A recent incident from Delhi brings back the question—what is the legal recourse for male victims of rape in India?
India’s rape laws are archaic and are easily manipulated. In the first three days of January 2017, there was a report of a man, who was raped by another man in Delhi, and was not able to file a complaint with the police in the matter. The reason? Our laws do not recognise males as victims of rape.
Sections 375 and 376 of the Indian Penal Code, pertaining to rape, clearly and explicitly use the terms man to describe the perpetrator and woman to describe the victim.
Section 375 of the IPC:
Rape: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions.
Except in the case of sexual offence against children, which is covered under the Protection of Children from Sexual Offences Act (POCSO), our rape laws are largely based on section 375, which describes rape; section 376, which prescribes the punishment for rape; and section 377, which criminalises homosexuality and “unnatural sex”, all of which were originally brought into action by the British, in turn stemming from a biblical interpretation that sexual relations can only be between male and female and that a male cannot be raped, even by another male.
Post the horrific gang rape case in Delhi in 2012 (known as the Nirbhaya Rape Case), the government promulgated The Criminal Law (Amendment) Ordinance, 2013, which added offences such as stalking, voyeurism, acid attacks and sexual harassment. It recognised rape as a gender-neutral crime, replacing the terms with person. However, when the Criminal Law (Ammendment) Act was finally passed, it too explicitly used the word ‘man’ to denote the perpetrator and ‘woman’ to denote the victim for cases involving sexual harassment, voyeurism, stalking and rape, thus leaving absolutely no scope for men to be classified as victims of rape. The most crucial change in this amendment was that it increased the minimum legal age for consensual sex from 16 to 18, thus declaring sex with anyone below 18 a case of statutory rape.
Coming back to same-sex rape among males, it is not a story that is unheard of. There are numerous reports of men being raped by fellow inmates as well as officials in prison. In fact, the main accused in the Nirbhaya Rape Case himself was raped in jail prior to his death.
The process to change the law though, is not that simple.
For starters, the victim must not be classified as a male or a female. The victim should be referred to as victim, and defined as a person of any gender. Transgender rape is also a crime that happens, but rarely goes noticed. However, this would come directly in conflict with section 377 of the IPC, which states:
Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Under section 377, the perpetrator does fall under the category of guilty, but the onus is on the victim to prove his innocence in the case, due to section 375 not recognising him as a victim. Given our country’s mindset, this would be very difficult and the victim too would ultimately get dragged in as a guilty party, resulting in a “If I go down, so shall you” situation.
The first order of business would be to repeal section 377. When the High Court of Delhi had struck it down in 2009, the bench observed that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15 of the Constitution which prohibits discrimination on the basis of religion, race, caste, sex or place of birth. However, the court maintained that the law in itself would continue to apply in the event it involved minors.
When the Supreme Court set aside the High Court judgement in 2013, it stated that section 377 was not unconstitutional and that the declaration made by the division bench of the High Court was not legally sustainable. However, it made it clear that the doors were open for the legislature and executive to debate on the matter and amend the law accordingly.
The High Court was correct however, when it stated that the rule was discriminatory in nature. It clearly discriminates the victims on the basis of their gender, especially in the case of rape. Section 377 can be repealed in entirety, since the sections concerning minors, which the High Court upheld are now covered under POCSO. Further, sections 375 and 376 will then have to be amended with woman replaced with victim, especially in cases involving rape, stalking and voyeurism. The victim needs to be explicitly defined as a person of any gender.
In 2012, the then Union Cabinet approved a proposal to make rape a gender-neutral crime and replace the word “rape” itself with “sexual assault”. Predictably, it received criticism from women’s groups, many of whom stated that it would harm women more than men. Mumbai-based advocate Flavia Agnes argued:
There is physicality in the definition of rape, there is use of power and the victim has a stigma attached to her. If made gender-neutral, rape laws will not have the deterrence value and it will make it more complicated for judges in court.
Delhi-based advocate Vrinda Grover also supported this stance:
Why should rape laws be gender-neutral? That would be making a mockery of what is actually happening in the country. There are no instances of women raping men. I don’t think men are facing serious sexual violence as women. Consider the brutality and intensity of sexual violence against women. Hope the home minister does not put out a bill that delays or obfuscates discussions on the issue.
However, the law needs to be gender neutral as far as the victims are concerned. Victims of sexual abuse, be it rape, molestation or stalking can be male, female or transgender. As seen in the story of the Delhi-based male who was raped, he was unable to come out and state that he was raped, for fear that he may be arrested under section 377, as well as the social stigma attached to it. The matter only became public after his friend released screenshots of their conversation with the name edited out.
This incident is merely one of the many incidents of rape that usually are not reported because the law does not recognise rape as an offence when the victim is not a female, and instead chooses to charge them for sex that is “against the order of nature”, which itself is a mystery.
The final amendment that should be made is to replace the maximum punishment with a minimum punishment which will serve as a threshold. Courts should then have the freedom to award a sentence or penalty higher than this minimum punishment, depending on the severity of the case at hand.