Rape crimes have increased significantly in recent times and include both women and men as victims. Despite the popular belief that men or boys cannot be raped or sexually assaulted, a significant number of men or boys are raped.
Sexual harassment and abuse or rape of male children has increased in the last few years. The crimes are usually committed in educational institutions; and teachers or senior students are the perpetrators. The Bangladesh Child Rights Forum recently said that rape against minors doubled in the second quarter of 2019. Another report published on BBC Bangla on August 19, 2019, said that most male victims of rape did not receive legal assistance and cases were filed. Section 377 of the Penal Code 1860, a legal provision that does not apply to such cases. The report said that the number of cases filed regarding rape of male children was 11 in June 2019, 9 in 2018 and 15 in 2017 (Md. Zakir Hossain, ‘Legal Problems of Defining “Rape” for Male Victims’, Bangladesh Law Digest, September 26, 2019).
A recent ethnographic study on men’s experiences of sexual harassment in Bangladesh found that one in 10 men had experienced sexual harassment by another man or woman. However, they did not disclose the incidents or report them to others because it was against societal norms. There is a dilemma in our existing legal system in ensuring justice for men who are victims of sexual harassment and/or rape.
Rape and sexual harassment are defined and punished under sections 375, 376, 377 of the Penal Code and sections 9 and 10 of the Atrocities on Women and Children (Prevention) Act, 2000. Section 3 of the Act provides for the overriding effect of the Act. Over other existing laws.
Section 2(e) of the Act clearly states that 'rape means the offence described in Section 375 of the Penal Code, subject to the provisions of Section 9 of this Act' and Section 375 of the Penal Code defines rape as 'a man' who, except in the following circumstances, has sexual intercourse with a woman. It does not include 'rape of a man or a male child'.
On the other hand, Section 9(1) of the 2000 Act states that ‘if any man rapes any woman or child, he shall be punished with imprisonment for life and with fine.’ No interpretation has been given to women and the word ‘child’. However, Section 9(1) leaves room for horizontal interpretation of the word ‘child’. Section 2(k) of the 2000 Act defines a child as up to 16 years. But now, whether someone is a child will be determined as per the Children Act 2013 and there is a statutory mandate for it to prevail over any other law. Sections 2(17) and 4 of the Children Act 2013 define ‘child’. Section 4 clearly states that ‘notwithstanding any law for the time being in force, every person shall be deemed to be a child up to the age of 18 years’ and Section 3 of the said Act gives precedence to this Act over any other law. It is relevant to analyse the concept of ‘child’, which includes both girl and boy children. Although Section 9(1) of the 2000 Act does not limit the definition of ‘child’ to a male child, Section 375 of the Penal Code fails to provide any space for male or boy child victims of rape. Therefore, a question remains as to whether the Atrocities on Women and Children (Prevention) Act, 2000 covers rape against a male child.
Similarly, Section 10 of the 2000 Act covers sexual harassment of male children but it does not extend to adult males. The said section deals only with women and children. However, adult males can avail relief in respect of allegations of sexual harassment under Section 511 of the Penal Code. This provision can be invoked if the offence is considered as attempted carnal intercourse under Section 377 of the Penal Code. In our country, a case is registered under Section 377 of the Penal Code for the offence of rape against a male or male child. The section states: 'Whoever voluntarily has carnal intercourse with any man, woman or animal against the law of nature, shall be punished 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 necessary carnal intercourse for the offence described in this section.
From this section, we see that 'Whoever voluntarily has sexual intercourse with any man, woman or animal against the law of nature…' i.e. Section 377 punishes voluntary sexual intercourse against the law of nature. The desire of the victim is irrelevant here. Only the crime will take precedence. There is no detailed explanation about any sexual act or inaction.
The Ambridge Dictionary defines the word ‘carnal’ as ‘relating to physical feelings and needs’ and ‘intercourse’ as the act of sex. The term ‘carnal intercourse’ also refers to ‘sodomy’. On the other hand, sodomy is defined as ‘anal or oral intercourse between humans, or any sexual intercourse between humans and an animal, which act may be punishable as a criminal offence’. For clarification, it may be said that Section 377 does not specifically refer to the offence of rape but it provides for the punishment of unnatural voluntary sexual intercourse with anyone or an animal.
In recent times, some police stations have started registering cases of rape against male children under the Women and Children (Prevention) Act, 2000 while many other police stations have investigated these cases under Section 377 of the Penal Code. Interestingly, there is no clear direction or instruction from the Supreme Court or the concerned ministry in this regard.
Therefore, it is time to amend the legal definition of rape and make it gender-neutral. Moreover, Parliament should enact a law to prosecute male victims of rape, especially male children. The existing Penal Code and the Special Penal Code provide legal protection to a male or a male child victim of rape. The 2000 Act specifically deals with sexual offences, rape, etc. and mandates speedy investigation and trial procedures as well as stringent punishment in such cases.
The government should take appropriate steps to remove ambiguity and ambiguity in addressing rape and sexual harassment against men and male children by inserting necessary provisions in the Women and Children's Atrocities (Prevention) Act, 2000 and the Penal Code.
