A Gender Neutral Law Of Rape Criminology Essay

It is often taken for granted that women are naturally unequal to men, and the artificial equality of women is more in the books than in the mores of the community; we live in a world where men are taught consciously to be aggressive, and women are taught to be docile and submissive, thus seemingly convincing every woman of her docile status. [1] Some studies [2] show the hard reality of the status of women in society as a negation of the constitutional promise of equality of status and opportunity. The concept of ‘gender justice’ covers the right of women against victimisation, and accordingly, gender equality would be a mere lip-service with no tangible results unless women are protected against sexual violence and rape. Time and again, the Supreme Court of India has held that mere existence is not the exercise of the right to life, but that the right to life includes the right to live with human dignity. [3] Thus, says Justice Anand, when crimes are committed against women, the same should be viewed in the context of violation of her right under Art.21 of the Constitution, and not merely as a crime in rem. [4] 

The debate presented herein considers the transformation of rape laws from gender-specific to gender-neutral legislation. The author presents arguments based in feminist legal theory and sociological jurisprudence to affirm that the law of rape in India [5] needs to progress from its current position as a women-centric law, to a gender-neutral law, recognising male victims of rape. The claim is indeed simple: if women have a right to live with dignity, so do male members of the society, and just as rape affects and traumatises the fairer sex, so too, does rape traumatise and humiliate the stronger sex.

The author presents three strains of arguments in favour of his position: firstly, that males are socialised into recognising themselves as ‘macho’; secondly, that gender-neutral definitions of rape are not necessarily a backlash against the feminist school of thought; and thirdly, that male rape victims often fall prey to the patriarchal social structure that is largely prevalent in the contemporary world.

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1.2 Recognising ‘Rape’ as a Gendered Term

Rape is a sub-species of sexual assault, usually involving sexual intercourse, which committed by one person or a large number of persons in a group against another, without that other’s consent. The act may be carried out by brute force, coercion, abuse of dominant position or with a person who is unable to give consent to sexual intercourse, including a person who is unconscious, incapacitated, intoxicated or below the legal age of consent. [6] It includes the forced penetration of the vulva or anus of a person, using a penis or any other body parts or an object. [7] In her seminal work Susan Brownmiller writes:

“Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it an exclusively male-on[-]female offense….And while the penis may be the rapist’s favourite weapon….And as men may invade women through…[their] orifices, so too, do they invade men. Who is to say that 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?…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.” [8] 

The traditional definition of rape as the penile penetration of the vagina leads to a gendered perception of the offence, [9] whereas the reality provides a different picture. The purpose of rape law is to protect the ‘sexual autonomy’ of individuals from the risk of “non-consensual penetrative sex acts.” [10] 

It is arbitrary for traditional rape laws to exclude male victims by only proscribing punishment for male-on-female rape; [11] while it is admitted, and in fact accurate, that women are more susceptible to rape, it is not true that men are completely secure against sexual assault, or immune to the trauma and humiliation suffered therefrom. Therefore, it is arbitrary to cite minority instances as a reason against gender-neutral rape laws, and in fact, one may argue, that it is against the Constitutional mandate of equality before law, and equal protection of law. [12] It is not unfounded then, to expand the definition of rape to male victims, for otherwise, the criminal law fails to achieve its human rights objective of equal legal protection, and subjects men to inhuman or degrading treatment. [13] 

Mere biological differences in such cases do not constitute intelligible differentia, and neither are these differentia inextricably linked with the objective of rape-laws, as has been stated previously. [14] The feminist belief that the recognition of male victimisation is not the goal of rape laws [15] is well answered by Joceylynne Scutt, who argues:

“A principle of criminal law is, surely, that all persons should be protected equally from harm of like degree…treating crimes of a like heinousness…[is] stronger than…[distinguishing between] penetration of the female body and of the male body, whatever the sex of the actor.” [16] 

1.3 Living in a ‘Macho Society’

While feminists such as MacKinnon, Naffine and Novotny argue against gender-neutral definitions of rape, the necessity for such a definition cannot be ignored; [17] quite obviously, the existing laws have left much room for improvement. [18] The idea of violence, especially of the sexual kind, is so tainted by stereotypes that the first thing it usually brings to mind is a male alone as perpetrator and a female victim. [19] The male is almost always viewed as the aggressor, and never as a victim even in today’s society. [20] Through the processes of socialisation, women are taught that they are constantly under the risk of sexual attack, and that they therefore need legal protection from such attack. [21] 

This pattern of thought can legitimately be challenged by plain facts that reflect the state of contemporary society today. Sexual violence against men is now a reality that cannot be ignored, as is the fact that it is indeed more prevalent than those against gender-neutral abuse definitions would like to admit. [22] This fact in itself changes the flow of the anti-gender neutrality debate that was until now heavily influenced by the notion that gender neutrality in defining abuse and rape are unnecessary.

Hundreds of cases of male prisoners being subjected to sexual misconduct including rape have been reported by the Bureau of Justice Statistics of the United States of America. [23] This, in spite of the fact that most prisons have an unwritten and unspoken “Code of Silence” [24] that quietly but effectively discourages victims from reporting abuse to officials or administration.

What is even more disquieting is that juvenile institutions are a huge part of this number. While rape itself is unimaginably horrific, the magnitude of damage that can be caused in the case of minors is alarmingly huge, and affects various areas of a person’s life. The common assumption that sexual abuse of males is less harmful than that of females has dangerous implications for male victims. [25] It impedes their ability to live normally, and can lead to problems with intimacy, the ability to cope, and confusion regarding sexual orientation, and more dangerously, the likeliness to inflict self-harm, indulge in substance abuse and greatly reduce their quality of life. [26] One man who had suffered the trauma of statutory rape as a child states:

“I started drinking and taking drugs when I was 12….No one would believe me about all of the physical and sexual abuse, so when I took drugs and alcohol, I didn’t even have to believe it myself. It made it easier to deal with…I buried the [sexual abuse] with booze and drugs.” [27] 

Thus, it can be seen that it is absolute erroneous judgment that gender-neutral definitions of abuse and rape are considered unnecessary, and the kind of socialisation that looks at victimisation as something women-centric is in no way beneficial to anyone at all. That social and gender roles are labelled and stereotyped is extremely detrimental to the realism and practicality that we need, as we analyse rape today to ensure that justice can be administered in the true sense of the word, whenever and wherever necessary. No system of domination is absolute, and in these terms, rape cannot be seen as the phenomenon of victimising female members of society. [28] What is in fact singular is that the feminist legal theorists are themselves divided among themselves on the notions of formal equality and rape-law. [29] 

The tunnel-vision view of such selective socialisation is, as Talcott Parsons has stated, one that dictates the definition of gender-normative and gender-deviant behaviour. This is especially relevant, progressively more so in today’s society where the trauma of male rape is aggravated by the victim’s sense of societal emasculation [30] and an assumed fear of disbelief. [31] That this happens should, in itself by all logical thought be the biggest catalyst that will enable gender-neutral definitions of rape to become the most relevant and significant. What is clear is that while traditional beliefs of rape continue to exist, the law has to consider rape beyond the traditional paradigms. [32] 

1.4 Gender-Neutral Definitions not a ‘Backlash’ against Feminism

Feminists have taken issue with the recognition of male rape, and criticise the same as a ‘backlash’ against feminism; [33] according to Jeanne Gregory and Sue Lees however, male rape highlights the “dominant hegemonic heterosexuality” that prevails in contemporary society. [34] Feminists have expressed outrage at the rape-law reforms in the United Kingdom leading to the promulgation of the Criminal Justice and Public Order Act of 1994, recognising that men too, can be victims of rape. [35] The new statutory definition of rape under the Sexual Offences (Scotland) Act of 2009 allows for male victims of anal rape to be legally recognised as such. [36] 

It is further submitted that gender-neutral definitions of rape merely recognise male members of society as victims of rape committed upon them by both male and female perpetrators. [37] Herein, gender neutrality may be stated as simply recognising that males may fall victim to rape, and in no way does it undermine the substantive equality of women. [38] In essence, amendment to rape laws does not change the position of the original female victims, [39] but rather, adds a new category of legitimate victims.

It is no doubt undeniable that majority of the instances of rape are male-on-female rape; however, incidences of rape being committed by female perpetrators cannot be ignored, even if (in Canada) they form a paltry 3% of the total number of offenders (in 2007). [40] It is also rather easy to brush off males’ sexual responses in certain states of severe emotion as voluntary, whereas in reality studies have shown that males are susceptible to involuntary erections; [41] the belief that it is impossible for males to respond sexually when subjected to molestation by women has been contradicted. [42] 

While the importance of labelling the experiences of female rape victims is well documented, the “feeling of isolation” is a mutually common experience for both sexes. [43] Social attitudes towards male victims of rape include homophobia and further sexual assault. [44] The social failure in most jurisdictions to recognise female-on-male and male-on-male rape as social realities – no matter how minor the instances are to classify them as ‘freak occurrences’ [45] – contributes directly to the failure of the law to empathise with male victims; [46] social recognition of such a reality may contribute to the legal assistance of victims in seeking redress. [47] 

An author suggests, for example, “failure to recognise rape as those cases in which a woman forces a man to penetrate her vaginally, orally or anally suggests that there is something specific about being non-consensually penetrated that is more fundamentally damaging, traumatic or violating than being compelled to penetrate.” [48] While it is naïve to assume, in this manner, that the elements constituting rape, including consent, would be the same for both male and female victims, it is not wrong to construct identical legal remedies; [49] this does not also mean to say that individual victims’ experiences are the same, although to a large extent, they may be said to be similar. [50] It is therefore, time to take male-rape “out of the closet” [51] and “deal with it in courts”. [52] 

1.5 Male Rape Victims as Victims of a Patriarchal Set-up

What is in fact true and not wholly inaccurate, is that the feminist claim of male domination is prevalent in both social as well as legal structures [53] – this may in fact be the very reason males are prevented from coming forth as rape victims. The dominance strain of thought in feminism calls to attention the “male norm in law and society” is “universal and unchallenged”; [54] it may in fact be this same legal and social ‘male norm’ that prevents the legal framework from understanding the trauma and humiliation suffered by victims of unconventional rape.

The argument of radical feminists for “dramatic social transformation and redress of the power imbalance” [55] may well be used in favour of gender-neutral rape laws. What may in fact be an accurate representation of the present scenario is that the conventional notions of patriarchy and male dominance in social structures have a consequential negative effect on male-rape trauma; if the need of the hour is to recognise male-rape as a reality, then the radical social transformation that feminists favour is indeed necessary; gender-neutral rape laws can mellow the power relations that dominate cultures and societies today, and therefore the feminist claim of a ‘backlash effect’ [56] against them is negated by their own arguments. In other words, what the law must aim to do is to curb the negative portrayal of male power and positive portrayal of females as victims of male dominance, [57] and recognise males as victims of their own social set-up.

The essential social relations, as recognised by MacKinnon, between men and women is that of domination and submission, and this is the reason for the ignorance of male victimisation; [58] the so-called ‘gendered’ power-relations that govern male-female relationships often govern male-male, and in certain instances, female-male relationships as well; the author suggest that the patriarchal social structure, system and set-up itself has led to the aggravated victimisation of male rape victims. In essence, society has silently tolerated aggression against men, while rather overtly tolerating aggression by men: [59] it is a part of the “code of manhood” to be emotionally stoic. [60] By positing gender-neutral rape laws, the legal system in essence recognises rape as a crime of violence, rather than a crime of sex. [61] 

1.6 Conclusion

As an author states, “Over the past century and a half the gendered essence of [statutory] rape has become deeply embedded in the purpose of the statute.” [62] While it is not denied that traditionally, rape forms a part of the “repertoire of strategies of control” [63] of women by men, incidents have come to light in the recent past [64] where men have been subjected to the same trauma and humiliation that is suffered by women – female perpetrators and male victims do exist. [65] The broader point is that, no category of identity, gender being merely one of the many examples, withstands the test of time; [66] the law is dynamic, and must change with changes in social trends.

Sexual aggression leading to rape has slowly been recognised in many jurisdictions as “behaviour carried out with the aim of making another person to engage in sexual activity despite his or her willingness to do so”; [67] gradually, the trend has emerged where a passive form of sexual aggression has been attributed to women. [68] 

Bearing in mind this debate, many common law nations have largely made a move towards reforming the law of rape and inculcating aspects of gender-neutrality (by redefining consent, or otherwise), and recognising males as victims of rape by both women and other men. [69] The challenge presented is therefore, of gargantuan proportions: adequate protection needs to be afforded to both female and male victims of rape, and the gendered opinion of the offence needs to be transgressed; in other words, India too needs to consider an amendment of rape laws under the Indian Penal Code, 1860, [70] and progress towards a gender-neutral paradigm.