LACK OF LAWS PROTECTING MEN AGAINST SEXUAL ASSAULT IN INDIA

This guest post was written by Dakshh Bhatia, a student of Amity Law School, Amity university, Noida

WHAT IS SEXUAL ASSAULT AND HOW IS THIS TERM GENDER DISCRIMINATED?

The rape law in India is today gender-specific, as the perpetrator of the offence can only be a “man’.

The term ‘Sexual assault’ has not been defined in the statute but the 172 reports of the law commission of India, which after corollary to the landmark case of ‘Sakshi v. Union of India’[1]  had proposed to substitute the definition of rape with that of “sexual assault”.

 Sexual assault is the unwanted sexual behaviour done by one person to another. It covers a huge area of sexual behaviour. When we hear the word sexual assault the first thing comes to our mind is that a male offender and a female victim. But sexual assault is possible for both the genders. The 172 report of the law commission held that not only women but young boys are increasingly subjected to forced sexual assault[2]. We can define this activity as something that is done against the will of the other person or without his\her consent.

 Sexual assault does not only include attempted rape to rape but also includes intentional touch without the person’s consent, forcing a person to engage in sexual activity, harassment, groping or the torture of the person in a sexual manner.

Rape and sexual assault are the two sides of a coin.

 Mostly, this type of action requires physical force and most of its victims are those who are unable to give their consent, these include those who are unconscious, incompetent and are below the legal age.

 Laws related to sexual abuse of females are very strict but when we talk about sexual abuse on of men there are very few or no particular laws and this topic are still considered as a taboo because of how society perceives a man as always dominant and powerful.

EXISTING LEGAL FRAMEWORK

Rape as a clearly defined offence was first introduced in the Indian Penal Code in 1860. The first time the term rape mentioned in our legal structure was under section 375 to 376E. For over a century after 1860, criminal law related to rape and sexual assault remain unchanged until the incident of Mathura custodial rape case.

However, in the current scenario, the definition of rape is given under section 375 of the Indian Penal Code[3]. According to Section 375, rape is considered as an act which is done by the men women. The word ‘woman’ is included in the definition as the victim. The definition of rape also included sex when her consent has been obtained by putting her in a fear of death or hurt. Also, sex with or without her consent, when she is under the age of 18 years is considered as rape.

Exception – Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape. Amendment in criminal law act 2013 has widened the definition of rape and made punishment stricter. However, if any such sexual assault is attempted on a male child, then it is covered under the Protection of Children from Sexual Offence Act, 2012(Pocso).

India is one of the 48 countries that voted in favour of the adoption of the UDHR by the united nation assembly on 10 December 1948. UDHR is not a treaty in itself but defines fundamental freedom and human right for the purpose of the U.N chatter

The UDHR is followed by ICESCR:-

Article 3 of the ICESCR[4] places an obligation on all covenanting parties to “undertake to ensure equal rights of men and women to the enjoyment of all economic, social and cultural right in ICESCR.”

Weakness in legal framework and violation of the fundamental right

It is necessary to include that if the penetration is done from any part of the body then it will be considered as an act of sexual assault and it should be applicable on all the genders[5].

 Section 354,376,509 of our criminal law deals with sexual assault on women, but unfortunately, no protection is given to men under any section.

According to article 14 of the constitution, every person is equal before the law, the state shall not deny to any person equality before the law or the equal protection of the law.[6] And article 15 of the constitution provides that the state shall not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or any of them.[7]

Nevertheless, why the term woman is used in the definition of rape. Is this does not lead to violation of fundamental rights of the male?

 However, Supreme Court in the case of “Tukaram and others vs State of Maharashtra”[8] held that every person has a right to choose their sexual partners. Here the term every person is assumed to be used for both male and female.

Rape and sexual assault is a global issue and this is not only a crime but a serious issue of violation of fundamental rights.

A Preamble is the preface of the constitution of India and it is an integral part of our constitution, according to our preamble everyone has a right to live with dignity and in “State of Punjab v. Ramdev Singh”[9], the Supreme Court observed ‘Rape is not only an offence against the person or a woman rather a crime against the entire society. It is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the Constitution’.

WHY DO VICTIMS NOT REPORT CASES OF ASSAULT?

As seen in most of the cases, a woman does not report the sexual assault due to many reasons like shame, fear of consequences, low self-esteem, and feeling of helplessness and lack of information. Similarly, men fail to report any such assault against them. However, in their case, an additional reason is the lack of laws to protect them. The men are taught not to be a victim and are raised to believe that they can tackle all the evil. There is not a good way of finding how many male survivors exist in India.

DOES THIS MEAN THAT MEN CAN ALSO BE RAPE VICTIMS?

Yes, according to the Roberta Chinsky Matuson, “Many peoples mistakenly believe that harassment is limited to females.”[10]

We usually hear and see harassment or cases related to females only, but this does not mean that men are away from such cruelty. The cases of sexual assaults against women are declining, but on the other hand, sexual harassment of men is increasing at a very high rate. According to who reports, today the main area where the males are facing sexual harassment is at the place of work[11].

Males are the silent victim of sexual assault and most of the time due to lack of knowledge they do not even know whether they are sexually assaulted or not.

Patrizia Riccardi[12]held that a male survivor of sexual assault mostly pulls back relationships and they feel isolated. Many survivors also feel difficulty in starting a new relationship or to resume sexual relationships because when they do, they get triggered in the flashback, old memories of the assault, which requires time to get out from. Mostly male rape survivors are at risk of going into depression, trouble at work, getting physically, mentally as well as emotionally weak, and there are chances that they develop a habit of alcohol and drugs. We should understand that if any person has been sexually assaulted then it is not their problem.

Current statistics

In the year 2018, according to the national crime records bureau data, every fourth rape victim across the country is the minor, and mostly half of the rape victims are between the age group of 18-30. In almost 94%[13] of Cases across the country, the offender was known to the victim either as family, friend, colleagues etc. Overall, 72.2% of rape victims are above the age of 18.

But in the case of males, there are no statistical data present in any form .however in the year 2016, research of Lara Stemple[14], Director of UCLA’s Health and Human Rights Law Project, came upon a statistic that surprised her: In incidents of sexual violence reported to the National Crime Victimization Survey, 38% of victims were men.

GENDER NEUTRAL LAW

Gender neutrality highlights the equal treatment for men and women and people of any other gender legally with no discrimination. The Oxford Dictionary defines ‘Gender Neutrality’ as an adjective that is suitable for, or applicable to, every individual irrespective of gender. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, and emphasizes equal treatment of individuals legally with no discrimination.

Justice Verma committee of 2012 had recommended gender-neutral laws completely in its report, the criminal law ordinance 2013 was published in the gazette of India which upheld the committee view.[15]

But the ordinance on making all laws gender-neutral lasted for 58 days and was repealed and replaced by The Criminal law (Amendment) Act 2013 which again brought to light gender-specific laws.

India is lagging behind many countries to protect men. Approximately 77 countries around the world, including U.K, Denmark, and Australia have already accepted gender-neutral laws, but the Indian parliament has repeatedly ignoring to make laws against sexual assault, gender-neutral in India.

Gender-neutral law in Australia

If we particularly talk about Australia, then according to sec 349&350 of the criminal code[16] deals with rape and attempted to rape. The offence is gender-neutral in Australia which means both men and women may commit rape or be a victim of it. There the offence of rape is punishable by life imprisonment.

Section 352 of the criminal code deals with sexual assault. The survey conducted by the Australian Bureau of Statistics, 2005a, found that for the male victims the figure increased to 43.7% compared to 39.7% for females.

Women experienced sexual assault by another known person is 32.0% and compared to man is 35.01%. A great proportion of men (39.2%) experienced sexual assault by a stranger compared to women (21.8%)[17].

The term ‘gender-neutral’ is included in the definition of rape in Australian criminal code.

However, India has not made any rape law gender-neutral, it is still gender-specific.

CONCLUSION AND SUGGESTION

The criminal justice of India needs reconditioning on the rape laws. Considering, all the above arguments, it can be concluded that the definition of rape should be changed and widened.

Rape and sexual assault are something that not only hurts for a moment, but it requires a lifetime to come out of the trauma. According to Justice Krishna Iyer, “A murderer kills the body, but a rapist kills a soul”[18].  It causes more problem to the mental health of the victim, our lawmakers have defined rape as a serious offence in our legislation.

If a male attempts forceful sexual intercourse with a female without her consent, it will be considered as rape and even if a female force a man for sexual intercourse without his consent, then it should also be considered as rape.

 However, no law says that but the Supreme Court in “Suchita Srivastava vs Chandigarh administration”[19] held that every person has the right to choose whether to have sexual activity or not and here it is assumed that every person means that the right to choose irrespective of gender.

In India, due to the absence of laws protecting men against sexual harassment, women engaging in such acts get away very easily. Many a time’s men feel helpless because of this. For the sake of humanity, it is a very brutal act and both the male and female offender should be punished equally.

The objective of my article is to bring this issue into daylight and help in preventing these assaults and to invocate the legislation to provide equal access to justice in India. It is very imperative to understand that if a problem is not being talked about in the mainstream, does not mean it doesn’t exist.

Nicole Kidman has rightly said that,

“Imagine a bold plan for a world without discrimination, in which women and men are equal partners in shaping their societies and lives. Let’s picture it”

[1] Writ Petition (crl.)  33 of 1997

[2] Page 19, one hundred and seventy-second report

[3] PSA Pillai, Criminal law book, revised by K.I Vibhute, 13^th edition, 2019, LexisNexis

[4] Article 3, Icescr

[5] One hundred seventy-second report on rape laws

[6] Article 14, constitution

[7] Article 15, constitution

[8] 1979SCR(1)810

[9] Appeal (crl.)  547 of 1997

[10] Roberta chinsky matuson, president of matuson consulting

[11] Who reports

[12] Patrizia Riccardi^[12], department of psychiatry, Virginia

[13] National crime records bureau data

[14] Report from UCLA

[15] Justice Verma committee

[16] Australian criminal code

[17] Australian sexual assault resource centre

[18] 1981 AIR 559, 1981 SCR(1)402

[19] (2009)14SCR989