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“Ought the Rape/Sexual Assault Law in India be Gender-


Neutral?”

NIKUNJ KULSHRESHTHA
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Table of Contents
List of Abbreviations ......................................................................................................3
Introduction ......................................................................................................................4
Contemporary Laws on Rape .......................................................................................8
India ...............................................................................................................................8
United Kingdom......................................................................................................... 11
Critical analysis of the issues surrounding male rape .......................................... 13
Patriarchy.................................................................................................................... 13
Do Men Experience Sexual Assault differently? ................................................. 16
Opposition from Feminist Groups ......................................................................... 20
Phallus Centric Framing of Laws on Rape and Sexual Assault .......................24
Presumption of Forever Consent on behalf of Men ........................................... 28
Portrayal of Male Victims in Media ........................................................................ 32
Is there any need for such a change in the Law? ................................................... 35
The Principle of Equality..........................................................................................35
Recognition of Male Sexual Victimisation............................................................37
Preventing Undermining of Women Centric Laws.............................................. 40
In Favour of Women`s Rights ................................................................................. 43
Possible Solutions ........................................................................................................ 45
Changes in Framing the Laws ................................................................................ 45
Gender Sensitisation Training for the entire Legal Machinery ........................48
Conclusion ..................................................................................................................... 52
Bibliography ................................................................................................................... 54
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List of Abbreviations

• BDSM- Bondage and Discipline, Dominance and Submission and


Sadism and Masochism.
• CCS- Centre for Civil Society.
• CrPC- Code of Criminal Procedure, 1973.
• DOJUS- Department of Justice, United States.
• FBI- Federal Bureau of Investigation.
• HIV- Human Immunodeficiency Virus.
• IEA- Indian Evidence Act, 1872.
• IPC- Indian Penal Code, 1860.
• ISVA- Independent Sexual Violence Advisor.
• LGBT- Lesbian, Gay, Bisexual and Transgender.
• NCVS- National Crime Victim Survey.
• NICFS- National Institute of Criminology and Forensic Sciences.
• OXFAM- Oxford Committee for Famine Relief.
• PIL- Public Interest Litigation.
• SOR- Sexual Offences Review.
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Introduction

“It is better that ten guilty persons escape then one innocent suffer”- Sir
William Blackstone1
On this quote, rests the entire foundation of common law based criminal law.
The rationale behind this principle is that the suffering of an innocent person
hurts the cause of society by breaking the faith of humanity in the rule of law.

The purpose of this dissertation is to discuss whether we need gender-


neutrality in the framing of laws related to rape and sexual assault in India.
The historical legal position in India as well as in the rest of the world has
focused on women as victims and men as perpetrators when it comes to a
rape offence. Rape of a male instead has remained a sensitive issue for a long
time and the existence of a patriarchal society has hindered its recognition by
society as well as the criminal justice system. This is in spite of the fact that
sodomy of males by men as war crimes have been documented in world
history since time immemorial.2

The advent of feminism and rising female empowerment has also led to the
recognition that a growing number of women have been found guilty of
violating the sexual autonomy of men. Moreover, with the acceptance of
homosexuality as a natural sexual orientation, there is increasing concern on
converting the gendered law on rape into a gender-neutral one.3 There is no
denying that a large number of victims of rape are women; however, crime
statistics are increasingly reflecting a rise in rape crimes against men. The
Bureau of Justice Statistics under the US Department of Justice revealed in its
2003 report that 9% of the total sexual assault and rape victims are men.4 The

1
English Jurist William Blackstone expressed the maxim in his seminal work “Commentaries
on the Laws of England (1765-1769). The ratio of 10:1 is also known as the Blackstone’s ratio
in criminal law.
2
Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18(2)
European Journal of International Law 253.
3
Navtej Singh Johar v Union of India (2018) 10 SCC 1.
4
Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and Masculinities 275.
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Ministry of Justice in the UK released a report in 2013 that in the previous year
approximately 85000 women and 12000 men were raped.5 This can be
partially attributed to the change in statutory law in the US and the UK as well
the growing recognition of male sexual victimisation globally. Despite such
significant numbers, male rape remains unrecognised in the largest
democracy of the world.

This dissertation aims to address the lacunae that exist in the current laws on
rape and sexual assaults and the various issues impacting them, in the
backdrop of rising recognition of sexual crimes against men. Further, the essay
will dwell upon whether amending the rape law into a gender-neutral one will
help the fight against sexual violence effectively. The methodology in the
research would predominantly be doctrinal and theoretical where relevant
scholarly literature will be engaged with, to answer the research question.
Simultaneously, we will be analysing the jurisprudence and relevant judicial
precedents across India, the UK and the USA for the purposes of determining
the interpretation of courts.

We will begin the dissertation with an assessment of the contemporary position


of rape laws in India and in the United Kingdom. The reason for selecting the
UK along with India is that the UK legal position holds a lot of persuasive value
in Indian courts. The Indian law on rape has been largely female centric. An
exception to this is the sodomy law under section 377 of the IPC which
criminalises acts against the order of nature through penetration. This section
was largely used by police forces to harass sexual minorities in India since it
targeted consensual acts as well.6 However, the provision was decriminalised

5
Ministry of Justice, Home Office and the Office for National Statistics (2013) An Overview of
Sexual Offending in England and Wales: Statistics Bulletin.gov.uk.
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214970/sexu
al-offending-overviewjan-2013.pdf> (accessed 28 June 2019).
6
People`s Union for Civil Liberties, ‘Human rights violations against sexuality minorities in
India’<https://web.archive.org/web/20090725200649/http://www.altlawforum.org/PUBLICATI
ONS/PUCL%20REport%201> accessed 23rd July 2019.
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to the extent of consensual acts by the Supreme Court in 2018.7 The legal
position in the UK, on the other hand, has changed since 1994, when the
Criminal Justice and Public Order Act was introduced. We will assess the
reasons for the change and/or the status quo of the contemporary position.
We will then critically analyse the interconnected issues surrounding male
rape, such as patriarchy, male experience of sexual assault, and phallus-
centric framing of laws.

When we look at patriarchy, we will determine how the socio-cultural fabric of


India, while placing men as the head of the family, hinders the recognition of
male rape. There exists a stereotypical notion of men that they are too strong
to be subdued, whereas the likelihood of being raped centres around the idea
that the victim is weak. This notion prevents the male victim from seeking legal
recourse due to the likelihood of an embarrassment. For the purposes of
determining the same we will engage in theoretical analysis of relevant
academic literature.

Next, we will consider how bodily responses to sexual stimulation lead to


presumption of consent in sexual assault cases. An engorged penis is often
assumed as an indicator of consent on behalf of men, this assumption is as
erroneous as the presumption of consent on behalf of women in case she has
vaginal lubrication during the assault. We will examine specialised literature
relating to medical science which assert that human control on physiological
reactions such as responses to sexual stimulation through engorgement of
penis or lubrication of vagina occur even when one does not consciously
consent to the act.

We will then look at how certain civil society movements such as those of
radical feminists protest against gender-neutrality in rape law.8 Radical

7
Ibid 3.
8
Radical Feminisim is a School of thought within Feminism which calls for radical change in
society by removing all male supremacy from all societal contexts. They contend that
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Feminists such as Florence Rush, Catherine Mackinnon and Christine Boyle


consider gender-neutrality as a backlash against the feminist movement and
that its inclusion would result in degradation of women`s rights. This is ironical,
considering that renowned feminists such as Susan Brownmiller9 and
Rosemarie Tong have long supported the recognition of male rape.

Once we have engaged with the issues surrounding the lack of gender-neutral
laws, we will move on to assessing the need for gender-neutrality in the law.
This will be done firstly by analysing the principle of equality under Article 15
of the Indian Constitution which prohibits the state from discriminating between
citizens on the grounds of religion, race, caste, sex, and place of birth. There
are certain special provisions for women and children, but these were framed
keeping in mind the socio-economic circumstances in the 1950`s.10 In the 21st
century, with the increasing empowerment of women in society, many of these
relaxations may seem anachronous. We would then try to argue why gender-
neutral laws are necessary to prevent undermining of the existing women-
centric laws. The lack of recognition of male rape coupled with malicious use
of existing laws can potentially lead to dilution of the existing law as it
happened in the case of section 489A11, which undermined the recognition of
sexual violence itself.

We would conclude by proposing possible solutions for inclusion of all genders


in the fight against sexual violence. This can be achieved by framing sexual
violence statutes which account for all kinds of sexual assault rather than
adhering to the traditional phallus-centric law. There is also a need to conduct
gender sensitisation programmes for the entire society especially for the law
enforcement machinery be it the judiciary, police officials, or legislators, which
would take sustained time, money and efforts. We would finally end the

patriarchal society created by men is the root cause of all problems for women as opposed to
legal systems or class conflicts advocated by liberal and social feminists respectively.
9
Susan Brownmiller, ‘Against Our Will: Men, Women & Rape’ (Ballantine Books 1975).
10
Article 15(3) of the Indian Constitution.
11
Section 498A of the Indian Penal Code, 1860.
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dissertation by assessing the case for converting the present rape law in India
into a gender-neutral one.

Contemporary Laws on Rape

India

Historically, rape as an offence has been recognised as female centric


worldwide, and particularly in India. The Indian law on rape defined under
section 375, speaks of only man as the perpetrator.12 Even sexual offences
such as stalking, voyeurism, and sexual harassment refer solely to men as
perpetrators. The only exception to the female centric laws, is the sodomy law
under section 377 of the IPC. The section criminalised acts against the order
of nature through penetration, even if it was consensual. This offence was a
major hindrance in the recognition of homosexuality rights in India and was
used by police forces to harass sexual minorities.13 However, the provision
was decriminalised to the extent of consensual acts by the Hon`ble Supreme
Court in 2018.14

The laws regarding rape in India have been shaped largely by three specific
incidents of rapes committed on women by men, which shocked the
conscience of the common man and garnered nationwide attention. The first
rape occurred in 1971, when a police constable raped a tribal girl in the police
station and was later acquitted by the Supreme Court, presuming consent on
the part of the victim since she did not raise any cries for help.15 The decision
of the Indian Supreme Court was widely criticised and this resulted in the
government amending the rape law and Evidence Act to presume no consent
on the part of the woman if she says so once the factum of intercourse has
been established.16

12
Section 375 of the Indian Penal Code, 1860.
13
Ibid 6.
14
Ibid 3.
15
Tukaram Ganpat v State of Maharashtra (1979) 2 SCC 143.
16
Section 114A of the Indian Evidence Act, 1872.
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The second rape occurred in 1992 where a village woman, who was working
as a social worker against child marriage, thwarted the plan of a few ‘upper
caste’ men from her village to conduct a child marriage. Enraged by the
audacity of the ‘lower caste’ woman, she was gang-raped in front of her
husband by five men. This was followed by an apathetic treatment meted out
to her by police officials and government doctors. To add insult to her injuries,
the accused men were acquitted by the trial court citing complete disbelief in
the story of the victim. The reasoning of the trial judge reeked of patriarchy and
misogyny, who gave absurd reasoning such as: “A nephew wouldn’t rape a
woman in front of his own uncle or that upper caste men would not rape a
lower caste woman.” This decision led to widespread protests across the
country and also resulted in an NGO “Vishakha” filing a PIL for preventing
sexual harassment of women at the workplace.17 Subsequently, the Supreme
Court framed guidelines for preventing sexual harassment at workplace which
were framed by the government as statutory law in 2013.18

The third rape took place in 2012, when a student of physiotherapy was
brutally gang raped by six men including a juvenile, in a moving bus, and who
later died from the injuries. The case garnered international attention and led
to massive protests nationwide. It resulted in successful conviction of all the
defendants whose death penalty was confirmed by the Hon`ble Supreme
Court.19 The government immediately formed a three-member Committee to
recommend changes in the laws relating to sexual offences committed on
women, which ultimately formed part of the Criminal Law Amendment Act,
2013.20 The revised legislation now defined various kinds of rapes such as

17
Vishakha v State of Rajasthan (1997) 6 SCC 241.
18
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
19
Mukesh and Anr. v State of NCT of Delhi (2017) 6 SCC 1.
20
JS Verma Committee on Amendments of Criminal Law.
<https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20
committe%20report.pdf> accessed 11th July 2019.
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gang rape21, and rape by person in fiduciary position.22 The definition of rape
was also extended to include oral and digital rape apart from the traditional
penetration. Further, women are now being prosecuted for being an
accomplice in a gang rape.23

The Act provided for stricter punishments for the offences, and introduced new
offences of stalking24, sexual harassment25 and voyeurism26. Certain changes
were made in the Evidence Act as well. The law regarding juvenility was also
amended to charge boys above the age of 16 with rape and other heinous
offences, despite there not being adequate evidence of youth offenders
committing such crimes in the past.27 However, the perpetrator in each of the
above offences were men. Despite the committee recommending that at least
certain offences like stalking, sexual harassment, and voyeurism should be
made gender-neutral, the government disregarded the suggestion. Recently,
in a forensic guide published for criminal investigators issued by the NICFS,
the part on how to deal with sex offences is articulated by taking only female
victims into account.28

Thus, with regard to the legal position in India, it can be reasonably said that
the existing law is highly skewed against recognition of any form of rape except
the one than can be committed by males on females only.

21
Section 376D of the Indian Penal Code, 1860.
22
Section 376B of the Indian Penal Code, 1860.
23
<https://www.indiatoday.in/india/story/woman-rapes-woman-first-case-of-same-sex-
assault-after-section-377-verdict-1448534-2019-02-05> accessed 23rd July 2019.
24
Section 354D of the Indian Penal Code, 1860.
25
Section 354A of the Indian Penal Code, 1860.
26
Section 354C of the Indian Penal Code, 1860.
27
Salil Bali v Union of India (2013) 7 SCC 705; Ipsita Chakravarty, ‘Changing juvenile law
won't help victims of heinous crimes: legal expert Mrinal Satish’
<https://scroll.in/article/777620/changing-juvenile-law-wont-help-victims-of-heinous-crimes-
legal-expert-mrinal-satish> accessed 20th July 2019.
28
A Forensic Guide for Criminal Investigators, Page 58-66 <http://nicfs.gov.in/?p=15475>
accessed 23rd July 2019.
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United Kingdom

English Law traditionally recognised the widely established form of male-on-


female rape via penetration only. The Criminal Law Revision Committee
(CLRC) in the 15th Report on Sexual Offences was unanimously of the view
that the definition of rape should remain as penile penetration of the vagina.29
Though some members of the committee preferred expansion of the offence
to favour a gender-neutral approach covering a wide range of penetrative acts,
it was finally decided to keep the definition limited to non-consensual vaginal
penetration by the penis.30 Any form of integration between rape, indecent
assault and buggery was largely opposed.31 The rationale for the same was
that majority of perpetrators of rape were men and the law needed to reflect
the same, however, women could be charged as accomplices.32 Moreover,
public perception of the crime was also on those lines. While framing the
Criminal Justice and Public Order Act, 1994, male rape was recognised only
to the extent that a male could rape another male through anal penetration.33

Subsequently in 1999, the home office set up a review committee to update


the law on sexual offences which culminated into a report known as ‘Setting
the Boundaries’.34 The report substantiated the reasons for keeping the
definition of rape law restricted, and was reproduced under the new Sexual
Offences Act, 2003. The reasoning for a restricted definition given was that the
risk of disease transmission and pregnancy originates from penetration by

29
Home Office, 15th Report: Sexual Offences (Cmnd 9213) (1984).
30
CLRC Para 45.
31
Jennifer Temkin, ‘Rape and the Legal Process’ (2005, 2nd Edition, Oxford University Press).
32
Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.5.
33
Section 143 of the Criminal Justice and Public Order Act, 1994.
34
Home Office, Setting the Boundaries (2000)
<https://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/vol1
main.pdf?view=Binary> accessed 31st July 2019.
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penis, and the fact that majority of such crimes were being committed by
men.35 However, this rationale appears weak considering the apparent
lacunae pointed out by Jennifer Temkin that neither CLRC nor SOR made any
attempt to determine public views through the means of referendum, survey or
research.36 Even today, females in the United Kingdom cannot be legally
charged with rape of males, they can only be charged for sexual assault,
assault by penetration37 or causing sexual activity without consent38. The
differentiation is that while rape carries a term of life imprisonment, all offences
with which females can be charged can result only in a maximum sentence of
10 years.

Thus, while there have been certain developments in the UK with regard to
male-on-male rape through anal penetration, female-on-male rape is not yet
recognised. Laws in the jurisdictions of Canada, all states of Australia, the
Republic of Ireland, Finland, Sweden and most states of the USA have framed
gender-neutral rape laws. We will now analyse the various reasons for not
recognising female on male rape.

35
Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.4.
36
Jennifer Temkin, ‘Literature Review of Research into Rape and Sexual Assault in Home
Office, Setting the Boundaries (2000) Volume II, 83.
37
Section 2 of the Sexual Offences Act, 2003.
38
Section 4 of the Sexual Offences Act, 2003.
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Critical analysis of the issues surrounding male rape

Patriarchy

Patriarchy is a system of society where the male lineage is considered primary


for succession and leading the family. Indian society is essentially a patriarchal
society where men are expected to behave and perceive emotions in a
preconceived manner. Deviating from this norm invites ridicule and social
ostracization from other males. This, perhaps is the reason why most men
even if they support gender equality, fail to follow it in the true spirit due to
societal and peer pressures. Not only does this lead to issues of gender
inequality, but men themselves also suffer the negative effects. One of the
ways in which a patriarchal society affects men is that they are expected to be
interested in sexual intercourse all the time and the concept of consent for
male is presumed non-existent.

Research conducted with college students in 1988 concluded that both men
and women often face a lot of unwanted coerced sexual activity.39 The study
reflected on the fact that men themselves feel pressured to have sex due to
society`s internalised standards regarding male behaviour. A man never
refuses a woman`s advances, for fear of not being considered a “real man” or
worse still, he may even be perceived as gay. Patriarchy asserts a lot of
pressure on men to have sexual experiences and considers virginity a sign of
failure. The most common reason for sexual coercion among men is the belief
amongst the opposite sex that “Men are out for only one thing”. Zilbergeld, in
his book published in 1978, determined that one of the consequences of such
male stereotypes is that men often felt sex as a burden imposed upon them.40
Expectations of being able to achieve erection with anyone, anywhere,
anytime and failure to achieve the same created a self-fulfilling prophecy that
men are meant to have no sexual autonomy.

39
Charlene Muehlenhard and Stephen Cook, ‘Men's Self-Reports of Unwanted Sexual
Activity’ (1988) 24 Journal of Sex Research 52.
40
Bernie Zilbergeld, Male Sexuality: A Guide to Sexual Fulfillment (Little Brown & Co 1978).
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14

In another research consisting of two studies conducted on the prevalence and


impact of non-consensual sexual interactions with women revealed that even
when men acknowledged that they had been violated, the feeling of negative
emotions was not too strong.41 This was because acknowledging their inability
to stop a woman`s sexual coercion posed a threat to their self-esteem,
ultimately resulting in denial or underestimation of any negative psychological
impact it may have on them. In both the studies, taking undue advantage of a
man`s inability to offer resistance due to intoxication was frequently reported
as an aggressive strategy in comparison to non-aggressive methods such as
verbal coercion. This study leads us to the conclusion that men also often feel
coerced into unwanted sexual experiences.

Patricia Novotny, in her article, points out the contradiction in the contemporary
definition of gender-neutrality.42 It is no longer news if women practise law,
drive trucks, shave their heads or play sports; but if men start to exhibit
feminine characteristics, it becomes difficult for them to be accepted by the
society. Men who buy groceries are given hard stares, and contributing to
domestic work brings ridicule from a man`s peers. Thus, gender-neutrality
brings masculinity to everyone irrespective of the gender. This idea makes
women more assertive in sexual relationships but the downside remains that
men may not always be interested in sex and if they engage in it reluctantly,
they may end up hurting themselves.

Further, it is argued that a lot of women also support patriarchy. This can be
explained by the concept of ‘paternalistic dominance’ coined by Kamla Bhasin
in her book on patriarchy.43 Bhasin contends that slavery survived for centuries
through the tacit cooperation of slaves themselves. The British East India
company ruled India for two centuries by employing local Indians as civil

41
Barbara Krahe, Renate Scheinberger-Olwig and Steffen Bieneck, ‘Men’s Reports of Non-
consensual Sexual Interactions with Women: Prevalence and Impact’ (2003) 32(2) Archives
of Sexual Behaviour 165.
42
Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of
Resistance?’ (2002) 1(3) Seattle Journal for Social Justice 62.
43
Kamla Bhasin, ‘What is Patriarchy?’ (Kali for Women 1993).
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servants, policemen and soldiers. Similarly, “cooperation from women in


engagement for general and systemic oppression of women is achieved
through various means like gender indoctrination, educational deprivation, by
defining respectability and deviance according to women's sexual activities, by
restraints and outright coercion, by discrimination in access to economic
resources and political power, and by awarding class privileges to conforming
women.”

Thus, by playing one woman against the other, patriarchy ensures that their
individual power is never threatened. It was kind of an implicit understanding
where men would share power with women, under their tutelage, to exploit
women and men of lower caste. In order to retain these privileges, women are
constantly renegotiating their bargaining powers even at the cost of other
women.44 This arrangement was described quite graphically to the author by
a rural woman. She said that in our society, men are like the sun with all
resources such as financial, mobility and the freedom to take decisions
whereas women are like satellites without any light of their own. They only
shine when they are close to the sun and this induces constant competition
with other women to have a bigger share of resources. Without the sun (man)
the woman`s life would be barren, dark and end quickly.45

From the above researches and studies, one can deduce that patriarchy and
its notions regarding male behaviour seems to be a clear roadblock in
incorporating gender-neutrality in sexual offences.

44
Ibid 43.
45
Ibid 43.
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Do Men Experience Sexual Assault differently?

It is generally argued by critics of gender-neutrality in rape law that men react


differently to sexual assaults than women and therefore keeping male
standards and reactions in events of rape would put women at a disadvantage.
Radical feminists like Patricia Novotny46 and Joan McGregor47 have
repeatedly asserted that introducing gender-neutrality in rape law would be
detrimental to the interest of women`s rights. However, no evidence whether
empirical or theoretical, regarding perceived male behaviour in such sexual
assaults have been adduced by these critics. Janet Halley, a legal scholar and
a self-described feminist, noted in her book that ignoring harms caused to men
is a steady theme in the writings of several feminist groups, particularly radical
ones.48

Contrary to their reasoning, numerous studies have reported that men react in
the same helpless manner to such attacks as women. A study conducted in
1989 by two American researchers brought forth the idea that men reacted in
a similar manner to women in cases of sexual assault.49 Many characteristics
of the victim, nature and reactions to the assault were similar to women victims.
Most of the victims reacted with frozen helplessness and passive submission
to the attacker due to being overwhelmed with fear. However, men, after the
attack found it difficult to report to public authorities due to reasons like fear of
being branded as weak or as liars, and politicisation of rape as solely a feminist
issue.

Since the 1980s, there has been a growing number of researches in the field
of unwanted sexual experiences by men. One such research indicates that

46
Ibid 42 at 744.
47
Joan McGregor, ‘Is it Rape: on acquaintance rape and taking women's consent seriously’
(Routledge 2005).
48
Janet Halley, ‘Split Decisions: How and Why to Take a Break from Feminism’ (Princeton
University Press 2006).
49
Gillian Mezey and Michael King, ‘The effects of sexual assault on men’ (1989) 19
Physiological Medicine 205.
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17

women employ similar sexual coercion tactics such as seduction of unwilling


partners, physical force, use of intoxicating substances, and even emotional
manipulation.50 The study concluded, by adding to the growing body of
evidence, that women are no different from men in terms of the range of tactics
employed to engage in coercive sexual activity. The study also indicated that
prior sexual abuse did play some role in motivating both males and females
into coercive sexual activities. However, one place where differentiation occurs
is the motivations for employing coercive tactics. The study asserted that while
men engaged in coercive tactics primarily driven by power, dominance and
control, women who engaged in these were driven primarily by feelings of
compulsivity and only secondly motivated by the desire for sexual dominance.
The reason for male need for power, dominance and control can be explained
by the concept of ‘Hegemonic Masculinity’ defined by Raewyn Connell which
conditions men to behave and feel in a typical fashion.51

Karen Weiss, in her article on male rape and sexual assault experiences, talks
about society`s constant focus on hypermasculinity, patriarchy, and ways in
which men are expected to behave; this is so well established that to imagine
men as victims requires a complete overhaul of our preconceived notions
regarding sexual violence and gender.52 She pointed out that 9% of rape and
sexual assault victims in 2003 were male according to the Bureau of Justice
Statistics (DOJ, US). She referred to the NCVS data which revealed a similarity
in the experiences of males between rapes and attempted rapes where the
perpetrator felt entitled to sex and refused to budge. Despite evidence to the
contrary, society finds it difficult to accept that men can be victims and
moreover, victims themselves are ashamed to report such crimes for the fear
of being perceived unmanly.

50
Elizabeth Murphy, Danielle A. Harris, Raymond Knight and Michael A. Milburn, ‘Sexual
Coercion in Men and Women: Similar Behaviors, Different Predictors’ (2009) 38 Archives of
Sexual Behaviour 974.
51
RW Connell and James Messerschmidt, ‘Hegemonic Masculinity’ (2005) 19(6) Gender &
Society 829.
52
Ibid 4.
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NCVS interviewers noted than interviewees were embarrassed and


uncomfortable to describe the incidents and tried to frame the incident in a
manner so as to avoid decreasing their masculinity. Subjects often gave the
excuse being heavily drunk for not being able to resist the sexual assault or
lied about fighting back the perpetrator violently, in order to fit the socially
defined role of “masculinity”.53 Two primary reasons were noted for non-
reporting of incidents by male victims: One is the shame associated with being
unable to prevent assault by a female in clear violation of societal description
of females as weak, non-threatening and not capable of causing injury and
second is the behaviour of police who presume that only gay men get raped.
The study concluded by reiterating the need to educate both men and women
about sexual victimisation. A pervasive silence regarding male rape only
exacerbates the belief that men cannot be raped.

Another study conducted in various colleges in Greece on men and women


revealed that both men and women receive unwanted sexual coercion.54 Both
conceded that it was either pointless to stop an aroused partner, or were
coerced by endless arguments or by taking alcohol or drugs. However, women
were more likely than men to report physical assault. This resulted in men
suffering from depression due to predefined gender roles in society and these
incidents made them question their masculinity.

A recent research conducted on sexual coercion experienced by 284 diverse


males in schools and colleges attempted to consider diversity in ethnicities
which have been largely overlooked in previous studies on male rape.55 The
study contended that most studies about sexual violence largely take physical
hurt such as penetration into account and tend to overlook other forms of
violence such as coercion by unwanted seduction, blackmail, verbal coercion,

53
Ibid 4.
54
Mary Larimer, Amy Lydum, Britt Anderson and Aaron Turner, “Male and Female Recipients
of unwanted sexual contact” (1999) 40 Sex Roles 295.
55
Bryana H. French, Jasmine D. Tilghman, and Dominique A. Malebranche, “Sexual Coercion
Context and Psychosocial Correlates Among Diverse Males” (2015) 16 Psychology of Men &
Masculinity 42.
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or even drugs and alcohol. Research is usually focused on forcible penetration,


and steers away from other types of sexual victimisation which result from
social obligation or peer pressure. Participants in the study showed signs of
visible psychological distress but one differentiation was noted that men`s self-
esteem is not affected by sexual coercion unlike females, plausibly due to
societal roles regarding male sexuality. The study also noted that cultural
differences matter in reporting of sexual coercion. Asians were least likely to
report events due to a high emphasis on chastity. Similarly, African men were
least likely to report sexual coercion due to the hyper aggressive and
masculine image portrayed by pop and R&B cultures. The effects of culture
and notions of masculinity on the experiences of male sexual assault victims
were further corroborated by the findings of another recent study by Charlotte
Petersson and Lars Plantin.56

From the plethora of researches, studies, and articles on male sexual


victimisation, it can be reasonably said that men experience sexual assault
similarly to women. Hence, there is an imperative need to address sexual
violence as it is, rather than through prisms of gender.

56
Charlotte Petersson and Lars Plantin, ‘Breaking with Norms of Masculinity: Men Making
Sense of their experience of sexual assault’ [2019] Clinical Social Work Journal 1.
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Opposition from Feminist Groups

One of the issues with the recognition of male rape is the opposition from a
section of feminist groups known as radical feminists57 such as Catherine
Mackinnon, Patricia Novotny and Nagire Naffaire. Their opposition stems from
a lot of reasons such as potential dilution of their influential base, or dilution of
the importance given to women`s rights and issues.58

Florence Rush, another leading proponent of radical feminism, wrote about the
ways in which men are undermining the feminist movement.59 Rush believes
that the men`s liberation movement rose from the rib of the feminist movement
with Warren Farrell being the chief architect. She contends that the reason
men supported the feminist movement was to serve their own selfish interests;
men suddenly realised that having an earning, independent spouse brought
them more time to spend with children, release from alimony and child support
and the ability to divorce women with no guilt. She further contends that Farrell
had no idea of the ground realities, considering that men have always exploited
women`s labour and finances whether they are working or not. She also noted
that men hardly spend their leisure time with children, and rarely meet their
obligations on alimony and child support.

What is mind boggling here is the extent to which Rush seems out of touch
with the ground realities of the legal system of the USA, the system on which
her research is based. Not only is a man liable to be imprisoned for failing to
pay child support, but he can be sued even if he was an underage male.60
Rush then proceeds to totally disregard any suggestion that women can rape
men. According to Rush, only homosexual and heterosexual men rape men

57
Ibid 8.
58
Catherine Mackinnon, ‘Liberalism and the Death of Feminism’ in Dorchen Leidholdt and
Janice G. Raymond (eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press
1990), 166.
59
Florence Rush, ‘Many Faces of Backlash’ in Dorchen Leidholdt and Janice G. Raymond
(eds), The Sexual Liberals and the Attack on Feminism (Pergamon Press 1990), 3.
60
Hermesmann v Seyer 847 P.2d 1273 (Kan. 1993).
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because they feminize their victims, driven by heterosexual dominance and


subordination. Towards the end, Rush does recognise that a very miniscule
number of women sexually harass and molest men, but that does not justify
converting the rape law into a gender-neutral one. One can only assume that
the only reason she seems to acknowledge even a miniscule number of female
perpetrators is possibly to fend off being labelled as polemic.

Catherine Mackinnon objects to gender-neutrality on the premise that it diverts


the focus away from female victimisation;61 however, her views are
contradictory when she proposes a gender-neutral ordinance against
pornography, where she states: “In this definition, the use of men, children, or
transsexuals in the place of women is also pornography.”62 Catherine`s views
about the ill effects of gender-neutrality for female victims is supported by other
scholars and critics like Christine Boyle.63 However, these objections seem to
be driven by loyalty to some ideology rather than being based on scholarly
literature or empirical evidence.

Another objection raised by critics of gender-neutrality is based on the


argument that there are not enough male victims to justify amendment of the
law.64 The inherent lacuna in that argument is that very little research has been
done in the area of male sexual victimisation. This creates the classic chicken
and egg problem which was pointed out by the small community of researchers
in that area. Gregory and Lees remarked that there has been very little
research dedicated to studying sexual assaults on men.65 They referred to a
survey conducted by King which concluded that the stigma attached to male
rape is much greater than female rape.66 Most homosexual victims feared
approaching the police due to victim shaming and heterosexual victims feared

61
Ibid 58.
62
Catherine Mackinnon, ‘Only Words’ (Harvard University Press 1996).
63
Christine Boyle, ‘Sexual Assault and the Feminist Judge’ (1985) 1 Canadian Journal of
Women and the Law 93.
64
Ibid 6 at 743.
65
Jeanne Gregory and Sue Lees, ‘Policing sexual assault’ (Routledge 1999).
66
Ibid 49.
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approaching authorities due to the fear of being classified as gay. Research


on male rape indicates that sexual violence has got more to do with power and
domination rather than sexual gratification as is commonly understood. The
purpose of rape is mainly to humiliate, denigrate and crush the victim`s spirit.
This understanding of rapist psychology was used in discussions while passing
of the Criminal Justice and Public Order Act, 1994.

Lees also indicated that a lot of victims feared reporting to the police due to
fear of homophobia or myths perpetrating in the forces regarding promiscuity
of gays. Criminological and Police studies have often revealed that unless law
enforcers are sensitised to handling an emotionally sensitive victim, it would
push the victim into further trauma and depression. The authors noted that
since 1990, police forces have been regularly trained to deal with male and
female rape victims.67 The Metropolitan Police set up 26 specialists who had
completed sexual offences investigative techniques course to deal with male
sexual abuse. This served the twin purposes of providing a supportive
atmosphere for the victims, as well as to gain the best investigation possible.

As discussed earlier, men are just as unlikely as women to resist the attack.
This finding is directly in conflict with the opposition from feminists’ groups who
believe that men always fight back in any sexual attack despite empirical
evidence to the contrary. However, one must note that this opposition is
coming from new age radical feminists who seem to be interested in playing a
divide and rule gender policy to further their narrow-vested interests. Liberal
feminists such as Susan Brownmiller have often supported the idea of
recognition of male rape; in fact, in her eminent book on female rape ‘Against
our Will’, she acknowledged the reality of male sexual victimisation-

“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

67
Ibid 29.
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invade other men. Who is to say that the sexual humiliation suffered through
forced oral sex or rectal penetration is a lesser violation of the personal, private
inner space, a lesser injury to mind, spirit and sense of self? All the acts of sex
forced on unwilling victims deserve to be treated in concept as equally grave
offenses in the eyes of the law, for the avenue of penetration is less significant
than the intent to degrade. Similarly, the gravity of the offence ought not to be
bound by the victim’s gender. That the law must move in this direction seems
clear.”68

Similarly, Rosemarie Tong, another feminist philosopher, questioned the


negative characterisation of gender-neutrality by radical feminists. Tong
contends that the hindrance in recognition of male rape lies in the assumption
by radical feminists that it would lead a dilution of the importance given to
female rape victims on the premise that since it affects both genders now, it is
no longer a pressing concern.69 Tong acknowledges the argument as a
possible concern, but counters it with the argument that if the masses are
educated that rape is inherently a crime of the powerful against the weak, then
there will be no erroneous beliefs regarding the same. Thus, it is evident from
above that the opposition to recognition of male victimisation by radical
feminists seems to be based on theoretical assumptions regarding the effects
of introducing gender-neutral law on sexual assault rather than on empirical or
theoretical research.

68
Ibid 9.
69
Rosemarie Tong, ‘Women, Sex and the Law’ (Rowman & Littlefield Publishers 1989).
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Phallus Centric Framing of Laws on Rape and Sexual Assault

One of the major issues with rape laws is the obsession with the penetrative
act, as traditionally, the perpetrator has been male. The Rape law in India
described under Section 375 explicitly begins with the words- “A man is said
to have committed rape”70 the reason being that traditionally men are largely
seen as perpetrators and a woman sexually coercing a man to make him
penetrate her is unfathomable in a patriarchal society.

One reason that can be given for too much emphasis on male perpetrators is
the fact that traditionally, women have been victimised by men in offences
involving rape and sexual assault. However, it seems to have created a
victimised mindset among women and they are therefore unable to imagine
men as victims. Ruth Graham, in her article contended that there are several
key elements in the process of recognising male rape victim.71 Some of them
are- emphasis on the experience of victims, comparison of male victims with
female victims, and the definition of male rape itself. The definition of male
rape seems to be systemic issue because it concerns itself with assault
through penetration, thus maintaining the traditional phallus centric approach.

The definition is key here for legal discourse because legal research centres
on the categories and meaning of crime which is one of the reasons why male
rape is seen as essentially an issue of homosexuality rather than that of sexual
violence. This narrow, gender discriminatory approach has been constantly
defended by various officials and law commission members. They use
statistics to assert that sexual assault is normally a problem for females only.72
Thus, when men come into the picture, it is considered an anomaly which is
ironical considering that sodomy of men has been occurring since ancient era
as war crimes.73 Further, in England, the same sexual assault had different

70
Section 375, Indian Penal Code, 1860.
71
Ruth Graham, ‘Male Rape and the careful construction of the male victim’ (2006) 15(2)
Social & Legal Studies 187.
72
Ibid 5.
73
Ibid 2.
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sentencing for men and women, for women; the maximum punishment was 25
years whereas for men it was 10 years. Thankfully, this approach was changed
by the UK Supreme Court in R v Ismail.74

Another reason for the focus on the phallus centric framing of law is the
erroneous understanding of the notion of harm.75 The notion of harm is
typically based on physical hurt whereas emotional trauma the victim goes
through is not given adequate consideration.76 When the justice system places
undue emphasis on physical harm as evidence of violative harm, it becomes
difficult in cases of male sexual assault unless anal penetration was done. This
creates difficulties for the prosecution because it weakens their case if physical
harm has not occurred, and if it has, it needs to be self-evident.

Gregory and Lees in their book77 have referred to the research78 of American
Psychologist Kinsey who contended that erection during male rape is often
considered as consent for the act. This belief is in complete contrast to the
knowledge of human body which suggests that anal penetration stimulates the
prostate gland, resulting in an erect penis automatically. What results from
such experience is an identity crisis for males, and it is often observed that
heterosexual victims have often sought gay men post such experience. The
authors also noted that male rapes often involve lesser forms of sexual assault
such as oral sex rather than anal penetration. This is because anal penetration
is difficult without a consensual partner plus there is fear of HIV unless
protection is used.

Graham, in her article, raises the point that having just the bare application of
the gender-neutrality principle is insufficient to the recognition of male rape.79
There is a greater need to develop the literature on sexual assault in terms of

74
[2005] All ER 216.
75
Ibid 71, 200.
76
Similar issues were raised by the Stern Review in 2010.
77
Ibid 65.
78
Alfred Kinsey, ‘Sexual Behavior in Human Male’ (Indiana University Press 1948).
79
Ibid 71, 195.
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male rape rather than rely on ambiguous definitions of sexual harm. Graham
concludes by advocating greater harmony between male and female
researches of sexual assault so that all kinds of victims can be accommodated
in the analysis. Similar discourse on the law of rape was also advocated by
Susan Estrich in her article, where she analysed how there is disharmony
between various stakeholders in the criminal justice system, in the way law is
drafted by legislators, interpreted by courts, applied by police officials and
enforced by prosecutors.80

Siobhan Weare has also advocated the need for change in the way in which
we participate in legal discourse regarding rape.81 The socio-legal discourse
regarding rape has traditionally focused on men as perpetrators and the penis
as a primary weapon of offence. Further, there is an assumption in society that
it is not possible for men to get raped because a man can only get arousal
when he is consenting to the sexual activity out of his free will.82 This belief is
in absolute contrast to empirical evidence which suggests that just like women
can achieve vaginal lubrication and climax, men can also achieve erection and
orgasm during sexual assault. It is the body’s natural response to sexual
stimuli whether such stimuli are voluntary or coercive, because such
responses are controlled by the subconscious brain of humans.83

Weare further discussed that the effect of sexual assault on men is similar to
that on women whether it was physical or mental harm. She stated that there
are three standard ways in which women coerce men for sexual relations-
verbal pressure, persuasion and coercion. One can conclude from her article
that while there is no denying that the female gender disproportionately suffers
this crime, it is still to be acknowledged that the existing gendered definition of

80
Susan Estrich, ‘Rape’ (1986) 95 Yale LJ 1087.
81
Siobhan Weare, ‘Oh you’re a guy, how could you be raped by a woman, that makes no
sense’ (2018) 14 International Journal of Law in Context 110.
82
Philip Rumney and Morgan Taylor, ‘Recognizing the Male Victim: Gender-neutrality and the
Law of Rape: Part Two’ (1997) 26 Anglo-American Law Review 330.
83
Philip Sarrel and William Masters, ‘Sexual Molestation of Men by Women’, (1982) 11(2)
Archives of Sexual Behavior 117.
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rape reinforces the paradigm that women can only be victims and men can
only be perpetrators.

Weare`s views were corroborated by a recent article by Natasha Mckeever


where she vociferously argued for the legislature to move past the traditional
fixture on penis as the root cause of all problems.84 Thus, there is a need to
engage in legal discourse which moves away from the exclusive definition to
an inclusive one for framing an apt law which defines sexual violence. There
is also a need to engage in extensive research on how this crime affects men
in order to end the fixation on framing phallus centric laws concerning sexual
violence.

84
Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it matter?’ [2018] Criminal
Law and Philosophy 1.
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Presumption of Forever Consent on behalf of Men

In this section, we will assess how hyper sexualisation of male behaviour by


society hinders men from reporting rape. There appears to be an inadequate
understanding of sexual stimulation and its effects on the human body in the
legal system, be it among legislators, police or lawyers. Erection or sexual
stimulation during sexual assault is often used by defence lawyers to save
offenders in cases of sexual violence. They typically try to exonerate their
clients by implying consent on the basis of vaginal lubrication, penile erection,
orgasms and ejaculations. However, research and medical science have
proven time and again that arousal during sexual assault can occur even
involuntarily as a natural body process. For example, during rape when a man
forcibly enters a woman`s vagina, there is secretion of lubricating fluids in the
vaginal area to prevent injury due to the friction caused by penetration to the
body. This release of lubrication is not a voluntary act or necessarily consent
on behalf of the woman but is an act of the autonomous nervous system similar
to breathing, dilating pupils or even regulating heart rate.85

This was explained in an article published by two clinicians where it was


reported that a majority of male rape victims do not report the crime due to
feeling of confusion or guilt because they ejaculated or had an erection during
the assault.86 Similar experiences were reported during assaults on female
victims as well. The prevailing opinion on sexual stimulation seems to be
driven by a lack of understanding of human body or based on anecdotal
experiences rather than empirical. The research contended that orgasm is felt
at a physical and mental level, sometimes individually too. So, one can
experience sexual pleasure physically even when the mental state is that of
inhibition.

85
Jenny Morber, ‘What Science says about arousal during rape’ (2013)
<https://www.popsci.com/science/article/2013-05/science-arousal-during-rape/> accessed 30
June 2019.
86
Roy Levin and Willy Burlo, ‘Sexual arousal and orgasm in subjects who experience forced
or non-consensual sexual stimulation’ (2004) 11 Journal of Clinical Forensic Science 82.
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The research also said that multiple subjects achieved sexual stimuli in
unusual manners such as by the stroking of eyebrows, blowing the hair gently
or even by applying pressure to the teeth. A range of activities were conducted
with reference to individual sensitivity to sexual stimulation. It was found that if
enough activities are conducted, it was possible to achieve sexual stimulation
without active mental will. Laboratory studies indicated that in a sexual assault,
the fight-or-flight response gets activated by the nervous system causing
release of adrenaline in the body, resulting in excessive blood flow and
lubrication in genital areas. Thus, a woman or man being sexually assaulted
will not have unresponsive genitals when they are afraid. In males, a study
conducted in 1982 conclusively argued that men do get erections during
sexual assaults unwillingly.87

What is baffling to note here is the proclivity of defence lawyers to establish


consent on behalf of the victim of sexual assault on the basis of her achieving
sexual arousal. This position is taken despite the fact that courts in the USA
have long held that achieving orgasm during sexual assault will be irrelevant
for determining consent.88 On the other hand, in an English case, a man-
initiated divorce proceeding against his wife, claiming coercive sexual
intercourse as cruelty. The judge on hearing that the man had an erection
during the act determined that the act was consensual and dismissed the
appeal.89 In his widely renowned article, Siegmund Fruchs discussed that
having an erection during rape does not mean consent.90 The complex relation
between sexual desire and physical stimulation along with judicial treatment of
such behaviour results in denial of justice and rehabilitation to male victims.

Fruchs begins by discussing the contemporary issue of stigma in male


reporting, where preconceived notions of male sexuality prevent victims from

87
Ibid 83.
88
Curtis v State, 223 S.E.2d 721.
89
Willan v Willan [1960] 1 WLR 624.
90
Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and Consent’ (2004) 51
Cleveland State Law Review 93.
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reporting such crimes. He referred to the article of Fred Pelka which talked
about a male rape victim who was mocked by the police officials for reporting
the crime just because he was a male.91 Another case was of Gonsalves,
where a father was unable to comprehend why his teenage son did not resist
the attacker.92 Pelka also referred to previous studies which have conclusively
established that almost all male victims had an erection during sexual assault.
Fruchs also discussed the fact that many perpetrators of sexual assault
purposely induce the victims to climax for multiple reasons - to discredit the
victim’s testimony during trial by damaging his credibility, to establish complete
and absolute dominance over the victim and to reaffirm the perpetrator`s
fantasy that the act was consensual.93

Fruchs also notes that the victims tend to wilfully climax to quickly end the
ordeal with the perpetrator. An example of this is an Indian case, where a
famous movie director allegedly performed oral sex on an American research
scholar. The victim made it clear in her testimony that she resisted and
dissuaded him many times but he refused to listen so she faked an orgasm to
end the ordeal quickly. The director was convicted by the trial court, but the
appellate court overturned the conviction contending that a feeble no by the
woman could not establish a lack of consent for the perpetrator.94 What one
gathers from such an experience by the victim is that both men and women
during a sexual assault can wilfully climax to end their ordeal faster.

From a pure biological standpoint, erection can result from a variety of


emotions such as fight-or-flight, fear, anger, or excitement. However. the social
conditioning of men causes them to associate penis with sexuality which
results in penis being the centre piece of all sexuality for men. This is the crux

91
Fred Pelka, ‘Raped: A Male Survivor Breaks His Silence, in Rape and Society: Readings on
the Problem of Sexual Assault’ 250 (Patricia Searles & Ronald J. Berger eds., 1995 Westview
Press).
92
Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).
93
Steve Pokin, ‘Rape: When the Victim’s a Man; It’s happened in homes, on city streets, in
bars and parks’ (1995) The Press-Enterprise D01.
94
Mahmood Farooqui v State (Govt. of Delhi) 2017 SCC Online Del 6378.
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of Stoltenberg`s theory of Erection Learning which explains why men get an


erection while being sexually assaulted. This theory is line with the research
conducted by Mezey and King mentioned previously that the need for gender-
neutral definition of rape is to prevent excessive focus on sexuality of the crime
and instead shift focus to the violent nature of the act itself.95 Further, Fuchs
referred to a catena of judgments from various states in the USA such as
Tennessee96, South Dakota97, Massachusetts98 and New York99 where courts
have started recognising that males sustain erection during non-consensual
sexual assault as well. Currently, apart from the states of New York100,
Georgia101 and Mississippi102, all other states of the USA have gender-neutral
rape legislations. While these three states acknowledge the reality of male
rape, gender specific rape statutes have still been upheld.

In an article by Clayton Bullock and Mace Beckson, it was asserted that


physiological studies have confirmed that erections are only partially under
voluntary control and can occur due to various emotional states such a fear,
stress, and excitement.103 From the above studies and researches, it can be
said that engorgement of the penis is often misinterpreted as consent on behalf
of males just like lubrication of the vagina is in the case of females. There is a
need for society and courts to move past this.

95
Ibid 49.
96
State v Tizard, 897 S.W.2d 732 (1994).
97
State v Karlen, 589 N.W.2d 594 (1999).
98
Com. v Tatro, 42 Mass.App.Ct. 918 (1997)
99
People v Liberta, 64 N.Y.2d 152 (1984).
100
Ibid 99.
101
Lamar v State, 254 S.E.2d 353 (Ga. 1979).
102
Harper v State, 463 So. 2d 1036, 1038-39 (Miss. 1985).
103
Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’ (2011) 39 The Journal
of the American Academy of Psychiatry and the Law 197.
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Portrayal of Male Victims in Media

“Whoever controls the media, controls the mind”- Jim Morrison104

There is no denying that in this day and age, the portrayal of gender roles in
the media influence the social conditioning of youth in our society. Men are
usually not shown as victims of sexual assault by mainstream media. Even if
they are, it is portrayed as if they are responsible for their own assault. This
kind of social conditioning is pervasive, especially in a country like India, where
it is famously said that three things influence Indians - Cricket, Films and
Weddings.

Oxfam India, in its 2017 report titled ‘The Irresistible & Oppressive Gaze’,
contended the ill effects of films on the Indian youth.105 It reported that around
86% of the films made in India used sexist humour. Comedy is often used to
reduce the seriousness of misogyny and violence against women. Among the
list of things that are supposed to be comical as per Indian cinema are
Voyeurism, Rape Jokes (the movie “3 Idiots”), Negative stereotypes about
Women and Queer people (“Pyaar Ka Punchnama”) and explicit sexual
assault (“Kambakkht Ishq”). The situation is similar for men as well where
molestation of men is considered a laughing matter (“Badrinath Ki Dulhania”)
and a man landing another man as a life partner is a downgrade (“Zero”). Thus,
the portrayal of men in Indian movies perpetuates the stereotypical image of a
patriarchal male who is hypersexualised and has no empathy.

The situation is not very different in the supposedly progressive Hollywood


films as well. Movies often depict men as hyper sexual beings whose sole aim
to lose their virginity or those who consider women solely as sexual conquest.
Consider the following situation from the movie “Forty Days and Forty Nights”.
The protagonist takes a pledge to abstain from sex during the holy month of

104
<https://www.brainyquote.com/quotes/jim_morrison_167304> accessed 20th July 2019. Jim
Morisson is an American singer, songwriter and poet.
105
<https://www.oxfamindia.org/sites/all/themes/oxfamindia/images/Impact%20of%20films%
20on%20VAWG_Research_clean%20version.pdf> accessed 4th July 2019.
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Lent. On the last day, in order to prevent himself from breaking the pledge he
chains himself to his bed and falls asleep. However, his ex-girlfriend sneaks in
the house, takes advantage of his unconscious and vulnerable state and rapes
him. When he wakes up, he is not shown to be traumatised or affected by it.
The entire scene is played out in a comical fashion. Now the viewers need to
question themselves whether the reaction to the act would have been the
same if the roles were reversed. Would reversing the gender roles still be
considered comical? Would it change the meaning of rape?

In the movie “Breaking the Waves”, a quadriplegic husband requests his wife
to satisfy her desires by seeking other men. She seeks a man on a public bus
by quietly masturbating to him without so much as a hello and then gets down
and pukes. There is no depiction of what happens to the man who is assumed
to have gone home singing merrily. In the movie Bruce Almighty, the theory of
retributive rape is practically preached. The protagonist Jim Carrey demands
an apology from a street gang leader whose gang previously assaulted him.
On his refusal, Bruce uses his god powers to make a monkey come out of his
anus. The scene ends with the monkey running behind the scared perpetrator
and Bruce celebrating.

The situation is similar with respect to books as well. Claire Cohen, a prominent
author on the subject of male rape victims, professes that male rape victims
are often feminised so that the readers will be more accepting of the possibility
of a female perpetrator.106 She discusses the example of the book “Deadly
Temptation”, which is an explicit pornographic story with shades of BDSM and
assault.107 She contends that the book perpetuates the myth that male rape
victims are weak or are unable to defend themselves. This prevents many
victims from speaking about their assaults.

106
Claire Cohen, ‘Male Rape is a Feminist Issue: Feminism, Governmentality and Male Rape’
(Palgrave Macmillan 2014).
107
Ny`Chel Dior, ‘Deadly Temptation’ (True Glory Publications 2014).
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Media therefore plays an enormous role in the social conditioning of our


society. There is an immediate need to condition society in a manner which is
inclusive of all genders along with apprising filmmakers to put an end to the
stereotypical depiction of genders in films and advertisements.
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Is there any need for such a change in the Law?

The Principle of Equality

The idea of treating every citizen as equal before the state and in the eyes of
the law has been enshrined in the Indian Constitution since its adoption in
1950. Article 15 of the Indian Constitution states:
“Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them, be subject to any disability, liability, restriction or condition with
regard to
(a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public,
(3) Nothing in this article shall prevent the State from making any special
provision for women and children,
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes.”108

The jurisprudence behind the enactment of this section was based on the
caste system largely prevalent among the followers of Hinduism in India. The
‘lowest caste’ people of society, also known as ‘untouchables’ were
discriminated against and socially ostracised. During the drafting of the Indian
Constitution, several constituent assembly debates took place regarding
Article 15. Many of the constituent assembly members suggested providing
separate public access of government facilities such as schools, wells etc. to

108
Article 15 of the Constitution of India.
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the ‘lower caste’ members.109 However, these suggestions were overruled by


the Chairman of the Drafting Committee, Dr B.R. Ambedkar, who opined that
the purpose of introducing this section is to make society all inclusive. If caste-
based segregations are made, then the purpose of introducing the article itself
would become redundant.

Similarly, if one analyses the socio-economic status of women in society during


independence era, the enactment of special provisions for women seemed
appropriate. However, in the 21st century, with the advent of feminism and
women empowerment, it would be appropriate that society readjusts itself to
providing equal opportunities to both genders. Seeking special favours in a
situation where we talk of equal opportunities for women may not only appear
inconsistent but also to an extent hypocritical. There is no denying that
discrimination against women exists even now, however, an appropriate
balance has to be achieved in society. Misandry is not the answer to misogyny.
Undue favours to women in areas where women are equally equipped to
compete will only result in more misogynistic feelings among men and push
regressive attitudes further in society. Thus, there is a need to create an
inclusive society which provides equal opportunities to all not only in letter but
also in spirit of the Indian Constitution.

109
Samaraditya Pal, ‘India`s Constitution: Origins and Evolution’ (Volume 1, 1st Edition, Lexis
Nexis 2014).
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Recognition of Male Sexual Victimisation

The recognition of male sexual victimisation has been reported since the past
four decades. Some researches indicate an increase in reported instances of
male on male rapes in the 1970s in the USA.110 Cindy Struckman-Johnson
conducted a research in 1988 where she studied the prevalence of forced sex
on males during dates.111 She opined that the underreporting of the problem
stems from the myth perpetrating in society that men cannot be raped.

Johnson reported that this myth is one of the prime reasons why no data on
male rape exists and the topic does not even form part of any research on
sexual violence. The FBI, since 1986, started maintaining a data on people
arrested for forcible rape by both men and women.112 However, the definition
of rape with the agency remained the same traditional male-on-female rape till
2012. Johnson carried out a survey on some college going students regarding
sexual coercion during dates.113 The results indicated that a significant
percentage of men stated being forced to have sex at least once in their
lifetime. Further, a questionnaire following the survey revealed the standard
four categorical tactics used by women to coerce men into sex during dates-
Psychological pressure, psychological pressure with physical restraint or
force, physical force and no consent due to intoxication. She concluded her
research by advocating more research be undertaken by academicians, states
and universities so that the problems of male rape can be addressed.

Christina Faulkner in her article has advocated the need for analysis on the
interaction between gender and professional authority in cases of

110
Kaufman, A., Divasto, P., Jackson, R., Voorhees, D., & Christy, J. ‘Male rape victims: Non-
institutionalized assault’ (1980) American Journal of Psychiatry 137.
111
Cindy Struckman-Johnson, ‘Forced Sex on Dates: It happens to men, too’ (1988) 24 The
Journal of Sex Research 234.
112
Crime in United States: Uniform Crime Reports, US Department of Justice 1986.
113
Ibid 111.
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misconduct.114 However, she notes that a vast amount of literature in this


arena is focused on male perpetrators and female victims only. She cautions
that overlooking any misconduct by a professional authority of the female
gender cannot be accepted. Her research also analysed the perpetrators with
respect to their family environment, mental health and the environment in
which they function. Her findings indicate that a number of factors such as the
isolated work environments in which forensic science workers function, lack of
sufficient training, emotional vulnerability among female workers or an
inappropriate sense of rescuing patients can result in sexual transgressions at
work. One such case has actually happened where a female volunteer for
prison board was convicted of misconduct for engaging in sexual relations with
prisoners.115 Faulkner concluded by advocating a need for free and open
dialogue with employees on the matter so that these issues can be nipped in
the bud.

Statistics from the Bureau of Statistics, USDOJ116 and the Ministry of Justice,
UK117 do give some hope for changing times considering that more and more
men are coming forward to report sexual crimes. However, in India, the
situation is still in nascent stages. In India, the mindset still remains that boys
cannot get raped, despite rising instances of men getting raped being reported
in the media.118 Namita Bhandare, in her column, talks about the growing need
to recognise that men can be raped too.119 However, the old age notions of
stereotypical male behaviour among law enforcement bodies prevent

114
Christina Faulkner, ‘Sexual Boundary Violations committed by female forensic workers’
(2011) 39 The Journal of American Academy of Psychiatry and the Law 154.
115
Regina v Belton [2011] QB 934.
116
Ibid 4.
117
Ibid 5.
118
Rituparna Chatterjee, ‘The mindset is that boys are not raped': India ends silence on male
sex abuse’ <https://www.theguardian.com/global-development/2018/may/23/indian-study-
male-sexual-abuse-film-maker-insia-dariwala> accessed 17th July 2019.
119
Namita Bhandare, ‘It’s time we recognised that men can get raped too’
<https://www.hindustantimes.com/columns/it-s-time-we-recognised-that-men-can-get-raped-
too/story-tlIiUihV1T0gMHbqHfGaIM.html> accessed 17th July 2019.
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adequate mental support to male rape victims even in countries such as the
UK where it has been recognised over the past three decades.120

120
Aliraza Javaid, ‘The Unknown Victims: Hegemonic Masculinity, Masculinities, and Male
Sexual Victimisation’ (2017) 22 (1) Sociological Research Online 1.
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Preventing Undermining of Women Centric Laws

In India, over the past decade, there has been a sudden rise in frivolous and
malicious litigation with respect to allegations of sexual assault. In a shocking
revelation by the Delhi Commission for Women (DCW), it was held that 53.2%
of the rape cases filed between April 2013 and July 2014 in Delhi were found
to be false.121 Such unscrupulous women significantly undermine the fight
against sexual violence. When such a large proportion of cases are found to
be false, it creates a negative social effect where even genuine victims are
suspected and come under the scanner. The system then starts doubting
every incidence, thereby hurting the rule of justice and creating a situation
where victims even fear approaching the police due to apprehension that their
experience would be disbelieved.

When the system introduces reactive measures fuelled by populism due to any
heinous crime without any rational basis, the genuine victims end up suffering.
An example of this situation would be the plight of dowry victims in India.
Dowry is a form of money or gifts given by the bride`s family to the groom`s
family as a compensation because a girl is considered a financial burden on
the groom`s family due to her being a non-earning member. This practise leads
to a lot of girls from poor families being harassed and tortured for not bringing
enough money during or even after marriage. This issue was first addressed
by the enactment of the Dowry Prohibition Act, 1961.

However, the implementation was ineffective due to dowry being ingrained in


the culture of society and no complaints were made. Further, the Dowry
Prohibition Act, 1961 was the only remedy available to women in such cases
until 1983. In 1983, due to the public uproar following the Mathura Gang Rape
case122, the government passed the Criminal Law Amendment Act, 1983
where new sections for dowry victims were introduced such as 304B and 498A

121
<https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-delhi-commission-of-
women-233222-2014-12-29> accessed 9th July 2019.
122
Ibid 15.
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in the IPC. Sections 113A and 113B were added in the Indian Evidence Act,
1872 for presumption of dowry death for any woman dying within seven years
of marriage and additional presumption for dowry death in case the woman
was subjected to cruelty before dying.

The above enactments on the face of it, appear bona fide and were enacted
for the protection of women. In particular, Section 498A provided sweeping
powers to the police to immediately arrest the accused persons to prevent
continuation of the offence.123 However, due to lack of adequate checks and
balances, this provision was largely misused by police officials and
unscrupulous families into extorting money from the groom families. There is
a large number of cases where innocent distant relatives, and senior citizen
in-laws were maliciously arrested in order to defame and extort money from
them.124 The rampant abuse of dowry prevention provisions reached such
astronomical levels that the courts were forced to take notice and they
subsequently gave directions that no automatic arrests should be made in
dowry harassment cases.125

The dilution of dowry harassment law continued, with a more recent directive
of the Supreme Court of India giving directions to prevent further misuse of the
law.126 The bottom line is that sustained misuse of this law over the years
coupled with comatose response to such abuse by all the three pillars of
democracy has resulted in denial of justice to the real victims.127 The
contemporary situation is such that no dowry related complaint is taken

123
Section 498A is cognizable offence and police has power to arrest accused persons without
an arrest warrant under section 41A of the Code of Criminal Procedure, 1973 in cognizable
offences.
124
Mohammad Miyan v. State of UP (2018) SCC OnLine SC 1976; Mangesh Bhoir v. Leena
Bhoir (2015) SCC OnLine Bom 6258.
125
Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
126
Social Action Forum for Manav Adhikar v. Union of India (2018) 10 SCC 443.
127
Andrew Marszal, ‘Indian bride burnt alive by husband’s family because her skin was too
dark’ <https://www.telegraph.co.uk/news/2016/06/09/indian-bride-burnt-alive-by-husbands-
family-because-her-skin-was/> accessed 10th July 2019.
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seriously, courts very easily provide bail and quash cases and the victim`s
credibility has been damaged socially. The result is that victims continue to
suffer and we are back to square one from where we originally started.

Misuse of the law against any gender needs to be stopped. Otherwise, if we


allow such abuse of process of courts to continue, then it won`t be far away
when the law on female rape is diluted to the point of uselessness. Our
legislators need to understand that ‘Misandry is not the answer to Misogyny’.
If we try to douse fire with fire, the social harmony and fabric of our society will
burn down to the ground. There is a serious need to punish malicious
prosecution in India; a recent law commission report recommends the same,
but the legislative changes in India are slow to come by.128 Therefore, in the
fight against sexual violence all genders need to fight together as a team and
avoid succumbing to divisive tendencies. Every single time when a woman
files a malicious case against a man for vengeance, the credibility of every
woman victim is affected. We do not live in a utopian world and we form
opinions based on what we witness. Punishing woman who file malicious
cases will go a long way in garnering support from men and making them more
empathetic towards women issues.

128
Law Commission of India, ‘Wrongful Prosecution’ (Report no. 277, August 2018).
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In Favour of Women`s Rights

The movement for gender-neutrality is often piped as a backlash against


feminism or something that would detract people from the fight for women`s
rights. The narrow ideologies of radical feminists are hurting the progress and
harmony of society. However, with the right kind of approach, gender-neutrality
can actually be in favour of the feminist movement and women’s rights. In the
fight against sexual violence, it is necessary that both men and women unite
and fight together. This is essential not only for the greater recognition of male
sexual victimisation, but also to prevent undermining of laws to protect women.

“We must learn to live together as brothers or perish together as fools”- Martin
Luther King Jr.129

The above statement aptly coveys the essence of cooperation and unity, which
is applicable in all spheres of life, and particularly in the movement towards
gender-neutrality. The importance of synergy and collective strength cannot
be overstated. Further, there is a need for men to empathise with women`s
issues and vice versa, even more so in a patriarchal society. An analogy would
be appropriate here.

Abraham Lincoln abolished slavery during his presidential tenure because he


despised such an inhuman treatment of people. His tenacity and empathy for
slaves could be traced to a famous incident. Lincoln was travelling down the
Mississippi river along with his friends when he happened to notice a market
of slaves where humans were being bought and sold. He famously remarked
“Boys, if I ever get a chance to hit that thing[slavery], I’ll hit it hard”.130 Three
decades later, he redeemed his oath. A White man then was empathetic
towards the pain and suffering of the black race, and it did great benefit to
them. This is not to undermine the efforts of Martin Luther King, Rosa Parks or

129
Martin Luther King Jr. in a speech at St Louis, 22 March 1964, in St Louis Post-Dispatch
23 March 1964.
130
<http://www.authorama.com/life-of-abraham-lincoln-7.html> accessed 8th July 2019.
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Nelson Mandela. However, in a society run primarily by whites at that time,


Abraham`s actions had a far significant impact.

Similarly, the solution to women`s emancipation lies in the enlightenment of


men to their problems and vice versa. When women become aware of men`s
issues with sexual violence, it would make them more empathetic and willing
to fight alongside men in this battle. At the same time, men will be more willing
to support women’s rights. This approach seems logical not only from a moral
and equality perspective but from an economic perspective. The state has
limited resources and by dealing with all kinds of sexual violence victims under
the same umbrella we will be able to better utilise existing resources for
providing speedy justice.

The words of Emma Watson`s ‘He for She’ Campaign is apt here ‘When men
are liberated from the pressure of being men, women will be automatically
liberated”.131

131
<https://www.heforshe.org/en> accessed 8th July 2019.
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Possible Solutions

Changes in Framing the Laws

One of the first things that needs to be done for recognising the reality of male
sexual victimisation is a change in the framing of laws. This needs to be
achieved not only for the Indian Penal Code, 1860 but also for other laws such
as domestic violence and family laws. In the era where gendered behaviour is
a changing norm and homosexuality has been recognised as a normal human
sexual preference, we cannot be working with Victorian era definitions of
crime. We cannot be working in the 21st century legal system with 20th century
tools and jurisprudence. As we noted earlier, there is a need to shift away from
the phallus-centric approach to framing of laws into a gender-neutral one such
as ‘sex without consent’ coined by David Archard132 or the Swedish definition
of ‘enforced sexual intercourse’133.

There is an immediate need to engage in discourse where male sexual assault


experiences have to be considered while framing the law. We cannot have
gendered definition of rape law in the 21st century for two simple reasons- firstly
it is not coherent with the LGBT rights campaign, and secondly its foundations
are based on the Victorian jurisprudence of common law which places undue
importance on hurt for establishing rape. Therefore, the legislators need to
direct the law commission to conduct researches and assessment of all types
of victims of sexual violence independent of gender.

Attempts to introduce gender-neutral rape law has been made since a long
time. The first attempt was made by the recommendation of the Law
Commission of India in 2000 which was ignored by the government at the
time.134 In the year 2012, a new bill was introduced to amend the criminal law

132
David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical Quarterly 374.
133
Section 1, Chapter 6 of the Swedish Penal Code, 1962.
134
<https://www.legal-tools.org/doc/1c639d/pdf/> accessed 19th July 2019.
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to make in gender-neutral.135 During the drafting of the bill, a parliamentary


report sought a response from the National Commission of Women in India
which responded by raising objections that rape is a gendered crime largely
affecting women and any attempt to make it gender-neutral would compromise
the interests of women.136 Similar views were expressed by the Verma
committee set up post the 2012 gang rape.137

What is particularly amusing is that whenever attempts have been made by


public spirited individuals to file petitions in the Supreme Court of India to direct
the government to amend the rape law into a gender-neutral one, the
government and the interested parties report back having no need for the
law.138 However, it is interesting to note that no research or survey has been
undertaken to substantiate this view. The government just seems to be taking
a diplomatic stance to avoid displeasing powerful women voters. This
assumption seems to be similar to the one used by the Criminal Law Revision
Committee in the UK which ultimately recommended enacting male on male
rape only because the society views rape as a gendered crime which males
commit on females. Just like in the Indian situation, no research or survey
substantiated this view.

In a survey carried out by the Indian Government in 2007 on child sexual


abuse, it was reported that more than 50% boys reported being raped or
sodomised. Similarly, in another survey carried out by Centre for Civil Society
(CCS) a think-tank based in the capital city it was reported that one fifth of the
men were coerced into having sex of which majority perpetrators were

135
<https://www.prsindia.org/sites/default/files/bill_files/Criminal_Law_%28A%29_bill%2C_20
12.pdf> accessed 19th July 2019.
136
<http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Ho
me%20Affairs/167.pdf> accessed 19th July 2019.
137
<https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%
20committe%20report.pdf> accessed 19th July 2019.
138
<https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-375ipc-gender-
neutral/> accessed 19th July 2019.
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women.139 Thus, there is no denying that there is an immediate need to reform


the entire repertoire of statutory laws whether it is the Indian Penal Code, The
Indian Evidence Act or allied family laws such as domestic violence act into a
gender-neutral one.

139
<https://ccs.in/indias-law-should-recognise-men-can-be-raped-too> accessed 19th July
2019.
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Gender Sensitisation Training for the entire Legal Machinery

Alongside amending the definition of rape law, we need to sensitise the entire
legal machinery in order to deal with the 21st century reality of the ungendered
world. This is required so that victims do not feel any hesitation in reporting
violations to the police officials. Police forms the first authority in the legal
machinery whom victims’ approach. However, police officials’ apathy is so
widely known among the general public that it dissuades victims from speaking
up.

In the UK, the Stern Review was setup to examine certain issues within the
criminal justice system.140 One of the primary issues examined was about the
response of public authorities to rape complaints and how more victims can be
encouraged to report. The report contended that though the attitudes,
practises of the police have changed for the better, the implementation of the
same is still patchy. Stern contended that there is so much focus on the justice
process that we tend to ignore the victim who suffered this violent crime. Even
the medical staff dealing with victims post the horrific encounter were reported
to have poor communication skills. Convictions remain low because the review
process for performance of a police officer or prosecutor does not involve
considering how well the victim was handled. Stern recommended that
Independent Sexual Violence Advisors (ISVA) be appointed for each case
whose job would be to take care of the needs of the victims along with
coordinating with the police and prosecuting bodies.

One can understand why most rape victims, especially male, feel hesitant to
report rape. Further researches have also corroborated the grim reality that
male rape victims seeking help have been turned away from rape crisis centres

140
Baroness Vivien Stern CBE, Government Equalities Office UK
<https://webarchive.nationalarchives.gov.uk/20110608162919/http://www.equalities.gov.uk/p
df/Stern_Review_acc_FINAL.pdf> accessed 20th July 2019.
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considering there are no systematic provisions in place even though these


centres are publicly funded by the Ministry of Justice, UK.141

In India, such apathy of police forces came to light while assessing the facts
of Bhanwari Devi rape case. In this case, the police officials demanded
submission of the skirt the victim was wearing, at the police station as
evidence. The police did not provide any alternate clothing which forced the
unfortunate victim to use her husband`s turban to cover herself up while
walking back to her house. She faced even more apathy when the doctor on
duty at the primary health care centre refused to examine her in the absence
of a female doctor. At the city hospital she was referred to, the doctor refused
to examine her without an order from the local magistrate. The vaginal swab
was taken after more than 48 hours even though the Indian law requires it to
be taken within 24 hours.

Considering the ignominious and apathetic behaviour of the police in such a


sensitive case, one can only imagine what image exists of a police officer in
the mind of any woman. Gardiner Harris, a reporter for New York Times noted
in her article142 that even in cases of heinous crimes, the police is concerned
with settling the matter in order to avoid bad press rather than bringing the
offender to justice. Thus, one arrives at the inevitable conclusion that gender
sensitisation training and handling of victims for police officials needs to be
done on an urgent basis.

Similar training would be appropriate for judicial officers considering that they
live a reclusive life and are susceptible to narrow views about sexuality and
human behaviour. One such ugly incident happened during the Bhanwari Devi
rape case in Rajasthan in 1992. The Judicial Officer of the trial court while

141
Catherine Pitfield, ‘Male Survivors of Sexual Assault: To tell or not to tell?’,
<https://repository.uel.ac.uk/download/7114928707ffdc81db2b052b20765be5b5c8eae24c2b
ca074e79f9a60966ce67/3605459/2013_DClinPsych_Pitfield.pdf> accessed 25th July 2019.
142
Gardiner Harris, ‘For Rape victims, police are often part of the problem’ NYTimes (New
Delhi, 22nd January 2013) <https://www.nytimes.com/2013/01/23/world/asia/for-rape-victims-
in-india-police-are-often-part-of-the-problem.html>accessed 9th January 2019.
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dismissing the case made really absurd and unfortunate observations for
acquitting the accused. Some of the reasons for acquittal given were - the head
of a village cannot rape, men of different castes cannot participate together in
gang rape, a higher caste male cannot rape a lower caste woman because of
reasons of purity and Bhanwari Devi's husband couldn't have quietly watched
his wife being gang-raped, among other such ridiculous reasons.

Such unfortunate comments by the judicial officer remind us that reclusiveness


adhered to by the judicial officers can have negative consequences on their
outlook of society. These officers need to be gender sensitised so that they
are well-versed with the changing social realities. One may be tempted to
presume that considering that the incident is pretty old, things would be
different now. However, another set of unfortunate observations made by the
judicial officers of an esteemed High Court brought back the haunted
memories of Bhanwari Devi. In an appeal against conviction by the accused in
the OP Jindal rape case, while granting bail, the judicial officers made certain
unfortunate comments about the victim on the lines of victim shaming.143 Some
of these observations were:
“The entire crass sequence actually is reflective of a degenerative mindset of
the youth breeding denigrating relationships mired in drugs, alcohol, casual
sexual escapades and a promiscuous and voyeuristic world.” and
“We are conscious of the fact that allegations of the victim regarding her being
threatened into submission and blackmail lends sufficient diabolism to the
offence, but a careful examination of her statement again offers an alternative
conclusion of misadventure stemming from a promiscuous attitude and a
voyeuristic mind.”

The words of Eminent Jurist Justice VR Krishna Iyer come to mind here when
he warned in Rafiq v State of UP that ‘the strategy for a crime free society
should not be draconian severity in sentencing but institutional sensitivity,

143
Cr.M.No. 23962 of 2017 in Cr.A.No. S-2396-SB of 2017, High Court of Punjab and Haryana
at Chandigarh.
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processual celerity and prompt publicity among the concerned community’.144


Thus, even at the risk of sounding like a broken record, it cannot be
emphasized enough that there is a need to sensitise the entire criminal justice
administration so that justice can be delivered not only in letter but also in the
spirit of equality under the Indian Constitution.

144
(1980) 4 SCC 262.
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Conclusion

In this journey of determining the need for gender-neutrality in Rape/Sexual


Assault laws, we have tried to explore various areas that have not been studied
adequately by governments and academicians. We assessed several
interconnected subjects and critically analysed issues surrounding male rape.

There are many presumptions regarding male rape in society which have been
evaluated in this dissertation and one reaches the inevitable conclusion that
the need for gender-neutrality in rape and sexual assault law in India is not
only immediate but is also indispensable. Patriarchy may appear to be
advantageous to men on the surface of it, but it affects them quite negatively
in reality. What is particularly surprising is that the knowledge of sodomy of
males as war crimes has been in the public domain since time immemorial,
however, legislative thought process did not consider this problem systemic
enough to seek a resolution.145

We also saw that contrary to popular perception, men do not experience


sexual assault differently than women. Patriarchy dictates that men have the
strength or the instinct to fight back during sexual assault, however research
proves otherwise. On the issue of opposition from radical feminists, we noted
that many schools of feminism including eminent feminists like Brownmiller
have acknowledged and advocated the recognition of male rape. As evident
from our research, there is an urgent need to shift from the contemporary
phallus-centric framing of laws which restrict the discourse on rape law.
Further, we analysed how a lack of understanding on the part of defence
lawyers with respect to bodily response to sexual stimuli can result in
miscarriage of justice in courts. There emerges a serious need to educate the
justice system as well as the general public about the reality of how sexual
stimuli can be achieved without conscious consent for any sexual act.

145
Ibid 2.
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Further, the tendency of media to create and maintain stereotypical images of


genders and their respective behaviour needs to be rewired to reflect social
realities. A man can have feminine qualities and a woman can have masculine
qualities and media needs to advocate and showcase the same. There is no
denying that media has no statutory duty for societal upliftment, but
considering the systemic effect it has on the conditioning of society and
masses, a moral duty cannot be denied. As far as the need for a gender-neutral
law is concerned, the rationale lies not only in the constitutional dictum of
Article 15, but also to prevent undermining the value of consent in sexual
autonomy and bodily integrity. By including men in the fight against sexual
violence in recognition of growing male sexual victimisation, the importance of
consent will be reaffirmed systemically without the prejudice of gender.

The solution for the recognition of male rape lies first in framing all the existing
laws in a gender-neutral language so as to affirm the idea that gender is no
longer the cornerstone for determining legal wrongs. Secondly, since law is
nothing but the collective will of society, the need to gender sensitise the entire
justice machinery and update legal tools for investigative agencies is a sine
qua non. If a society has to be inclusive in spirit, there is a need to inculcate
diversity and inclusiveness not only in thought but also in action. Last but not
the least, creating laws and training policemen are the maximum a government
can do; the real change will come only when the collective will of the people
reflect the same. To summarise this dissertation, the words of Robert F
Kennedy seems appropriate:
“Laws can embody standards, governments can enforce laws but the final
task is not a task for government. It is a task for each and every one of us.
Every time we turn our heads the other way when we see the law flouted when
we tolerate what we know to be wrong, when we close our eyes and ears to
the corrupt because we are too busy, or too frightened, when we fail to speak
up and speak out we strike a blow against freedom and decency and
justice.”146

146
<https://www.bartleby.com/73/1746.html> accessed 24th July 2019.
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19. Rafiq v State of UP (1980) 4 SCC 262.
20. Salil Bali v Union of India (2013) 7 SCC 705.
21. Mohammad Miyan v. State of UP (2018) SCC OnLine SC 1976.
22. Mangesh Bhoir v. Leena Bhoir (2015) SCC OnLine Bom 6258.
23. R v Ismail [2005] All ER 216.
24. Commonwealth v Gonsalves 499 N.E.2d 1229 (Mass. App. Ct. 1986).

Articles:
1. Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed
Conflict’ (2007) 18(2) European Journal of International Law 253.
2. Karen Weiss, ‘Male Sexual Victimisation’ (2010) 12(3) Men and
Masculinities 275.
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3. Charlene Muehlenhard and Stephen Cook, ‘Men's Self-Reports of


Unwanted Sexual Activity’ (1988) 24 Journal of Sex Research 52.
4. Barbara Krahe, Renate Scheinberger-Olwig and Steffen Bieneck,
‘Men’s Reports of Non-consensual Sexual Interactions with Women:
Prevalence and Impact’ (2003) 32(2) Archives of Sexual Behaviour 165.
5. Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The
Assimilation of Resistance?’ (2002) 1(3) Seattle Journal for Social
Justice 62.
6. Gillian Mezey and Michael King, ‘The effects of sexual assault on men’
(1989) 19 Physiological Medicine 205.
7. Elizabeth Murphy, Danielle A. Harris, Raymond Knight and Michael A.
Milburn, ‘Sexual Coercion in Men and Women: Similar Behaviours,
Different Predictors’ (2009) 38 Archives of Sexual Behaviour 974.
8. RW Connell and James Messerschmidt, ‘Hegemonic Masculinity’
(2005) 19(6) Gender & Society 829.
9. Mary Larimer, Amy Lydum, Britt Anderson and Aaron Turner, “Male and
Female Recipients of unwanted sexual contact” (1999) 40 Sex Roles
295.
10. Bryana H. French, Jasmine D. Tilghman, and Dominique A.
Malebranche, ‘Sexual Coercion Context and Psychosocial Correlates
Among Diverse Males’ (2015) 16 Psychology of Men & Masculinity 42.
11. Charlotte Petersson and Lars Plantin, ‘Breaking with Norms of
Masculinity: Men Making Sense of their experience of sexual assault’
[2019] Clinical Social Work Journal 1.
12. Christine Boyle, ‘Sexual Assault and the Feminist Judge’ (1985) 1
Canadian Journal of Women and the Law 93.
13. Ruth Graham, ‘Male Rape and the careful construction of the male
victim’ (2006) 15(2) Social & Legal Studies 187.
14. Alfred Kinsey, ‘Sexual Behavior in Human Male’ (Indiana University
Press 1948).
15. Susan Estrich, ‘Rape’ (1986) 95 Yale LJ 1087.
16. Siobhan Weare, ‘Oh you’re a guy, how could you be raped by a woman,
that makes no sense’ (2018) 14 International Journal of Law in Context
110.
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17. Philip Rumney and Morgan Taylor, ‘Recognizing the Male Victim:
Gender-neutrality and the Law of Rape: Part Two’ (1997) 26 Anglo-
American Law Review 330.
18. Philip Sarrel and William Masters, ‘Sexual Molestation of Men by
Women’, (1982) 11(2) Archives of Sexual Behavior 117.
19. Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it
matter?’ [2018] Criminal Law and Philosophy 1.
20. Roy Levin and Willy Burlo, ‘Sexual arousal and orgasm in subjects who
experience forced or non-consensual sexual stimulation’ (2004) 11
Journal of Clinical Forensic Science 82.
21. Siegmund Fruchs, ‘Male Sexual Assault-Issues of Arousal and
Consent’ (2004) 51 Cleveland State Law Review 93.
22. Clayton Bullock and Mace Beckson, ‘Male Victims of Sexual Assault’
(2011) 39 The Journal of the American Academy of Psychiatry and the
Law 197.
23. Kaufman, A., Divasto, P., Jackson, R., Voorhees, D., & Christy, J. ‘Male
rape victims: Non-institutionalized assault’ (1980) American Journal of
Psychiatry 137.
24. Cindy Struckman-Johnson, ‘Forced Sex on Dates: It happens to men,
too’ (1988) 24 The Journal of Sex Research 234.
25. Christina Faulkner, ‘Sexual Boundary Violations committed by female
forensic workers’ (2011) 39 The Journal of American Academy of
Psychiatry and the Law 154.
26. Steve Pokin, ‘Rape: When the Victim’s a Man; It’s happened in homes,
on city streets, in bars and parks’ (1995) The Press-Enterprise D01.
27. Aliraza Javaid, ‘The Unknown Victims: Hegemonic Masculinity,
Masculinities, and Male Sexual Victimisation’ (2017) 22 (1) Sociological
Research Online 1.
28. David Archard, ‘The Wrong of Rape’ (2007) 57 The Philosophical
Quarterly 374.

Books:
1. Stephanie Allen, New Visions of Crime Victims (Hart Publishing 2004)
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2. Lori Girshick, Women to Women Sexual Violence (Northeastern


University Press 2002)
3. Nathan Caplan, Alison Geist and Jeanne Marsh, Rape and the Limits
of Law Reform (Praeger 1982)
4. Susan Brownmiller, ‘Against Our Will: Men, Women & Rape’ (Ballantine
Books 1975).
5. Jennifer Temkin, ‘Rape and the Legal Process’ (2005, 2nd Edition,
Oxford University Press).
6. Bernie Zilbergeld, Male Sexuality: A Guide to Sexual Fulfillment (Little
Brown & Co 1978).
7. Kamla Bhasin, ‘What is Patriarchy?’ (Kali for Women 1993).
8. Joan McGregor, ‘Is it Rape: on acquaintance rape and taking women's
consent seriously’ (Routledge 2005).
9. Janet Halley, ‘Split Decisions: How and Why to Take a Break from
Feminism’ (Princeton University Press 2006).
10. Catherine Mackinnon, ‘Liberalism and the Death of Feminism’ in
Dorchen Leidholdt and Janice G. Raymond (eds), The Sexual Liberals
and the Attack on Feminism (Pergamon Press 1990), 166.
11. Florence Rush, ‘Many Faces of Backlash’ in Dorchen Leidholdt and
Janice G. Raymond (eds), The Sexual Liberals and the Attack on
Feminism (Pergamon Press 1990), 3.
12. Jeanne Gregory and Sue Lees, ‘Policing sexual assault’ (Routledge
1999).
13. Rosemarie Tong, ‘Women, Sex and the Law’ (Rowman & Littlefield
Publishers 1989).
14. Fred Pelka, ‘Raped: A Male Survivor Breaks His Silence, in Rape and
Society: Readings on the Problem of Sexual Assault’ 250 (Patricia
Searles & Ronald J. Berger eds., 1995 Westview Press).
15. Claire Cohen, ‘Male Rape is a Feminist Issue: Feminism,
Governmentality and Male Rape’ (Palgrave Macmillan 2014).
16. Samaraditya Pal, ‘India`s Constitution: Origins and Evolution’ (Volume
1, 1st Edition, Lexis Nexis 2014).
17. Catherine Mackinnon, ‘Only Words’ (Harvard University Press 1996).
18. Ny`Chel Dior, ‘Deadly Temptation’ (True Glory Publications 2014).
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Sections:
1. Article 15(3) of the Indian Constitution.
2. Section 498A of the Indian Penal Code, 1860.
3. Section 375 of the Indian Penal Code, 1860.
4. Section 114A of the Indian Evidence Act, 1872.
5. Section 376D of the Indian Penal Code, 1860.
6. Section 376B of the Indian Penal Code, 1860.
7. Section 354D of the Indian Penal Code, 1860.
8. Section 354A of the Indian Penal Code, 1860.
9. Section 354C of the Indian Penal Code, 1860.
10. Section 2 of the Sexual Offences Act, 2003.
11. Section 4 of the Sexual Offences Act, 2003.
12. Article 15 of the Constitution of India.
13. Section 143 of the Criminal Justice and Public Order Act, 1994.
14. Section 1, Chapter 6 of the Swedish Penal Code, 1962.
15. Section 375, Indian Penal Code, 1860.

Law Commission Reports


1. 172nd Report of the Law Commission of India.
2. 277th Report of the Law Commission of India.
3. Law Reform Commission of Canada, 1978.

Command Papers:
1. Home Office, 15th Report: Sexual Offences (Cmnd 9213) (1984).
2. Criminal Law Review Committee Report.
3. Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.5.
4. Home Office, Setting the Boundaries (2000)
<https://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.g
ov.uk/documents/vol1main.pdf?view=Binary> accessed 31st July 2019.
5. Home Office, Setting the Boundaries (2000), Volume I, Para 2.8.4.
6. Jennifer Temkin, ‘Literature Review of Research into Rape and Sexual
Assault in Home Office, Setting the Boundaries (2000) Volume II, 83.
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Statutes:
1. Criminal Justice and Public Order Act, 1994. (UK)
2. Sexual Offences Act, 2003. (UK)
3. Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013. (India)

Bills in Legislatures:
1. Criminal Law Amendment Bill, 2012 (India),
2. Criminal Law Amendment Ordinance, 2013 (India)

State Research/Study:
1. Sexual Victimisation in Prisons and Jails, National Inmate Survey 2008-
09. (USA)
2. Ministry of Justice, Home Office and the Office for National Statistics
(2013) An Overview of Sexual Offending in England and Wales:
Statistics Bulletin.gov.uk.
<https://www.gov.uk/government/uploads/system/uploads/attachment
_data/file/214970/sexual-offending-overviewjan-2013.pdf> (accessed
28 June 2019). (UK)
3. Crime in United States: Uniform Crime Reports, US Department of
Justice 1986. (USA)
4. JS Verma Committee on Amendments of Criminal Law.
<https://www.prsindia.org/uploads/media/Justice%20verma%20commi
ttee/js%20verma%20committe%20report.pdf> accessed 11th July
2019. (India)
5. Baroness Vivien Stern CBE, Government Equalities Office UK
<https://webarchive.nationalarchives.gov.uk/20110608162919/http://w
ww.equalities.gov.uk/pdf/Stern_Review_acc_FINAL.pdf> accessed
20th July 2019.
6. A Forensic Guide for Criminal Investigators, Page 58-66
<http://nicfs.gov.in/?p=15475> accessed 23rd July 2019.

Private Think Tank/ Research Centre Reports:


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1. People`s Union for Civil Liberties, ‘Human rights violations against


sexuality minorities in
India’<https://web.archive.org/web/20090725200649/http://www.altlaw
forum.org/PUBLICATIONS/PUCL%20REport%201> accessed 23rd
July 2019.
2. Oxfam Report on Impact of Films on Violence against Women and
Girls<https://www.oxfamindia.org/sites/all/themes/oxfamindia/images/I
mpact%20of%20films%20on%20VAWG_Research_clean%20version.
pdf> accessed 4th July 2019.

Websites:
1. <https://www.theguardian.com/global-development/2019/feb/11/spare-
innocent-men-anguish-india-ruling-aims-to-end-false-
claims?CMP=share_btn_fb&fbclid=IwAR34eHUku-
fjO2WbNndZyl2FlM1UpBiOc4tPzpHGjYOUlevUlcOZafOsv5M>
accessed 5th August 2019.
2. <https://www.popsci.com/consent.php?redirect=https%3a%2f%2fwww
.popsci.com%2fscience%2farticle%2f2013-05%2fscience-arousal-
during-rape> accessed 5th August 2019.
3. <https://freethoughtblogs.com/hetpat/2014/09/11/the-flesh-is-weak-on-
the-erection-equals-consent-rape-myth/> accessed 5th August 2019.
4. <https://www.independent.co.uk/life-style/female-sex-offenders-more-
common-gender-bias-statistics-rape-abuse-a7839361.html> accessed
5th August 2019.
5. <https://edition.cnn.com/2013/10/09/living/chris-brown-female-on-
male-rape/index.html> accessed 5th August 2019.
6. <https://eu.usatoday.com/story/opinion/2014/09/22/rape-cdc-numbers-
misleading-definition-date-forced-sexual-assault-column/16007089/>
accessed 5th August 2019.
7. <https://www.brainyquote.com/quotes/jim_morrison_167304>
accessed 20th July 2019.
8. <https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-
delhi-commission-of-women-233222-2014-12-29> accessed 9th July
2019.
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9. <http://www.authorama.com/life-of-abraham-lincoln-7.html> accessed
8th July 2019.
10. <https://www.heforshe.org/en> accessed 8th July 2019.
11. <https://www.legal-tools.org/doc/1c639d/pdf/> accessed 19th July
2019.
12. <https://www.prsindia.org/sites/default/files/bill_files/Criminal_Law_%2
8A%29_bill%2C_2012.pdf> accessed 19th July 2019.
13. <http://164.100.47.5/newcommittee/reports/EnglishCommittees/Comm
ittee%20on%20Home%20Affairs/167.pdf> accessed 19th July 2019.
14. <https://www.prsindia.org/uploads/media/Justice%20verma%20commi
ttee/js%20verma%20committe%20report.pdf> accessed 19th July
2019.
15. <https://www.livelaw.in/sc-dismisses-plea-to-make-rape-law-section-
375ipc-gender-neutral/> accessed 19th July 2019.
16. <https://ccs.in/indias-law-should-recognise-men-can-be-raped-too>
accessed 19th July 2019.
17. <https://www.bartleby.com/73/1746.html> accessed 24th July 2019.
18. <https://www.indiatoday.in/india/story/woman-rapes-woman-first-case-
of-same-sex-assault-after-section-377-verdict-1448534-2019-02-05>
accessed 23rd July 2019.

Blogs/Opinion/Editorials:
1. Rituparna Chatterjee, ‘The mindset is that boys are not raped': India
ends silence on male sex abuse’ <https://www.theguardian.com/global-
development/2018/may/23/indian-study-male-sexual-abuse-film-
maker-insia-dariwala> accessed 17th July 2019.
2. Namita Bhandare, ‘It’s time we recognised that men can get raped too’
<https://www.hindustantimes.com/columns/it-s-time-we-recognised-
that-men-can-get-raped-too/story-tlIiUihV1T0gMHbqHfGaIM.html>
accessed 17th July 2019.
3. Andrew Marszal, ‘Indian bride burnt alive by husband’s family because
her skin was too dark’
<https://www.telegraph.co.uk/news/2016/06/09/indian-bride-burnt-
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alive-by-husbands-family-because-her-skin-was/> accessed 10th July


2019.
4. Catherine Pitfield, ‘Male Survivors of Sexual Assault: To tell or not to
tell?’,
<https://repository.uel.ac.uk/download/7114928707ffdc81db2b052b20
765be5b5c8eae24c2bca074e79f9a60966ce67/3605459/2013_DClinP
sych_Pitfield.pdf> accessed 25th July 2019.
5. Gardiner Harris, ‘For Rape victims, police are often part of the problem’
NYTimes (New Delhi, 22nd January 2013)
<https://www.nytimes.com/2013/01/23/world/asia/for-rape-victims-in-
india-police-are-often-part-of-the-problem.html>accessed 9th January
2019.
6. Ipsita Chakravarty, ‘Changing juvenile law won't help victims of heinous
crimes: legal expert Mrinal Satish’
<https://scroll.in/article/777620/changing-juvenile-law-wont-help-
victims-of-heinous-crimes-legal-expert-mrinal-satish> accessed 20th
July 2019.
7. Jenny Morber, ‘What Science says about arousal during rape’ (2013)
<https://www.popsci.com/science/article/2013-05/science-arousal-
during-rape/> accessed 30 June 2019.