Rape is one of the most discussing topic these days, not only in legal field but we can observe every normal person talking about rape. We will try to analyze sec 375 in detail and also try to discuss some landmark cases to create a clear view for reader.
Rape is defined under sec 375 of IPC. As our country is growing so fast but at the same time the rate of rape is also increasing.With every rape case, the country is falling a step down.
This article is all about the changes brought to rape laws and its loopholes. We will disscuss everything about this crime from past to present days.
HISTORY OF RAPE
If we talk about early ages, virtually all societies have had a concept of the crime of rape. The definitions tended to focus around an act of forced vaginal intercourse perpetrated through physical violence or imminent threat of death or severe bodily injury, by a man, on a woman or a girl, not his wife. The actus reus of the crime was in most societies.
After such increasing number of crime, rape law were defined which were existed to protect virginal daughters from rape. At that time, a rape done to a woman was seen as an attack on the estate of her father because she was his property and a woman's virginity being taken before marriage decreased her value. If a woman was married and the rape happened ,then that would be considerd as an attack on the husband. Acoording to the rape law, the rapist was either subject to payment or severe punishment. Even the father could rape or keep the rapist's wife or make the rapist marry his daughter. A man could not be charged with raping his wife since she was his property. Thus, marital rape was allowed.
With the arrival of classicle antiquity of Greece and Rome in colonial period, rape became a capital offense. "Those committing rape were subject to capital punishments. In the 12th century, kinsmen of the victim were given the option of executing the punishment to themselves. Despite the harshness of these laws, actual punishments were usually far less severe. In late Medieval Europe, cases concerning rapes of marriageable women, wives, widows, or members of the lower class were rarely brought forward, and usually ended with only a small monetary fine or a marriage between the victim and the rapist.
With time many perceptions changed. In the 1950s, in some states in the US, a white woman having consensual sex with a black man was considered as rape. From 1935 to 1965, a shift from labeling rapists as criminals to believing them to be mentally ill sexual psychopaths" began making its way into popular opinion. Men caught for committing rape were no longer sentenced to prison but admitted to mental health hospitals where they would be given medication for their illness. Because only men deemed insane were the ones considered to have committed rape.
In the United States, as the society were changing during the American Civil War. Law first time focused primarily on rape. If they pertained to black men raping white women, the penalty for such a crime in many jurisdictions was death or castration. The rape of a black woman, by any man was considered legal. In 1998, Judge Navanethem Pillay of the International Criminal Tribunal for Rwanda said: "From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime. We want to send out a strong message that rape is no longer a trophy of war."
CURRENT STATUS OF RAPE IN INDIA
Rape is the fourth most common crime against women in India. According to the 2019 annual report of the National Crime Records Bureau(NCRB), 32033 rape cases were registered across the country, or an average of 88 cases daily, slightly lower than 2018 when 91 cases were registered daily.Of these, 30,165 rapes were committed by perpetrators known to the victim (94.2 % of cases), a high number similar to 2018. The share of victims who were minors or below 18 - the legal age of consent - stood at 15.4% down from 27.8% in 2018. On the other hand, rapes by juveniles remained high in India.
India has been characterised as one of the "countries with the lowest per capita rates of rape". The government also classifies consensual sex committed on the false promise of marriage as rape. The willingness to report rapes have increased in recent years, after several incidents received widespread media attention and triggered local and nationwide public protests. This led the government to reform its penal code for crimes of rape and sexual assault.
SECTION 375 OF IPC – RAPE
375. Rape —A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any other person;
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or
any other person,
under the circumstances falling under any of the following seven descriptions:—
First —Against her will.
Secondly —Without her consent.
Thirdly —With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly —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 herself to be
Fifthly —With her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which she
Sixthly — With or without her consent, when she is under eighteen years of age.
Seventhly —When she is unable to communicate consent
Indian Parliament has enacted some Acts:
1. Criminal Law (Second Amendment) Act, 1983
2. Protection of Children from Sexual Offences Act, 2012
3. Criminal Law (Amendment) Act, 2013 (Nirbhaya Act)
4. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
1.Tuka Ram And Anr vs State of Maharashtra, 1979 SC (Mathura Case)
This is a land mark case because in this case the session court passed the judgement in favour of defendant and held them not guilty. Learned Sessions Judge found that there was a major difference between “sexual intercourse” and “rape” so, it was a case of sexual intercourse in which she had consented voluntary and not rape.
Thus, Case was further appealed in the Bombay High Court and they appreciated the observation given by the learned Sessions Judge that there is a major difference between sexual intercourse and rape but they forgot to observe that there is a world of difference between “consent” and “passive submission”. On the ground of such observations, the court held that the defendants were guilty of rape.
Later, the case went to the Supreme Court, where court acquitted the accused and set aside the judgment passed by the Bombay High Court. The Court stated that no marks of injury were found on the girl, there were no signs of any struggle also from the shreds of evidence it can be shown that the girl had not been put in fear of death or hurt so the consent would be considered as free or voluntary. Also, the girl was habituated to sex, it may be possible that she might have incited the cops. So, it was concluded and held by the Supreme Court of India that the sexual intercourse which was in question in the given case is not proved to amount to rape.
Legal Changes brought in the Indian rape law:
Due to such rationale behind the judgment, so many protests and huge public outcry took place which ultimately led to the amendment in Indian rape law. At that time the rape laws in our country were heavily biased towards rapists. As it was so difficult for women to prove that she had not consented to any sexual intercourse. So, after the judgment of this landmark case, the Criminal Law (Second Amendment) Act, 1983 came which brought so many changes in the Indian rape law like:
• Criminal Law (Second Amendment) Act, 1983 inserted section 114(A) in the Indian Evidence Act, 1872 which states that in a prosecution for rape where it has been already proved that the sexual intercourse by accused did take place, if the victim says that she had not consented to the sexual intercourse then Court shall presume that she did not consent as a rebuttable presumption of law.
• Section 376 of Indian Penal Code, 1860 underwent a change in which sections 376(A), 376(B), 376(C) and 376(D) were added which were further amended by Criminal Law Amendment Act, 2013.
• Act added the provision for “custodial rape” under section 376(2) of Indian Penal Code, 1860 for the offenses which take place when a victim is in the custody of the state.
• The Person liable under section 376(2) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
• Act amended the idea of burden of proof which always lies on the prosecution. After the amendment, in cases of rape where sexual intercourse was already established, the burden of proof will lie on the accused.
• The Act introduced section 228A in the Indian Penal Code, 1860 which prohibits any publication regarding the identity of rape victims and any matter through which victim’s identity could be known, subsequently amended by Criminal Law Amendment Act, 2013.
Mathura rape case further led to so many reforms in the Indian rape law via the Criminal Law (Second Amendment) Act, 1983.
2. Vishaka vs. State of Rajasthan and Ors.1997 SC (Bhanwari Devi Case)
This is a land mark case because in this case the Supreme Court held that the sexual harassment of a woman at a workplace would be violation of her fundamental rights of gender equality and right to life and liberty under Articles 14, 15, 19 and 21 of the Indian Constitution. The court concluded that such Act would be considered as a violation of women’s human rights.
Legal changes brought after the case:
The case laid down so many guidelines and requirements which need to be fulfilled by the employer as well as other responsible persons or institutions to prevent the acts of sexual harassment at the workplace
• Formation of a complaint committee at all workplaces.
• Such committee has to be headed by a woman employee only and should have NGO or third-party participation.
• Half of the members of a committee should be comprised of women only.
• All complaints regarding sexual harassment of a woman employee would be dealt by this committee only, appropriate action in this regard shall be initiated by the employers in accordance with the concerned law.
• The committee would advise and recommend to the victim for the further course of action.
These guidelines were the first of its type which created for the gender equality rights of women, which should be free from harassment in both public and private employment. This judgment led the Indian Government to enact the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
3. Mukesh & Anr. vs. State for NCT of Delhi & Ors 2012 (Nirbhaya Kand)
This a landmark case because this case was found to be one of the most brutal cases of rape. In this case, A Bench of Justices Dipak Mishra, R Banumathi, and Ashok Bhushan were unanimously passed the judgment of Death penalty to all the accused except juvenile. The juvenile who was equally involved in the incident and raped the woman was convicted and sentenced to three years in a reformation center. While one accused hanged himself in the jail.
After the incident, a panel was set up under the chairmanship of J.S. Verma (former Chief Justice of India) and as per the recommendations of the Justice Verma Committee, Criminal Law (Amendment) Act, 2013 has passed which provides for the amendment of Indian Penal Code, 1860; Code of Criminal Procedure, 1973, Indian Evidence Act, 1872 and Protection of Children from Sexual Offences Act, 2012 in relation of sexual offences related laws. Act widened the scope of rape’s definition and provided for capital punishment in rape cases that cause the death of the victim or leave her in a permanent vegetative state.
Legal changes brought after the case:
• Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370 and 370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 years to imprisonment for the remainder of that person's natural life depending on the number or category of persons trafficked. Employment of a trafficked person will attract penal provision as well.
• The most important change that has been made is the change in definition of rape under IPC. Although the Ordinance sought to change the word rape to sexual assault, in the Act the word 'rape' has been retained in Section 375, and was extended to include acts in addition to vaginal penetration.
• A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death.
• In case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.
• The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.
Changes brought in JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
• Section 4: The creation of one or more Juvenile Justice Boards for every district to examine children in conflict with the law.
• Section 15: (Preliminary assessment into heinous offences by Board)- A preliminary assessment of a child who is 16 or above 16 years, shall be done with regard to his mental and physical capacity to commit such offence, with regard to his ability to understand the consequences of the offence, if the Board is satisfied that he was capable enough to understand all the consequences then the Board shall follow the procedure same as the procedure of trial in summoning cases under CrPC, 1973.
• Section 19: Children’s Court may decide that child should send for a trial as an adult or not and may pass appropriate orders after trial considering his special needs, the tenets of a fair trial and to maintain a child-friendly atmosphere.
Loopholes in Rape Laws
1. Marital Rape – Not rape – An absolute baloney
Tracing the etymology of the word "rape" is derived from a Latin word rapio, which means to "seize". In elaborate terms it means forcible seizure irrespective of husband or wife or kith or kin.
What the law fails to understand here is that a wife is first of all a woman and she can never stop being a woman till the end of her days. So, if being a wife puts her into a more vulnerable position as the husband could actually have intercourse without her consent, the law itself is backfiring the very intent of the legislation, that is to protect women from such monstrous crimes.
This nonsensical favour given to a husband is unacceptable and scurrilous. What is marital rape if it’s not a rape? The notion that a woman has impliedly submitted her consent to intercourse is again utterly indiscreet. The two main ingredients of rape; Coercive and non-consensual intercourse are being ignored here leading to the one the most erroneous statues in the Indian Penal Code. Does marriage give the husband the license to rape his wife?
2. Penetration – Poorly definition
In the case of Smt. Sudesh Jhaku v Kcj and Ors 1996 many questions were raised. One of them was, Is "rape" as defined in Section 375 of the Indian Penal Code confined only to penile penetration of vagina? What about penetration of a bodily orifice (vagina, anus or mouth) by a penis or other part of the body, or by an object? Would it fall within the meaning of the words "sexual intercourse" and "penetration" as used in the said provision?
The word "penetration" is very obscure and indefinite. Ordinarily in the act of rape the "penetration" is made by the penal organ. Unfortunately, there are many gruesome instances where external objects have been inserted into the women’s organ such as the infamous "Delhi gang rape".
Therefore, either the statute must be elaborate enough to cover all such monstrous acts within the ambit of rape or the courts must exercise wide interpretation or rather a liberal approach towards interpretation of such a vague statue.
3. Requirement for an exclusive statute for Paedophiles.
Paedophiles are those who are sexually attracted to childrens. Sexual assult on children is one of the major issue and heinous crime. Currently, sexual assaults on children are dealt under section 375,376 and 377. Rape is no doubt a monstrous act but child sexual assault is even more grave than rape and the child sexual assault need severe deterrence through an exclusive act or a provision.The punishment for rape cannot be the same as the punishment for paedophiles but has to be more arduous.
Why not there be a separate legislation for child sexual assault? When Dowry was at the peak, the Dowry Prohibition Act came to the rescue. Similarly, when Domestic violence was a pressing social issue, The Domestic Violence act was enacted. Thus, the legislators ought to enact a special legislation to tackle the problem of child sexual assault.
4.Rape law not Gender-Neutral.
The law has been severely criticized for being gender biased and giving women the legal authority to commit exactly the same crimes against men with impunity.
Section 375, is limited to female population. One on the face of it might feel that "rape" is something that is always projected on the female population. I would say such a notion is very precarious. As stated earlier, rape means to seize and this seizure could be imposed even on a man by another man.
The act states that whoever voluntarily has carnal intercourse against the order of nature with any man, women 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 be liable to fine. The statue contains the word "voluntarily". Therefore, it neither relates to sex without consent or a sexual assault. So if at all a man is sodomized without his consent why can he not be called a victim? Where does he seek his remedy or where does compensatory jurisprudence take foot here?
For example: what if a man is sexually assaulted by a weapon? Albeit rape is a crime mostly inflicted upon womanhood, even men are sometimes a prey to this heinous offence. Human Rights Watch Report suggests that 22% of male inmates have been raped at least once during their incarceration; i.e. around 420,000 prisoners each year. Male rape has been in existence since ages. In the medieval ages, male rape was provided as a right of a soldier against his defeated enemy.
Despite rapid civilisation, male rape still exists but it is very latent. A large number of males bec