Section 377 must go, but who will speak for the men raped in India?
It is important to see that the legal battle to decriminalise homosexuality is interlinked with the drive to make all sexual offences gender-neutral
India has made steady but slow progress in dealing with sex crimes against women and children. But a silence remains about male rape, as though society here pretends that this rarely happens.
This is a topic hardly seen in the news because male rape is hardly ever reported. Deeply embedded ideas about masculinity mean it can be a matter of great shame for a man to come out and say he’s been raped and seek legal remedy.
When a staff member of a politician accused him of rape in 2013, the Indian media reported it as a case of “sodomy”, an old term for anal sex. In other words, adult male rape is discussed more in the context of sexuality than a physical assault.
However, a sample survey last year found that more than half the victims of child sexual abuse are boys. If minor males can be raped, what makes us think that adult men can’t be raped by men in positions of power? A 2015 study by the National Human Rights Commission, for example, found that sexual abuse in India’s prisons was the top reason for the high number of suicides by inmates.
John Stokes, an American LGBT (lesbian, gay, bisexual and transgender) activist, said he learnt about “dozens of cases” of men and transgender people being raped while he worked in Delhi as a sexual health counselor but found that they had little legal recourse to deal with such offenses.
Discriminatory legal treatment of male rape suggests that rape is seen as an act of sex and not power.
Male rape and Section 377
Two public interest lawsuits are pending before the Supreme Court of India. One seeks to decriminalize homosexuality while the other seeks to make all sex offenses gender-neutral. The two matters are interlinked.
Currently, if a man rapes a man in India he can be punished under Section 377 of the Indian Penal Code. This law criminalizes all “unnatural” sex, such as anal sex, even if it is consensual. Nobody seems to be charged for consensual sex though, as it requires a complainant. In practice, legal use of Section 377 is a law against male rape.
Although “unnatural” sex also criminalizes consensual oral sex between men and women, in reality this law is a tool to harass homosexuals, mainly gay men. And the presence of the law in statute books prevents gay people from being open about their sexuality.
The petitioners against Section 377 have requested the Supreme Court to “read down” the law so that it no longer applies to consensual gay sex. If the Supreme Court does that, 377 will only apply – in letter and spirit – to male rape.
But critics say the government and judiciary need to completely repeal Section 377, because it classes all forms of sex other than traditional male and female intercourse as “unnatural” – and rape laws should be made gender-neutral.
Conspiracy of silence
Whether a male rape victim is straight or gay, acknowledging rape comes with the fear of being accused of being homosexual. For a gay man to report male rape is nearly impossible thanks to 377. A gay man raped in Delhi on a date in 2016 felt if he approached police or a lawyer about the attack, he could also be arrested because of Section 377.
India enacted a law in 2012 that criminalized child sex abuse. One of the reasons for a specific law on child sex abuse was because existing laws on rape and sex offenses only ‘sees’ females as victims, not males.
Rape of adult males has been disregarded. Many gay rights groups don’t speak about it because it might feed the notion that homosexuals are rapists or pedophiles, and negate the LGBT rights movement. And men’s groups are often more concerned about stringent laws relating to dowries and domestic violence.
Feminist groups don’t speak about it because they feel gender-neutral laws could be misused against women. Indeed, feminist activists actually prevented the Indian government from making rape laws gender-neutral in 2012.
Leading Mumbai-based feminist activist Flavia Agnes said: “The consequences of rape for a woman are far-reaching. She has to battle social stigma, social mindset. While fixing marriages, nobody asks a man if he is a virgin.”
“I don’t think men are facing serious sexual violence as women,” the well-known feminist lawyer Vrinda Grover said. Making rape laws gender-neutral would make a “mockery” of the grave issue of violence against women, she believed.
We need this conversation
Section 377 must be abolished on principle because consensual anal sex between men should not be a crime. Similarly, male rape must be a criminal offense, on par with women’s rape, as a matter of principle.
“Sometimes rape is inflicted on men just to shame them to, supposedly, insult their masculinity,” wrote an Indian male rape victim in 2013. “In whatever way it happens, it loops back to the question of gender. This is ONE of the reasons my politics is grounded in feminism.”
India’s feminists may be letting him down, but the Supreme Court and the Indian government must consider his plight – strike down Section 377 and make rape laws gender-neutral.
A lesbian woman activist told me she could not even speak about violence by women against women within the lesbian community, partly because the law sees sexual violence as something only a man can commit against a woman. As the Supreme Court considers the petition to make all sex offenses – ranging from stalking and voyeurism to rape – gender neutral, we need to have this conversation.