Gender neutrality in rape law

Punishment of rape has been the talk of the town for a while now and it has been this way rightfully; however, punishment alone will not suffice as a deterring factor of this heinous crime. What we need is an inclusive and expansive 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 for the reasons set out below.

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 the light of these anachronistic, sexist and insufficient ancient laws, two observations can be made: firstly, even around 1754 BC the need for severe punishment of rape was acknowledged 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. 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 (J Temkin and B Krahé, 2008) harboring inaccurate and problematic overtones only does more harm than good.

Although most of these defects are acknowledged and scrutinised, 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 men over that age remains without the protection of law. Although male victim of rape may take recourse to the definition of other less serious sexual offences, but the lack of adequate punishment attached to those offences renders the victims left without justice.

The question remains, why after all this time male victims and woman perpetrators are not recognised in law? J. Conaghan (2019) iterates 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.

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.

 A patriarchal society which thrives on the disenfranchisement of women also eclipses the actual victimisation 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.

The writer is an adjunct faculty at LCLS(S).