NCT of Delhi (2017) 6 SCC 1.
3. R v Ismail [2005] All ER 216.
4. Curtis v State, 223 S.E.2d 721.
5. Willan v Willan [1960] 1 WLR 624.
6. Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).
7. Mahmood Farooqui v State (Govt. of Delhi) 2017 SCC Online Del 6378.
8. State v Tizard, 897 S.W.2d 732 (1994).
9. State v Karlen, 589 N.W.2d 594 (1999).
10. Com. v Tatro, 42 Mass.App.Ct. 918 (1997).
11. People v Liberta, 64 N.Y.2d 152 (1984).
12. Lamar v State, 254 S.E.2d 353 (Ga. 1979).
13. Harper v State, 463 So. 2d 1036, 1038-39 (Miss. 1985).
14. Ex parte Groves, 571 S.W.2d 888 (1978).
15. Regina v Belton [2011] Q.B. 934.
16. Vishakha v State of Rajasthan (1997) 6 SCC 241.
17. Navtej Singh Johar v Union of India (2018) 10 SCC 1.
18. Social Action for Manav Adhikar v Union of India (2018) 10 SCC 443.
19. Rafiq v State of UP (1980) 4 SCC 262.
20. Salil Bali v Union of India (2013) 7 SCC 705.
21. Mohammad Miyan v. State of UP (2018) SCC OnLine SC 1976.
22. Mangesh Bhoir v. Leena Bhoir (2015) SCC OnLine Bom 6258.
23. R v Ismail [2005] All ER 216.
24. Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).
Articles:
1. Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed
Conflict’ (2007) 18(2) European Journal of International Law 253.
2. Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and
Masculinities 275.
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17. Philip Rumney and Morgan Taylor, ‘Recognizing the Male Victim:
Gender-neutrality and the Law of Rape: Part Two’ (1997) 26 Anglo-
American Law Review 330.
18. Philip Sarrel and William Masters, ‘Sexual Molestation of Men by
Women’, (1982) 11(2) Archives of Sexual Behavior 117.
19. Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it
matter?’ [2018] Criminal Law and Philosophy 1.
20. Roy Levin and Willy Burlo, ‘Sexual arousal and orgasm in subjects who
experience forced or non-consensual sexual stimulation’ (2004) 11
Journal of Clinical Forensic Science 82.
21. Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and
Consent’ (2004) 51 Cleveland State Law Review 93.
22. Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’
(2011) 39 The Journal of the American Academy of Psychiatry and the
Law 197.
23. Kaufman, A., Divasto, P., Jackson, R., Voorhees, D., & Christy, J. ‘Male
rape victims: Non-institutionalized assault’ (1980) American Journal of
Psychiatry 137.
24. Cindy Struckman-Johnson, ‘Forced Sex on Dates: It happens to men,
too’ (1988) 24 The Journal of Sex Research 234.
25. Christina Faulkner, ‘Sexual Boundary Violations committed by female
forensic workers’ (2011) 39 The Journal of American Academy of
Psychiatry and the Law 154.
26. Steve Pokin, ‘Rape: When the Victim’s a Man; It’s happened in homes,
on city streets, in bars and parks’ (1995) The Press-Enterprise D01.
27. Aliraza Javaid, ‘The Unknown Victims: Hegemonic Masculinity,
Masculinities, and Male Sexual Victimisation’ (2017) 22 (1) Sociological
Research Online 1.
28. David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical
Quarterly 374.
Books:
1. Stephanie Allen, New Visions of Crime Victims (Hart Publishing 2004)
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Sections:
1. Article 15(3) of the Indian Constitution.
2. Section 498A of the Indian Penal Code, 1860.
3. Section 375 of the Indian Penal Code, 1860.
4. Section 114A of the Indian Evidence Act, 1872.
5. Section 376D of the Indian Penal Code, 1860.
6. Section 376B of the Indian Penal Code, 1860.
7. Section 354D of the Indian Penal Code, 1860.
8. Section 354A of the Indian Penal Code, 1860.
9. Section 354C of the Indian Penal Code, 1860.
10. Section 2 of the Sexual Offences Act, 2003.
11. Section 4 of the Sexual Offences Act, 2003.
12. Article 15 of the Constitution of India.
13. Section 143 of the Criminal Justice and Public Order Act, 1994.
14. Section 1, Chapter 6 of the Swedish Penal Code, 1962.
15. Section 375, Indian Penal Code, 1860.
Command Papers:
1. Home Office, 15th Report: Sexual Offences (Cmnd 9213) (1984).
2. Criminal Law Review Committee Report.
3. Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.5.
4. Home Office, Setting the Boundaries (2000)
<https://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.g
ov.uk/documents/vol1main.pdf?view=Binary> accessed 31st July 2019.
5. Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.4.
6. Jennifer Temkin, ‘Literature Review of Research into Rape and Sexual
Assault in Home Office, Setting the Boundaries (2000) Volume II, 83.
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Statutes:
1. Criminal Justice and Public Order Act, 1994. (UK)
2. Sexual Offences Act, 2003. (UK)
3. Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. (India)
Bills in Legislatures:
1. Criminal Law Amendment Bill, 2012 (India),
2. Criminal Law Amendment Ordinance, 2013 (India)
State Research/Study:
1. Sexual Victimisation in Prisons and Jails, National Inmate Survey 2008-
09. (USA)
2. Ministry of Justice, Home Office and the Office for National Statistics
(2013) An Overview of Sexual Offending in England and Wales:
Statistics Bulletin.gov.uk.
<https://www.gov.uk/government/uploads/system/uploads/attachment
_data/file/214970/sexual-offending-overviewjan-2013.pdf> (accessed
28 June 2019). (UK)
3. Crime in United States: Uniform Crime Reports, US Department of
Justice 1986. (USA)
4. JS Verma Committee on Amendments of Criminal Law.
<https://www.prsindia.org/uploads/media/Justice%20verma%20commi
ttee/js%20verma%20committe%20report.pdf> accessed 11th July
2019. (India)
5. Baroness Vivien Stern CBE, Government Equalities Office UK
<https://webarchive.nationalarchives.gov.uk/20110608162919/http://w
ww.equalities.gov.uk/pdf/Stern_Review_acc_FINAL.pdf> accessed
20th July 2019.
6. A Forensic Guide for Criminal Investigators, Page 58-66
<http://nicfs.gov.in/?p=15475> accessed 23rd July 2019.
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Websites:
1. <https://www.theguardian.com/global-development/2019/feb/11/spare-
innocent-men-anguish-india-ruling-aims-to-end-false-
claims?CMP=share_btn_fb&fbclid=IwAR34eHUku-
fjO2WbNndZyl2FlM1UpBiOc4tPzpHGjYOUlevUlcOZafOsv5M>
accessed 5th August 2019.
2. <https://www.popsci.com/consent.php?redirect=https%3a%2f%2fwww
.popsci.com%2fscience%2farticle%2f2013-05%2fscience-arousal-
during-rape> accessed 5th August 2019.
3. <https://freethoughtblogs.com/hetpat/2014/09/11/the-flesh-is-weak-on-
the-erection-equals-consent-rape-myth/> accessed 5th August 2019.
4. <https://www.independent.co.uk/life-style/female-sex-offenders-more-
common-gender-bias-statistics-rape-abuse-a7839361.html> accessed
5th August 2019.
5. <https://edition.cnn.com/2013/10/09/living/chris-brown-female-on-
male-rape/index.html> accessed 5th August 2019.
6. <https://eu.usatoday.com/story/opinion/2014/09/22/rape-cdc-numbers-
misleading-definition-date-forced-sexual-assault-column/16007089/>
accessed 5th August 2019.
7. <https://www.brainyquote.com/quotes/jim_morrison_167304>
accessed 20th July 2019.
8. <https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-
delhi-commission-of-women-233222-2014-12-29> accessed 9th July
2019.
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9. <http://www.authorama.com/life-of-abraham-lincoln-7.html> accessed
8th July 2019.
10. <https://www.heforshe.org/en> accessed 8th July 2019.
11. <https://www.legal-tools.org/doc/1c639d/pdf/> accessed 19th July
2019.
12. <https://www.prsindia.org/sites/default/files/bill_files/Criminal_Law_%2
8A%29_bill%2C_2012.pdf> accessed 19th July 2019.
13. <http://164.100.47.5/newcommittee/reports/EnglishCommittees/Comm
ittee%20on%20Home%20Affairs/167.pdf> accessed 19th July 2019.
14. <https://www.prsindia.org/uploads/media/Justice%20verma%20commi
ttee/js%20verma%20committe%20report.pdf> accessed 19th July
2019.
15. <https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-
375ipc-gender-neutral/> accessed 19th July 2019.
16. <https://ccs.in/indias-law-should-recognise-men-can-be-raped-too>
accessed 19th July 2019.
17. <https://www.bartleby.com/73/1746.html> accessed 24th July 2019.
18. <https://www.indiatoday.in/india/story/woman-rapes-woman-first-case-
of-same-sex-assault-after-section-377-verdict-1448534-2019-02-05>
accessed 23rd July 2019.
Blogs/Opinion/Editorials:
1. Rituparna Chatterjee, ‘The mindset is that boys are not raped': India
ends silence on male sex abuse’ <https://www.theguardian.com/global-
development/2018/may/23/indian-study-male-sexual-abuse-film-
maker-insia-dariwala> accessed 17th July 2019.
2. Namita Bhandare, ‘It’s time we recognised that men can get raped too’
<https://www.hindustantimes.com/columns/it-s-time-we-recognised-
that-men-can-get-raped-too/story-tlIiUihV1T0gMHbqHfGaIM.html>
accessed 17th July 2019.
3. Andrew Marszal, ‘Indian bride burnt alive by husband’s family because
her skin was too dark’
<https://www.telegraph.co.uk/news/2016/06/09/indian-bride-burnt-
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