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WHY YOU SHOULD ADVOCATE FOR GENDER-NEUTRAL SEXUAL OFFENCES
Aniket A. Panchal & Sidharth B. Pai

1
 Abstract
In a first attempt at gender-neutral legislation in India, Sr. Adv. Mr. K. T. S. Tulsi introduced
a private Criminal Amendment bill1 in Rajya Sabha in 2019 which proposes amendments in
the Indian Penal Code, 1860,2 the Code of Criminal Procedure, 1973,3 and the Indian
Evidence Act, 1872,4 to ensure that the words ‘any man’ and ‘any woman’ in the provisions
relating to sexual offences in the laws are changed to read as ‘any person’.5 Unlike others,
this debatable proposition of making sexual offences gender-neutral has but two views, two
that highly contrast each other, black and white – 50 Shades of Grey could never be the title
of this article. Looking at gender neutrality and gender equality as two distinct identities and
identifying the stakeholders of the proposed legislative amendment – not just women, but also
men and other-gender persons, we put forth our arguments for gender-neutral laws – how
rape is not a one-way offence, why and how legal amendments after decriminalizing
homosexuality are long overdue, why sexual reassignment surgeries are increasingly being
endorsed, how Articles 14 and 15 of the Indian Constitution are being violated and how and
why India has fallen behind other countries in the international community. Strongly sticking
with the Criminal Amendment bill, through our flagged arguments in this article, we aim to
unquestionably prove why we should all be advocates for gender neutrality.

Keywords: Sexual Offences, Gender Neutrality, LGBTQIA+, Constitutional Morality,

Criminal Amendment Bill.

1
The Criminal Law (Amendment) Bill, 2019, No. 16, Bills of Parliament, 2019 (India).
2
The Indian Penal Code, 1860, No. 45, Acts of Imperial Legislative Council, 1860 (India).
3
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
4
The Indian Evidence Act, 1872, No. 1, Acts of Imperial Legislative Council, 1872 (India).
5
The Criminal Law (Amendment) Bill, 2019, § 3, No. 16, Bills of Parliament, 2019 (India).

2
Introduction: Neutrality over Equality

In this century which boasts of higher connectivity, the global village is ever-shrinking.
While the global villagers may still not comprise the significant number of contemporarily
isolated tribes, almost everybody else is linked by telecommunications in the post-modern
society. The substantial increase in contact has created a scenario where the need to
acknowledge diversity is more present than ever, especially in a nation where ‘Unity in
Diversity’ is rapidly being replaced by ‘Diversity in Unity’. Greater social inclusion only
supports stronger and more sustainable growth. However, finding the perfect middle ground
is a challenging task for any society. Quoting centuries of oppression, the Feminist
Movement has made strong gains in this century. This novel sympathy towards the
supposedly ‘gentler’ sex has upset the other more commonly recognized gender, leading to a
parallel yet less popular Masculinist Movement. Does the Sovereign, in this case, spearhead
the former movement by disadvantaging the latter? Does the Sovereign provide reserved
quotas to the less privileged at the expense of disadvantaging the supposedly ‘higher’ castes?
Does the Sovereign endorse the Black Lives Matter campaign and thereby disapprove of the
All Lives Matter campaign?
This line of questioning thought may not be receiving your attention anymore because the
term ‘Sovereign’ has recurred obnoxiously too frequent. But how do we substitute the term
with a pronoun, is the Sovereign a ‘he’ or a ‘she’? The perception that all realms have two
alternatives has proved ostensible. The inexplicable reality of life has become anything but
binary. In a world of more than two possibilities, what would have been termed as
iconoclastic only a few decades ago has now become the only instrument for social progress.
This is undeniably a positive step for we make social progress in part by challenging our
institutions and it would fatal to assume that philosophy stays within its ivory tower. There
are multiple possibilities – a multitude of complexions, innumerable castes, numerous
classes, multiple genders, different sexual orientations and many more. Favouring one comes
with the opportunity cost of not favouring the others. The only solution to this dilemma by
not upsetting the safe equilibrium is by inventing a new paradigm, a paradigm where none of
the mentioned parameters exist. Where gender neutrality is the talk of the town and not
gender equality.

3
The Necessity of Gender-neutral Sexual Offences: A Stakeholder Analysis

The want of statistical evidence or rather, rightly put, the non-existence of it in relation to
sexual offences committed against those who are not women substantiates the Feminists’
claim that women cannot be perpetrators. This claim reiterates the underlying belief that ‘it is
always men who rape and women who are raped’ and that ‘gender-neutral rape laws do not
reflect the reality of rape.’6 Furthermore, it also supports the bygone belief that ‘rape is a
conscious process of intimidation by which all men keep all women in a state of fear.’7 There
is no denying that it is highly unlikely for our country to have these statistics, with the help of
which it could be established that there are instances where men are raped by women.
However, in the absence of such statistics, it would be unreasonable to conclude that such
instances do not occur. The non-existence of data can be explained with the help of two
plausible reasons. Firstly, in the context of men survivors, there is an anti-masculinity stigma
attached to any form of sexual assault, discouraging them from reporting an incident of
victimization. This is commonly referred to as hegemonic masculinity, which is the most
honoured way of being a man.8 This cancerous perception of manhood which was created by
gender stereotyping would not have existed in a gender-neutral world.
Secondly, there is always a fear of counter-complaints where more often than not the accused
party starts blaming the aggrieved party for the same alleged offence. This reason holds in the
Indian context as there is no law which safeguards men from being raped by women. As a
result, for every complaint of rape by a man, there will be a counter-complaint filed by the
woman, which will deter rape survivors from coming forward in the first place. These are the
reasons that necessitate the need for gender-neutral laws, to avoid prevalent gender-
discrimination.

Rape: Not a One-way Offence

6
Philip Rumney, Martin Morgan-Taylor, Recognizing the Male Victim: Gender Neutrality and the Law of Rape:
Part One, 26 ANGLO-AMERICAN LAW REVIEW 198 (1997), at 207, 208, 210 Google Scholar (quoting Ngaire
Naffine, Possession: Erotic Love in the Law of Rape, 1 MODERN LAW REVIEW 10, 57 (1994) at 24 CrossRef,
Google Scholar).
7
Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37(9) ECONOMIC AND
POLITICAL WEEKLY 844 (2002) (quoting SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND
RAPE (Harmondsworth: Penguin 1976)).
8
R. W. CONNELL, MASCULINITIES 77 (2nd ed. 2005).

4
As per Section 375 of the Indian Penal Code (IPC), ‘rape’ is something that only a man can
do to a woman. In fact, the very definition of the criminal offence starts with, ‘A man is said
to commit “rape” if he…’9 As per the current law, a man is presumed to be the offender if a
woman has been raped. There is no room for the vice-versa here, let alone recognition of
other-gender persons being raped. The Protection of Children from Sexual Offences
(POCSO) Act, 2012 is a gender-neutral Act10 and thus looks into the sexual assault of BOTH
minor girls AND boys. However, this is not so for those who are not children – what if an
adult man has been raped? What if someone belonging to the LGBTQIA+ community has
been raped? Although our criminal justice system as of now does not have any provisions or
punishment for these kinds of offences, the questions posed have been silently but aptly
answered by the Indian Penal Code (IPC) itself in Section 228A. It states: ‘Whoever prints or
publishes the name or any matter which may make known the identity of any person against
whom an offence under Section 376, Section 376A, Section 376B, Section 376C or Section
376D is alleged or found to have been committed (hereafter in this section referred to as the
victim) shall be punished with imprisonment of either description for a term which may
extend to two years and shall also be liable to fine.’11 So, according to this section, anyone
can be raped regardless of their gender. It says, ‘identity of any person’; there is but one
reason behind using this word. It could have read the ‘identity of any woman’ if the section
intended to limit the scope of rape as per Section 375 of the IPC.
But there are a few arguments against a woman raping a man. According to these, a woman
simply cannot rape a man, it just sounds so unnatural and impossible (highlighting the
patriarchal nature of the society). Although it could amount to a ground for sexual
harassment, it could never be rape. The proponents of this school of thought also feel that, by
doing this, we will be diluting the law to the disadvantage of women. These are but emotions,
not indisputable facts. Sure, it cannot be denied that survivors of sexual harassment in India
are mostly women, and the perpetrators, mostly men. But as stated before, we have no
statistical evidence to support the claim that Indian men are not being raped, that they never
report cases of sexual harassment against them. Men are short-handed because there are no
safeguarding rights which have been conferred on them through the law. This is just one, but
the gravest of the reasons behind under-reported male-rapes in India. Women can and do rape
men and this must be given due recognition in the law, that would serve as a precursor to

9
The Indian Penal Code, 1860, § 375, No. 45, Acts of Imperial Legislative Council, 1860 (India).
10
The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 (India).
11
The Indian Penal Code, 1860, § 228A, No. 45, Acts of Imperial Legislative Council, 1860 (India).

5
societal recognition. The newly introduced bill proposes to amend the Indian Penal Code
(IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act to ensure that the
words ‘any man’ and ‘any woman’ in the sections relating to sexual offences are changed to
read as ‘any person’.12 By implementing these changes, the bill seeks to extend the
boundaries of these offences not only to include transgender persons but also to potentially
allow the recognition of other-gender identities. The process is not one of destruction, but one
of evolution.
Decriminalizing Homosexuality: Obvious Changes in the Law long overdue

In 2018, the Apex Court ruled unanimously that Section 37713 was unconstitutional14. In the
judgement, the Supreme Court made a very important statement. It read ‘this is the beginning
of the end of prejudice’.15 The need to have gender-neutral offences thus flows naturally from
striking down Section 377 because if gender equity is created here, then it should be carried
forward to other laws as well. We have already taken the initial steps by recognizing the
LGBTQIA+ community’s rights in 2014 in the NALSA case16 and striking down Section 377
in the Navtej Johar case in 2018;17 now we ought to apply this principle of gender equity over
rape laws too. Pursuant to the brutal gang rape of a twenty-three-year-old woman in Delhi,
the Justice Verma Committee Report which was released, in its recommendations had
suggested that rape should be made gender-neutral. In Part II, which deals with
recommendations of the report, the committee has categorically stated that ‘Since the
possibility of sexual assault on men, as well as homosexual, transgender and transsexual
rape, is a reality the provisions have to be cognizant of the same.’18 However, the Criminal
Law Amendment Bill was passed without making these much needed changes and thus did
not make any attempt to make rape a gender-neutral crime. The Apex Court in 2018 further
made an important observation that the Parliament needs to look into the issue of making

12
The Criminal Law (Amendment) Bill, 2019, § 3, No. 16, Bills of Parliament, 2019 (India).
13
The Indian Penal Code, 1860, § 377, No. 45, Acts of Imperial Legislative Council, 1860 (India).
14
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
15
Priyanka Mittal, Neetu Chandra Sharma, This is the beginning of the end of prejudice: Supreme Court,
LIVEMINT (Sep. 7, 2018, 1:56 PM),
https://www.livemint.com/Politics/bRkgeh7EdUK5aeBHUb7YAM/Section-377-verdict-Supreme-Court-
decriminalises-homosexual.html.
16
NALSA v. Union of India, (2014) 5 SCC 438.
17
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
18
Justice J. S. Verma, Justice Leila Seth and Gopal Subramaniam, Report of the Committee on Amendments to
Criminal law, COMMITTEE ON AMENDMENTS TO CRIMINAL LAW, 416, (2013),
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%
20report.pdf.

6
rape laws gender-neutral.19 The top Court made another observation while hearing a petition
which stated that men and transgender people may be survivors of sexual assault but they are
not protected by section 376 of the IPC20; the presiding CJI stating that the Court cannot look
into the matter unless the Parliament enacts a law upon it.21 Both men and transgender
people have half-protection against rape as provided by the contemporary laws which
undoubtedly is inadequate: a man’s only recourse against rape is section 377 (unnatural
sex),22 one which can be taken only if they are raped by a man and as for a transgender
person, the Parliament has passed an act i.e. Transgender Persons (Protection of Rights) Act,
2019.23 Although the Law has the remedy for rape committed against transgender persons, it
fails to serve its purpose. According to it, violence, abuse and rape against transgender people
can be punishable with jail-time from six months to two years, and a fine. Compare that with
the punishment for rape of women, which can give the offender seven years of jail-time to
even a life sentence; you can now see how unfair the proposed law reads.24 It is of paramount
importance that gender-neutral crimes are introduced to make the 50 percent afforded
protection 100.

The Surge in the Endorsement of Sexual Reassignment Surgeries

‘How can you be raped?’ were a doctor’s words to a transgender woman when they wanted
healthcare after being brutally raped.25 Instances like this underline the trans-phobia existing
among Indians and are the reason behind the endorsement of sexual reassignment surgeries.
Gender Dysphoria, mostly experienced by transgender persons, is a distress that a person
feels due to an apparent mismatch between their gender assigned at birth and their gender

19
Harish V. Nair, Parliament can make law on rape gender-neutral, says Supreme Court, INDIA TODAY (Feb. 3, 2018, 6:22
AM), https://www.indiatoday.in/mail-today/story/parliament-can-make-law-on-rape-gender-neutral-says-
supreme-court-1160829-2018-02-03.
20
The Indian Penal Code, 1860, § 376, No. 45, Acts of Imperial Legislative Council, 1860 (India).
21
Harish V. Nair, Parliament can make law on rape gender-neutral, says Supreme Court, INDIA TODAY (Feb. 3, 2018, 6:22
AM), https://www.indiatoday.in/mail-today/story/parliament-can-make-law-on-rape-gender-neutral-says-
supreme-court-1160829-2018-02-03.
22
The Indian Penal Code, 1860, § 377, No. 45, Acts of Imperial Legislative Council, 1860 (India).
23
The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).
24
Pallavi Pundir, Transgender People Tell Us Why India's Newly Proposed Rape Laws are Discriminatory,
VICE (Sep. 11, 2019, 5:03 PM), https://www.vice.com/en_in/article/bjwjbd/transgender-queer-people-tell-us-
why-indias-newly-proposed-rape-laws-lgbt-are-discriminatory.
25
Priti Salian, ‘How can you be raped?’ Doctor’s words to transgender in India an example of the
‘transphobia’ that stops many getting health care, SOUTH CHINA MORNING POST (Aug. 12, 2018, 10:49 AM),
https://www.scmp.com/lifestyle/health-wellness/article/2159156/how-can-you-be-raped-doctors-words-
transgender-india.

7
identity.26 A remedy which usually a person affected by this disorder opts for is a sexual
reassignment surgery. This surgery alters the existing sexual characteristics of a person so as
to resemble the identified gender. Transgender persons often have to resort to this means as
they are denied their basic rights. Although it can be said that the absence of gender-neutral
laws is not a causative factor of the promotion of SRS on a larger scale, it leaves no doubt
that it indirectly promotes sexual reassignment surgeries. After all, who would want to live in
a society where crimes committed on them are not even recognized, let alone penalized? It
will not be incorrect to conclude that all this defies the NALSA Judgement27 where the Apex
Court affirmed that the fundamental rights will be applicable to transgender people and gave
them the right to self-identification of their gender as male, female or other-gender.

Equal Protection of Laws under Article 14

Article 14 of the Indian Constitution guarantees that ‘the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.’28 At
the dawn of Indian constitutionalism, when the Supreme Court was faced with the task of
interpreting the equal protection clause for the very first time, it noted that the first part of
article 14 (equality before the law) was borrowed from the Irish Constitution29, while the
second part (equal protection of laws) was identical to the American Constitution’s
Fourteenth Amendment.30 Consequently relying heavily upon the US precedent,31 the
Supreme Court commenced its article 14 journey by holding that equality required similar
treatment of those who were similarly situated, while allowing for differential treatment
between those who were different ‘in fact’. In other words, the equality guarantee prohibited
‘class legislation’, but permitted ‘reasonable classification’. What did this mean?
It meant that legislative classification would have to be tested on two grounds: First, was
there an ‘intelligible differentia’ between the things brought within the scope of the
legislation and those left out? And second, was there a ‘rational nexus’ between the
intelligible differentia and the legislative goal?32 However, if applied this basic test, the
present-day laws fall flat. Although the Constitution ensures equality, the existing criminal

26
LEXICO, https://www.lexico.com/definition/gender_dysphoria (last visited Mar. 19, 2020).
27
NALSA v. Union of India, (2014) 5 SCC 438.
28
INDIA CONST. art. 14.
29
IRELAND CONST. art. 40.
30
Section I, Fourteenth Amendment to the constitution of the United States.
31
Chiranjit Lal Choudhary v. Union of India, 1950 SCR 869.
32
State of West Bengal v. Anwar ali Sarkar, 1952 SCR 284.

8
law discriminates against men and transgender persons who have been survivors of rape. It
disdains the possibility of them being raped. As stated earlier, the IPC states that only a man
can rape a woman and not the other way round.33 The only persons benefitted, here, by the
gender exemption are women who can rape men and still manage to escape liability due to
the non-recognition of male-rapes. Also, the claim that a man cannot be raped by a woman
was rejected by the Court of Appeals of New York in the case of People v. Liberta. 34 The
court opined that even though forcible sexual assaults by women upon men are undoubtedly
less common and vastly imbalanced with respect to forcible sexual assaults by men upon
women, this numerical disparity cannot by itself make the gender discrimination justified. As
the Supreme Court of the United States has rightly stated, ‘[a] gender-based classification
which, as compared to a gender-neutral one, generates additional benefits only for those it
has no reason to prefer cannot survive equal protection scrutiny.’35 Therefore, we find that
the existing law violates equal protection of the law guaranteed to every person under article
14 of the Indian constitution because it exempts women from criminal liability for rape.
Having found that the rape laws in our country are unconstitutionally under-inclusive, the
remaining issue is the appropriate remedy for these equal protection violations. When a
statute is constitutionally defective because of under-inclusion, a court may either strike it
down and thus make it applicable to nobody or extend the coverage of the statute to include
those formerly excluded.36 The private bill introduced by Sr. Adv. Mr. K. T. S. Tulsi 37 seeks
to address the problem by taking recourse through the process of inclusion.

Article 15’s Principle of Inclusivity

Article 15, an extension of article 14, is the weapon that breaks the barrier of discrimination.
The objective behind the inclusion of both articles in the Constitution of India since its
inception in 1950 is to bring equality and to eradicate discrimination. 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

33
The Indian Penal Code, 1860, § 375, No. 45, Acts of Imperial Legislative Council, 1860 (India).
34
People v. Liberta, (1984) 2 N.E. 567.
35
Orr v. Orr, 440 U.S. 268 (1979).
36
Califano v. Westcott, 443 U.S. 76 (1979).
37
The Criminal Law (Amendment) Bill, 2019, No. 16, Bills of Parliament, 2019 (India).

9
(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.’38
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’ of the society, also
known as the ‘untouchables’, was discriminated against and socially ostracised. During the
drafting of the Indian Constitution, several Constituent Assembly debates took place
regarding Article 15. Many of the Members suggested providing separate public access of
government facilities such as schools, wells etc. to the ‘lower caste’ members. However,
these suggestions were not taken into account by the Chairperson of the Drafting Committee,
Dr. B. R. Ambedkar, who suggested that the purpose of introducing this section is to make
the society all-inclusive. If caste-based segregations were made, then the purpose of
introducing the article itself would have become redundant.
Likewise, if the socio-economic status of women in the society during the post-independence
era is scrutinized, legislating special provisions for women seemed apposite. However, the
times have changed. In the current situation, rights of one have clearly resulted in the
abrogation of another. Thus, it would be suitable that the society re-adjusts itself to providing
equal opportunities to both genders. Although the discrimination against women is still not
fully eliminated, that cannot be the reason for depriving men of their rights. Misandry can
never be the answer to misogyny. Undue favours to women in areas where men are equally
vulnerable will only result in more misogynistic feelings among men and further push
regressive attitudes in society. Thus, there is a need to create an inclusive society where
everyone is treated equally regardless of their gender, not only in letter but also in spirit of the
Indian Constitution.

38
INDIA CONST. art. 15.

10
The Global Village: How other villagers have shaped their laws

The advent of Feminism and women empowerment has led to a growing number of women
supplanting the sexual autonomy of men (which definitely is a good step towards breaking
the patriarchal super-structure). However, the prevailing belief in most countries is that a real
man cannot be raped. Similar to women survivors, men survivors rarely report the case of
them being raped. However, the reasons for both are different. In a patriarchal society, a man
is presumed to be more powerful than a woman. According to common belief, a woman can
never overpower a man and rape them. There exists a stereotypical notion that men are too
strong to be conquered by women. This hinders the recognition of male-rapes. Also, because
of this existing notion, men often decide not to report their case due to the fear of them being
labelled as weak or homosexual. But, even if they decide to lodge a complaint, where would
they go? Our contemporaneous laws completely deny the possibility of them being raped by a
woman. First, we should have gender-neutral laws. Who knows, our country may end up with
a lot of cases of rape of males. If the survivors have an option, then they will obviously take
the recourse. Furthermore, India being a signatory to and having ratified the Universal
Declaration of Human Rights, 194839 adopted by The General Assembly of the United
Nations should take measures to protect the human rights of equality and protection from
discrimination of all individuals.
Not yet aged 75, ours is a relatively young democracy – one that is still in the development
phase, experimenting different policies on a trial and error method. The economy may have
been and may still be in the positive growth spectrum, but the growing inequalities in the
country have not been reduced and still remain a sustainable development goal.40 Former
President Dr. A. P. J. Abdul Kalam’s Vision 202041 now awaits a reboot (preferably as Vision
2030) for it to materialise. The reason for this sluggish evolution is the country’s smart power
being skewed in favour of hard power than soft power. The country has fallen behind because
it has stopped doing what it did in 1950 – take inspiration from others; the Constituent
Assembly had borrowed features from at least 60 countries. Contrasting sexual offences and
the laws governing them in other countries with our own is bound to improve our system. Let
us examine the scenarios in three different countries.

39
Universal Declaration of Human Rights (UDHR), 1948.
40
UNITED NATIONS, https://sustainabledevelopment.un.org/?menu=1300 (last visited Mar. 19, 2020).
41
DR. A. P. J. ABDUL KALAM, DR. Y. S. RAJAN, INDIA 2020: A VISION FOR THE NEW MILLENNIUM (Penguin
1998).

11
United States of America
Sexual offences are not random crimes of passion; they are crimes that have clear, negative
social purposes. While sexual assault rates against women have decreased as the female
power in the society has increased and instances of sexual violence against women also
significantly decreased as women have made greater social, economic and political gains,
men in the United States continue to be sexually assaulted in enormous numbers. One in
hundred Americans will be imprisoned at some point in their lives42 and the US imprisons
more people than any other society in the history of the world.43 Sexual offences are also
committed more in prisons than the outer world and the rapes committed in prison account
for majority of the rapes committed in the country. Although female prisoners are twice as
likely to experience inmate-on-inmate sexual assault, male inmates are more likely to
experience assault at the hands of prison staff.44 There undoubtedly exists an uncertainty due
to the questionable legitimacy of the statistics, but in 2010, the Justice Department released
an estimate of the prevalence of sexual abuse. For 2008, the government had previously
tallied 935 confirmed instances of sexual abuse. But that was the outcome of under-reporting
due to the reliance on field complaints. After a subsequent revision, the Justice Department
came up with a new number: 216,000.45 216,000 survivors; not instances. In 2013, there were
628,900 adult males in local jails in the United States, and 1,463,500 adult males in state and
federal prisons. In a study of sentencing in the United States in 1984, it was revealed that men
received 12% longer prison terms than women46 and a later study found sentences for men to
be up to 60% higher when controlling for more variables.47 So in short, there are more men in
prison where more rapes occur. The United States is the first and possibly the only country in
the history of the world to count more rapes for men than for women.48 But as stated before,

42
Jenifer Warren, One in 100: Behind Bars in America 2008, THE PEW CHARITABLE TRUSTS, 3 (2008),
https://www.pewtrusts.org/-/media/legacy/uploadedfiles/pcs_assets/2008/one20in20100pdf.pdf.
43
Roy Walmsley, World Prison Population List (tenth edition), INTERNATIONAL CENTRE FOR PRISON STUDIES
(Nov. 21, 2013), https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_10.pdf.
44
BUREAU OF JUSTICE STATISTICS, https://www.bjs.gov/content/pub/press/svpjri0809pr.cfm (last visited Mar.
19, 2020).
45
Allen J. Beck, Paige M. Harrison, Marcus Berzofsky and Rachel Caspar, Sexual Victimization in Prisons and
Jails Reported by Inmates, 2008-09, BUREAU OF JUSTICE STATISTICS, 8 (2010),
https://www.bjs.gov/content/pub/pdf/svpjri0809.pdf.
46
David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal
Courts, 44(1) THE JOURNAL OF LAW & ECONOMICS, 285–314 (2001), www.jstor.org/stable/10.1086/320276.
47
C r i m e , Men Sentenced To Longer Prison Terms Than Women For Same Crimes, Study Says,
H UFF P OST ( N o v . 9, 2012, 1:22 AM), https://www.huffpost.com/entry/men-women-prison-sentence-length-
gender-gap_n_1874742.
48
Jill Filipovic, Is the US the only country where more men are raped than women?, THE GUARDIAN (Feb. 21,
2012, 9:48 PM), https://www.theguardian.com/commentisfree/cifamerica/2012/feb/21/us-more-men-raped-than-
women.

12
the silver lining for the Americans is that the Court of Appeals of New York has set a
precedent by rejecting the claim that a man cannot be raped by a woman.49

Republic of South Africa

There has been a myriad of occasions in South Africa, whose official motto is ‘Unity in
Diversity’, where men are found to be raped by women. The most recent case brought to light
had proceedings concluded by pronouncing a punishment of life imprisonment to the woman
who raped their 10-year-old cousin.50 A group of men came forward to share their stories
after the Judiciary took notice of this horrific event. ‘Most boys around this age are or were
raped by older sisters from their neighbours… me included…we kept quiet because we never
understood it was a rape,’ said one man.51 A string of men attested to these claims. A
population-based cross-sectional study conducted revealed that 9.6% of men reported male-
on-male sexual violence victimization and 3.0% of them reported rape perpetration; 3.3% had
been raped by another man, and 1.2% of them were perpetrators of male-on-male rape.52 It
was also discovered that homosexual men were over nine times more likely to have been
raped and are four times more likely to report the crime as opposed to heterosexual men.

Republic of Zimbabwe
Is it really true that men cannot be raped by women? If the situation in Zimbabwe is analysed,
way back in 2011, an unequivocal answer was obtained. No, men can be raped by women.
Yes, they are being raped by women. Eight years back, there was a nation-wide syndicate of
women raping men in Zimbabwe.53 Survivors were often drugged, threatened with knives and
in some bizarre cases were threatened with snakes before being thrown out of cars. However,
unlike the US and like India, Zimbabwe does not recognize rape of men. Because of this, the
women due in court have been charged with aggravated indecent assault on 17 counts but not
with rape. This issue in Zimbabwe highlights the plight of not only Zimbabwean men but also

49
People v. Liberta, (1984) 2 N.E. 567.
50
Naledi Shange, Life imprisonment for KZN woman who raped 10-year old cousin, TIMESLIVE (Apr. 3, 2019,
11:34 AM), https://www.timeslive.co.za/news/south-africa/2019-04-03-life-imprisonment-for-kzn-woman-who-
raped-10-year-old-cousin/.
51
Naledi Shange, SA men are sexually abused too, but stigmas stop them from speaking out, TIMESLIVE (Apr. 9,
2019, 2:47 PM), https://www.timeslive.co.za/news/south-africa/2019-04-09-sa-men-are-sexually-abused-too-
but-stigmas-stop-them-from-speaking-out/.
52
Kristin Dunkle, Rachel Jewkes, Daniel Murdock, Yandisa Silkweviya and Robert Morrell, Prevalence of
Consensual Male–Male Sex and Sexual Violence, and Associations with HIV in South Africa: A Population-
Based Cross-Sectional Study, PLOS MEDICINE (Jun. 18, 2013), https://doi.org/10.1371/journal.pmed.1001472.
53
Steve Vickers, Zimbabwe Women accused of raping men for ‘rituals’, BBC NEWS (Nov. 28, 2011),
http://www.bbc.co.uk/news/world-africa-15876968.

13
Indian and men from all around the world. These seeds of lessons for India were sown in
2011, at the start of the last decade. And now, at the beginning of a new one, the seeds have
sprouted and India still awaits its gender-neutral laws.

Advocacy 101: The Future is Gender-neutral

Although all the presented data holds relevance to understand the status quo, here is what
happened in the month of December – while our patriarchal society was facing an acute
difficulty recognising the long due rights of men survivors, a twenty-two-year-old MAN was
raped in the Bollywood city of India. This is how the blood-curdling story unfolded: the four
accused stalked the twenty-two-year-old on Instagram, traced the person’s location and
approached the survivor, telling that they were huge fans. They forced the survivor into a car
and RAPED them in the moving car for three hours before dumping them on a road.54 The
police registered a case under section 377 (unnatural sex), 392 (robbery), 323 (voluntarily
causing hurt), 504 (intentionally insult) and 34 (common intensions) of the IPC. 55 Yet, male-
rape is, to this day, considered a societal taboo in our country. As per the antediluvian laws,
the survivor here cannot be pigeon-holed as a rape survivor under Section 375 of the IPC.
One may say in opposition that the survivor has a right to seek justice under section 377.
However, a more realistic approach to this problem is indeed necessary.
It necessitates the recognition of male-rapes and due incorporation of gender-neutral laws.
Dissecting the case at hand, we are left with two reasonable inferences. Firstly, a man was not
only raped here, he was gang-raped. It tells us that more number of people hold this mind-set
of raping men and it also disapproves the theory that men cannot be raped. Secondly, the four
accused traced the person through social media. It bears emphasis that the act was pre-
meditated and not spontaneous. It prompts us to conclude that men are equally as unsafe as
women. Possibly the only researched evidence that we have in India offers a dangerous
insight: in a recent study, it was found that out of 222 Indian men surveyed, 16.1% had been

54
OpIndia Staff, Mumbai: 22-year-old man stalked via Instagram, kidnapped and raped by four men, OPINDIA
(Dec. 11, 2019), https://www.opindia.com/2019/12/mumbai-man-raped-instagram-stalking-377-police-kidnap/.
55
Saurabh Vaktania, Mumbai stalkers who raped 22-year-old man used his credit card to refuel car, INDIA TODAY (Dec. 12,
2019, 10:55 AM), https://www.indiatoday.in/crime/story/mumbai-stalkers-who-raped-22-year-old-man-used-
his-credit-card-to-refuel-car-1627596-2019-12-12.

14
coerced into having sex.56 If a man can be raped in a situation like this, it will be our
ignorance if we think that they cannot be raped while they are on roads or in public places.
The words children hear affect their perceptions of the gender-appropriateness of certain
careers. Famous examples include Fireman v. Fire-fighter, Policeman v. Police Officer,
Chairman v. Chairperson and so on. In fact, men and women would apply for jobs in more
equal proportions when gender-neutral language is used in an advertisement, as opposed to
the generic ‘he’ or ‘man’. Picture the impact then gender-neutrality would have in sexual
offences. These differences in usage are not accidental, but have been deliberately created for
the purpose of upholding a patriarchal society which has in turn created gendered stereotypes
and roles. The various arguments put forth strongly build the case for making sexual offences
gender-neutral.
In the future, in the paradigm without super-structures, classifications or stereotypes, when
God’s green Earth is limited by climate change and ever-shrinking resources, what would
prevent extinction is not how well-equipped we are, as men and women, but how well-
equipped we are, as humans.

56
Harish V. Nair, Parliament can make law on rape gender-neutral, says Supreme Court, INDIA TODAY (Feb. 3, 2018, 6:22
AM), https://www.indiatoday.in/mail-today/story/parliament-can-make-law-on-rape-gender-neutral-says-
supreme-court-1160829-2018-02-03.

15