Updated: May 14, 2020
The first thing which strikes our mind when we hear the word rape is women. Can a woman rape a man? In my opinion, a female can rape a male. Rape of males is not recognized in many countries. Because of the stereotypes, it is still thought that only men can rape, be it consensual or non-consensual sex.
To understand the situation better, two people A and B confronted a similar kind of event at different places. They both woke up to found with strangers in an intimate situation, but both the cases were treated differently. One was seen as a serious case of rape because A was woman and other was seen a bit casually because B was a man. The reason for the difference in responses was that the A was a woman who had woken up to find a man having sex with her; B is a man who had woken up to find a woman having sex with him. In these cases, A would have charged the person with rape, whereas B did not have any remedy.
INTERNATIONAL SCENARIO OF RAPE LAWS:
According to 10th REPORT OF THE UN SECRETARY-GENERAL “It is essential to note that survivors of sexual violence are not a homogenous group. Men and boys also suffer conflict-related sexual violence in the context of detention and interrogation. Incidents include rape, gang rape, forced nudity and other forms of inhumane and degrading treatment. Lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals have also been targeted on the basis of their real or imputed sexual orientation or gender identity. In many situations, there are often no legal provisions criminalizing the rape of men and boys. Instead, the criminalization of adult consensual same-sex conduct may impede reporting for fear of prosecution. LGBTI survivors are negatively affected by such laws and risk penalties when reporting their experiences.”
In United States of America, the FBI agency now defines rape as "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." The new wording, which is more or less in line with standard state sexual assault laws, notably removes references to gender; ditches "forcible" in favour of "without the consent of the victim".
In English law, under the Sexual Offences (Scotland) Act, 2009 and the Sexual Offences (Northern Ireland) Act, 2009 men can be both perpetrators and victims. However, in all parts of the United Kingdom, a female cannot be legally charged with 'rape' (she must be instead charged with other offences such as sexual assault, assault by penetration, or causing sexual activity without consent).
In China, a revision of Article 237 which criminalises "forcible indecency," made that section of the law gender-neutral. Offences that constitute rape of males may be tried under this article, with offenders facing a maximum of five years in prison.
In Philippines, Article 266-A of the law defines rape by "an act of sexual assault" by any person either by "inserting his penis into another person's mouth or anal orifice" or inserting "any instrument or object, into the genital or anal orifice of another person”. The 1997 amendment allowed the legal recognition of rape of males, both by other males and by females.
Male victims of rape are not acknowledged in Singapore law. A male rape victim is not considered a rape victim under Section 375(1) of Penal Code, which defines rape as the act of a man penetrating a woman's vagina with his penis without her consent. Penetration of other body orifices is not rape but an unlawful sexual penetration (Section 376(1), Penal Code). Both crimes carry the same penalty: imprisonment for a term of up to 20 years plus fine or caning (Section 375(2) and section 376(4), Penal Code).
POSITION IN INDIA
According to Indian Laws, neither a woman can rape nor can she be a part of gang rape. The following is explained below.
In India rape is defined under section 375 IPC as:
A man is said to commit “rape” if he-—
Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
First.—against her will
Secondly.— without her consent.
Thirdly.—with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly — With or without her consent, when she is under eighteen years of age.
Seventhly.—when she is unable to communicate consent.
Explanation I.—for the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’
This definition was revised through the Criminal Law (Amendment) Act, 2013 after the Delhi Gang Rape (2012) happened in India. This definition mention in the beginning ‘a man’ so clearly in India only a woman can be raped, men cannot be raped they can be booked for sexual assault, or forced unnatural sex under Section 377 IPC.
But if we look at the definition of rape (as per section 375 IPC), a woman can insert, can manipulate and can apply her mouth to the vagina, anus, and urethra of a woman or can have non- consensual intercourse with a man. But a man can’t be legally raped, the patriarchal concept of masculinity forces men to believe that “all sex is good”. However, that may not always hold true. Women, whether because they are in a position of power professionally, physically, or emotionally, are also capable of coercing men. Toxic masculinity forces upon society the idea that men are not vulnerable - only women are. This, in essence, implies that men are the ones who use their power to exploit women, and it can never happen the other way round. Moreover, the law doesn’t protect people who have been sexually assaulted by a member of the same sex under section 375 IPC.
Status of women in a Gang Rape:-
In case of Priya Patel v. State of Madhya Pradesh, a complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. Upon reaching her destination Sagar, she met accused Bhanu Pratap Patel (husband of the accused -appellant) at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. During the commission of the rape, his wife, reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left the place of incident. Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC, the appellant, as noted above, was charged for commission of offences punishable under Sections 323 and 376(2) (g) IPC.
The question raised was whether a woman can commit rape or can be part of gang rape? The apex court in the judgement held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape.
The court further ruled that a woman cannot have an intention to rape, as it is conceptually inconceivable and therefore, she can neither be held for rape, nor gang-rape. The court further held that the expression “in furtherance of their common intention” as appearing in the Explanation I to Section 376(2) IPC, relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. And therefore, a prosecution cannot be launched against a woman for gang rape.
In conclusion, it is very important to make rape a gender- neutral crime. There are a number of male victims who haven’t come out because of the society and its thinking. Male victims suffer mentally because of the sexual harassment, laws should be changed so that the male survivors get out of the trauma that they were or are facing.
India will have its numbers of statistical comparison of male and female victims. But there is no good way of determining just how many male survivors exist because rape cannot be committed against men. It also violates Article 14 of the Indian Constitution because male victims are not recognized where female victims are given protection under the law. In addition, a woman cannot rape or be part of a gang rape; there is no liability for women. There are several women accused of sexual violence in the international #Me
Too movement — such as actress Allison Mack, charged with human trafficking, and singer Melanie Martinez, accused of raping another woman. Amending the legal definition and recognizing male victims and female violators is essential to equality.
I am Vaishnavi Pareek , student of B. A. LL. B (IV semester) at Jamnalal Bajaj School of Legal Studies , Banasthali Vidhyapith. I'm an inquisitive law student who tries to face and bring the cheap honest facts of the society face to face with it. Growing up being as a victim of the patriarchal society made me wanting to grow out of it and as a judge I can fight as well prove the reasons as to whatever I believe in. Being open-minded is good for mental health but is seen as a threat to the society we live in, I hope to break this norm as noone else but we are the society and therefore I believe even my alone single step towards it will not be single in the unseen future.