Gender neutrality in rape law

Punishment of rape is a prevalent topic now and rightfully so, but punishment alone will not suffice as a deterring factor of this heinous crime. What we need is an inclusive and expandable definition of 'rape' which does not succumb to the historical and cultural stereotypes. It is submitted that the current definition of rape under section 375 of the Penal Code 1960 needs to undergo a radical change in order to protect male rape victim and punish women perpetrators.

One of the earliest definitions of rape is encapsulated in the Code of Hammurabi which defines rape as follows: 'if a man should force the betrothed wife of another to have sexual intercourse with him, he shall be put to death and the woman shall go free'. On the other hand, the rape of a virgin girl was considered as 'property damage' against her father.

In light of these anachronistic, sexist and insufficient laws, two observations can be made: firstly, even around 1754 BC the need for severe punishment of rape wasacknowledged and implemented. However, it can also be discerned that the definition of rape has not progressed as much as it should have after 3,773 years.
The current definition of rape under section 375 of the Penal Code 1860 falls short on the following grounds: man cannot be victim of rape; woman cannot be perpetrator of rape; only penile penetration amounts to rape; marital rape is still not regarded as an offence unless the wife is under the age of thirteen; terms such as "consent", "penetration" and "against her will" is not defined. In addition to add insult to the injury we are still being ruled by a law which is 160 years old.

Furthermore, the term "sexual intercourse" is used to define the offence of rape. This does not only obscure the nature of this crime, but it also deters rape from appearing as a hate crime. Rush (2011) opined that 'rape is a maelstrom of conceptual and normative contestation, a category in crisis' and as it is intimately related to broader social attitudes harboring inaccurate and problematic overtones only does more harm than good.

Although most of these defects are acknowledged and scrutinized, but the gendered notion of rape is a problem that people recoils from.As far as male victims are concerned, section 9 of the Prevention of Women and Children Repression Act 2000 only gives protection to men under the age of sixteen but any menover that age remains without the protection of law. Although male victim of rape may suffice the definition of other less serious sexual offences, but the lack of adequate punishment attached to these offences renders the victim without justice.

The question remains, why after all this time male victim and woman perpetrator is not recognized in law? J Conaghan (2019) reiterates that rape need not always include penile, anal or oral penetration, what it should require is proof of "physical force". Although, such a requirement would result in a wide definition of law, but at least an offence like rape will not go unpunished. In this regard we should remember the anti-thesis of the floodgates principle is'fiat justitiaruatcaelum', which means: let justice be done though the heavens fall.

Veiling rape under generally acceptable and less serious sexual violence only encourages a society fueled by hegemonic masculinity, where men are not preferred to be viewed as victims. While commenting on such toxic masculinity, Stanko(1990) stated that men are raped for the exact same reason as women: to exercise power and control over the victim.

Anatomical differences between men and women, also gives law makers an excuse to reduce the definition of rape to an offence which can only be perpetrated by men. But, anatomical differences must not validate the gendered definition of rape, because at the end of the day: rape is rape, and no lesser sexual offence can suffice the gravity of this deviance. Giving the act of rape a moniker which in legal jargon holds a less disgraceful connotation helps no one but the perpetrator.

Often, biological issues such as, sexual arousal and ejaculation during the rape of men is sited as reasoning for not including men as victim of rape (Mckeever, 2019). It is no less than saying that just because the victim did not scream, resist or protest she was not violated. Such sociological impression impairs a society from upholding the rule of law. Conclusion and perception as such renders the already blindfolded lady justice sightless.

Lastly, a patriarchal society which thrives on the disenfranchisement of women also eclipses the actual victimization of men. Graham (2006) opines that the view that men cannot be the victims of sexual violence by women, and that women cannot be perpetrators of such offence is prevalent in many societies, 'but it does not resonate with lived social reality'. This does not only leave half of the population unprotected but it also creates certain stereotypes in the perception of those who dispense the law.

While concurring with Stephanie Ng (2009) it is submitted that, only legal reform can aide male victims and bring women perpetrators to justice. In addition, equal protection of law can further be ensured by adequate education of sex, consent and gender neutrality of violence. As a civilization on the grip of a rape pandemic we have to be vigilant when it comes to ensuring justice to not only the usual victim, but also the unusual sufferer.
The writer is an adjunct
faculty at LCLS(S)