Legal Conundrum in Defining ‘Rape’ for Male Victims

A considerable number of rape or other sexual violence victims are males. Historically, rape was thought to be and defined as a crime committed solely against women. This belief is still held in some parts of the world. However, rape of males is now commonly criminalized and is subject to more discussion than in the past. Rape of males is still taboo and has a negative connotation among heterosexual and homosexual men. It is difficult for a male victim to report the sexual assault that he experienced, especially in a society with a strong masculine custom. Male victims mostly try to hide and deny their victimization alike female victims, unless they have serious physical injuries. Eventually, the male victims are quite vague in explaining their injuries when they are seeking medical or mental health services.[1]

Recently in Bangladesh, the crime of rape has increased dramatically. In most of the cases, children are the victims. “Children” means both female and male children. But the popular belief is that men and boys are not raped or sexually harassed. In the last few years, sexual harassment, abuse or rape towards male children has risen. In most of the cases, the crime occurs in educational institutions and is committed by the teachers or senior students.

Although the principle of non-discrimination as envisaged in the Convention on the Rights of the Child (CRC)[2] is also embedded in the fundamental rights set out in the  Constitution of Bangladesh, the broader cultural and religious traditions work in unison to create situations which very often result in discrimination. Children suffer from two kinds of discrimination – one based on age and the other on gender.[3]

Moreover, the trend of violence against children is alarmingly increasing in Bangladesh. Bangladesh is  home to 57.2 million children and approximately 82% of them become victims of violence before they turn 14. 3,845 children were victims of violence in 2017, out of which 339 were killed and 593 were raped. The statistics show a 7% increase in violence, murder, and rape of children in 2017 than those of 2016.[4] It is pertinent that violence against children is up by 18.75% in 2018.[5]Surprisingly, rapes against minors have doubled in the second quarter of 2019, according to the Bangladesh Shishu Adhikar Forum (BSAF). At least 164 children were raped in the first quarter of 2019 and the rapes doubled within three months, ballooning to 332 from 102 from April to June.

On August 19, 2019, BBC Bangla published a report on rape against male children. It stated that the rape of male children has increased in recent times. Most of the victims do not get legal support and the cases are filed under section 377 of the Penal Code, 1860, which is not the applicable legal provision in such cases. The said report stated that the number of cases which were filed regarding the rape of male children was 11 till June 2019, 9 in 2018 and 15 in 2017.[6]

On August 19, 2019, one Jamal Uddin from the Telihati Tepirbari village of Sreepur Upazila in Gazipur committed suicide after a group of men allegedly gang-raped him, recorded the footage of the incident, demanded a payoff, and later threatened to spread the video on social media if he failed to pay. A recent anthropological study on men’s experiences of sexual harassment in Bangladesh found that one (1) 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.[7]

There is a dilemma in our existing legal system in ensuring justice for male victims of sexual harassment and/or rape. Rape and sexual harassment are defined and punished according to sections 375, 376, 377 of the Penal Code 1860 and sections 9 and 10 of the Prevention of Women and Children Repression Act, 2000 (hereinafter ‘the Act of 2000’). It needs to be mentioned that section 3 of the Act of 2000 provides for the overriding effect of the law over other existing laws.

Section 2(e) of the Act of 2000 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.’ Section 375 of the Penal Code, 1860 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…’.[8] This section provides the definition on the basis of a female being raped by a male. It does not include “rape of men or male children.”

Conversely, section 9(1) of the Act of 2000 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 females 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 Act of 2000 sets the age of a child up to 16 years. But now, whether or not 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.’ Section 3 of the said Act stipulates the primacy of this law over any other law.

It is pertinent to analyze the notion of “child”, which includes both male and female child. While section 9(1) of the Act of 2000 does not restrict its definition of “child” to a male child, section 375 of the Penal Code, 1860 fails to provide any space for male or male child rape victims. So, there remains a legal debate as to whether the Prevention of Women and Children Repression Act, 2000 covers rape against a male child.

Similarly, section 10 of the Act of 2000 covers sexual harassment of male children but it does not extend to adult males. The said section deals only with women and children. But 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 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 said section 377 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.

Here, if we cautiously read the provision, 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. It is basically applicable for voluntary sex between gays, lesbians, homosexuals and other forms of unnatural sex.

In recent times, some police stations have started filing cases based on the allegations of rape against male children under the Prevention of Women and Children Repression Act of 2000, while many other police stations have investigated these cases under section 377 of the Penal Code.[9] Interestingly, there is no clear order or direction from the Supreme Court of Bangladesh or the concerned Ministry in this regard.

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 Act of 2000 specifically deals with sexual offences, rape, etc. and prescribes quick investigation and trial procedure as well as severe punishment in such cases. Our Government should take proper initiatives to address the ambiguity and dilemma in dealing with rape and sexual harassment against men and male children by inserting necessary provisions in the Prevention of Women and Children Repression Act, 2000 and the Penal Code, 1860

The writer acknowledges with gratitude the different sources of information.

Cite this article as: Md. Zakir Hossain, 'Legal Conundrum in Defining ‘Rape’ for Male Victims' (Bangladesh Law Digest, September 26, 2019) <http://bdlawdigest.org/legal-conundrum-in-defining-rape-for-male-victims.html>

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Copyright: Any unauthorized use or reproduction of Bangladesh Law Digest (BDLD) content for commercial purposes is strictly prohibited and constitutes copyright infringement liable to legal action.


[1]Rape of Males,< https://en.wikipedia.org/wiki/Rape_of_males>

[2] The Convention of the Rights of Child(CRC)was signed on 20 November 1989 and became effective from 02 September 1990. Bangladesh is a signatory and has ratified the treaty.  

[3] Sumaiya Khair, “Taking Children’s Rights Seriously: Areas of Concern in Towards Gender Equity, Poverty, Rights and Participation” Report of the Regional Workshop, 15-18 February, Dhaka, 1998

[4] The Daily Independent, July 17, 2018

[5] The Daily Dhaka Tribune, January 23, 2019

[6] https://www.bbc.com/bengali/news-49474607

[7] The Daily Star, August 29, 2019

[8] Section 375, The Penal Code, 1860

[9] https://www.bbc.com/bengali/news-49474607

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