‘Man up and don’t cry’
This is probably one line that every boy, right from his birth has been taught to live by and believe in. Our legal system, after centuries of struggle, has provided for women-centric laws that ensure harsher punishments for perpetrators of violence against women. What we have obliterated is that these instances of violence are not gender-specific, but gender-neutral and even men face the same kind of grapples, day-in and day-out. It is woeful that our laws do not even provide for punishments for such crimes committed against men. This article is a humble attempt to analyse the idea of how men are being the unnoticed victims of such ferity.
India or the world at large has evolved with a peculiar mentality that it is men who are responsible for perpetrating crimes against women. We have never realized that it can be vice-versa also. To view a crime exclusively as a man violating a woman is perhaps, an injustice to whose stories do not fit into this world. An 11-year-old government study has revealed that 53.2% of children said they had been sexually abused; of these 52.9% were boys.
However, our society, that has iron-clad perceptions about masculinity always questions men as to why they did not hit back or why they could not save themselves when they report such instances of abuse, which sends them back to a closet of not speaking about it anymore or perhaps even learning to live with it.
The Indian Legal Framework
‘Change is the only constant’
This was realized, decades back by the drafters of India’s laws and its Constitution. The framework of India’s laws, as we all know, is very dynamic and the Constitution so far, has been amended 103 times which portrays the flexibility in accepting changes in our legal framework. One of the most significant amendments in criminal law was the ‘Criminal Law Amendment Act, 2013’ which came up after the infamous and traumatic incident of the Delhi Gang Rape which shook the country and ignited a fire amongst everyone that we need to end such crimes, once it for all.
This Amendment Act, brought forth changes in all criminal legislation of our country, vis-à-vis, Code of Criminal Procedure, 1973, Indian Evidence Act, 1972, Indian Penal Code, Protection of Children from Sexual Offences Act, 2012. A lot of provisions that made the criminal trial for rape easy for the female victim and certain presumptions in law that favour the female victims were also brought forth vide this Amendment. However, the most intriguing part is that none of these laws, even in their definition provide for a gender-neutral perspective on such crimes and explicitly include only instances wherein a woman is forced into such sexual acts by a man, and not vice-versa.
Section 375 of the Indian Penal Code, 1860, which is the mother of Criminal Law, defines the ingredients for rape, vis-à-vis:
- Sexual intercourse between a man and a woman
- Against the will/ without the consent of the women
In fact, the verbatim of the Section itself begins by stating that, ‘A man is said to commit rape if…’. Ergo, the section presumes that only a man can commit rape, which is a very primitive abstraction of the reality, wherein all genders, equally have the chance of being forced to have a sexual intercourse against their will and without their consent. A study undertaken in the United Kingdom reveals that most men are succumbed to ‘forced penetration’ as well which goes unnoticed in the eyes of law.
It is also pertinent to bring to light here that that the Hon’ble Bench of the Apex Court of India, comprising Hon’ble Justices K.S Radhakrishnan and A.K. Sikri, in the case of National Legal Services Authority (NALSA) v. Union of India, recognized the transgender community to be the third gender in India. However, this gender albeit, has also not been considered in this definition for rape under the Indian Penal Code which seems to be strict including only women into its ambit.
Further, by virtue of the very exalted Navtej Singh Johar case, India was one of the front-runners in the world to decriminalize same sex relationships. Given this background, it is inevitable to include men into the sphere of being ‘rape victims’ as the situation is highly conducive of the same. Rape is an arbitrary and an appalling violation of one’s body and there is absolutely no reason as to why it is viewed with condemn when done to a woman and ignored when the same happens to a man.
In an era, where we talk so much about equality and wherein Article 14 of the Constitution, that envisages equality, is being interpreted so as to promote inclusivity in the society, by the Apex Court, the existence of such provisions is highly deplorable as violative of the very purpose, essence, letter and spirit of equality which is an integral part of the basic structure of our Constitution. Classification is not per se, prohibited our Constitution if it is reasonable and seeks to achieve a legitimate objective. The capricious classification here, wherein rape to one gender is a crime, whereas to the other is not, is the very definition of discrimination and inequality in our laws.
The next anticipated question in your mind can be that the Protection of Children from Sexual Offences Act, 2012 (POCSO) is not gender-specific but it is gender-neutral and includes even males into its ambit and punishes the perpetrators of such offences. But it pivotal to understand that POCSO, 2012 deals only with ‘children’ and men as such, above the age of 18 years do not have a legal framework to protect them from the same offences.
This is again, another portrayal of arbitrariness wherein boys until the age of 18 are protected and suddenly, once they turn 18, the legal system falters and fails to protect them from the very same offence. 18 or above 18, man or woman, rape is always rape and there can be no exclusivity in its gamut, and it is expected to be inclusive of all categories possible.
Sexual Assaults and Harassment
Sexual Harassment for centuries together was unrecognized as a punishable offence in India. However, in 2013 amendment of the criminal laws, this situation also came to light and laws were altered accordingly as to recognize and chastise the same. Sections 354 (outraging the modesty of a woman), 354A (unwelcome sexual advances to a woman), 354C (voyeurism), 354D (stalking) and Section 509 (insulting the modesty of a woman) are a few examples of provisions in the Indian Penal Code that have been inserted with a sheer objective of protecting women from sexual harassment committed by men against women.
Yet another interesting legislation that has to be examined here is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that was brought into force following the landmark verdict and guidelines issued in the case of Vishaka and Ors versus State of Rajasthan.
This again albeit, purports to curb and punish sexual harassment that happens to women at workplace and aims to set up an Internal Complaints Committee to look into such harassments at the workplace and take appropriate action. Howbeit, this also, is specific to such harassments occurring to only women and totally excludes men and transgenders from its purview.
The Act per se, seems like it assumes that such horrendous acts can be only perpetrated by men against women and not vice-versa. The aforementioned provisions of the Indian Penal Code also explicitly bear the term ‘woman’ and are not gender-neutral to include men also. It makes our blood run cold to realize that such traumatic incidents can happen to men also that the legal system must strive to redress, whereas the despondent reality is that we ignore the existence of the same.
Every one of us would be familiar with the story of Ms Laxmi, who is an acid attack survivor who has now become the face and icon of India and the flag bearer of optimism, hope, and positivity. However, how many of us know about Mr Chandrahass Mishra who is also an acid attack survivor who was attacked by his landlord’s son whom he stopped from molesting a woman?
Even though Sections 326A and 326B of the Indian Penal Code that deals with acid attacks are gender-neutral and include ‘any person’ in its definition clause, and the Supreme Court guidelines issued for victim compensation applies to all persons, irrespective of their gender. Laxmi versus Union of India, (2014) 4 SCC 427 The reading of the state government authorities and the public, in general, is that only woman victims are entitled to it, which makes the process of getting compensated a nightmare for all the male victims, who constitute around 30% to 40% of the total number of victims in our country.
The Road Ahead
After having deliberated all the above points, it is now pertinent to realize what the next step is. Without even an iota of doubt, there is a need for amendment of laws relating to rape, sexual harassments and assault, and these provisions ought to be made gender-neutral so as to include men also in its ambit. There seems to be no plausible reason as to why rape committed on a man and a woman should be treated differently. Some of us may state that perhaps, the threshold of the number of men who are victims to such crimes is very less and therefore there is no immediate need to address the same.
However, such an argument will not be tenable as the number of virulent incidents against women started coming out to see the daylight only after the awareness about such women-centric provisions spread to the grassroots level. For men too, many such incidents stay locked up within themselves because saying it out loud, most often embarrasses them and nobody is ready to believe them. Once we have laws in place to protect men too, men will perhaps gather the courage to report the same and punish the persons responsibly.
Further, a societal mentality change is also incumbent so as to address these issues. We, the society should let it dawn upon us that men are humans too after all and they can face such horrors too in their lives. If we care enough to teach our daughters the difference between good touch and bad touch, we should show the same consciousness in teaching the same to our sons.
Instead of teaching boys to ‘man up’ and not to cry, it is important to tell them that it is okay to talk about things and make a conversation and report such instances. We perhaps, do not need to see another Nirbhayaa in the male form, to realize the gravity of this situation and can change the laws and our mindsets much before such a tragedy happens again. ‘#MENTOO’ and no matter who is raped or assaulted, rape and assault can never be let go off the hook!