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The Main Question of Patriarchy: Can Men be Raped?

The new Bharatiya Nyaya Sanhita law in India fails to protect men from rape, highlighting a glaring oversight.

Photo via Getty
Photo via Getty
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It was not many years ago that social media was flooded with images of young men across the country taking out micro-protests, threatening to go on what they called “marriage strike”. These men were protesting against the criminalization of marital rape claiming that such a move would be dangerous for marriage as an institution and lead to baseless and false claims by women against innocent men of rape. Overall, it was deemed to be a men’s movement for protection of men’s rights.

One can’t help but wonder why similar protests are not seen in response of the recent upgradation of the criminal laws in India.  Barring a few legal experts and Transgender activists calling the move regressive, we haven’t heard much noise around the issue. On July 1, 2024, the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) were introduced as replacements of their older counterparts: the Indian Penal Code (IPC) 1860, Code of Criminal Procedure (CrPC) 1974, and Indian Evidence Act (IEA) 1872, respectively. As an academician studying gender in India, what I believe is significant to highlight is the absence of any provision in the BNS resembling Section 377 of the IPC. Even more intriguing is the reaction to such a move by the common man.  

The original Section 377 of the Indian Penal Code, in reflection of its Victorian era morals, stood to punish men and women for acts of “unnatural sex”. Through years of efforts by several civil society bodies and activists, a welcome change to the archaic morality was brought about in September 2018 when homosexuality was decriminalized and Section 377 of the IPC stood as measure to punish any person, man or a transgender, in an event of non-consensual penile penetrative sex. It also criminalised sexual acts performed on animals. Punishment for an offence under Section 377 is ten years or up to a life term and a person found guilty is also liable to a fine.

But, with the deletion of Section 377 of the IPC in the Bharatiya Nyaya Sanhita (BNS), such measures stand null and void. Chapter V of the BNS deals with offences against women and children and, under the same chapter, Sections 63 to 73deals with sexual offences. There is, however, no provision resembling Section 377 of the IPC that provided protection to men and transgenders subjected to non-consensual penile penetrative sex. In a nutshell, it refuses to acknowledge the occurrence of non-consensual penile penetrative sex.

This regresses us back to the age-old question: what is the rape-able body? Can rape happen to a man? From the point of view of patriarchy- no, it cannot. Rape is not simply an act of sexual violation; it is an act of power and subversion. It is not simply about sexual perversion or uncontrolled libido; it is about dominance and control. And in a society that is supposed to be male-dominated, men cannot be at the receiving-end of violence and domination. It is not surprising that the definition of rape in the IPC has remained gender-specific, even after multiple revisions and upgradations. Similarly, acts of domestic violence simply rest on an assumption that the perpetrators are always invariably male, and the victims are always invariably female. This is patriarchy in its most blatant form, keeping men out of the legal gambit of safeguards and protection.

Unfortunately, the common Indian man also advocates this by refusing to admit violence directed towards them. As Alesha Durfee points out in her study of masculinity and domestic violence, fewer men seek to be seen as a ‘victim’ or feel comfortable in seeking help from the police on being abused. The reaction of the legal system and the tendency of the police to also dismiss such cases is a prime concern. The hyper-masculine socialization of a male makes it difficult for him to admit that he has been sexually violated, that someone used force upon him. Being violated sexually is a reflection of lack of power and control. Going out on the streets, demanding legal protection from sexual violence challenges the entire domain of hyper-masculine belief-system. Victimization in an anticipated misuse of law by women is an acceptable display of rationality but anticipating sexual abuse (penile penetration) almost sounds like accepting defeat.  

So, the question is: who really is an enemy of men? It is not feminism or women who refuse to accept violence in the institution of family and marriage. It is the male-chauvinist patriarchal society and the patriarchal legal system that refuses to acknowledge men as equally vulnerable to violence as women.

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