The Invisible Victim: Men and Sexual Offence Laws in India

Examining the Constitutional and Social Need for Gender-Neutral Sexual Offence Laws

1. Introduction: When the Victim Is a Man

Imagine a man experiencing sexual abuse but hesitating to report it. He is not necessarily afraid only of the person who harmed him. He may also fear being laughed at, disbelieved or asked a question that should never determine whether he deserves justice: “How can a man be a victim of sexual violence?”

This is an uncomfortable reality that deserves greater attention in India's discussion of sexual offences.

Sexual violence is often discussed through the experiences of women and girls, and rightly so. Their safety remains a serious concern, and the law must continue to protect them effectively. But acknowledging the suffering of women does not require us to overlook the experiences of men. Men, too, can face unwanted sexual contact, coercion and abuse. Yet social attitudes may discourage them from speaking out, while the wording of certain criminal provisions can make their legal position more complicated.

The issue has gained renewed attention following the introduction of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the Indian Penal Code, 1860 (IPC). Section 63 of the BNS defines rape in terms of acts committed by a man against a woman. The BNS also omitted former IPC Section 377, raising concerns about the treatment of certain non-consensual sexual acts involving adult male victims.

These provisions raise an important question: when sexual violence occurs, should the victim's gender determine whether the law recognizes the conduct as a specific sexual offence?

This is not an argument for weakening women's protection. It is a call to examine whether the criminal justice system adequately addresses sexual violence against people who fall outside the gender categories recognised by particular offences. By examining Indian law, judicial decisions, constitutional principles and international approaches, this article explores why the issue deserves serious legislative attention.

2. The Legal Gap: What Does Indian Law Provide?

Section 63 of the BNS: Who Is Recognised as a Victim of Rape?

Section 63 of the BNS defines rape through specified acts committed by a man against a woman under legally recognised circumstances, including circumstances involving the absence of consent.

The wording matters. An adult man subjected to comparable non-consensual sexual penetration does not fall within this definition of rape merely because the conduct is similar. Other offences may apply depending on the circumstances, but they do not necessarily provide equivalent legal recognition.

Under the former IPC, Section 375 also defined rape in gender-specific terms. Section 377 addressed certain forms of carnal intercourse against the order of nature. In Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalised consensual sexual acts between adults under Section 377. The judgment did not strike down the provision's application to non-consensual acts.

The BNS later omitted Section 377 altogether. This has prompted concerns about whether the law now adequately addresses certain non-consensual sexual acts involving adult male victims.

The distinction is important: the concern is not that every act against a male victim goes unpunished. Depending on the facts, provisions relating to assault, criminal force, hurt or other offences may apply. The concern is whether these provisions adequately address the sexual nature and seriousness of the conduct.

Sections 74 and 75: Protection Against Other Sexual Offences

Section 74 of the BNS addresses assault or the use of criminal force against a woman with the intention of outraging her modesty, or with the knowledge that the act is likely to do so. Section 75 deals with sexual harassment and specifies forms of conduct including unwelcome physical contact involving explicit sexual overtures, demands for sexual favours and certain other acts.

These provisions address serious misconduct and provide important protections for women. However, their gender-specific wording does not establish equivalent offences for every comparable situation involving an adult male victim.

This creates a broader question about the scope of sexual-offence law: should a person's experience of unwanted sexual conduct receive a different legal response simply because of the person's gender?

Are There Any Existing Protections?

Indian law does recognise victims beyond a women-only framework in some contexts.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), protects children below 18 years of age regardless of gender. It criminalises specified sexual offences against both boys and girls.

Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, also criminalises specified forms of abuse against transgender persons, including physical and sexual abuse, subject to the statutory requirements.

These provisions demonstrate that the law can recognise victims of different genders. However, POCSO applies to children, and the transgender-specific provision does not establish a comprehensive framework for all adult sexual offences.

The remaining concern is therefore specific: what legal protection is available when an adult man experiences sexual violence that does not fall within a particular gender-specific offence?

3. What Have Indian Courts Said?

Navtej Singh Johar v. Union of India (2018)

Citation: (2018) 10 SCC 1.

The Supreme Court's decision in Navtej Singh Johar marked an important development in the protection of dignity, privacy and personal autonomy. By reading down Section 377 of the IPC, the Court removed the criminalisation of consensual sexual acts between adults under that provision.

However, the judgment did not establish a gender-neutral definition of rape or create a comprehensive framework for prosecuting sexual offences against adult male victims.

Its relevance lies in the constitutional values it recognised and in the legal history of Section 377. The provision continued to apply to certain non-consensual acts after the judgment, before being omitted from the BNS.

The case is therefore relevant to the discussion of sexual autonomy and dignity, although it should not be presented as a direct judicial mandate for gender-neutral rape legislation.

Pooja Sharma v. Union of India (2024)

Citation: W.P. (Crl.) No. 398/2024; reported as 2024 LiveLaw (SC) 834.

A more direct development came in Pooja Sharma v. Union of India. On 14 October 2024, the Supreme Court declined to issue directions requiring the creation of provisions addressing sexual offences against men and transgender persons, among other matters, under the BNS.

The Court observed that the creation of criminal offences is primarily a legislative responsibility. The petitioner was permitted to make a representation to the Union Government.

This decision is significant because it brings the issue directly into the legal debate surrounding the BNS. At the same time, it is important to understand what the Court did—and did not—decide. It did not declare gender-neutral sexual-offence laws unconstitutional, nor did it rule that male victims should receive no protection.

Instead, the decision highlights the role of Parliament in reviewing the law and considering whether additional offences or safeguards are needed.

The question is now not simply whether the issue exists, but whether lawmakers will examine it and determine what changes, if any, are appropriate.

Sakshi v. Union of India (2004)

Citation: (2004) 5 SCC 518.

In Sakshi, the Supreme Court considered questions concerning the interpretation of rape law and the treatment of victims during criminal proceedings. The case raised important concerns about legal definitions and procedures that can affect the experience of victims seeking justice.

It did not establish a gender-neutral definition of rape for adult male victims. Nevertheless, it is relevant to the wider discussion of whether sexual-offence law and criminal proceedings adequately respond to the realities of sexual violence.

The case should be understood as part of that broader discussion, rather than as direct authority for gender-neutral rape legislation.

Parliamentary Concerns About the Omission of Section 377

The issue was also raised during parliamentary consideration of the BNS Bill.

The Parliamentary Standing Committee on Home Affairs, in its report presented in November 2023, examined concerns relating to the omission of Section 377 of the IPC, including the absence of a specific provision addressing certain non-consensual sexual acts involving adult male victims.

A committee report is not binding law, but it is significant because it demonstrates that concerns about this legal gap were raised during the legislative process.

Together, these developments show that the question of male victims' protection is not merely a matter of public opinion. It has also been raised in judicial proceedings and parliamentary scrutiny.

4. Articles 14 and 21: A Question of Equality and Dignity

The Constitution offers an important starting point for examining whether the law provides adequate protection.

Article 14 guarantees equality before the law and equal protection of the laws. Article 21 protects life and personal liberty, which the Supreme Court has interpreted to include dignity, privacy and personal autonomy.

Does this mean that every sexual-offence provision must be gender-neutral? Not automatically.

Gender-specific protections may respond to historical discrimination, social inequalities and particular forms of violence experienced by women. The constitutional principle of equality does not require identical treatment in every situation; classifications may be justified when they serve a legitimate purpose.

However, the need for special protection for women does not, by itself, answer the question of how the law should respond when an adult man experiences sexual violence.

A male victim may suffer physical injury, fear, humiliation and psychological trauma. Those consequences do not become less serious because the victim is male. The law must therefore consider whether the available offences provide an appropriate response to the conduct involved.

One possible approach would be to define specified sexual offences according to the nature of the conduct and the absence of consent, while retaining additional protections where a person's age, vulnerability or circumstances justify them.

Articles 14 and 21 provide relevant constitutional principles for examining this question. However, the existence of gender-specific wording does not automatically establish that a provision is unconstitutional. Any challenge or proposed reform must be assessed in light of the law's purpose, constitutional standards and practical consequences.

The stronger argument is that Parliament should examine whether the existing framework adequately protects all victims while preserving legitimate and necessary protections for women and children.

5. Beyond India: How International Law Recognises Male Victims

India is not the only jurisdiction confronting questions about the recognition of sexual violence against men. International criminal law and other national legal systems provide useful examples of how the issue can be addressed.

The Rome Statute and the International Criminal Court

The Rome Statute of the International Criminal Court provides for the prosecution of certain serious international crimes, including rape and other forms of sexual violence in circumstances falling within the Court's jurisdiction.

The ICC's Elements of Crimes addresses sexual violence in a framework that does not restrict victimhood to women. This is particularly relevant to armed conflict, detention and situations involving abuse of power.

However, the Rome Statute concerns international crimes within the Court's jurisdiction. India is not a State Party to the Statute, and it does not automatically create a domestic criminal remedy for adult male victims in India.

Prosecutor v. Tadić

The proceedings in Prosecutor v. Tadić before the International Criminal Tribunal for the former Yugoslavia illustrate the recognition of sexual violence against men in conflict-related settings.

Depending on the facts and applicable legal requirements, such conduct may be addressed through offences including torture, persecution or inhuman treatment.

The case is not a direct ruling on India's definition of rape. Its importance lies in demonstrating that sexual violence against men can be recognised within international criminal proceedings.

Masiya v. Director of Public Prosecutions (2007)

Citation: [2007] ZACC 9.

In Masiya, South Africa's Constitutional Court considered the definition of rape in the context of anal penetration. The case raised questions about the scope of traditional definitions and the legal recognition of sexual violations.

The judgment must be understood in the context of South African law and the specific issue before the Court. Nevertheless, it provides a useful comparative example of judicial consideration of how rape law should define the conduct it covers.

These international developments do not dictate what India must do. They do, however, challenge the assumption that sexual violence can be understood only through the experiences of female victims.

6. What Can India Learn from Other Countries?

Comparative law offers practical examples, although each country's legal framework has developed within its own social and constitutional context.

Canada: Focusing on Consent

Canada's Criminal Code provides gender-neutral sexual-assault offences. The framework focuses on sexual contact without consent rather than restricting the victim to one gender.

Different levels of sexual assault are recognised according to the nature and seriousness of the conduct. Men and women can therefore seek protection under the same general framework, subject to the relevant legal requirements.

Canada demonstrates how the law can focus on consent and prohibited conduct while distinguishing between offences of different seriousness.

South Africa: A Broader Definition of Rape

South Africa's Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 introduced an expanded definition of rape covering specified forms of sexual penetration without consent, irrespective of gender.

The legislation also recognises other sexual offences. Its approach is relevant to India because it illustrates how a legal system can define prohibited conduct without restricting the victim to a particular gender.

Australia: Different Jurisdictions, Similar Concerns

Sexual-offence laws in Australia are primarily governed by state and territory legislation. The precise definitions and terminology therefore vary.

Nevertheless, Australian jurisdictions have adopted gender-neutral approaches to various sexual-assault and penetrative sexual offences. Depending on the jurisdiction, an offence may be described as rape, sexual assault, sexual intercourse without consent or sexual penetration without consent.

The broader lesson is that legislation can recognise victims of different genders while clearly specifying the conduct that must be proved.

England and Wales: An Important Distinction

England and Wales provide a more qualified example.

Section 1 of the Sexual Offences Act 2003 defines rape through intentional penetration of another person's vagina or anus, or mouth, with the perpetrator's penis, without consent and without a reasonable belief in consent. The offence of rape is therefore not fully gender-neutral as to the perpetrator.

However, Section 3 creates the offence of sexual assault, which protects victims of different genders against specified non-consensual sexual touching.

This distinction is important. A legal system may provide protection for male victims through gender-neutral sexual-assault offences even when its definition of rape retains a gender-specific element.

The Lesson for India

These examples do not suggest that India should copy another country's legislation word for word. They show that there are different ways to define sexual offences and recognise victims of different genders.

Parliament could consider whether certain offences should focus more directly on consent and prohibited conduct, whether additional forms of non-consensual penetration should be covered, and how to ensure that the law recognises male victims and female perpetrators where the elements of an offence are satisfied.

Any reform must also preserve appropriate safeguards for women, children and other vulnerable persons, and ensure that offences are clearly defined.

The aim should be a framework that reflects India's constitutional values and legal realities, rather than an attempt to import a foreign model without considering its consequences.

7. The Problem Beyond the Law: Stigma and Silence

Even when a legal remedy may be available, social attitudes can discourage victims from seeking it.

Men are often expected to be strong, confident and capable of defending themselves. These expectations can make it difficult for a male victim to admit that he has experienced sexual abuse. He may fear that others will question his masculinity or treat the incident as a joke.

Research into the lived experiences of male survivors, including studies examining the psychological and social consequences of sexual abuse, highlights how shame, fear of disbelief and social judgement can discourage disclosure. These barriers may prevent survivors from reporting abuse or seeking professional support.

Consider a man who experiences unwanted sexual touching at work. Instead of reporting it, he may remain silent because he expects colleagues to laugh at him or assume that the incident could not have caused him serious distress.

His silence should not be mistaken for consent, and his gender should not determine whether his complaint deserves attention. The legal response will depend on the conduct and the applicable provisions, but the victim should not be dismissed merely because he is male.

Addressing this problem requires more than changes to statutory definitions. Police officers and medical professionals need appropriate training to handle complaints sensitively. Victims should have access to counselling, medical assistance and legal aid, along with suitable confidentiality safeguards.

Public awareness also matters. A society that treats male victims as incapable of experiencing sexual violence can discourage reporting and deepen the isolation of those affected.

Changing these attitudes will take time, but the law and the institutions responsible for enforcing it can play an important role.

8. The Way Forward: Reform Without Reducing Women's Protection

The debate should not be framed as a choice between protecting women and protecting men. Both concerns can be addressed without treating one group's suffering as less important than another's.

Parliament could review Section 63 of the BNS to consider whether the definition of rape should cover additional forms of non-consensual penetration and different categories of victims. It could also examine whether the law provides adequate protection against comparable forms of sexual harassment and assault involving adult victims of different genders.

The omission of Section 377 of the IPC deserves careful consideration as part of this review. Any proposed legislation should address gaps involving non-consensual sexual acts without criminalising consensual sexual conduct between adults.

Reform must be precise. It should clearly define the prohibited acts, the role of consent and the circumstances that justify enhanced penalties. It should also protect due process and avoid creating uncertainty about the offences being prosecuted.

Finally, legislative changes should be accompanied by practical support for victims. Accessible reporting procedures, appropriate medical services, counselling and legal assistance are necessary if legal protection is to have meaning in everyday life.

Consultation with legal experts, victim-support organisations, medical professionals and affected communities would help Parliament understand the consequences of different approaches before deciding how to proceed.

9. Conclusion: Who Gets to Be Recognised as a Victim?

India's criminal law provides important protections against sexual violence, particularly for women and children. Yet the gender-specific wording of certain adult sexual-offence provisions, together with the omission of Section 377 of the IPC, raises legitimate questions about the legal position of adult male victims.

The Supreme Court's decision in Pooja Sharma v. Union of India highlights the importance of legislative consideration. Constitutional principles, parliamentary scrutiny and international examples also provide useful grounds for examining whether the current framework is adequate.

Recognising male victims does not diminish the suffering of women. Nor does it mean that every offence must be drafted identically regardless of the circumstances. It means taking seriously the possibility that the law may need to address gaps in its treatment of sexual violence.

Ultimately, the issue is not whether men and women experience sexual violence in identical ways. They do not. The issue is whether a victim's experience can be taken seriously and addressed through an appropriate legal response, without assumptions about gender deciding the matter in advance.

A justice system must be able to recognise the victim standing before it—even when that victim does not fit society's expectations.

India should consider carefully drafted, gender-inclusive reforms that protect bodily autonomy, preserve necessary safeguards for vulnerable groups and provide meaningful access to justice.

Justice should not depend on gender. It is time to recognise every victim of sexual violence and ensure dignity, appropriate legal protection and access to justice for all.

References

Indian Legislation and Constitutional Provisions

• Constitution of India, Articles 14 and 21.
• Bharatiya Nyaya Sanhita, 2023, Sections 63, 74 and 75.
• Indian Penal Code, 1860, Sections 354, 375 and 377 (historical provisions).
• Protection of Children from Sexual Offences Act, 2012.
• Transgender Persons (Protection of Rights) Act, 2019, Section 18.

Indian Cases and Legislative Materials

• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
• Pooja Sharma v. Union of India, W.P. (Crl.) No. 398/2024, 2024 LiveLaw (SC) 834.
• Sakshi v. Union of India, (2004) 5 SCC 518.
• Parliamentary Standing Committee on Home Affairs, Report on the Bharatiya Nyaya Sanhita Bill, November 2023.

International Cases, Laws and Materials

• Prosecutor v. Tadić, International Criminal Tribunal for the Former Yugoslavia, Case No. IT-94-1.
• Masiya v. Director of Public Prosecutions, [2007] ZACC 9.
• Canada's Criminal Code, provisions on sexual assault.
• South Africa's Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
• Australia's state and territory sexual-offence legislation.
• England and Wales' Sexual Offences Act 2003, Sections 1 and 3.
• Rome Statute of the International Criminal Court and the International Criminal Court's Elements of Crimes.