Indian rape law is defined primarily under Section 375 of the Indian Penal Code which eliminates the possibility of a female perpetrator and a male victim. Thus, for an act to constitute rape under law it must essentially be performed by a man upon a woman without her consent.

Although the Criminal Law (Amendment) Ordinance, 2013 made the law gender neutral in reference to the victim and accused, it substituted the word ˜rape™ with ˜sexual assault™, leaving the law on rape still narrow in scope and application.

A common argument in support of such laws is that the act of rape is a show of male power and dominance over women in a patriarchal society like India.

Although, I concur with the opinion that rape is essentially a show of power and dominance, I strongly disagree that such power and dominance is shown only by men or only upon women.

Under-Inclusiveness Of The Definition Of Rape

In perception what constitutes rape, worldwide law has advanced from viewing it simply as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. What can be reasonably inferred from this is that forceful penetration even by an object, like in the Nirbhaya case, would constitute as rape.


However, if the same conditions were to exist with the only difference being that of the gender of the perpetrator, the categorization of the act would change even though the act itself would remain the same.

The same notion is very deeply entrenched in the Indian definition of rape given in the Indian Penal Code:

375. Rape. A man is said to commit rape if he

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
    
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
    
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
    
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
   
   1. Against her will
   2. Without her consent.
   3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
   4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
   5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
   6. With or without her consent, when she is under eighteen years of age.
   7. When she is unable to communicate consent.

Explanation 1: For the purposes of this section, vagina shall also include labia majora

Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1: A medical procedure or intervention shall not constitute rape
Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape[1]

Thus, the IPC takes into consideration only traditionally thought instances of rape where a man forcefully penetrates into a woman through his penis or otherwise. The narrow definition it encompasses fails to recognise the instances and possibilities of men being raped by women or by other men. It also negates the possibility of a female being raped by another female.[2]

Lack of Data in India

Of those convicted of rape, the US Department of Justice has stated that 99% are men, and 1% are women. However, since no legal recourse is available for Indian men, there are hardly ever any complaints or FIRs filed. Even if they are, the fear of social stigmatisation and ridicule coupled with female victimization holds Indian men back and thus accurate statistics are not available.

Rape As A Gender-Neutral Crime

Pertinent objections regarding a gender-neutral law have been raised.

The objections are two-fold:

1. The idea of rape being severed from female-specific consequences for the survivor and
2. The exploitation of gender-neutral language by men.

Prima facie the first issue seems the most obvious and logical objection since Indian society places a greater burden on women to be ˜chaste™ and ˜pure™ rather than on men. The society requires only women to be virgins before their weddings whereas the same question is not asked from a man.

Be that as may, it does in no way imply that a women alone face humiliation or segregation at the hands of the society. Men too are subject to scorns of being effeminate or homosexuals, which although do not affect women so gravely, are taboo subjects for men.

The second critique regarding the abuse of gender neutrality is certainly possible but its probability and effectiveness are under suspect. Many, for example, fear the possibility of a male rapist™s counter-accusation of, She raped me! in response to a female survivor™s initial reporting. Again, while this is technically possible, there are a plethora of other counteraccusations that can be, and often are, employed by male rapists, ranging from consensual sex to fabricated allegations.

Social Stigmas Regarding A Female Perpetrator

1. Women cannot rape men

   There is a prevalent assumption in the Indian society that women are incapable of committing rape. The traditional notion of the society regarding women is limited to women being the victims; timid, shy and helpless is the way society still sees them. With the advancement of time, empowerment of women has become a fact visible in the society. It still has a long way to go but urban women are no more the timid, shy victims they have always been played out to be. They have taken control of their lives and are capable enough to take control of somebody else™s as well. However, the traditional mindset remains the same and needs to be changed
   
   The primary reason for the thought process of women cannot rape men which is given by its advocates is that penetration is not possible until the man is aroused and that arousal implies consent.
   
   This notion is flawed not only fundamentally but also statistically. It has been proven by various studies that even in cases of extreme stress, humiliation, anxiety, fear or terror men have found to have been aroused and some have even ejaculated.[3]
   
   A lab experiment found that in subjects who were shown an erotic movie, the ones threatened with an electric shock tended to respond with increased penile size as compared with the subjects that were not threatened with electric shocks. The authors conclude that anxiety increases sexual arousal.[4]
   
   Thus, it is abundantly clear that arousal does not imply consent. It is, then, quite possible for a woman to rape a man.
    

2. Rape is a manifestation of male dominance

   It is a common view in the society that rape is about dominance, that it is about a show of power over the subjugated victim. I find myself unable to counter this argument. However, the view of the society is not as gender neutral as my abovementioned statement was. The societal perception is that rape is a show of male dominance and power over a subjugated female.

Susan Brownmiller has written in her book[5] that:
rape is a conscious process of intimidation by which all men keep all women in a state of fear

The book goes on to affirm her conviction in the idea of rape being about power:
...rape became not only a male prerogative, but a man™s basic weapon of force against woman, the principal agent of his will and her fear. His forcible entry into her body, despite her physical protestations and struggle, became the vehicle of his victorious conquest over her being, the ultimate test of his superior strength, the triumph of his manhood.

What is fundamentally flawed in this notion is that it is still based on the centuries old idea that women are the subjugated class. That they need to be protected for they are incapable of taking care of themselves. Such a notion is based on the idea that men alone can ever be in such a position so as to coerce or use force upon the other person. It fails to take into account several such situations where women are in power and a position to dominate.

Whether be it in a corporate setting with a female boss or at home where the wife may be the primary bread earner. Is it not reasonable to assume, then, that women can rape men in institutional settings where the power lies with the woman and the man is expected to comply?

The fact that such instances are statistically rare is no ground for dismissing them off as not being a social issue or a social phenomenon.

Conclusion:

1. Male rape is not so uncommon in India so as to be termed as an anomaly. By establishing gender-neutral laws, we aim to help larger number of men that is currently thought.
    
2. Rape needs to be understood as an attack on bodily integrity and safety rather than an attack on virginity or societal honor. The consequences on men are also adverse if not more.
    
3. It is possible that gender-neutral rape laws will afford a more central position to consent (because if there is something common across the rape of all genders, it is the lack of consent), and by doing so, it moves the rape discourse away from consequences and honor to violation and disregard for bodily integrity. In this way gender-neutral rape laws may actually leave women better off.

End-Notes:

1. Indian Penal Code 1860, Section 375.
2. Priya Patel vs. State of M.P. and Ors. AIR2006SC2639.
3. David, Barlow & Sakheim, David & Beck, J Gayle, Anxiety increases sexual arousal. Journal of abnormal psychology,1983.
4. Id.
5. Brownmiller Susan, Against Our Will , 1975.