By Meher Sunil Dabrai
Introduction
Rape is a heinous crime as well as a cognizable offence and has been defined under Section 375 of the Indian Penal Code 1860 as sexual intercourse that has been done by a man if it is against a woman’s will, without her consent and by causing her fear, hurt or death or consent that has been obtained by fraud, coercion blackmail etc.
Under Section 376 of the Indian Penal Code 1960 the punishment for rape is imprisonment for a term which may not be less than 7 years which may also extend to life imprisonment which may also be accompanied by a fine.
Despite these stringent laws, a statistical report by the National Crime Records Bureau (NCRB) said that in the year 2019, on an average about 1 rape was reported every 16 minutes in India.[1]
This indicates that certain improvements need to be made in the legislation and the execution of the rape laws in the country.
Statistics
Unfortunately the above statistics also remained the same for the beginning of the year 2020 before the Covd-19 pandemic struck the country. Until the year 2019, the NCRB report showed that a total of 4.05,861 cases of crime were registered in the year 2019 which showed an increase by 7.3% over the 2018 statistics.[2]
These statistics do not include the rape cases that end in murder or the cases which are merely an attempt to rape apart from the cases which go totally unreported. Thus, the numbers are probably much higher.
The real question is out of these cases, how many are convicted? The major issue when it comes to rape cases in the country is that the law requires that there has been penetration in order to prove a rape.
When a case has been reported much later after the crime has been committed as is usually the case in such matters, such kind of evidence is hard to acquire. The criminal justice system in India is based on the concept of proof beyond reasonable doubt which makes the rate of conviction in these cases quite scarce.
As of 2020, the conviction rate of the rape cases in the country has been as low as 27.8 %. This means that out of 100 rape cases that have been reported, only 28 people are convicted while the remaining 72 accused get away with the crime[3].
This is one of the factors that contribute to the rising amount of these rape cases in the country. The Supreme Court has also observed that 90% of the rape cases end in acquittal.
Reasons for the low conviction rate
There are multiple factors and loopholes in the laws that have contributed to the low rate of convictions in sexual offences in the country. Some of these factors are as follows:
- The Legal definition of rape
We live in a country where any kind of discussion regarding sexual intercourse or sexual offences is considered to be a taboo. This orthodox mindset had even crept its way while framing the laws pertaining to rape in the country. For the longest time, the definition of rape did not include anal form of penetration or penetration through other modes or any form of unnatural sex.
It was only after the Nirbhaya Case in the year 2012 that the term was expanded beyond heterosexual intercourse and also included the insertion of foreign and unnatural objects into a female’s private parts as an offence of rape under Section 375 of the IPC.
- Lack of gender neutral provisions
While the Nirbhaya Case was a positive development in expanding the legal definition of rape, it still has a very narrow scope. The definition does not include rape against males, homosexuals and members of the transgender community. It has become one of the most distinctive features of the Indian rape laws.
- Consent
In most cases, the ambiguity regarding consent can sometimes create tricky situations as and when it is not expressed it also cannot be necessarily considered implied.
Following the provisions under Section 114A, its absence is a presumption which can be used with mala fide intentions to make up a false case. Therefore, the victim in such cases is in a position of power as consent can always be withdrawn thereby accusing the offender.
- Marital Rape
Marriage should not be treated as a license to commit rape. The ideal of Indian household values do not consider marital rape to be a crime and despite the fact that it is a clear violation of human rights and every woman has the right to give or deny consent to having sexual intercourse even if it is with his own husband.
The only remedy that is available to a woman for marital rape is to seek a divorce or file a domestic violence against her husband but she cannot take any sort of criminal action against him.
- Social stigma
In our Indian society, all men and women have tried to hide from the shackles of rape because of the social stigma that has been attached to it. It is already difficult enough for women to deal with being the victims of such a heinous crime and facing the society that shames the victim has a huge impact on the mental health of the women due to which these crimes go unreported.
Apart from this, when a man or a person of any other gender is a victim of rape, there are no laws to protect his rights and the society considers them “weak” for being victim to it.
While the legal system is considered ineffective when it comes to rape laws, the main problem remains to be the mentality of the people and the social stigma that is attached to sexual intercourse and related crimes in the country.
This social stigma that has been disguised as Indian values is one of the biggest obstacles in bringing about any form of reforms regarding gender neutral laws or marital rape.
- Lack of proper sex education
The sex education or the lack thereof is another major reason why so many rape cases go unreported and the convicts walk around freely. Sex education needs to be imparted properly in school and children must be taught the difference between “good touch” and “bad touch” as well as self-defense and the legal remedies and mental health issues faced by rape victims and how to seek the right help in these situations.
Imparting this kind of sex education not only makes the children well aware about rape but also helps them get over the social stigma that the society has developed about these topics.
How can the Courts help?
For women, the courts can play an instrumental role in the following ways:
- Proper treatment of the victims especially in lower courts.
- Faster procedures for rape cases.
- Removal of marital rape as an exception.
- Mandatory legal assistance, protection and counselling for the victims.
- Death penalty for the people who have been convicted for rape.
- Severe and specific punishments that are time bound to have a deterrent value.
- To enhance the judicial activism beyond law and to use its discretionary power to provide justice to the victims of rape.
- To set the right precedents for the general welfare of the masses and to preserve the existence of progressive rape laws.
Conclusion
The greatest strength of the judiciary is that it can always set a precedent for the interpretation of the law. The Indian judicial system has successfully widened the legal definition of the term “rape” after the Nirbhaya Case.
This has proved to be an enormous step in bringing about the necessary changes with respect to the interpretation of rape laws in the country. Similarly, other rape related laws need to be widened in scope in order to provide justice to the victims of this horrid crime.
It is important that the judges in these matters remain impartial and uninfluenced by the judgement of the media and the society that often indulge in victim-blaming and rise in defense of the rapists. It is also important to bring about a change in the mindset of the society and to adapt to the changing laws.
In a progressive society like ours, it is important that the laws keep up with the pace of development. One needs to realize that rape will no longer be an offence towards an individual but rather towards all of mankind.
Following the Covid-19 pandemic, there has been a significant rise in the number of rape cases within the household. These include cases of marital rape and rape cases against minors. Strict actions need to be taken in these cases due to their domestic nature and frequent country wide lockdowns that provide to escape to the victims.
Certain measures and helpline numbers and appropriate assistance need to be provided to these victims as the depression and the post-traumatic stress disorder often leads to the victims committing suicide in such cases since they are unable to escape the offenders.
References
- timesofindia.indiatimes.com
- blog.ipleaders.in
- economictimes.indiatimes.com
- .newindianexpress.com
- blog.ipleaders.in
- economictimes.indiatimes.com
- NCRB’s report reveals a rape happens every 16 minutes in India; UP tops list of crimes against women economictimes.indiatimes.com (Last visited on June 25th 2021) ↑
- One Rape Every 16 Minutes in India, NCRB Data Highlights Country’s Deteriorated Law & Order india.com (Last visited on June 25th 2021) ↑
- Under 30 per cent conviction rate in rape cases in India, says NCRB data newindianexpress.com(Last visited on June 25th 2021) ↑