The need for gender neutral rape laws in Nepal

Trigger Warning: The following article has delved into serious topics surrounding gender-based violence which may be sensitive towards those who have experienced such trauma. Please proceed to read with caution.

Introduction

Rape has been generally viewed as gender-based violence against women in a patriarchal society like Nepal. While the number of rape cases against women is exceptionally high, there have been cases of men being raped as well. Again, under the pretext of a patriarchal society that puts men on a pedestal of masculinity, such rape cases against men are rarely reported. Even more, reported cases are not handled with the same intensity as rape cases against women.

On February 13, 2020, a 30-year-old man of Kankai, Jhapa had reportedly been raped and was receiving treatment in Birta City Hospital of Birtamod. While two people were arrested during the investigation, they had to be released as the District Court refused to remand them in custody. The police claimed that the rape incident had been an act of ‘unnatural rape’ and could not be charged under the Criminal Code which has no provisions on such cases of rape.

Section 219 of the Criminal Code of Nepal has defined ‘Rape’ as an act of sexual act done without the consent of a ‘woman’ or the sexual act done with a ‘girl’ under the age of eighteen years. Despite there being cases of men being raped, Nepal’s rape laws have been fully gendered even to the extent of excluding rape of transgender women.

Nepal’s rape law is centred primarily on women and girls much like its other law on Acid Attack. While it may seem practical because most cases reported are of women and girls, it side lines the men who are victims of sexual assault but cannot come forward due to the particularly gendered laws on rape and fear of stigma.

While it may seem practical because most cases reported are of women and girls, it side lines the men who are victims of sexual assault but cannot come forward due to the particularly gendered laws on rape and fear of stigma.

What is gender-neutral rape law?

Gender-neutral rape laws encompass laws that go beyond the male-female paradigm attached to rape. It regards that both man and woman can be held as victims and perpetrators of rape hence the ‘neutral’ stance in rape.

Countries like the US, UK, and Finland have embraced the progressive stance of gender-neutral rape laws. In the US, the FBI's Uniform Crime Report in 2012 redefined rape as the 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. This concept of rape includes all gender of victims and offenders and is not limited to women raped by men.

Gender neutrality entered the stem of the Indian legal system during the Sudesh Jhaku v. K.C. Jhaku case where it was decided that "men who are sexually assaulted shall have the same protection as female victims, and women who sexually assault men or other women should be liable for conviction as conventional rapists.”

Gender-neutral rape laws and human rights

International law becomes imperative to ascertain the state’s criminal justice system recognizes sexual assault as a violation of human rights. Rape has been deemed to be a gender-neutral crime by recognizing sexual violence in wars and areas of conflict that is not limited to women. Right to life and the right to equal protection of the law are guaranteed human rights irrespective of gender.

The Supreme Court of India had accepted that rape is a violation of human rights in the case of Bodhisattwa v. Shubhra Chakraborty. If rape is a violation of human rights then not acknowledging men as victims of rape is a violation of their human rights.

Male rape and Nepali laws

Regarding the aspect of the victim, Section 129 (2) of the Criminal Code only recognizes women or girls as the victim of rape. In exception, it recognizes rape of boys under 18 years of age (considered a child) fall in the same category as of girls. Sexual abuse of a child (male or female) is under paedophilia of Section 225.

Concerning the perpetrator, the Criminal Code has not limited itself to just men being the perpetrators. Section 219 (3) has mentioned a ‘person’ who commits rape which shows that both men and women can be perpetrators in a rape case.  

In the case of Lakpa Sherpa (a woman) raping a minor girl, the Supreme Court set a precedent in 2017 that said a woman can rape another woman, and sexual violence by women is equally punishable as done by men.

In the case of Lakpa Sherpa (a woman) raping a minor girl, the Supreme Court set a precedent in 2017 that said a woman can rape another woman, and sexual violence by women is equally punishable as done by men.

In Nepal, the first action taken towards making rape laws neutral was taken under the Ordinance on Sexual Violence, 2077. The Ordinance defined rape to include males as victims by putting a ‘person who is raped’ instead of mentioning women or girls specifically. However, the provision was removed as it faced a major backlash from activists. These activists pointed out that if the rape laws were to include males as victims, it would undermine women’s fight against rape by putting even men as a vulnerable group.

Myth vs. Reality: Can Men be raped?

Some major myths surrounding men and rape have been debunked:

1. Myth: Men cannot be raped by women due to physical differences.

Reality: The criticism against gender-neutral rape laws is usually justified by saying that it

is impossible for a woman to physically rape a man. However, just like how rape is not limited women to be forcibly penetrated and centers around lack of consent, a particular man can be physically weaker than the woman perpetrator. Even more, he could be restrained, unconscious, too drunk to consent, or physically or mentally disturbed.

In an appalling case of Anna Stubblefield, a professor at the Rutgers University was convicted of raping a non-verbal man with cerebral palsy. However, the court overturned her conviction and changed it to aggravated criminal sexual contact.

2. Myth: Only gay men are raped or are likely to rape other men.

Reality: Being sexually assaulted has nothing to do with current or future sexual orientation. Heterosexual, gay, bisexual, or any other men of any orientation have and are likely to be sexually assaulted.

In the Shantakulam incident in Tamil Nadu, two men had been victims of police brutality. However, activists also pointed they were victims of sexual assault by the policemen but it was not acknowledged as the victims were men. There was a charge against the policemen for assault but not for rape.

Most men who sexually assault other men identify themselves as heterosexual. This fact helps to highlight another reality — that sexual assault is about violence, anger, and control over another person, not lust or sexual attraction.

3. Myth: Men are not as traumatized as women if they are raped.

Reality: This notion is derived from two perspectives. One is that when men are raped if they ejaculate or get an erection, it means they wanted it to happen or consented to it. However, erection or ejaculation is a mere physiological reaction and the lack of consent should drive whether it was rape or not.

Stephanie Allen noted the lack of public acknowledgment of male rape impacted the ability of the victim to recognize their victimization. Allen quoted one male victim who was raped in the 1960s: “I knew it wasn’t right because I felt so awful afterward, but I didn’t know what it was because nobody had heard of male rape in those days.”

The second notion is that men do not care if they are raped. Yet, men who have been raped have shown the same reaction as women, feeling ashamed, guilty, scared, depressed, and even suicidal. In the case of Keith Smith of New Jersey, Smith was raped by a hitchhiker when he was just 14-year-old. The now 52-year-old Smith recounted that he woke up screaming years after the incident.

Statistics on rape of men and other sexual minorities

According to the Journal of Gandaki-Medical College Nepal, one out of every six men will be sexually assaulted at some time in their life. There has been no other substantial effort to focus on male rape statistics as it is rarely reported due to stigma.

According to Raiin.Org, millions of men in the United States have been victims of rape. As of 1998, 2.78 million men in the U.S. had been victims of attempted or completed rape. About 3 percent of American men—or 1 in 33—have experienced an attempted or completed rape in their lifetime. One out of every 10 rape victims are male. 21 percent of TGQN (transgender, genderqueer, nonconforming) college students have been sexually assaulted, compared to 18 percent of non-TGQN females, and 4 percent of non-TGQN males.

In India, the survey done by activist and filmmaker Insia Dariwala among 1,500 male, 71% of men surveyed said they were abused, 84.9 percent said they had not told anyone about the abuse. Primary reasons for this were shame (55.6 percent), followed by confusion (50.9 percent), fear (43.5 percent) and guilt (28.7 percent).

Will men being victims undermine the large number of women victims?

A PIL (2017) was filed in Delhi High Court by Advocate Sanjiv Kumar which challenged the rape laws under the Indian Penal Code (IPL) that said, “Gender neutrality is a simple recognition of reality and men sometimes fall victim to the same or at least very similar acts to those suffered by women. Male rape is far too prevalent to be termed as an anomaly or a freak incident. By not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought.”

Women’s group in India, however, believed rape is an explicitly patriarchal crime and gender-neutral laws are against feminism. The backlash is no different reaction from the women’s rights groups in Nepal when the Ordinance on rape suggested the victim to be a ‘person’ instead of specified ‘girls or women’.

The backlash argument appears to suggest that gender neutrality in rape is inconsistent with feminist principles and, indeed, is an attack on feminist analysis of rape. Yet, Susan Brownmiller’s Against Our Will: Men, Women, and Rape (1975) acknowledged it was feminists who were on the frontier of demanding legal recognition of male rape while at the same time being unambiguously committed to the needs of female rape victims. Prominent male commentators who are concerned with male sexual violence and victimization have located themselves within a feminist perspective.

When Ajita Bhujel, a transgender woman was raped and murdered, the perpetrators of the heinous crime were booked for murder but not rape. Only the pioneer LGBTQ+ organization Blue Diamond Society voiced their outcry against the injustice.

By actively eliminating plights of minorities like transgender women and focusing on women alone, it fails to achieve its ultimate objective—equality.

Twenty-first-century feminism amounts to nothing without intersectionality. By actively eliminating plights of minorities like transgender women and focusing on women alone, it fails to achieve its ultimate objective—equality. Without a certain attribution by feminism to victims who are male, transgender, or of other sexual orientation, the fight against rape will be a shallow feat.

Rape or sexual assault has been one of the biggest weapons of patriarchy against women for centuries. It is difficult to imagine the oppressor being the one oppressed. Yet, it must be understood that patriarchy is a system that functions with the support of both men and women against women, men, and all other sexual minorities.

Acknowledging male victimization does not put down the already mainstream idea of female victimization. It enables us to understand the power dynamics behind sexual assault and the feminist perspective behind it. Gender-neutral rape laws will weaken the hegemonic form of macho masculinity and allow society to accept male victimization to its extent.

Conclusion

Laws are not made just for controlling prevailing social problems but must be efficient and visionary enough to counter plights of minorities as well. Gender-neutrality in rape laws does not neutralize the crime of rape. Its major objective is to increase the ambit of the law to consider other victims besides girls and women. Such a crucial step can bring forward hidden data of unreported cases and help to strengthen laws.

While females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law.

Usually, the topic of male rape victims only pops up when there is a discussion about the rape of women as a footnote addition. While females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law. Hence, Nepal has faced the need for gender-neutral laws on rape to create an atmosphere of open dialogue on the rape of men and sexual minorities.

In feminist Susan Brownmiller’s ground-breaking study on female victimization, she opined remarkably on male rape as well: “All the acts of sex forced on unwilling victims deserve to be treated in concept as equally grave offenses in the eyes of the law, for the avenue of penetration is less significant than the intent to degrade. Similarly, the gravity of the offense ought not to be bound by the victim’s gender. That the law must move in this direction seems clear.”

Published on 25 February 2021