THE crime of rape has increased significantly in recent times and the victims include both women and men. Despite the popular belief that men or boys cannot be raped or sexually harassed, a noticeable number of men or boys are raped.
In the past couple of years, sexual harassment and abuse or rape towards male children has increased. Generally, the crime occurs in educational institutions; and teachers or senior students are the perpetrators. Bangladesh Shishu Adhikar Forum has recently said that rapes against minors have doubled in the second quarter of 2019. Another report published in BBC Bangla on August 19, 2019 said that most of the male rape victims did not get legal support and the cases are filed under Section 377 of the Penal Code 1860, a legal provision that is not application to such cases. The report stated that the number of cases which were filed regarding the rape of male children was 11 in June 2019, 9 in 2018 and 15 in 2017 (Md Zakir Hossain, ‘Legal Conundrum in Defining “Rape” for Male Victims’, Bangladesh Law Digest, September 26, 2019).
A recent anthropological study on men’s experiences of sexual harassment in Bangladesh found that one out of 10 males encountered sexual harassment by another male or female. However, they did not disclose or report the incidents to others as it was against the norms of society. There is a dilemma in our existing legal system when it comes to ensuring justice for male victims of sexual harassment and/or rape.
Rape and sexual harassment are defined and punished according to Section 375, 376, 377 of the Penal Code and Section 9 and 10 of the Women and Children Repression (Prevention) Act 2000. Section 3 of the act provides for the overriding effect of the law over other existing laws.
Section 2(e) of the act clearly states that ‘Rape means the provision stated in Section 375 of the Penal Code in consideration of the provision of Section 9 of this act’ and Section 375 of the Penal Code defines rape as ‘A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions….’ This section provides the definition on the assumption that a women being raped by men. It does not include ‘rape of men or male children.’
On the other hand, Section 9(1) of the 2000 act provides that ‘if any man rapes any woman or child, he shall be punished with rigorous imprisonment for life and with fine.’ There is an explanation about rape which is only limited to women and no explanation about the word ‘child’ is given. Nonetheless, there is a scope to interpret the word ‘child’ in Section 9(1) horizontally. Section 2(k) of the 2000 act sets the age of a child up to 16 years. But now, whether someone is a child will be determined according to the Children Act 2013 and it has a legislative mandate to prevail over any other law. Section 2(17) and 4 of the Children Act 2013 define ‘child’. Section 4 clearly states that ‘every person will be considered as a child up to 18 years of age in spite of any different provision in any enforced law’ and Section 3 of the said Act stipulates the primacy of this law over any other law. It is pertinent to analyse the notion of ‘child’, which includes both girl and boy child. While Section 9(1) of the 2000 act does not restrict its definition of ‘child’ to a male child, Section 375 of the Penal Code fails to provide any space for men or boy child rape victims. So, there remains a question as to whether the Women and Children Repression (Prevention) Act 2000 covers rape against a male child.
Similarly, Section 10 of the 2000 act covers the sexual harassment of male children but it does not extend to adult men. The said section deals only with women and children. However, the adult men can get relief regarding allegations of sexual harassment under section 511 of the Penal Code. This provision can be applied if the offence is considered as an attempt to carnal intercourse under Section 377 of the Penal Code. In our country, cases for offences of rape against males or male children are filed under Section 377 of the Penal Code. The section states: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.’
From this section, we find that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal….’ That means Section 377 provides the punishment for voluntary carnal intercourse against the order of nature. The will of the victim is immaterial here. Only the offence will get priority. There is no explanation elaborating on any sexual action or inaction.
The Cambridge dictionary defines the word ‘carnal’ as ‘relating to the physical feelings and wants of the body and ‘intercourse’ as the act of having sex’. The term ‘carnal intercourse’ also indicates ‘sodomy’. Sodomy, on the other hand, is defined as ‘anal or oral intercourse between human beings, or any sexual relations between a human being and an animal, the act of which may be punishable as a criminal offense’. For interpretation, it can be said that Section 377 does not specifically indicate the offence of rape but it provides punishment for unnatural voluntary sexual intercourse with anyone or animals.
In recent times, some police stations have started filing cases based on the allegations of rape against male children under the Women and Children Repression (Prevention) Act 2000 while many other police stations have investigated these cases under Section 377 of the Penal Code. Interestingly, there is no clear order or direction from the Supreme Court or the concerned ministry in this regard.
Hence, it is high time to revise the legal definition of rape and make it gender-neutral. Moreover, the parliament needs to enact laws to provide justice to male rape victims, especially male children. It is the right of a man or a male child rape victim to get legal shelter under the existing Penal Code and special penal laws. The 2000 act specifically deals with sexual offences, rape, etc and prescribes quick investigation and trial procedure, as well as severe punishment in such cases.
The government should take proper initiatives to address the vagueness and dilemma in dealing with rape and sexual harassment against men and male children by inserting necessary provisions in the Women and Children Repression (Prevention) Act 2000 and the Penal Code.
Tasmiah Nuhiya Ahmed is an advocate in the Supreme Court.
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