“LEGISLATION ON MALE AND FEMALE RAPE: HOW DO THEY DIFFER?

This article has been written by Kashish Goyal, a student of Mody University of Science and Technology, Rajasthan

Rape includes Forced Sexual Intercourse between an adult or a minor, members of the opposite sex or homosexual (includes members of same-sex). It involves the insertion of an erect penis into the female vagina. Sexual intercourse between an adult and a minor is basically known as statutory rape. In India, as there is no legislation on male rape or any sexual act committed by women to men. On the other hand, there is Legislation on female rape which has been constituted under section 375 of Indian Penal Code as “Rape” which includes:

• Non – consensual penetration of vagina, anus, mouth in women by a man,
• Non-consensual touching any part with the mouth. This is not only restricted to sex but beside this forcing a woman to do this with someone is also rape.

The court will decide that the above acts are rape:

If it is done without her consent or she agrees because she thinks that the accused person is her husband, in case she is drunk or mentally ill or she is under 18 or in last she is no position to indicate like she is unconscious.

As we know, there is no law regarding male rape but male sexual abuse can be divided into abuse against children and abuse against adults.

• Abuse against Children: It referred to child sexual abuse. It includes asking or pressurizing the children into sexual activity or physical contact with the child’s genitals.
• Abuse Against Adults: It further classified into three broad categories:
• Rape

Under the sexual offences act, 2002, it is an offence for any male to penetrate with his penis or mouth of male without their consent. Male rape recognized in law in 1994 but the 2003 legislation made the victim of rape of gender-neutral.

• Assault by penetration

This offence is committed where the penetration is by a part of the body (like with finger) for sexual intent.

• Sexual assault

Where any male or female intentionally touches another person without his or her consent.

About the gender Neutral Rape, PIL (public interest litigation) was filled in Supreme Court, normally the victims of Sexual Harassment in India are predominantly women and the perpetrators are men. Currently, if a men file a complaint against women for sexual harassment, she will be released free as in IPC a man can only commit rape.

There are many instances of sexual harassment faced by men including stalking, sexual assault sexual harassment at the workplace. In all these cases. all women were perpetrators Apart from the laws they also do not receive emotional support, so many of the cases became unreported i.e. because of they may be afraid of being mocked by the co-workers, the fear that female perpetrators may use sexual harassment laws to wrongly implicate the male victim or they may be fear embarrassed if the information of harassment will leak.

In some cases, it is also possible that a female perpetrator may resort to sexual harassment laws against the man where he does not give in to her sexual overtures. This happens in case of Akshay Kumar and Priyanka Chopra starrer Aitraaz, where a Raj Malhotra issued by his employer wife for rape when Raj refuses to Sonia sexual demands.

In another case of Vijay Nair Sexual Harassment Case, where he faced for a month and started with someone posting a sexually explicit tweet on his twitter profile with a series of sexually explicit messages over Whatsapp and Email. When Nair discovered that it was a woman who Mr Nair was acquainted with. But still, there is no prosecution against women as there is no legal framework in India where women can be prosecuted.

It was worth saying that Justice Verma Committee was constituted to recommend laws regarding Gender Neutral Offences in 2013 in India. But this suggestion was not even incorporated in criminal law (amendment) Act, 2013. Like Section 3 of Protection of Children from Sexual Offences which criminalizes “penetrative sexual assault” does not apprehend a female perpetrator. But in the US, namely the regulations of the US Equal Employment Opportunity Commission treat sexual Harassment at the workplace as gender-neutral.

In next case of James Bond Stuntman Eddie Kidd in the U.K., under this case, a Samantha Kidd, 44 was beating or slapping him in the chest of 54 years old wheelchair-bound star who needs 24-hour care. The court held that wife Samantha Kidd will be jailed for assaulting disabled motorbike stunt rider and calling him a f***** spastic.

In the U.K. prior to 1994, one instance happened and that is two friends experienced a similar thing happen to them. They both fell asleep at the party, woke up and they find a stranger having sex with them. But the reactions from others to these events were very different in each case, one friend was taken seriously as a case of rape or other took as a joke. It is because the first friend is women who had woken up to find a man having sex with her, a second friend is a man who had woken up to find a woman having sex with him. Neither friend contacted the police, but a female friend could have pressed charges of rape, on the other hand, a male friend could have pressed charges for sexual assault, but not rape because only a man commits rape in the U.K. In 1994, Man rape only became recognized as a crime in the U.K. In case, if a man had sex with another man without his consent, the crime was buggery, and the maximum penalty was 10 years, as compared with the life imprisonment of rape. But apart from all these Currently in U.K. legislation, only a man can commit rape.

Gender-neutral law (which means applicable to both men and women) have found acceptance in 77 countries including Denmark, Australia, Switzerland, the U.S. etc. The 2010 Economic Synovate Survey, 19% of the 527 men surveyed in several metros of the country claimed they had faced sexual harassment and 51% had faced sexual harassment at work. Also, there was a Company for Viacom 18 found in 2013 found that 43% of the male corporate professionals were subjected to sexual advance by the colleagues.

According to Indian law, the only form in which a wrong sexual advancement on a man is recognized as an offence is sodomy under Section 377 of the IPC. Apart from that, there is no law to punish a person for molesting a man. As stated above, The centre passed its Criminal Law (Amendment) Ordinance on the recommendation of Justice Verma Committee which substituted the world” “Sexual Assault” for “Rape”.

It is concluded that India should think of making laws regarding male violence. In the Indian Penal code, there should be one enactment of this violence.