Addressing Sexual Violence Against the Male Gender: A Legal Perspective

By Tamara Frunse, Stephanie Ere Tobi, Sarah Mohammad

Occurrences of sexual violence against men and boys are prevalent in situations of armed conflict, yet they remain largely invisible. In recent years, the issue has increasingly attracted a discourse between academics, policymakers, NGOs and civil society. Nonetheless, very few organizations have taken the initiative to deal with sexual violence perpetrated against the male gender. Organizations that attempt to address sexual violence against men often lack financial support and resources. Against this backdrop, the Centre for African Justice, Peace and Human Rights (CAJPHR), a non-profit Foundation based in the Hague, collaborated with the Feminists of Maastricht to organize a Symposium titled “Sexual Violence: The Male Perspective – Unheard, Unspoken and Unseen” with the vision to raise awareness on the realities and effects of sexual violence against men. This Symposium Article presents results of the ongoing legal research on sexual violence against men conducted by the Centre, combined with insights gathered from the Symposium that created a platform for legal professionals to exchange different legal perspectives on the topic.

Introduction Gender-based violence finds its way regularly into armed conflicts. International attention and responses are mostly concerned with crimes against women and girls. However, the prevalence of sexual violence against men and boys in armed conflict initiates cause to rethink. This ‘traditional’ focus of research regarding conflict based sexual violence should recognize that sexual violence is not specific to just one gender but is recurrently concentrated around men as well as women.

Ms. Atiba-Davies, Head of the Gender and Children UNIT (GCU) in the Office of the Prosecutor at the International Criminal Court, observed that in a study conducted by the Refugee Law Project of Uganda in partnership with John Hopkins, of the 447 male refugees (aged between 18-78 from a selected settlement in Western Uganda), 13.4% had experienced some form of sexual violence. These forms include rape, anal penetration, oral sex, forced sterilization and genital torture. Research has currently shown that 1 in 6 men have been sexually abused or assaulted during their childhood or as an adult in conflict and peacetime, showcasing that this is an issue experienced not only be women but also by men. The following article will provide an overview of some of the domestic challenges that arise for men when they try to seek redress for violations of a sexual kind. In many jurisdictions outdated national criminal law systems are rarely gender-neutral and thus fail to provide an option for legal recourse. This article will focus on two jurisdictions, the People’s Republic of Bangladesh and the Federal Republic of Nigeria¹, in order to exemplify the issue, however, the problem transcends geographical location, and is present globally.

The discussions during the symposium also explored the intricacies of under-reporting, which poses one of the major challenges of sexual violence against men. The insights that were gained during this symposium act as a guide to understanding the diverse causes of under-reporting as well as strengthen the efforts to reduce the gap in the collection of empirical data. The paper further identifies societal factors that play an essential role in male-targeted sexual violence, which can be used to unveil wider patterns that form part of sophisticated military strategies of perpetrators to debase entire communities. Combined, the interplay between socially constructed norms and legal deficiencies perpetuate the issue of under-reporting.

The article closes by looking at the progress achieved on the international sphere. International criminal law has gone a long way to be able to acknowledge and accommodate male-targeted sexual violence. However, in order to translate the progress into effective prosecution and adjudication, more scholarly research and international discussion is required to fully understand the complex dynamics and establish a coherent analysis of male-targeted sexual violence.

Lacunae in national legislation

International criminal law tends to keep the language relating to sexual offences gender-neutral, although actual investigative and adjudicative progress reveals deficiencies in practice. In comparison, many national jurisdictions have overt gaps in the legal protection offered to men subjected to sexual violence. Where progress is made and laws amended, other challenges stand in the way of granting a full-fledged protection and access to justice.

Mr. Kazi Russel Pervez, Counsellor of the Embassy of Bangladesh in the Hague, presented the example of rape under the domestic law of Bangladesh, including the extent to which men and boys are legally protected and recognized as victims of rape in Bangladesh. The definition of rape under Section 375 of the Bangladesh Penal Code 1890 stipulates that “a man is said to commit rape who except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling under of the five following description: against her will; without her consent; with her consent, when her consent has been obtained by putting her in fear of death or hurt; with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married; and with or without her consent, when she is under fourteen years of age”. Mr. Pervez elucidated that the Penal Code refers exclusively to women as victims and men as the perpetrators, resulting in a gap in legal protection of male victims compared to women. The Act acknowledges a certain leeway in gender but only for children, as it does not distinguish between a female or a male child, presumably because of how the terms “rape” and “penetration” are interpreted. In addition to the Penal Code that acknowledges only women as potential victims of sexual violence, the Prevention of Oppression against Women and Children Act 2000 takes a similar stance and directs its focus towards women and children. Pursuant to Section 9 of the Act, anyone who rapes a ‘child’ shall be punished. Hence, the legislation has the capacity to protect a male child, while adult males remain excluded from the guarantees of this provision.

In comparison, Nigerian legislation stands as a paradigm shift in legal protection of male sexual violence survivors. The Nigerian laws on rape and other forms of sexual violence used to primarily protect female victims. This has changed with the Violence Against Persons (Prohibition) Act 2015 (VAPP Act), which provides protection for men who have been sexually abused. In addition, it has been made easier for male victims to report sexual violence through the VAPP Act. The VAPP Act constitutes a progressive development in Nigeria in terms of acknowledging male victims of sexual violence. Nevertheless, Ms. Stephanie Ere Tobi, legal practitioner and researcher at CAJPHR, explained that there are still limitations to the Act. The VAPP Act only applies to the Federal Capital Territory of Abuja. Accordingly, in practice due to its limited scope of jurisdiction redress remains inaccessible to the rest of the population.

The examples of the Bangladeshi and Nigerian laws showcase that until the material, procedural and practical gaps in national jurisdictions are not closed through an adequate legislative amendment to address sexual violence perpetrated against men, the male victims will continue to be barred from accessing justice and redress.

Under-reporting and the need for a gender-transformative approach Due to a substantial lack of accurate statistics of sexual violence instances against men and boys in conflict-afflicted zones the full extent of the problem cannot be measured. Although sexual violence against women and girls is highly documented, sexual violence against men is not. This is mainly caused by under-reporting, as the majority of men are reluctant to report sexual assault and disclose their victimization. However, inaccurate statistics are not merely a result of lack of documentation. While highlighting some of the effects of sexual violence against men, Her Excellency, Mirsada Čolaković, Ambassador of Bosnia and Herzegovina to the Netherlands, expressed concern that many male victims of sexual violence are also afraid to report that they were sexually violated in order to protect their masculinity as well as due to fear of repressive laws. In many cultures, men are presumed to be the dominant gender and protector of the family. Thus, a man having to report that he was raped or that he experienced any other form of sexual violence would detriment the stereotypical role of him within society.

Ms. Rachel Ploem, Rutgers, SRHR and Gender Adviser, who likened sexual violence to gender-based violence, stated that the main reason for many male victims to choose not to report their victimization is because they internalize their feelings of shame and fear of societal stigmatization, the possibility of not being believed and the fear that victimization will recur. Secondly, there is gender assumption. This is a dichotomy that presumes women are victims and men are the perpetrators, mainly because of the idea that men are invulnerable and the ones in control. Therefore, when a man reports sexual victimization, instead of being treated the same as a female victim, there is an additional assumption that he was engaging in homosexual acts and that he ‘wanted it’, bypassing the premise that he is a victim.

For that reason, the few male victims who come forward to report are faced with obstacles, such as, an inadequate legal framework and a lack of services which recognize that they are victims of sexual violence. Under-reporting of sexual violence therefore goes back to the fact that signs of sexual violations are not always detected despite prevalent practices because regularly male survivors describe their experiences as ‘torture’, ‘beatings’, or ‘abuse’.² First responders on the ground often fail to recognize and record male sexual victimization due to the direct responses of the victims and the socially distorted projection of men as perpetrators. Accordingly, lack of awareness by professional staff translates into inadequate outreach to victims, whilst an over-simplistic apprehension of gender tarnishes the need for research, stronger policies and legal framework to achieve an adequate protection of all victims.³ Particularly in countries where acts of sodomy and homosexuality are ostracized or even criminalized, and definitions of rape and other forms of sexual violence are gender-exclusive, male victims meet with discrimination and reluctance from law enforcement authorities, counsellors, medical staff and humanitarian personnel to gain the adequate support post traumatic experience. Further to this, in some cases male victims even run the risk of being arrested for violation of the law based on their questioned sexual orientation. Frequently, domestic laws also uphold very restrictive definitions of sexual violence, in which, they exclude the diverse forms of sexual abuses that are circulated during armed conflict or simply mis-label them.⁴ On the other side of the spectrum, the promising international legal innovation of a gender-neutral definition of sexual violence has in practice only been utilized sparingly by prosecutors and judges.⁵ Sexual violence against men is also often misconceptualized as acts of terror, persecution, torture, or as inhumane acts.⁶ As a corollary, the sexual nature of the offences is dimmed. In effect, international tribunals and courts do not follow a coherent approach in how they tackle sexual violence against men. Prosecuting sexual violence under a different category jeopardizes to perpetuate the stereotypes that men cannot be victims of sexual violence and reinforces the invisibility of male sexual violence.⁷ All these factors prompt the victims to suffer in silence rather than choose to report their sexual abuse.

Ms. Ploem also explained common coping mechanisms which victims use to avoid and reduce feelings of vulnerability. These include drinking alcohol, taking drugs, sex, violence, engaging in arguments with other men, and not talking about the problems. To give a clearer perspective of perceptions surrounding sexual violence, Ms. Ploem listed the concept of what gender entails with myths and facts (see below table ⁸).

Myths/Perceptions	Facts
Gender is about women.	Gender includes men and women, gender and sexual diversity.
Gender is a concept that does not fit in African Culture.	Gender is constructed in cultures all over the world.
Gender is for NGO’S working with women on social issues.	Gender is a characteristic of people, communities, sectors, society.

Ms. Ploem ended her presentation by stating that “a gender transformative approach seeks long term changes in gender relations and power dynamics, at all levels of society”. This includes sexual violence against men and boys regardless of whether it is during war or peacetime. Hence, it is important to “be aware of your own gender biases, be curious and open-minded, be brave and work with compassion.”

Societal challenges Sexual violence against men is regularly accompanied by underlying societal factors. Research shows that perpetrators use sexual violence with the main purpose to harm their targets and establish domination over the victim. Male-targeted sexual violence is deployed as a principal method to humiliate, feminize and control the victim during conflict and in peacetime situations. This leaves victims with long-term consequences such as low self-esteem, emotional and psychological trauma. Simultaneously, this empowers and masculinizes the perpetrator. If a man is raped or sexually violated by another man, it can bring up complex issues around sexuality, including an impaired sense of gender identity and confusion about sexual orientation.⁹ Concepts of power, dominance and masculinity that underlie the potential causes of sexual violence overlap with the several other factors which attribute to why male victims of sexual violence do not report their experiences to authorities or medical services.

Lack of reporting contributes to a gap in statistics that leads to underestimation of the problem, which slows down the process of creating policies and solutions.¹⁰ To suppress being subjected to stereotyping, many of the victims are driven into isolation, suicide attempts and psychological problems. The most common mental health problems also include nightmares, loss of memory, loss of appetite and sleep, and depression. These consequences are suffered both by the male victims, and their families. All symptoms are consistent with post-traumatic stress syndrome and anxiety disorders.¹¹

Some international communities have failed to consider men as victims of sexual violence. Therefore, Mirsada Čolaković suggests that the first step to assist male survivors of conflict-related sexual violence is to allow the recognition of males as victims instead of the exclusive focus on females. Instead, it should be understood that sexual violence is devastating to any gender, equally so for men, as it is for women.

In fact, sexual violence against men often forms the root cause of sexual violence against women. The universally attached gender roles of men as protectors and women in need of male protection, sexual assaults on women have become an effective military strategy of perpetrators to attack men. Sexual violence perpetrated against both women and men disempowers the community and destroys the existing family nucleus.¹² When cultural values are attacked that keep the communities together and relationships are disrupted, the communities are torn apart. Therefore, rebel forces use sexual violence against women to create and enhance a situation of helplessness, terror, humiliation and overall annihilation of the victim’s identity. Thus, women are attacked as an enhanced technique to attack men.

Instances of indirect sexual victimization, where men are forced to watch their mothers, wives, daughters and sisters being raped, sends a message to the communities that they failed in their duty to protect their women.¹³ Against this backdrop, the genocidal effect achieved in the Bosnian-Serb conflict was brought about through the public display of the rapes in front of their family and other community members.¹⁴

Regularly, men and boys are also forced to commit sexual violence against each other and are subjected to an aggravated victimization as their enforced acts turn them simultaneously into victims and offenders against their own community members.¹⁵ This horrifying phenomenon is mostly true in armed conflict situations. For example, in Sierra Leone, boys were often forcibly recruited and their loyalty to the RUF sealed through indoctrination into a culture of violence in which they were forced to commit, support, or witness atrocities such as sexual violence,sometimes against their own communities.¹⁶ Additionally, boys who were forced to perpetrate these sexual acts under duress have not been widely considered as victims despite suffering both the trauma of being a victim and the trauma of being a forced perpetrator.

Societal constructions of gender roles and traditional concepts of masculinity inform the methods of sexual warfare and impact the treatment of women in conflict. Up-to-date, insufficient effort has been put towards the recognition of indirect sexual victimization or the ensuing psychological effects sustained by male relatives.¹⁷

Developments under international criminal law International criminal law has achieved certain progressive developments in recognizing men as victims of sexual violence. Ms. Atiba Davies, observed that the Rome Statute was the first international treaty to recognize a range of sexual and gender violence crimes amongst the most serious crimes of international concern. The Rome Statute defines rape in gender-neutral terms as “where the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The invasion was committed by force, or by threat or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person, or taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.” [Article 7(1)(g) – 1 & – 6 of the Elements of Crimes].

Furthermore, the UN Security Council walked an arduous path over a decade until they reached the point to recognize men and boys as special victims of sexual violence. The prevailing approach in preceding Security Council resolutions focused almost entirely on sexual violence against women before a slow progress ensued. SC Res 1325, adopted in 2000, for the first time initiated a framework to combat sexual violence in conflict, but exclusively addressed women and girls. The subsequent SC Res 1820 initially excluded male victims from its scope, until a follow-up report to the resolution corrected its stance with gender-neutral terms. Building up on the previous resolutions, at last SC Res 1888 was drafted with much care to include male victims. However, addressing sexual violence against “civilians” it effectively excluded any attacks on prisoners of war, child soldiers and members of the armed forces.¹⁸ Finally, with SC Res 2106, substantial progress has been achieved by explicitly recognizing that “sexual violence in armed conflict and post-conflict situations […] also affect[s] men and boys and those secondarily traumatized as forced witnesses of sexual violence against family members”.¹⁹ The international community reached the understanding that relinquishing a female-coded approach and adopting gender-inclusive terms was the only way forward to recognize sexual violence against a considerable proportion of the population.

The resolution set a preventive role, which many international organizations including the International Criminal Court successfully (ICC) implemented through an effective investigation and prosecution of sexual violence against men. For instance, the ICC through its investigation and prosecution has set a strong message to perpetrators that the international community will not tolerate the commission of such crimes and will uphold to account those responsible. The Prosecutor v Jean- Pierre Bemba Gombo serves as an example where the accused was charged for rape both as a war crime and a crime against humanity. During the trial, two male victims were called upon by the prosecution to testify to the nature of their victimization. A later ICC Judgement, of July 2019, in The Prosecutor v Ntaganda Bosco case also extended the coverage of protection for the sexual violence committed by the military commanders against its own child soldiers.²⁰While this case refers primarily to female child soldiers, it provides standing for future equivalent interpretation for male child soldiers.

Albeit a certain recognition has been achieved and brightened the future of prosecuting male-based sexual violence, in practice deficiencies linger on. Some forms of sexual violence continue to be either mis-classified or inconsistently prosecuted as being a sexual offence across the different international courts and tribunals. The lack of consistency suggests there has been, or there is currently, no overarching or coherent prosecutorial policy, or consistent judicial analysis, on how to approach male-targeted sexual violence.²¹

Sexual violence against the male gender is a prevalent international issue. Between the years 1998-2008 alone, sexual violence was found to have affected men in 25 different conflict countries which include Kenya, Rwanda, Former Yugoslavia, Cambodia, Liberia, Burundi, Central Africa, Syria, Congo, as well as several others. The ubiquitous prevalence of sexual violence against men in many conflict-afflicted areas urgently calls for international recognition of the problem and action.

Summary Sexual violence against men is a horrendous crime that goes often unheard, unseen and unspoken. For this reason, the symposium gave the opportunity to acquire an insight into the challenges surrounding sexual violence against men, the importance of including men in gender equality by recognizing them as victims of sexual violence, and the possible positive impact to be initiated for the prevention of this crime. Research conducted on sexual violence in conflict countries needs to better accommodate the male gender. As highlighted in the article, numerous causes lead to under-reporting and a widespread victimization. International criminal law has developed to be able to deal with gender-based sexual violence, however more attention and collective effort is needed to bridge any gaps arising in practice in bringing justice to the countless male victims of sexual violence.

 

We extend our gratitude and highest appreciation to the Board Members, volunteers and interns at the Centre for African Justice, Peace and Human Rights and Feminist Maastricht who have helped organize the event and without whom the Symposium could not have been made possible. We attribute the success of the Symposium to your tireless efforts and dedication in pursuing this highly-neglected cause. We also thank all speakers for their invaluable contributions.