The Victim Indian Law Cannot Imagine
Back in 2024 , a 23-year-old man in Gorakhpur allegedly committed suicide after being sexually assaulted by four men. In India, a man may be beaten, stripped, penetrated or even sexually violated; yet the law will not warrant him as a rape victim. This qualifies for a major legislative omission. Historically, Indian rape law has been structured around a singular legal assumption. This assumption calls sexual violence is something that men perpetrate to women. Consequently, the framework is not only exclusion of male victims from statutory recognition. It craves a deeper jurisprudential friction, which is that traditional masculinity itself is incompatible with sexual vulnerability. Even after the introduction of the Bharatiya Nyaya Sanhita (“BNS”), the urgency on the issue has been largely ignored.
For decades, Section 375 of the Indian Penal Code (“IPC”) conceptualised rape through a gendered and penile-vaginal centric framework. After the 2013 Criminal Amendment Act , all forms of penetrative and non-penetrative acts including all forms of penile penetration of any orifice, urethra, anus, object/body part penetration, manipulation causing penetration, and oral sex came within the definition of rape. What is often left out of this account is that the same reform process also suspended a parallel push towards gender-neutral rape law, even though an earlier ordinance had briefly proposed gender-neutral language. The government’s own position has not shifted much since. In 2019, the Ministry of Home Affairs told Parliament that the gender-specific definition of rape would remain untouched, on the reasoning that POCSO Act and Section 377 were “adequate” to cover male and transgender victims. A justification that on its own terms, concedes that rape law was never designed to see them as victims at all. While occasionally, Section 377 functioned as a residual provision through which certain forms of non-consensual acts could be prosecuted. The post Navtej Singh Johar landscape and the transition to the BNS have significantly narrowed down even this imperfect space.
This provides for a peculiar paradox. India increasingly speaks the language of dignity, privacy, autonomy, and transformative constitutionalism, yet it continues to deny legal visibility to male sexual violence victims. Therefore, the issue is not merely whether rape laws should become gender-neutral. The deeper concern lies in the gendered architecture of Indian criminal jurisprudence itself.
The Legal Friction of Invulnerable Men
The inability of Indian law to recognise male rape emerges from the social construction of masculinity itself. Particularly within patriarchal legal systems, masculinity is associated with dominance, penetration, physical control, and sexual agency. Accordingly, male rape becomes socially unintelligible because it destabilises the foundational assumptions upon which masculinity is built. A raped man is perceived as a contradiction, moving away from his perception as a victim. Within public discourse, male sexual victimhood frequently oscillates between ridicule and silence. Popular culture trivialises prison rape through humour, society associates male rape with weakness or emasculation, and legal discourse continues to treat male vulnerability as an exceptional anomaly rather than a constitutional concern.
As scholars have argued, male rape is often construed not only as an assault upon bodily autonomy but as an attack upon masculinity itself. The social stigma attached to male victimhood becomes qualitatively different from other forms of violence. The patriarchal understanding of masculinity demands invulnerability, and male rape threatens that demand. The current law reflects these assumptions. Indian criminal law implicitly reinforces this idea that only certain bodies are capable of sexual violation. Because the legal system itself remains embedded within the older patriarchal understandings of gender and power.
The Gendered Architecture of Rape Laws
Section 63 of the BNS, like its predecessor Section 375 of the IPC, continues to define rape through gender-specific language. Indian rape law protects women not merely because of bodily autonomy, but because historically it has conceptualised rape as a crime against female vulnerability. The removal of Section 377 has left a vacuum that the law has not filled. To that effect, transgender victims of sexual violence must now seek recourse under the Transgender Persons (Protection of Rights) Act, 2019, whose penalties for sexual offences against transgender persons are markedly lower than those prescribed under rape law for women. This is a gap that itself exposes the constitutional inequality running through India’s sexual offence regime. The structure of the offence itself is rooted in the assumption that women occupy the vulnerable position within sexual relations, while men occupy the position of agency and power. Hence, the very formulation of consent becomes gendered.
This selective recognition produces a constitutional inconsistency. Over the past decade, the Supreme Court of India has repeatedly expanded Article 21 into a broad guarantee of dignity, privacy, bodily integrity, and decisional autonomy. In Justice K.S. Puttaswamy v. Union of India, the Court recognised privacy as intrinsic to constitutional personhood. Likewise, in Navtej Singh Johar v. Union of India, the Court affirmed sexual autonomy and identity as central to constitutional morality. The Court’s ruling in National Legal Services Authority v. Union of India (NALSA) is equally significant here. It recognised transgender persons as a distinct “third gender” and affirmed their constitutional rights to dignity and self-identification. It is a precedent that sits uneasily beside a rape law still built around a rigid, binary conception of who can be violated.
Yet such logic sits unassuming beside a rape law that continues to assume certain bodies are violable while others are not. If constitutional morality truly protects autonomy and dignity universally, then the legitimacy of sexual violence cannot depend solely upon the gender of the victim. The persistence of gender-exclusive rape laws reveal the limits of Indian transformative constitutionalism. The Constitution increasingly speaks in the language of universal dignity, yet criminal law continues to operate through older assumptions of gender hierarchy.
Erasure of Vulnerability: The Impossible Victim
It is important to note here that acknowledging male rape does not require the erasure of the gendered realities of violence against women. Women continue to face disproportionate levels of sexual violence, institutional barriers, and structural discrimination within the criminal justice system. Feminist concerns (particularly in 2013) regarding misuse, false equivalence, and the dilution of women-centric protections deserves serious engagement rather than dismissal. These concerns are not just incidental. They emerge from a justice system that has historically failed to take violence against women seriously, and from a well-founded fear that gender-neutral drafting could be used to dilute protections rather than extend them. Any credible move towards gender-neutral rape law must be built with real safeguards against misuse, rather than treated as a zero-sum trade-off against protections women have only recently secured.
However, acknowledging these realities cannot justify the complete legal invisibility of male victims. Contrary, the refusal to acknowledge male sexual victimhood may itself reproduce patriarchal logic. Patriarchy harms women through vulnerability, but it harms men through enforced invulnerability. The belief that “real men cannot be raped” emerges from the same gender system that equates masculinity with dominance and femininity with weakness. This explains why conversations surrounding male rape frequently provoke discomfort across ideological lines.
A comparative jurisdictional analysis reflects this contradiction. The United Kingdom’s Sexual Offences Act 2003 still defines rape itself as penile penetration, keeping the core offence male-perpetrator specific, but it also creates a separate offence of “assault by penetration”, which covers non-consensual penetration by any object or body part and carries the same maximum penalty as rape. That single structural choice which is recognising the harm as equivalent even where the legal label differs is precisely the kind of nuance missing from Indian law. Similarly, jurisdictions such as Canada and South Africa have moved towards autonomy-centred frameworks that recognise sexual violence irrespective of gender identity. India, on the other hand, remains caught between constitutional modernity and criminal law archaicism. The persistence of this framework cannot be understood without revisiting the legislative choices that were followed post 2012 Nirbhaya case. The Justice JS Verma Committee recommended sweeping reforms to India’s sexual offence laws, expressly proposed a gender-neutral formulation of rape, recognising that sexual violence is fundamentally an offence against bodily autonomy rather than one confined to female victimhood. Yet, when the Parliament enacted the Criminal Law (Amendment) Act, 2013, this recommendation was consciously abandoned. The Parliament Standing Committee and the Government ultimately retained a gender-specific definition, largely on the apprehension that gender neutrality could dilute protections for women in a deeply unequal society. Therefore, this is not a legislative oversight but a deliberate constitutional choice.
Lastly, the larger constitutional question is not merely whether men can be raped. Social realities answer that question unequivocally. The more uncomfortable question is whether Indian law is willing to recognise vulnerability when the sexual violence pertains to a man. Until that is unanswered, the male rape victim will remain what Indian law has long imagined him to be impossible.
Kumar Shubham is a third-year law student from Institute of Law, Nirma University. His areas of interest are Competition Law, IPR, Comparative Constitutional Law, Feminist Jurisprudence, and Political Theory.
