CAN A MAN PROSECUTE A WOMAN FOR NON-CONSENSUAL SEXUAL ACTS IN INDIA?

INTRODUCTION

The association of a man with the word 'rape' has over the years been consistently projected as something which he could do to a woman. However, over the years, with more exposure and increased access to technology and media, stories where men being victims of rape in sexual crimes are being widely circulated. Yet, despite all the information available on the internet, the world seems to have turned a blind eye to the fact that a man can be raped by a woman.

It is common perception that men are incapable of being raped by women and it is reflected in the definition of the word 'rape' in many jurisdictions across the world offer a similar picture.?However, there are numerous instances of such incidents being brought out into public domain. In the year July 2017, various newspapers across the world sported a rather interesting story of a gang of women in Zimbabwe known as ‘sperm bandits’. There were many reports of men getting abducted by women and being forced to have sexual intercourse with them after which their sperms would be collected and sold for good luck. Similar stories were reported in other countries like South Africa and Bulawayo[1]. In Canada, there were reports of a woman alleged of raping a man at knife point.[2]

THE LAW IN INDIA

In India, the definition of ‘rape’ as per Section 375 of Indian Penal Code, 1860 starts with the words ‘A man is said to commit rape…’. The phrasing adopted in the said section eschews a prosecution against a woman for an act of rape committed against a man. In case of minors, however, the provisions of the Protection of Children from Sexual Offences Act, 2012 would come to rescue as the definition of the term ‘sexual assault’ therein has been given a gender-neutral definition. ?So are adult men, who are made victims of non-consensual sexual acts left in the dark without a refuge in law?

The author herein would answer in the negative. And the solution lies not in Section 375, but in the controversial Section 377 of the Indian Penal Code,1860.

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SECTION 377 – A SWORD AND A SHIELD

Section 377 has often been described as a monster of the yesteryear British rule, imposing Victorian perceptions regarding sexual relations into the Indian society, which made carnal intercourse ‘against the order of nature’ a punishable offence, regardless of consent. With the verdict of the apex court in the revolutionary Navtej Singh Johar v Union of India[3], consent has been read into the scheme of the provision thereby decriminalising homosexual acts between consensual adults.

The definition of Section 377 of the IPC, 1860 is as follows:

“377. Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

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The definition starts with the words ‘whoever voluntarily has carnal intercourse.’ The adoption of the word ‘whoever’, as opposed to the definition adopted under Section 375 which starts with the term ‘A man is said to commit rape’, is suggestive of a conclusion that even a woman can be prosecuted for committing an offence as per the section. The significance of the phrase ‘with any man, woman or animal’ when read in connection with the word ‘whoever’ as seen in Section 377, would signify that as per the said definition, a woman having carnal intercourse against the order of nature with a man without his consent could be prosecuted under the Act in light of the dictum laid down in Navtej Singh Johar.

To understand this argument better, an analysis of the expressions contained therein are warranted.

The expression ‘carnal intercourse’ is of significance in interpreting the provision. The term carnal intercourse is to be differentiated from the term sexual intercourse, as sexual intercourse has been construed to include sexual acts capable of resulting in procreation. In Lohana Vasantlal Devchand vs. State, a Division Bench of the Gujarat High Court had observed that

“The obvious reason being that this act was done not against a person of opposite sex, i.e., a woman and eventually, there was no question exciting passions for a sexual intercourse.

??In Khanu v Emperor[6], the court had elaborated on what constitutes carnal intercourse.

"Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of sexual intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per us is impossible ..........."?

Therefore it can be summarised that any intercourse, which does not result in natural procreation is considered to be 'carnal' and 'against the order of nature', as per existing interpretations in Indian law. It was observed in Navtej Singh Johar that Section 377 governs penile non-vaginal sex and the said position still holds ground on the subject.

As per the explanation provided in S.377, penetration is sufficient to constitute ‘carnal intercourse’ . This is in contradistinction to the definition of ‘rape’ post the 2013 amendment.

Though the term penetration has been laid down in the section, the term 'intercourse' is of wider import. The honourable High Court of Kerala in its judgement laid down in State of Kerala vs. Govindan[4] had, while considering a question whether the act of committing intercourse between the thighs of a male amounts to 'carnal intercourse against the order of nature' as stipulated in Section 377 , explained the import of the words ‘intercourse’ and ‘penetration’ in the following words;

“ The word 'intercourse' means 'sexual connection' (Concise Oxford Dictionary). In Kannu v. Emperor, AIR 1925 Sind 286 : (1925 (26) Cri LJ 945), the meaning of the word 'intercourse' has been considered :

Intercourse may be defined as mutual frequent action by members of independent organisation.

By a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also, there is the temporary visitation of the organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organ, for intercourse connotes reciprocity." (emphasis supplied)

Therefore, to decide whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organ.[5] In the said case while considering whether penetration between the thighs of a victim would constitute ‘intercourse’ as per the section, the court held that as the visiting male organ is enveloped at least partially by the organism visited, it was held to constitute intercourse as per Section 377. ?

The Madras High Court had observed in Brother John Antony vs The State[7], that the male organ of the accused was said to be held tight by the hands of the victims, creating an orifice like thing for manipulation and movement of the penis by way of insertion and withdrawal. In the process of such manipulation, the visiting male organ is enveloped at least partially by the organism visited, namely, the hands which held the penis tight, and was thus held to constitute carnal intercourse.

As the basic ingredients have been discussed, we shall examine the moot question: Can a woman be punished for committing non-consensual sexual acts on a man?

It is to be noted that sexual intercourse should be distinguished from carnal intercourse as courts have held from time to time that the former is indicative of acts that could lead to procreation while the latter does not. ?

At the outset of this argument, it is reminded that a prosecution cannot be initiated against a woman for sexual acts that could lead to procreation, which is said to be the purpose of sexual intercourse as per the order of nature. The above question is to be examined with regard to all acts that comes outside of the purview of the said principle.

The primary argument against an affirmative action to the said question is can a woman be said to be able to penetrate? The author would argue that the presence of the word 'whoever has carnal intercourse against the order of nature', is intended to bring into its ambit both the parties indulging in a sexual act and by that means would include the person who’s organ is visiting, as well as the person who’s organ is visited. ?Giving the provision a restrictive meaning in the context of who does the penetrative act would defeat the objective of the provision, as it could only have intended to include both the parties to the act. As there is nothing in the provision indicative of a qualitative treatment on account of gender, any interpretation on the ground of who does the penetrative act would amount to discrimination on the ground of gender, thereby being violative of Article 14 of the Constitution of India.

??With the interpretation of carnal intercourse against the order of nature wide enough to include sexual gratification achieved through acts involving intercourse that is not necessary for procreation, any woman can be prosecuted for non- consensual sexual acts not involving penile-vaginal penetration, for instance, acts like fellatio, or where a woman holds the penis of another man without his consent. ?Though such a prosecution is rarely heard of, the said provision does not exclude an interpretation as described above. Similar analogy can also be used for a woman committing unnatural offences upon another woman.

CONCLUSION

Matters being so, the fact remains that as per law, a woman cannot ‘rape’ as provided under Section 375 of the IPC. The above interpretation may appear to have solved the gender biased rape jurisprudence, yet it does not solve the entire issue as the concept of a man or a woman being raped by a woman still evades Indian criminal jurisprudence.

The author is of the opinion that the Legislature has to take into account that the world is changing at a fast pace. ?Existing notions regarding gender roles are blown to the winds with women nowadays considered to be at par with men, if not above. Stereotypes such as how a man cannot be victimised are now being forgotten. In fact, as per the National Crime Victimization Survey conducted in 2014 in the United States of America, 38 percent of the victims surveyed were men. A new form of sexual perpetration is now being increasingly identified known as ‘being forced to penetrate’.[8] While men who complained of sexual victimization, 68.6% reported female perpetrators. The paper observed that while among men reported to be forced to penetrate, 79.2% reported female perpetrators. As per the survey, after pooling and analysing the data gathered in the years 2010 through 2013, female perpetrators were reported in 34.7 percent of incidents with male victims.[9] ?The stories of domestic abuse faced by male celebrities as seen in the Johnny Depp – Amber Heard saga sets a recent example of female perpetration and male victimization. Campaigns going on saying it is okay for men to cry gaining traction in public discourse evidences the fact that society has begun accepting it in principle. and the same can be seen in the adaption of gender-neutral definitions for 'rape' in the United States of America as well as the United Kingdom. The Swedish expression of 'enforced sexual intercourse'[10], is yet another example of a gender neutral definition for the offence of rape.

In light of all what is stated above, the author expresses hope that one day, law as dynamic and ever-changing as it is, would give a gender neutral view to Section 375 along with rape jurisprudence and gender justice in conformation to our constitutional spirit.

[1] https://www.ibtimes.co.in/sperm-bandits-gangrape-male-hitchhiker-south-africa-753466

[2] https://www.bbc.com/news/world-us-canada-39568635

[3] AIR 2018?SC?4321

[4] 1969 Cri LJ 818

[5] 1992 CriLJ 1352

[6] AIR 1925 Sind 286 : (1925 (26) Cri LJ 945)

[7] 1992 CriLJ 1352

[8] https://www.theatlantic.com/science/archive/2016/11/the-understudied-female-sexual-predator/503492/

[9] https://www.theatlantic.com/science/archive/2016/11/the-understudied-female-sexual-predator/503492/

[10]Swedish Penal Code, Chapter 6, Section?1