By Sahiba Meher and Moumita Barman
Imagine this: a 17-year-old boy is sexually assaulted. Under India’s Protection of Children from Sexual Offences (POCSO) Act, he is recognised as a victim. The law sees him, and protects him, and offers a path to justice. One year later, on his 18th birthday when the exact same act of violence occurs, the law suddenly turns its back. His suffering is rendered invisible. His perpetrator walks free.
This is not dystopian fiction; it is the harsh reality under India’s new Bharatiya Nyaya Sanhita (BNS), 2023.
Replacing the 164-year-old Indian Penal Code (IPC), the Press Information Bureau proudly declared the BNS as “gender-neutral,” yet, despite the attempts to become progressive, the BNS continues to leave a significant gap in legal protection for adult male victims of sexual assault, replicating the limitation of the IPC.
Protected child, unprotected adult
The BNS does make strides for minors. Sections dealing with child sexual abuse, trafficking, and pornography now use the gender-neutral term “child,” rightly acknowledging that boys and transgender minors are equally vulnerable. But this protection vanishes overnight at 18. Section 63 of the BNS, defining rape, remains stubbornly archaic. The victim must be a woman. Full stop. This rigid definition erases adult male victims entirely.
The repeal of IPC Section 377 in the BNS compounds this catastrophe. Section 377 of the IPC classified consensual and non-consensual same-sex relationships as “Unnatural Offences,” but Navtej Singh Johar v. Union of India struck down parts of the section, decriminalising such relationships while protecting male and transgender sexual assault victims. Its complete elimination without a gender-neutral sexual assault provision left a legal gap. The BNS does not provide legal recourse for adult men raped by other men, women, or transgender people. The state offers the assault victim no recognition and no pathway to justice. His assault is not “rape” in the eyes of the law.
The government’s claim of “gender neutrality” rings hollow; it is neutrality with a brutal expiration date: your 18th birthday.
The global contrast
Internationally, several countries have updated their sexual assault statutes to better align with developing conceptions of gender, consent, and autonomy. In Canada, “rape” is replaced with ‘sexual assault’, where the law focuses entirely on the act and lack of consent. In Australia and the U.K., the law employs gender-neutral definitions of sexual assault, emphasises affirmative consent, and includes specific provisions against discrimination for LGBTQ+ survivors.
These nations understand a fundamental truth: sexual violence is about power, violation, and the absence of consent, not the gender of the victim. Their laws aptly showcase the reality that men can be raped, be it at home, at work, in prison and, on the street.
Stigma and lack of legal recourse
Lack of legal protection retrogresses this silence and misery. Global studies suggest male sexual assault is under-reported. Only 1 in 10 male sexual assaults are reported globally, possibly much lower in India due to the legal gap. Moreover, due to cultural shame, reporting can be identity-threatening as male victims dread being disbelieved, mocked, or suspected of homosexuality (still stigmatised). The BNS delivers no justice even if reported supporting the idea that male suffering is invisible or invalid.
Urgent need for real reform
Replacing the IPC label with “BNS” while retaining its core injustice is just an old wine in a new bottle. India deserves better. Giving up the colonial language does not suffice as true decolonisation but getting rid of the patriarchal and heteronormative attitudes that underpinned the old system is equally essential. This means that basic human rights like being free from sexual violence and bodily autonomy do not depend on gender. Hence, Section 63 of the BNS, 2023, should be modified, especially when it comes to the concept of non-consensual acts done by one person against another, irrespective of gender.
But this is not all. This transformation is contingent on the active involvement of the current torchbearers of change, i.e., the police, judges, prosecutors, and medical personnel. They should receive adequate training on recognising, sensitively handling, and prosecuting sexual assaults against men and transgender individuals.
Beyond legal reform, society must confront its deeply ingrained prejudices about male invulnerability. Educational curricula should include conversations about consent, abuse, and emotional expression for all genders. Media representations must move away from mocking or dismissing male trauma and instead humanise survivors of all identities. Workplaces, schools, and public institutions should adopt clear, inclusive sexual harassment policies that recognise male and LGBTQ+ vulnerabilities. Creating safe reporting environments through anonymous helplines and peer support groups can also increase visibility.
Ignoring male and transgender survivors does not just harm individuals—it undermines the very fabric of a justice system that claims equality. If the BNS is to reflect modern India, it must extend its protections to all citizens, not just those who fit a narrow, outdated definition of a “victim.” In its current form, the BNS remains a stain on this aspiration. Parliament must act to correct this grave injustice and ensure that every person, regardless of gender, is truly protected under the law that the government had claimed as new and transformative. The silence of male and transgender survivors must no longer be met with the silence of the law.
Sahiba Meher is a BA, LLB (Hons) student at Rajiv Gandhi National University of Law, Punjab. She is currently interning with the Centre for Development Policy and Practice (CDPP), a Hyderabad-based research organization, under the Centre for Law, Economics, and Society initiative. On the other hand, Moumita Barman serves as a Senior Research Associate at CDPP.
| 
