THE RAPE ‘OF’ MEN- A TRIVIALIZED HUMAN RIGHTS ISSUE
Until the past few decades, the prevailing approach to sexual violence in various international human rights instruments has focused, essentially, on the abuse of women and girls. But, it was not realized until recently that the evil of sexual violence has even expanded its clutches toward the male gender as well. Sexual assault on men is mostly taken as a ‘joke’ in the society which is so normalized and pervasive that it is even hard to find unless you are looking for it. From the movies to the growing OTT culture, numerous references can be made where the sexual assault on men is portrayed as a ‘funny thing’.But are such instances supposed to be funny? A lot of it has to do with the toxic and archaic mindset that ‘it is almost ridiculous for a man to be raped’. This mindset, in turn, rests on another premise that portrays ‘man’ as a stronger gender who if is so weak that he could not fight his perpetrator deserves such ridicule.
Rape is the severest form of sexual violence. Generally, across the globe, forcible non-consensual penetration of bodily orifices, viz. vagina, anus, urethra, and mouth, of a person (usually a woman) constitute the offence of rape. Such penetration may either be penile or even by using any object.
Traditionally, it is seen as an offense that is essentially committed against a woman. It is only during the past few years that many brave men and boys have come forward admitting being a victim of rape and sexual abuse. However, apart from these few brave revelations, millions of male rapes go unreported. The reason is obvious! Sexual abuse is a crime that is primarily linked to the dignity of the victim but when it comes to men, it is linked to their masculinity. The existing social scenario is such that a man is stripped of his masculinity if he accepts being a victim of sexual violence.
Heterosexual men usually do not admit being raped or sexually assaulted as it would not only emasculate them socially but would also paste a huge social-tag of being homosexual on them. Of course, in the homophobic culture that we live in, a heterosexual man being perceived as a homosexual is a matter of great humiliation. On the other hand, sexual violence on homosexual men, even if reported, is laughed at due to the stigmatic assumption that once existed for women as well i.e. “he must have asked for it”.
The issue of male rapes is so trivialized, especially in countries like India, where the mainstream media refrains from broadcasting male rape news considering the ‘being funny’ social view on it. It is only via some social-media pages through which we come across such stories.
Who Rape Men?
There may not be any doubt in accepting that a man can rape another man. But when it comes to women raping a man it is laughed upon or strangely looked upon by almost everyone. There is a common notion existing in almost every society that rape is a crime that can solely be committed ‘against’ women. Thus, the legal definitions of rape in such societies are drafted in such an anti-male manner that it makes legally and practically impossible for a woman to commit rape against a man. But if we rise above these static definitions, we would see that it is not only men who commit rape on other men but women can also do so.
Anal penetration (even using a ‘thing’) is one of the recognized forms of rape against women in many jurisdictions like India (Section 375, IPC). The same may apply for women raping men as well. The evil of rape is so gender-stereotyped today that forcible penetration of a woman without her consent is straightaway considered as the most heinous offense (Rape) and is widely criticised but when the same woman forces a man to penetrate her without his consent, though it constituted an offense under ‘Unnatural Sexual Offenses’ but little to no seriousness is given to the issue and it is shamelessly viewed as an ‘offer for man’. The common stereotypes that go alongside are- ‘men are always up for sex’, and ‘sexual purity of women is more important than of men’. These obnoxious ideas are the real hindrances in accepting the idea that ‘men can also be raped’. Inter alia, if ‘forcible penetration’ is rape then, ‘forcing to penetrate’ ought to be rape (see: Dr Siobhan Weare Study, Cambridge).
The Prevalence Of Male Rapes
Various researches have been conducted to break the conventional view that rape is a crime only against women. Though lesser than women, men do comprise a sizable population of being victims of this heinous crime. Many countries in the world have come across cases of male rapes. However, due to the social stigmas attached to it, not much data is available on the issue. The Centre for Disease Control and Prevention and the National Institute of Justice in the US had found that 92,700 adult men are forcibly raped each year in the country and that approximately 3% of all American men—a total of 2.78 million men—have experienced an attempted or completed rape in their lifetime. Of the victims who were penetrated, 86.5 perpetrators were males. In a study carried out by the UNICEF and Cambodian government, it was found that 5.6% of males aged eighteen to twenty-four had experienced sexual violence even before reaching the age of eighteen. In England and Wales, 7.5% of the total reported rape cases were against men. According to the World Health Organization, 5%-10% of males had experienced sexual violence, primarily as children, worldwide.
Talking of countries like India, where men are essentially perceived as the ‘dominant gender’ majority of the male rapes goes unreported. It is only once or twice that such an incident would have come to surface and that too via social-media pages and not through the mainstream media. Rape, as such, is seen with the greatest hatred throughout the country. But when it comes to male rapes, people turn their faces away. Even many renowned human rights lawyers do not seem to be in favor of recognizing the rape of men. Where does a person ordinarily go to report such an incident? This, in turn, adds to the list of reasons why male rapes go unreported.
Male Rapes- The Legal Position In Selected Jurisdictions
It was only in 1994 that the Criminal Justice and Public Order Act recognized male rapes in the UK. The said removed the term ‘Buggery’ from the statute and added the expression ‘non-consensual anal as well as vaginal penile penetration’. Subsequently, the Sexual Offences Act, 2003 (England and Wales) refined the concept and further included even non-consensual penetration through the mouth to the definition. However, in the UK penile penetration is the necessary requirement to constitute rape and thus women cannot be booked for raping men under this definition.
The Sexual Offences (Scotland) Act, 2009 gender neutralized the rape law by replacing the word ‘woman’ with ‘another person’. However, penile penetration is still a major requirement.
Major civil law jurisdictions like the US and Canada have also reframed their rape definition to include male victims as well. According to the US Department of Justice, ‘rape’ is defined as: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”.Canada follows a similar definition.
In India, however, the definition of Rape, like almost all other sexual offenses, is women-oriented. The Indian Penal Code, 1860 specifically uses the word ‘woman’ in the otherwise quite elaborative definition of rape (Section 375, IPC). In each clause of the provision, the word ‘woman’ is expressly used. Though the Protection of Children from Sexual Offences Act (POCSO), 2015 makes sexual assault (both penetrative and non-penetrative) against males of or below eighteen-years punishable, such protection is not available for adult males. As of now, the law does not seem to be strengthened enough to tackle male rapes in India. At present, male rape is treated as unnatural intercourse (Sodomy) and is punishable under section 377 of the Indian Penal Code, 1860. For example, in 2018 a young boy aged twenty-years was subjected to sexual violence by five men in Ghaziabad, Haryana, India. A foreign object was penetrated in the victim’s anus. However, the lack of any express law, the accused persons were charged under section 377. The problem with Section 377 lies in the fact that the maximum punishment for rape in India under Section 376 of the Indian Penal Code, 1860 is life imprisonment but for unnatural sexual intercourse, it is ten years or life imprisonment. These provisions subject the rape of women and men at different footings and, thus, violate the fundamental principle of equality enshrined in the constitution of India (Article 14, Indian Constitution).
The Way Forward
‘Rape of men’ is something which hardly anyone would accept as a serious issue in the first instance. The social tags of ‘lack of masculinity’ and ‘being homosexual’ that are attributed to the victim are the major reasons why such instances hardly come to the surface. The victim is traumatized more by the thought of the upcoming repercussions of the revelation of the incident than the incident itself. Thus, most of the time, the victim does not reveal the incident and has to let go of his legal protection. Living with such trauma and suffering is a huge black-spot on human life. Before being a male, every man is a human being who is born with certain recognized human rights. The victim has to suffer (both physically and mentally) throughout his life if he could not avail the protection of the laws that are there for the other gender only. Rape itself is not a gendered-crime; it is the society that has categorically made it an office against the female gender only. There is a strong need to reframe the definition of rape to include within its ambit equal protection for all humans irrespective of their gender.
Title Image Source: The Guardian
This article has been written by Paras Sharma. Paras is a penultimate-year law student pursuing five-year Bachelor's Degree in Law i.e. BA.LL.B (Hons.) from Panjab University, Chandigarh, India.