Published on: September 11, 2021 at 17:14 IST
Introduction
Rape is the most common term heard today. It is a word that boils the blood of every human being. Every now and then, there is some news related to rape taking place in the nook and corner of our country. India has reported 88 rape cases every day in the year 2019.[i] It is the fourth most common crime in our country.
Rape means unlawful sexual activity without the consent of the other person. Sexual assault and rape are the most common atrocities against women. The Nirbhaya gang-rape case, Hathras rape case, Kathua rape case, Shakti Mills Case, Dr. Priyanka Reddy gang rape case, and many such cases have shocked the entire nation. It has aroused feelings of anger and annoyance in the minds of people. From time-to-time various laws have been enacted to curb the menace of rape. However, the number is rising day by day.
India is a religious country that worships, women. Women are considered godlike on the one side and raped on the other side. India was previously known as a safe country but, today it is no more a safe country.
Thus, this article deals with the essentials of rape, punishment, its various forms, laws that deal with rape, and such related information.
What is rape?
The word rape has been derived from the Latin term ‘rapio’ which means forcible seizure. Rape is basically a form of sexual assault involving sexual intercourse with the other person without his/her consent. It is one of the heinous crimes committed against an individual affecting the whole society. It is a crime that brings disgrace to the whole of mankind.
Let us have a look at the definitions of rape in other countries.
In the United States of America, rape is defined as any person who commits a sexual act upon the other person by:
- Using unlawful force against that person,
- Using force causing or likely to cause death or grievous bodily harm to any person,
- Threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm or kidnapping,
- Rendering other person unconscious, or
- Administering that person by force or threat of force, or without the knowledge or consent of that person, a drug or intoxicant impairing the ability of that other person to control the conduct.
All of this proves that the person is guilty of rape and shall be tried by the Court.[ii]
In Canada, the sexual offense is defined as “any unwanted sexual act done by one person to another or sexual activity without one person’s consent or voluntary agreement.” Further, sexual assault occurs if a person is touched in any way that interferes with their sexual integrity: this includes kissing, touching, intercourse, and any other sexual activity without his/her consent.[iii]
In the United Kingdom, rape is defined under the Sexual Offenses Act, 2003 which states that a person commits an offense of rape if he:
- Intentionally penetrates the vagina, anus, or mouth of another person with his penis,
- The other person does not consent to the penetration, and
- There is no consent.
All of this proves that the person is guilty of the offense of rape. [iv]
What constitutes rape in India?
In India, rape is defined under the Indian Penal Code. Section 375 deals exclusively with rape and its forms. Therefore, according to Section 375 of the Indian Penal Code, a man is said to commit “rape” if he:
- Penetrates his penis into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person,
- Inserts any other object or part of the body, not being a penis, in her vagina, urethra, or anus of a woman or makes her to do so with him or any other person,
- Controls the body of the woman in such a way as to cause penetration into the vagina, urethra or anus or any part of her body or makes her to do so with him or any other person,
- Applies his mouth to vagina, anus, urethra of a woman or makes her to do so with him or any other person.[v]
It is rape if it falls under any of the seven descriptions:
- Firstly– Against her will.
In Gurmeet Singh & Ors Vs State of Punjab[vi], the Court held the accused guilty of rape as the sexual intercourse was against the will of the girl.
In another case of Chhote Lal Vs State of UP[vii], the Supreme Court defined the phrase “against the will” as sexual intercourse done by a man with a woman despite her resistance and opposition.
Thus, if a person commits sexual activity against the will of the woman or makes her do so under fear of threat, it will be deemed as rape.
- Secondly– Without her consent.
In Harpal Singh & Ors Vs State of Himachal Pradesh,[viii] the girl in this case was below 16 years of age. She was trapped by few men and they committed rape on her. Therefore, it was held by the Court that the girl was below 16 years of age and was about 15 years of age. Further, she did not give consent for sexual intercourse. Hence, it is a clear case of rape.
Consent is the most important criterion in rape cases. The whole case revolves the around consent of the victim. If the act is consensual, it will not amount to rape. However, if a woman is under threat of force, intoxicated, or in such a state which impairs her thinking and sexual intercourse takes place will amount to rape.
- Thirdly– If the consent is obtained by putting her in fear of death or of hurt.
In the case of the State of Maharashtra Vs Prakash,[ix] it was held by the Court that for the offense of rape it is not necessary that there should be the actual use of force, a threat of use of force is sufficient.
- Fourthly- If she consents believing that the accused is her husband.
In the case of Bhupinder Singh Vs Union Territory of Chandigarh,[x] the Court held that if a man falsely makes another woman believe that she is lawfully married to him and has sexual intercourse with him when he is in fact already married to someone else amounts to rape.
- Fifthly– If the consent is given when she is unsound, intoxicated.
The Court in the case of Tulsidas Kanolkar Vs State of Goa,[xi] had held that consent obtained due to mental illness/ unsoundness of mind is no consent. It amounts to rape.
- Sixthly– With or without her consent, when she is under eighteen years of age.
Kathua Rape Case[xii] is a classic example of this point. A girl who was approximately 8 years old was raped by some men. The Court held that it is rape with or without consent if the woman is below 18 years of age.
- Seventhly– When she is unable to communicate consent.
Thus, these are the acts that constitute rape. However, there are certain exceptions to the offense of rape.
Exceptions
- If a woman does not physically resist to the act of penetration, then it will be regarded as consenting sexual activity.
- A medical procedure or intervention shall not constitute rape.
- Sexual intercourse by a man with his own wife who is not below the age of fifteen shall not constitute to rape.
In the case of Bishudayal Vs State of Bihar,[xiii] a girl of 13 or 14 years of age was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time as she was suffering from mental ailment. Later on, it was found that the girl did not return as she was married to the appellant and he had sexual intercourse with her.
Hence, the accused was convicted for rape under Section 375 of the Indian Penal Code for having sexual intercourse with a girl below fifteen years of age.
What is the punishment for rape?
According to Section 376 of the Indian Penal Code, a person who commits rape is punished with rigorous imprisonment for a minimum of ten years but may extend to imprisonment for life and is liable to pay a fine. It is cognizable (arrest without warrant), non-bailable (serious offense where bail is not given), non-compoundable (cannot be compromised) offence triable by Sessions Court.
Following are some aggravated forms rape:
- When a police officer commits rape within the limits of the police station to which such police officer is appointed or premises of station house, or on a woman in such police officer’s custody.
- Public servant commits rape on a woman in his custody.
- Member of armed forces deployed in an area by the Central or State Government commits rape in such area.
- Member of management on the staff of a jail, remand home, or other place of custody established or any women’s or children’s institution and commits rape.
- A person on the management or on the staff of a hospital, commits rape.
- A person being a relative, guardian, or teacher, or any person in position of authority towards woman, commits rape on such woman.
- Commits rape during communal or sectarian violence,
- Commits rape on a woman knowing her to be pregnant,
- Commits rape on a woman when she is under sixteen years of age,
- Commits rape, on a woman who is incapable of giving consent,
- A person who is in a position of control or dominance over a woman commits rape
- A person who commits rape on a woman suffering from mental or physical disability,
- Committing rape on a woman suffering from grievous bodily harm or maims or disfigures or endangers the life of a woman,
- Commits rape repeatedly on the same woman.[xiv]
All these acts fall under Section 376 of the Indian Penal Code and a person committing the above-mentioned offenses shall be punished with rigorous imprisonment for a minimum of ten years which may extend to imprisonment for life which means imprisonment for the remaining life of that person’s natural life and he shall be liable to pay fine.
What are some aggravated forms of rape and its punishment?
The Indian Penal Code also provides punishment for the acts done by a man in the following way-
- Punishment for causing death or resulting in a persistent vegetative state of the victim
Section 376A of the Indian Penal Code states that anyone who commits an offense of rape or its forms mentioned above, and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished for a minimum term of twenty years which may extend to imprisonment for life.
- Sexual intercourse by husband upon his wife during separation
Section 376B of the Indian Penal Code states that when a husband performs sexual intercourse with his own wife without her consent when they are living separately due to decree of separation shall be punished with imprisonment of a minimum of two years which may extend to seven years and shall be liable to pay fine.
- Sexual intercourse by a person in authority
Section 376C of the Indian Penal Code states that anyone who is:
- In a position of authority or in a fiduciary relationship,
- A public servant,
- Superintendent or manager of a jail, remand home, or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution, or
- On the management of a hospital or being on the staff of a hospital
and abuses the relationship mentioned above and performs sexual intercourse shall be punished with imprisonment of a minimum of five years which may extend to ten years and a fine.
- Gangrape
Section 376D of the Indian Penal Code states that when a woman is raped by more than one person constituting a group or acting in furtherance of common intention, all those persons involved in the act shall be considered to have committed the offense of rape and shall be punished with imprisonment for a minimum of twenty years but may extend to imprisonment for life and a fine.
Further, the fine imposed shall be just and reasonable to meet the medical and rehabilitation expenses of the victim. The fine imposed shall be paid to the victim.
In the Nirbhaya gang rape case[xv], the accused persons had brutally raped the woman which ultimately led to her death. Hence, all the accused were held guilty under Section 376D of the Indian Penal Code and further rewarded capital punishment due to the brutality of the case.
Lastly, Section 376E Punishment of rape offenders of the Indian Penal Code states that if a person who has been previously convicted for an offense mentioned in Section 376A to Section 376D subsequently is punished for the same offense shall be imprisoned for the remaining life of that person.
What is the recent amendment on rape laws?
After the gruesome Nirbhaya gang-rape case, many people from all parts of our country protested for making rape laws more stringent. Therefore, Criminal Law (Amendment) Act, 2013 was passed to amend Section 375 of the Indian Penal Code. The amendment was made to give strict punishment for sexual offenses and to define sexual assault.
However, even after the amendment, there was a sharp rise in rape cases. Kathua gang rape case shocked the entire nation once again. The whole country came together once again for seeking justice for the innocent girl. A need was felt to review the previous laws and provide harsher punishment for rape. Therefore, the cabinet approved the Criminal Law (Amendment) Ordinance, 2018. The ordinance enhanced the punishment by providing capital punishment to the offenders raping the minor children.
Finally, the Criminal Law (Amendment) Act, 2018 was passed on 11th August 2018. The amendments have a retrospective effect.
Before the amendment, rape was punishable with imprisonment of a minimum of seven years however, now the punishment has been increased to a minimum of ten years. Further, new offenses have been added in the Indian Penal Code namely, Section 376AB, Section 376DA, Section 376DB.
Earlier, there were no stringent provisions dealing with the rape of a minor. However, the new amendment provides strict punishment for raping minors.
The offenses are explained in detail as follows:
- New offenses were added
Section 376AB deals with the cases of rape on a woman under twelve years of age. It provides punishment of imprisonment for a minimum of twenty years and a maximum of imprisonment for the remaining life.
Section 376DA deals with cases of gang rape on a woman under sixteen years of age. It states that if a girl is raped by more than one person or in furtherance of common intention, all those people shall be punished with imprisonment for remaining life with a fine. The fine shall be just and reasonable to meet the medical and rehabilitation expenses and should be paid to the victim.
Section 376DB deals with cases of gang rape on a woman under twelve years of age. It states that if a girl is raped by more than one person or in furtherance of common intention, all those people shall be punished with imprisonment for remaining life with a fine or with death. The fine should be just and reasonable to meet the medical and rehabilitation expenses and should be paid to the victim.
In Kathua rape case,[xvi] a small girl of 8 years old named Asifa Bano went missing from her village. Later on, it was found that she was gang raped by men. Hence, the Court punished the all the accused under this section.
- Time-bound investigations were a must
Investigation in any crime plays a vital role. It is very important to have a speedy investigation and trial. The Code of Criminal Procedure, 1973 provides 3 months for the investigation in case of rape of a minor girl. But, keeping the state of the victim in mind, the investigation period has been reduced to 2 months by the Criminal Law (Amendment) Act, 2018 in all cases of rape. This will ensure speedy trial and justice to the victim.
- An Amendment related to bail was made
According to Section 438 of the Code of Criminal Procedure, 1973 anticipatory bail is provided to the persons arrested for non-bailable offenses. Rape being a non-bailable offense, stringent provision is made in this regard. Any person who commits rape or gang rape on a woman under sixteen years of age, shall not be allowed to release on anticipatory bail.
Further, no Court shall have the power to grant anticipatory bail to any person who has committed on a minor woman.
Thus, the new Criminal Law (Amendment) Act, 2018 has made great efforts at punishing the rapist and providing timely justice to the victim. However, time will tell if these amendments are successful or it needs to be enhanced.
What is the legal process of governing criminal complaints and investigations?
- First Information Report
The first step towards crime investigation is the filing of an FIR. Any person, family, or the victim herself can complain to the police officer regarding the sexual offense or rape. Then it is the responsibility of the police to file an FIR. FIR is the prerequisite to start the investigation. A copy of the FIR is to be given to the person making a complaint.
FIR can be filed at any police station in the country. When a victim herself is filing an FIR, a female officer should record her statement and it should be recorded by the judicial magistrate also.
- Investigation
It is the important aspect in any case. After filing an FIR, the police start with the investigation of the crime. All the actions related to the investigation of a case should be recorded in a diary kept at the police station. Generally, in the case of rape of a minor child, it is to be completed within two months of the filing of the FIR.
According to Section 228A of the Indian Penal Code, no person should disclose the name or any matter which may make known the identity of any person against whom an offense of rape has been committed. If anyone discloses the identity, then he/she shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to a fine.[xvii]
- Medical Examination
Medical examination of a victim plays a major role. It is very necessary for the victim to report the crime as soon as possible so that medical examination can take place and it can provide evidentiary value to the case.
However, the medical examination should be carried out in such a way that does not affect the physical or mental integrity and dignity of the woman. The health of the woman should be given paramount importance while dealing with such offenses. No one should interfere with their privacy.
Further, Section 53 of the Criminal Procedure Code lays down that whenever the female is to be examined, it should be done by or under the supervision of a registered female medical practitioner only.[xviii]
Due to this reason, the Court in the Lillu Vs State of Haryana[xix] declared the two-finger test unconstitutional and violative of her privacy, physical and mental integrity, and dignity. Hence, it is not practiced in India.
- Bail
As mentioned above, rape is a non-cognizable offense, stringent provision is made in this regard. Any person who commits rape or gang rape on a woman under sixteen years of age, shall not be allowed to release on anticipatory bail. However, only under certain conditions, a criminal court is allowed to grant bail to the accused.
What remedies/rights are available to rape victims?
Rape is a heinous and inhuman crime.
The memory of the act haunts the victim for her whole life. No punishment can mitigate that pain. Therefore, in order to reduce the pain, certain remedies have been provided to the victims. They are as follows:
- Access to speedy justice and fair treatment
It is the right of every victim to get access to speedy justice. They should be treated with compassion and dignity. The victims should be informed of their rights to seek redressal. They should be provided with proper assistance throughout the legal process.
- Compensation to the victim
In order to provide help to the victim, compensation is given to them. It is generally given for bodily injury or impairment of the physical and mental health of the victim. In absence of the victim i.e., in case she dies, the compensation is paid to her family. Section 376 of the Indian Penal Code makes it compulsory for the offenders to pay compensation to the victim.
- Rehabilitation
Rehabilitation of rape victims is the most important aspect. Medical treatment can cure visible bodily injuries however, the scars on the mind are very difficult to erase. Therefore, the rehabilitation of the victim plays a major role in transforming the victim to bring her out of that mental trauma. Therefore, compensation is also provided for the rehabilitation of victims. Various rehabilitation groups are also available where one can get the treatment.
- Assistance
The victims should get necessary material, medical, psychological assistance through the government, voluntary or community-based institutions. The victims should be informed of the availability of health and social services and other such assistance which are readily affordable for them.
What are co-related offenses to rape?
In India, woman often fall prey to the sexual offenses. Common forms of violence include outraging the modesty of woman, rape, trafficking, voyeurism, stalking etc. These offenses are generally due to the long-standing gender inequalities prevalent in our country. Let’s have a look at these offenses in brief:
- Outraging modesty of woman
Section 354 of the Indian Penal Code defines outraging the modesty of woman as any person who assaults or uses criminal force to any woman with an intention or knowing that it will outrage her modesty shall be punished with an imprisonment of a minimum one year and may extend to five years and a fine.
The modesty of woman may be affected by uttering any wrong word, making sounds or gestures, intrudes her privacy, etc. In the case of State of Punjab Vs Major Singh,[xx] the accused had caused injuries to the vagina of a seven and half month-old girl by fingering. The Supreme Court in this case held the accused guilty under section 354 and sentenced him imprisonment for two years and a fine.
- Sexual harassment
Section 354A of the Indian Penal Code defines the acts that leads to sexual harassment. It states that any person who makes physical contact and advances involving unwelcome and explicit sexual overtures, demand or request for sexual favours, showing pornography against the will of a women, or making sexually coloured remarks shall be punishable with an imprisonment of three years with a fine.
- Disrobing a woman
Section 354B of the Indian Penal Code states that any person who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked is called as disrobing od woman. The punishment is imprisonment for a minimum of three years which may extend to seven years and a fine.
- Voyeurism
It is another form of sexual offense. Section 354C of the Indian Penal Code defines voyeurism as any man who watches, captures the image of woman engaging in private act where she expects not to be observed by the perpetrator or any other person.
Such person if convicted for the first time shall be punished with imprisonment of one year which may extend to three years and a fine. Further, he the same person is convicted for the offense more than once, he shall be punished with imprisonment of three years which may extend to seven years and a fine.
- Stalking
The most common form of sexual offense is stalking. It is defined under Section 354D of the Indian Penal Code. It states that a person who:
- Follows a woman, attempts to make contact with her, foster personal interaction repeatedly even after clear instructions of not doing so,
- Monitors a woman by use of internet, email, or other form of electronic device,
commits offense of stalking. The punishment shall be imprisonment for three years and a fine in case of first conviction and in case of subsequent convictions, he shall be punished for a minimum of three years which may extend to five years and a fine.
What are other laws related to sexual offenses?
- Vishaka Guidelines
The Vishaka guidelines were formed as a result of seeking justice for Bhanwari Devi. The Supreme Court made these guidelines in the year 1997. A petition was filed in the Supreme Court by various non-profit organizations towards the safety of women. A Public Interest Litigation (PIL) was filed in the name of Vishaka over the alleged gang rape of Bhanwari Devi.
She was a Dalit government employee who was spreading awareness about hygiene, education, and child marriages. One day she was rescuing a girl from child marriage which led to her gang rape.
Further, guidelines were framed for the same. The guidelines aim at protecting the woman from sexual harassment at workplace. The guidelines include providing safe working environment, employer to assist the employee in case she is sexually harassed, spread awareness, etc. The Supreme Court directed to establish a redressal committee to look into the matters of sexual harassment of women at the workplace.
- Sexual Harassment of the woman at workplace (Prevention, Prohibition, and Redressal) Act, 2013
After many years, the Sexual Harassment of the woman at the workplace (Prevention, Prohibition, and Redressal) Act, 2013 came into place. The act mandates provision for a safe working environment in the workplace, it provides the constitution of an internal committee at every workplace with more than 10 employees to hear and readdress any matters relating to sexual harassment at the workplace.
Further, it also makes it mandatory to establish a local committee in every district to hear and readdress the matters of sexual harassment. It makes it compulsory for the local and internal committee to do an in-depth inquiry of the complaints, organize workshops and spread awareness about the same. The Act provides relief to the woman in cases of sexual harassment however, if anyone files false and malicious complaints, strict action is also taken against them.
- Protection of Children from Sexual Offenses Act, 2012
This Act is applicable to both boys and girls i.e., minors. It defines a child as a person below 18 years of age. The act is an important step as it lays down stringent punishment against the offender. The act defines sexual assault including non-penetrating sexual assault as well as aggravated sexual assault. It also includes punishment for the persons who are in the position of trust such as public authority, institutions, etc.
The law makes provision for recognizing sexual harassment, using the children for pornography, abetment of an offense, etc. It also lays down procedures for medical examination of children, the procedure of reporting sexual crime, rights of the child to take legal assistance of legal practitioner, provides creation of child-friendly courts, and punishment for sexual harassment, etc.
The main reason behind enacting this as a separate law was due to the increasing number of crimes against minors and to make the process smooth and child-friendly.
Conclusion
Thus, we can say that India being a patriarchal society, women are viewed as secondary and not given much power and importance, they are also subjected to sexism and domestic violence. Women are seen as a sex-objects and raped by men for their satisfaction or pleasure. Due to this never-ending discrimination in society, rape cases are increasing.
The most horrifying and gruesome part of rape is that it is committed on small girls or babies and old women of seventy/eighty years too. Therefore, it is very necessary to make laws more stringent so that people will think twice before committing such horrendous crimes.
It is also very important for women to report the crime, understand their rights. Then only the crime rate will reduce in our country and once again India will be known as a safe country.
References
- Rape Law Amendments of 2018 in India
- Human Rights Watch – Everyone blames me
- Office of the United Nations High Commissioner for Human Rights – Victims of abuse
- Vishakha Guidelines
- What is POSCO Act?
- An overview of Rape Laws in India
- Essentials of Proving Guilt in Rape cases
- Landmark Judgements on Rape
- The Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 – Bare Act
- Indian Penal Code – Bare Act
- The Protection of Children from Sexual Offences Act, 2012
[i] Dipu Rai, No country for women: India reported 88 rape cases every day in 2019, India Today (Last Visited on 11th September 2021)
[ii] US Criminal Code, Sec 920-Article 120
[iii] Canadian Criminal Code, Sec 271
[iv] Sexual Offenses Act, 2003, Sec 1
[v] Indian Penal Code, Sec 375
[vi] Gurmeet Singh & Ors Vs State of Punjab, 1996 AIR 1393
[vii] Chhote Lal Vs State of UP, CRIMINAL APPEAL NO. 769 OF 2006
[viii] Harpal Singh& Ors Vs State of Himachal Pradesh ,1976 CriLJ 162
[ix] State of Maharashtra Vs Prakash, AIR 1992 SC 1275
[x] Bhupinder Singh Vs Union Territory of Chandigarh, (2008) 3 CriLj 3456 SC
[xi] Tulsidas Kanolkar Vs State of Goa, (2003) 8 SCC 590
[xii] Vishal Jangotra @ Shamma & Anr vs Union of India & Others, CWP No. 19904 of 2018
[xiii] Bishudayal Vs State of Bihar, AIR 1981 SC 39,
[xiv] Indian Penal Code, Sec 376
[xv] Mukesh & Anr Vs State for NCT of Delhi & Ors, CRIMINAL APPEAL NOS. 607-608 OF 2017
[xvi] Vishal Jangotra @ Shamma & Anr vs Union of India & Others, CWP No. 19904 of 2018
[xvii] Indian Penal Code, Section 228A
[xviii] Criminal Procedure Code, Sec 53
[xix] Lillu Vs State of Haryana, CRIMINAL APPEAL NO. 1226 OF 2011
[xx] State of Punjab Vs Major Singh, 1967 AIR 63