The Constitution of India,1950 provides every person equality before the law
and gives every individual the right to live with human dignity. In addition to
it, every citizen of the nation gets the right not to be discriminated on the
basis of religion, race, caste, sex or place of birth. However, when it comes to
offences like sexual harassment, voyeurism, stalking, sexual assault and rape
cases, men and transgender communities of the society are always denied their
It is a preconceived notion that the women always fall under the canopy of
victim part and men always fall under the perpetrator part, but the scenario is
that men too become victims of sexual offences as well as false accusations.
This article scrutinizes the outmoded laws of India governing sexual offences
and how it denies access to justice to men and transgender communities of the
The article also tries to give recommendations to bring reformation in the laws.
The author through the medium of this paper argues that the above-mentioned
offences are not just sexual offences but also constitute crimes against public
morality, decency and modesty and any community of the society (men, women and
transgender) can be a victim to it or can be a perpetrator to it. Hence, sexual
offences amendments and reformation must be brought keeping in view the human
Gender neutrality in rape and sexual assault laws refers to the idea that the
criminal law should acknowledge that all persons- men, women and transgender can
be rape victims as well as perpetrators. In several nations, gender neutrality
in sexual assault laws has been brought, however, there is very little
sensitization and understanding of male and transgender sexual abuse victims.
"All human beings are potential rape victims. Spouses are raped. Male and female
children are raped. Babies are raped. Physically handicapped persons are raped.
Anaesthetized patients are raped. Mothers, fathers, brothers and sisters are
raped. Adolescents rape one another as well as older persons and children. Male
and female prisoners rape each other. During wars, soldiers have been known to
rape entire communities. Males rape females and males. Many rapists are gender
and age blind. Females rape other females and males. No person is immune from
the human potential to rape or be raped." - McMullen
Rape has been seen as a female-centric crime all across the world, notably in
India. Rape, as defined under Section 375 and 376 of the Indian Penal Code, is
based on the belief that only a woman can be a victim and only a man can be a
perpetrator. In addition, provisions related to sexual harassment, voyeurism,
stalking and sexual assault are also gender-specific, defining- only a man can
be a perpetrator and only a woman can be a victim.
Meanwhile, the State has largely ignored the problem of male/transgender sexual
victimization in institutional settings such as prisons, juvenile detention
centres, etc., therefore making the nature, dynamics, and consequences of male
and transgender victimization continue to advance. The concept of male and
transgender sexual victimization has been largely neglected in modern academic
and legal debates and is frequently ridiculed and mocked.
While men are conceptualized as the sexual aggressors, however, there has been
an increase in research examining the experience of male victims with the
criminal justice system which has debunked many societal myths about adult male
sexual victimization and highlighted the magnitude to which misapprehensions
about male and transgender rape influence the attitudes of criminal justice
professionals and the general public.
To put it another way, rape laws that exclusively recognize men as potential
perpetrators are based on essentialized concepts of male aggressiveness and
female subservience. It's difficult to admit the fact that women can also be
sexual abusers when they're still seen as subservient, weak, and fragile.
Discrimination Laws Of Sexual Offences
Sexual offences are heinous crimes that not only pollute the victim's body, but
also his or her mind and spirit. It causes unfathomable suffering. Offences of
this sort tarnish a person's modesty, which is pride over one's own body. What
is more lamentable is that this essential aspect of pride is solely attributed
to women. Men's modesty is not recognized by criminal law. Only women's modesty
is recognized because of a definitional feature of criminal law.
In the Indian Penal Code, 1860, sexual offences are embedded under the canopy
of Offences affecting the Human Body. It may be further categorized into
Outraging modesty, Sexual harassment, Disrobing, Voyeurism, Stalking, Rape,
Unnatural offences. According to the definition of these offences as per the
Indian Penal Code, victims of such sexual offences can only be women. The term
depicts man as the lone perpetrator of sexual offences.
All of this suggests that men or transgenders are devoid of modesty, that they
cannot be victims of sexual offences, and that women cannot perpetrate sexual
offences. In addition, a woman cannot commit sexual offences against another
woman, and sodomy encompasses all types of sexual offences committed against
Section 354 of the Indian Penal Code,1860 defines the offence of outraging
modesty. The victim in such an offence must be a woman and the perpetrator must
have used criminal force to outrage the modesty. While the Indian Penal Code is
silent on what constitutes modesty, however in the case of Tarakeshwar Sahu
v. the State of Bihar
, the court held that modesty is connected with women.
Similarly, Section 354A and 354B defines Sexual harassment and Disrobing wherein
the victim is a woman and a perpetrator is a man. However, these provisions
provide no mention or define punishments if the victim is a man or transgender
and the perpetrator is a man or a woman.
Section 354C of the Indian Penal Code,1860 penalizes a man for the offence of
Voyeurism. It is a crime where a man watches or captures the image of a woman
engaging in a private act in circumstances where she would usually have the
expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image.
In this case, as well, this section recognizes voyeurism can only be committed
by a man towards a woman and not vice-versa. Another such woman-centric law is
Stalking which is defined under Section 354-D of the Indian Penal Code,1860. It
penalizes only a man who contacts, monitors, watches, or spies any woman despite
her clear indication of disinterest. However, it fails to recognize a man or
transgender can also be a victim and a woman can also be a perpetrator.
Rape is defined in Section 375 of the Indian Penal Code,1860. It explicitly
begins with the words A man is said to have committed rape
, for the
simple reason that men are largely viewed as perpetrators, and a woman sexually
coercing a man to make him penetrate her is inconceivable in a patriarchal
It held any man guilty if he penetrates his penis or inserts any object or
manipulates any part of the body of a woman so as to cause penetration or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person against her will, consent and without any fraud.
For a long time, attempts have been made to make rape law gender-neutral. The
first attempt was made by the 172nd Law Commission of India in 2000. However,
the recommendations were not incorporated into the law of the land. Another
attempt was made after the infamous Delhi gang-rape case, where a committee was
formed under the former Chief Justice of India, Justice J.S.Varma to recommend
guidelines for the protection of women.
One of the recommendations of the committee was to make rape gender-neutral only
in so far as the victim is concerned and the perpetrator should remain a man.
Nonetheless, due to the resistance shown by some women rights' organizations
that rape is a crime largely affecting women and any attempt to make it
gender-neutral would worsen the situation of a woman. Therefore, this
recommendation was not implemented.
Views Of Critics On Gender Neutral Laws v/s Reality:
The gender-neutrality movement is frequently portrayed as a reaction to feminism
or as a distraction from the battle for women's rights. Radical feminists'
restrictive ideas are impeding societal growth and unity. Critics of gender
neutrality laws have also argued that such laws can prove to be injurious to the
rights of women. However, no such empirical or theoretical evidence has been
presented substantiating the perceived male behaviour in sexual attacks.
Contrary to popular belief, many studies have reported that a man response to
such sexual attacks in a similar helpless way as that of a woman. Due to their
dread, the majority of the victims react with paralyzed helplessness and
submissive surrender to the perpetrator. Addressing the sexual victimization of
men, Susan Brownmiller in her book Against Our Will- Men, Women and Rape,
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
invade other men.
Many men who are victims of such sexual attacks, find it difficult to disclose
the attack to authorities thereafter, owing to fears of being labelled as weak
or liars, as well as the politicization of rape as purely a feminist issue. On
the other hand, many victims are also hesitant to contact the police because
they are afraid of being labelled as gay.
According to a research study on male rape, sexual aggression is motivated by
power and dominance rather than sexual satisfaction, as is widely assumed. Rape
is primarily intended to humiliate, degrade, and shatter the victim's spirit.
A change in the way laws are written is one of the first things that has to be
done to acknowledge the reality of male sexual victimization. This applies not
only to the Indian Penal Code of 1860 but also to other laws such as domestic
violence and family law. We can't operate in a 21st-century judicial system with
the Victorian era of law. As previously stated, there is a need to move away
from a women-centric approach of lawmaking to a gender-neutral one.
There is a strong need to conduct gender sensitization programmes for the entire
population, particularly for law enforcement authorities, whether they be
judges, police officers, or politicians. This is necessary so that victims do
not hesitate to report complaints to police officers. Victims usually approach
the police as the first authority in the judicial system.
Also, in the fight against the sexual offence, both genders must work unitedly
and fight together. This is necessary not only to raise awareness of male sexual
victimization but also to prevent the undermining of women's protection laws.
Gender-neutrality can work in favour of the feminist cause and women's rights
also only if approached correctly.
- Navin Kumar Jaggi
- Pratiksha P., Intern, Bharati Vidyapeeth University