PLY FOR GENDER NEUTRAL RAPE LAWS

TABLE OF CONTENTS

TITLE PAGE NO.

ABSTRACT 3

1. INTRODUCTION 4

2. RAPE LAWS BEING GENDER SPECIFIC AND NOT 6

GENDER NEUTRAL

3. SOCIETY ON MALE VICTIMS VICTIMS OF RAPE 9

4. PRESUMPTION THAT ERECTION OR SEXUAL STIMULATION 12

DURING SEXUAL ASSULT IMPLIES AS CONSENT

5. EFFORTS TO MAKE THE RAPE LAWS GENDER NEUTRAL 15

6. SURVEY AND STATISTICS 17

7. PRESENT REMEDIES AVAILABLE FOR MALE, FEMALE & 21

TRANSGENDER SURVIVORS.

8. CONCLUSION 24

9. SUGGESTION 26
 ABSTRACT

From time immemorial, women have faced oppression, violence and many untold cruelties by
men. They still do so even in this present era where feminism plays a vital role in our developing
society, but It’s not just the women that need protection from the crimes ranging from homicide
to sexual offences, Men, Transgender and the children need it too. Presently, the rape laws in
India are women-centric and it is very reasonable to have such laws present, but we need to take
The LGBT community into consideration because they, like women too, have also suffered
oppression from the hands of the society.

In recent years, many men have come out with their stories. Some of them have either faced
sexual trauma from a very young age, or they have been sexually assaulted as adults now.
Awareness is much needed regarding the fact that not only women, but men, irrespective of the
fact that they are straight, bisexual or gay, can be raped and sexually assaulted too.

It is to be noted that when a man commits non-consensual intercourse with another man, it is not
called “Rape” rather it is called “Sodomy”. The change of one terminology can create havoc and
that’s what we see, as Sodomy victims are not taken as seriously as Rape victims and there isn’t
any remedy in the IPC or for that matter any Indian law.

If a person approaches the court saying he was sexually assaulted by a man or a woman alike,
then even the some-what remedy of section 377 of the IPC is not applicable. This paper
primarily talks and highlights the need for gender neutral rape laws to protect Men, Women and
Transgender. The paper also highlights the plight of the sexual violence being committed on the
LGBT community.

Keywords: Rape, Sodomy, LGBT community, IPC, gender neutral

 INTRODUCTION

Rape refers to sexual assault against a person by another person. It usually involves sexual
penetration through a penis or an object, without the other person’s consent. Cambridge
dictionary defines Rape as, “to force someone to have sex when they are unwilling, using
violence or threatening behaviour.”

According to the definition of Rape prescribed under Section 375 of Indian Penal Code (1860),
Rape is something which only a man can commit against a woman and none other. Consent is
one of the determining factors under Rape laws and the way this consent is obtained should also
be in accordance with the law. The numerous cases decided by courts revealed that a man
commits the act of Rape on a woman, irrespective of the fact whether the said female is an adult,
a minor, or of unsound mind. It is evident to us all, as we see it almost every day now in
platforms of Mass Media and Communication.1

Rape is a problem which not only affects our contemporary society, but it has been a major issue
for thousands of years. We have read multiple cases of Rape in our history books with the best
example being of making the losing country’s people as slaves by the winning country after war.
The women and even young girls were mainly sold into prostitutions and men were kept as hard
manual laborers by the rich noble class.

The Sultan of the Khilji Dynasty, Alauddin khilji was recorded in the books to have as many as
70,000 slaves in numbers, ranging from males, to females to even children in his Harem. The

1]
Indian Penal Code 1860, India, <https://legislative.gov.in/sites/default/files/A1860-45.pdf> ( Accessed on 23 June
2022)
sultan was also known for being of the bisexual orientation, and its recorded of him forcing his
way around men too.2

RAPE LAWS BEING GENDER SPECIFIC AND NOT GENDER NEUTRAL

Rape can happen to any gender, by any gender. This is not a new problem arising due to the
modernization process; rather it is an ugly truth which has been there in our society for thousands
of years. The reason why Rape laws are women centric is due to the very fact that most of the
rape cases filed has victims who identify as female. If we take a ratio of how many female
victims and how many male victims are there with respect to Rape, then certainly the women
ratio would be a lot heavier. This point in itself gives us a cause on why we need more rape laws

2.
Dr.JB Ratti ‘ALAUDDIN KHILJI (1250-1316) – the Jihadi Barbarian Killer, Rapist & Homosexual’ (November
19, 2017)
</https://drjbratti.wordpress.com/2017/11/19/alauddin-khilji-1250-1316-the-jihadi-barbarian-killer-rapist-
homosexual/.>
protecting females, but at the same time, this reason does not justify on how we ignore the ply of
a male victim.

Crimes against women are not a hidden fact; rather it is something of a much heated debate in
recent years. They face abuses such as Domestic Violence, mental and emotional trauma, assault,
acid attacks and off course, Rape. But it’s very important to note that not just the women are
victims, but men are also facing sexual abuse too. Crimes against Gay men are something which
has been much underrated, and in some cases, they are not even acknowledged. In our books, a
sexually abused man is not called a “Rape Victim” rather he is called a “Sodomy Victim”.

While searching for reported testimonies, we came across the statement of a 27-year-old
Kashmiri man who recalled his incident in 2009 when he was merely 18 year of age. He was
thrown behind bars and was reportedly sodomised by three different police authorities who took
turns sexually exploiting him. While they did that, they recorded this nauseating incident and
threatened the young boy of consequences if he ever threw stones at the police again. This kind
of violent act is done so as to raise a terror in the hearts of the criminals so that they never repeat
their criminal acts. This treatment is not only unlawful, but also very dehumanizing. The victim
still suffers from Psychological trauma for the incident he went through. Recalling those
moments, the victim used to cry every time he bathed and at nights he felt insects crawling his
body. The victim did not receive any kind of justice and due to the shame of what happened to
him, kept the story to himself for many years. Leading a normal life has hence been really
difficult after that traumatic incident.

Similarly, the notion that only men can rape is incorrect as there are some cases where women
too are the perpetrators. The concept of dominant and submissive hence comes into picture here
as we all are under the age-old concept of assuming that only men can be of the dominating
nature. This is incorrect, as there can be dominating women too.

In a horrifying case which makes us question our notion that only men can rape, a woman
handcuffed a man to the bed and further, force fed him Viagra without his consent and later
gagged him. Due to the dose of the drug, the victim was unable to control his erection at that
moment. He was also in agony due to massive blood pumping in his genitals. During that
debilitated stage, the woman raped him by inserting his penis inside her vagina without his
consent. Here in this scenario, she forced the intercourse between them and it was the man who
did not consent. The victim tried to seek help and told his story to some people and was often
awarded with a look of disbelief. When asked why he did not move out of the house in which he
lived with the perpetrator, the victim replied that it was his house and he was in financial distress
so he could not move out.3

In 2018, Days after the Supreme Court decriminalized homosexuality, a 25-year-old woman had
failed in her attempt to lodge a police complaint against another woman who allegedly
sodomized her using a sex toy, and subjected her to continuous cruelty. The victim, who had
come to Delhi from a state in eastern India for work, has alleged that the 19-year-old accused
woman raped her and subjected her to repeated sexual and physical assaults. Her ordeal
continued when the policemen at the Seemapuri Police Station in Delhi refused to book the
accused, even though the latter was found in the exact spot where the woman was allegedly held
hostage for over 2 months. She had requested the police at the Seemapuri Police Station to
charge the perpetrator. But they refused to lodge a complaint. They even asked the victim to not
mention it to the magistrate.4

3
Katie Silver ‘If a woman forces a man to have sex, is that rape?’< https://www.bbc.com /news/stories-49057533>
(BBC 5 July,2019)
4]
Debayan Roy ’Woman Alleges Rape by Another Woman, But Fails to Get Her Booked in First Such Case After
377 Verdict’ (News18, October 3, 2018) <https://www.news18.com/news/india/woman-alleges-rape-by- another-
woman -but-fails-to-get-her-booked- in-first-such-case-after-section-377-verdict-1896639.html>
 SOCIETY ON MALE VICTIMS VICTIMS OF RAPE

It is generally argued by critics of gender-neutrality in rape law that men react differently to
sexual assaults than women and therefore keeping male standards and reactions in events of rape
would put women at a disadvantage. Contrary to this myth, 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. 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.5

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. 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.6

Patriarchy plays a very big role in rediculing the image of male victims of Rape. Unlike women
who are considered to be delicate and prone to danger of assault due to the nature of their
femeninity, males are to be considered male macho men who fear nothing, and nothing such as
rape can happen to them. Most men, even if they support gender equality, fail to follow it in the
true spirit due to societal and peer pressures. Not only does this lead to issues of gender
inequality, but men themselves also suffer the negative effects. One of the ways in which a
patriarchal society affects men is that they are expected to be interested in sexual intercourse all
the time and the concept of consent for male is presumed non-existent.

5
Male Rape: Making the System Neutral - India Legal, <https://www.indialegallive.com/did-you-know-facts-about-
news/perspective-news/male-rape-making-the-system-neutral-68529>
6
Male Rape: Making the System Neutral - India Legal, <https://www.indialegallive.com/did-you-know-facts-about-
news/perspective-news/male-rape-making-the-system-neutral-68529.>
A research conducted with college students in 1988 concluded that both men and women often
face a lot of unwanted coerced sexual activity. 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”.7

Oxfam India, in its 2017 report titled ‘The Irresistible & Oppressive Gaze’, contended the ill
effects of films on the Indian youth. It reported that around 86% of the films made in India used
sexist humor. 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:

1. Voyeurism,
2. Rape Jokes (the movie “3 Idiots”),
3. Negative stereotypes about Women and Queer people (“Pyaar Ka Punchnama”) and
4. 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.8

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. She discusses the example of the book “Deadly Temptation”, which is an

7
Lawrence A. Greenfield, “An analysis of Data on Rape and Sexual Assault”, ( Bjs.gov. January 1995),
<https://bjs.gov/content/pub/pdf/SOO.PDF.>
8
Lawrence A. Greenfield, “An analysis of Data on Rape and Sexual Assault”, ( Bjs.gov. January 1995),
<https://bjs.gov/content/pub/pdf/SOO.PDF.>
explicit pornographic story with shades of BDSM and assault. 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.9

PRESUMPTION THAT ERECTION OR SEXUAL STIMULATION

DURING SEXUAL ASSAULT IMPLIES AS CONSENT

In many cases, we see defense attorneys using the “Erection” or “Sexual Stimulation” during the
sexual assult, as a factor for consent on behalf of the Victim. A majority of Male Rape Victims
do not report the crime due to mixed feelings of confusion or guilt because they ejaculated or had
an erection during the assault. Similar experiences were reported during assaults on female

9
Lawrence A. Greenfield, “An analysis of Data on Rape and Sexual Assault”, ( Bjs.gov. January 1995),
<https://bjs.gov/content/pub/pdf/SOO.PDF.>
victims as well. The prevailing opinion on sexual stimulation seems to be driven by a lack of
understanding of human body. The research contended that orgasm is felt at a physical and
mental level, sometimes individually too. So, one can experience sexual pleasure physically even
when the mental state is that of inhibition.10

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.11

Defence lawyers try to establish consent on behalf of the victim of sexual assault on the basis of
her achieving sexual arousal, dispite many Courts in the USA having long held that achieving
orgasm during sexual assault will be irrelevant for determining consent. 12 This prejudiced and
patriotic thinking has been, and is still prevalent in our society, surfacing to the top of the water
from time to time. In an English case, a man initiated divorce proceeding against his wife,
claiming coercive sexual intercourse as cruelty. The judge on hearing that the man had an
erection during the act determined that the act was consensual and dismissed the appeal.13

10
Statistics - Sexual Violence, Rape crisis, <https://rapecrisis.org.uk/get-informed/about-sexual-violence /statistics-
sexual-violence/>
11
’Statistics - Sexual Violence, Rape crisis’ < https://rapecrisis.org.uk/get-informed/about-sexual-violence
/statistics-sexual-violence/>
12
’Sexual Harassment of Men’, <http://www.legalservicesindia.com/article/2039/Sexual-Harassment-of-Men.html>
13
Shailini ojha, “Maharashtra: Class-12 boy commits suicide after sexual abuse, 14 arrested”,NewsBytes, Jan, 23,
2020available at: https://www.newsbytesapp.com/timeline/India/56650/263366/14-arrested-for-sodomizing-boy-in-
maharashtra
Siegmund Fruchs, in his widely renowned article, discussed that having an erection during rape
does not mean consent. The complex relation between sexual desire and physical stimulation
along with judicial treatment of such behaviour results in denial of justice and rehabilitation to
male victims. Fruchs also discussed the fact that many perpetrators of sexual assault purposely
induce the victims to climax for multiple reasons:

1. To discredit the victim’s testimony during trial by damaging his credibility;

2. To establish complete and absolute dominance over the victim and;
3. To reaffirm the perpetrator`s fantasy that the act was consensual. 14

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. 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.15

In an article by Clayton Bullock and Mace Beckson, it was asserted that physiological studies
have confirmed that erections are only partially under voluntary control and can occur due to
various emotional states such as fear, stress, and excitement. 16 From the above studies and
researches, it can be concluded that engorgement of the penis is often misinterpreted as consent
on behalf of males just like lubrication of the vagina is in the case of females. There is a need for
society and courts to move past this.
14
’India Legal, Male Rape: Making the System Neutral- India Legal’, (India legal, 13 July, 2019)
<https://www.indialegallive.com/did-you-know-facts-about-news/perspective-news/male-rape-making-the-system-
neutral-68529.>
15
The Criminal Law (Amendment) Bill, 2019, <http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-
E-12719.pdf>
16
Symptoms of PTSD After a Sexual Assault, Verywell mind (Verywellmind, September, 28, 2019)
<https://www.verywellmind.com/symptoms-of-ptsd-after-a-rape-2797203>
EFFORTS TO MAKE THE RAPE LAWS GENDER NEUTRAL
A law commission recommended gender-neutral definition of rape by replacing the term “Rape”
in the IPC with the words “Sexual Assault”. The Centre accepted the proposal to make definition
of rape “gender-neutral” after the December 16, 2012, Gang rape of Nirbhaya. The Justice
Verma Committee, which was set up after the horrific rape incident, recommended use of the
word “person” in place of “woman” to cover all victims of sexual violence. The then UPA
government notified the Criminal Law (Amendment) Ordinance in February 2013 which adopted
a gender-neutral definition of rape. However, this was reverted back to gender-specific definition
of rape due to heavy criticism and backlash from the women’s rights activists. This return of
gender specific definition of rape by the center however, was significantly criticized by the
LGBTQ activists.

A PIL was filed by Mr. Sanjiv Kumar, director of an NGO, Knewmax Benevolent Foundation,
for gender-neutral rape laws and the Centre made an admission in response to this petition in the
court on July 5th. The Centre informed the Delhi High Court that rape laws can’t be made gender-
neutral as Women are the predominant victims. The Supreme Court had previously dismissed a
PIL with similar prayer. This PIL sought to make laws pertaining to Rape, Sexual Harassment,
Stalking, Voyeurism, Outraging Modesty, etc., gender-neutral. This PIL challenged the
constitutional validity of the Sections:

1. 354 (assault or criminal force to woman with intent to outrage her modesty),
2. 354A (sexual harassment),
3. 354B (assault or use of criminal force to woman with intent to disrobe),
4. 354C (voyeurism),
5. 354D (stalking) and
6. 375 (Rape) of the Indian Penal Code.

The PIL argued that these Sections are in violation of Article 14 (right to equality), and 15
(prohibition of discrimination on grounds only of sex) of the Constitution. The bench headed by
Chief Justice Dipak Misra termed it an “imaginative petition” and noted that these sections of the
IPC are affirmative provisions for the protection of women and hence these classifications made
in the sections are valid.17

The Verma Committee in 2013 recommended that though the perpetrator of sexual violence is
identified as a Male but the gender of the victim must be made gender neutral so as to protect the
men, women and transgender people from sexual violence. However, The Criminal Law
(Amendment) Act (2013), unfortunately restored the gender-specific definition of sexual
violence for both the perpetrator and the victim. Justice Leila Seth, one of the members of the
Verma Committee, noted that, “This was a serious mistake, and Parliament failed to understand
the injustice done thereby to so many men and transgender people”

The Law Commission, in its 172nd Report, said: “Not only women but young boys, are being
increasingly subjected to forced sexual assaults. This assault causes no less trauma and
psychological damage to a boy, than to a girl subjected to such offense.” 18

In yet another petition filed before the Supreme Court by the Criminal Justice Society of India, it
was stated that not recognizing male and transgender rape has impacted the ability of victims to
acknowledge their own victimization. Yet again the Supreme Court put the onus on parliament to
make the required statute.

SURVEY AND STATISTICS

1. United States of America:

17
NPR Choice Page, <https://www.npr.org/2018/07/26/632601325/new-zealand-will-provide-paid-leave-to-
domestic-violence-survivors>
18 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.
 a. It is reported that about 10% of the rapes in the three States did not conform to the
Uniform Crime Report (UCR) definition of forcible rape. 8.7% of the victims were male,
in 0.8% of the cases the victim and offender were both female, and in 0.2% cases the
victim was male and the offender was female.19

b. The Bureau of Justice Statistics of USA, which provided “An Analysis of Data of Rape
and Sexual Assault” very clearly mentioned that the Preliminary estimates of 1995
indicated, that out of the people from age group of 12 or older, 2,60,300 Rapes and
attempted rapes, and nearly 95,000 other sexual assaults and threats of sexual assault
were experienced.20

c. The National Crime Victimization Survey has hence defined Rape as a forced sexual
intercourse, where the victim may either be a male or a female and the offender may be
of the same sex or a different sex from that of the victim. 21 Sexual assault is a very wide
term which includes attacks in which unwanted sexual contact occurs between the victim
and the offender.

2. United Kingdom:

a. The Crime Survey for England and Wales of March, 2017 estimated that 20% of women
and 4% of men experienced sexual assault since the age of 16. This means that there are
3.4 million female and 631,000 male victims.

19 Curtis v State, 223 S.E.2d 721.

20 Philip Sarrel and William Masters, ‘Sexual Molestation of Men by Women’, (1982) 11(2) Archives of Sexual Behavior 117.
21 Willan v Willan [1960] 1 WLR 624.
 b. It is also estimated that 3.1% of women i.e 5,10,000 and 0.8% of men i.e. 1,38,000 aged
from 16 to 59, have experienced sexual assault in 201622

c. In January 2013, an official joint statistics bulletin on sexual violence released by the
Ministry of Justice (MoJ), Office for National Statistics (ONS) and Home Office known
as An Overview of Sexual Offending in England and Wales, revealed:
1. Around 12,000 Men and 85,000 women aged between the ages of 16- 59
experience rape, attempted rape and sexual assault by penetration in England and
Wales alone every year.
2. It was further revealed that out of all the sexual violence victims, only 15% report
to the police.23
3. The Crime survey for England and Wales (CSEW) (2015-2017) collected the data
which shows that gay and bisexual men are prone to be the victims of sexual
violence more than the heterosexual men.
4. 140,000 men in England and Wales (0.9%) aged from 16 to 59 have been
estimated to have experienced sexual assault in the year ending March 2018.
5. Also, a report by Male Survivors Partnership revealed that it took 31 years to
report sexual abuse for 20 per cent of men whose sample was taken in this regard.
6. The number of men and boys aged 13 years old and over reporting a sexual
assault has increased by 57% from 3,445 in 2015/16 to 5,394 in 2017/18.

3. India:

1. According to the PEW research statistics 2014 on online sexual harassment, 25% of
women and 13% of men between the ages of 18 to 24 have experienced Sexual Trauma. 24
In a recent survey conducted among 222 Indian men, it was revealed that 16.1% had been
coerced into having sex.

22 Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and Consent’ (2004) 51 Cleveland State Law Review 93.

23 Mahmood Farooqui v State (Govt. of Delhi) 2017 SCC Online Del 6378.
24 Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’ (2011) 39 The Journal of the American Academy of Psychiatry and the Law 197.
 2. While concentrating specifically on child sexual abuse, the Indian Government in 2007
found out that out of all the children surveyed for experiencing Rape and Sodomy, 57.3%
were boys and 42.7% were girls.

3. Also, the Delhi-based Centre for Civil Society recently found out, that of the 18% of
Indian adult men surveyed reported of being coerced or forced to have sex. In this, 16%
claimed a female perpetrator while 2% claimed a male perpetrator.

4. The US Department of Justice has stated that of those convicted of rape, 99% are men,
and 1% are women. India would also be able to provide its own numbers for statistical
comparison if the legal definition provided some recognition to the fact that men too, can
be raped. However, legal definition of rape in India provides that rape cannot be
committed against a man, therefore there is no good way of determining just how many
male survivors exist in India.

5. In a recent case, a class XII student hailing from Maharashtra committed suicide after
being sodomized by his fellow classmates and staff in the hostel he was residing in. The
boy's 18-page suicide note was recovered, following which police arrested 14 people,
including a minor. They have been charged with abetment to suicide and unnatural
offences under IPC and POCSO Act.25

25 Gillian Mezey and Michael King, ‘The effects of sexual assault on men’ (1989) 19 Physiological Medicine 205.
 PRESENT REMEDIES AVAILABLE FOR MALE, FEMALE &
TRANSGENDER SURVIVORS.

India recently reinstated anti-sodomy provision, i.e Section 377, which talks about sodomy and
bestiality, but there is one major loophole in this section which is the fact, that it doesn’t
distinguish between consensual and non-consensual sexual acts between the adult males. If a
man approaches the court with the plea of being violated by another man, although the
perpetrator has not violated him in a conventional way (penile penetration), the remedy of
section 377 does not apply to the victim in question.

Apart from this provision, male survivors have no law which protects them from any form of
sexual assault or harassment. The Indian Penal Code (1860) does not have any provision to
protect men from sexual violence, and in many cases it allows the female perpetrators to go
unprosecuted. This in a way, denies justice from being served to the male victims.

1. Section 354 - assault or criminal force to woman with intent to outrage her
modesty,
2. Section354(A) - sexual harassment,
3. Section 354(B) - assault or use of criminal force to woman with intent to disrobe,
4. Section 354(C) - voyeurism,
5. Section 354(D) - stalking and
6. Section 375 - rape.

After the definition of Rape was made gender specific in 2013 the LGBTQ activists pointed out
that transgender people were left with no clear remedy in cases of sexual violence because of the
current laws. In a 2017 case, a 19-year-old transgender person in Pune was beaten up by four
men and later was gang raped by them. The accused in the case were booked under Sections:

1. 377 (unnatural offenses),

2. 323 (voluntarily causing hurt),
3. 504 (intentional insult with intent to provoke breach of peace) and
4. 506 (punishment for criminal intimidation) of the IPC.

The trial court found all the accused innocent as Section 377 does not have any mention of the
third gender and this reminded us all of how helpless one can feel if even the law which is
supposed to protect us, turns its back on us.26

One of the possible remedies which is yet to be passed by the government is the Criminal
Amendment Bill 2019, which talks about substitution of new sections for sections 375 and 376
of the Indian Penal Code, 1860. Under the 11th point of criminal amendment bill, 2019, it reads
“After section 375 of the Penal Code, the following section shall be inserted, namely:—

26 Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and Masculinities 275.
 375A. The following acts shall constitute the offence of sexual assault, if any person:—

a. intentionally touches the genital, anus or breast of the person or makes the person touch
the vagina, penis, anus or breast of that person or any other person, without the other
person's consent except where such touching is carried out for proper hygienic or medical
purposes; or

b. uses words, acts or gestures towards another person which creates an unwelcome
actionable threat of sexual nature or result in any unwelcome advance; and shall be
punished with rigorous imprisonment that may extend to three years, or with fine, or
both.”

Similarly, in the 12th point of this criminal amendment bill, 2019 the term “Person” is used to
denote the “Victim” instead of the term “Woman”, thus nullifying the biases of the gender and
treating the victim as gender neutral. This bill acknowledges the universal fact that the victim
can be of either gender and not from a particular gender {Women}. This bill was introduced in
the Rajya Sabha on the 12th of July, 2019.27

27 Charlene Muehlenhard and Stephen Cook, ‘Men's Self-Reports of Unwanted Sexual Activity’ (1988) 24 Journal of Sex Research 52.
 CONCLUSION

Rape immediately brings out the emotions of shame, guilt, sadness, anxiety, fear and anger.
Feelings of shame because of the societal judgments may lead to self loathing, addiction to
alcohol or drugs and even self harm which can range from cutting oneself to the extent of
committing suicide. PTSD (Post Traumatic Stress Disorder) is also one of the main
psychological disorders which capture the Rape survivors,28

Lesbians, gays, bisexuals, and transgender people are the most unfortunate ones when it comes
to justice for sexual assault. The idea of not having a legal remedy plays a great deal of
psychological trauma on the part of victims who already go through PTSD issues and in some
cases, severe depression due to fear of societal judgments and self loathing as a Rape Survivor.

28
Nikunj Kulshrestha, ‘Ought the Rape/Sexual Assault Law in India be Gender-
Neutral?’ (August 19, 2019)
Bullying, verbal and physical abuse, emotional and psychological abuse, violence, harassment,
and sexual assault are maybe some of the many problems that the community faces. The LGBT
people who just recently received a somewhat level of recognition with the decriminalization of
Section 377, still have a long way to go for receiving proper acknowledgement and have a
platform of their own for them to come forward and voice their problems and opinions.

One of the most underrated cases are those of sexual assault with respect to male victims. The
fact that a man, irrespective of his orientation being of Homosexual, Bisexual, or Heterosexual,
can be raped or sexually assaulted is the key underlining point which is needed to be highlighted.
Not only are there no proper remedies available, but because of societal judgments, these victims
do not come forward and report against their offenders. The fear of getting your masculinity or
your orientation questioned, keeps these victims from coming out and revealing their stories.

The idea of women being the weaker gender and them needing help for their upliftment is
undeniable. However the idea of every woman being weaker than a man is incorrect as
sometimes a man too can be weaker than a woman. There is even a possible situation where a
man can be weaker against another man, and similarly a scenario where a woman can be weaker
against another woman can also not be denied. Currently our legal system is not equipped to
handle “woman-to-woman”, “woman-to-man”, “man-to- man” and to some extent even “man-to-
woman” sexual assaults. It is also indisputable that much change is needed to be made in our
present laws to make a safe environment for both men and women irrespective of their
orientation.
 SUGGESTIONS

1. There should be more representation of women and LGBTQ community in the

parliament. Including them in the legislative body will not only help in their upliftment,
but also helps them to have their voice be heard and acknowledged. This will also help in
framing and addressing the needs of women, children and LGBTQ communities.

2. In New Zealand, 38% of parliamentary seats are held by women and recently under the
leadership of Jacinda Ardern (Prime Minister of New Zealand), they made a law
guaranteeing paid leave for victims of domestic violence. This law gives victims the time
for relocating, to protect themselves and their children from their abusers. It is to be noted
that Political representation does not translate to physical security for a given population,
but it’s just a start.29

29 Claire Cohen, ‘Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape’ (Palgrave Macmillan 2014).
3. Even if in our laws identify the perpetrator of sexual violence as a male, the victim
should be categorized as gender-neutral to protect Men, Women and Transgender people
from sexual violence.

4. The terms “Man” in Section 375 must be replaced with “Person” and the word “Woman”,
present everywhere, must be replaced with “Person”. Also, it is needed to be
acknowledged that Rape can be done by any person to any person, irrespective of the fact
that they are of the same or different gender.

5. Provide at least some legal provisions and recourses for male victims who suffer from
various other crimes such as stalking, sexual assault and molestation apart from section
377.

6. The Hon’ble Supreme Court should frame some guidelines to protect and give some
relief to the Heterosexual men and LGBTQ Rape Survivors.

7. The Supreme Court should direct the government to amend and make the definition of
rape and certain other provisions gender neutral.