July 25, 2021

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An analysis of the sufficiency of rape laws in protecting rightful victims

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This article has been written by Raslin Saluja pursuing B.B.A LLB (Hons) from KIIT School of Law, Bhubaneswar. The author examines the adequacy of the existing rape laws in the country.

Table of Contents

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Rape comes under a cognizable offense and has been defined under Section 375 of the Indian Penal Code, 1860 (IPC). An act of sexual intercourse done by a man would amount to rape if it is:-

  • Against her will,
  • Without her consent,
  • Consent obtained by causing her or person close to her in fear of causing hurt or death,
  • Consent received by her out of the belief of being married to the man when the man is apprised of not being her husband,
  • Consent received due to inability to comprehend the nature and consequences of her consent by reason of unsound mind or intoxication, and
  • With or without her consent when she is below the age of 16 years and 14 years in the case of Manipur.

To constitute an offence under the section, a penetration is enough to be subject to its provisions.

Further, to the extent of this section, a woman’s consent to sexual intercourse includes her unequivocal and voluntary agreement or willingness to engage through the medium of words, gestures, or any form of verbal or non-verbal communication. However, if a woman does not try to physically restrain the act of penetration, the same cannot be regarded as consenting to the sexual activity.

The section also provides for two exceptions for acts not to be considered as rape:

  1. A medical procedure or intervention shall not constitute rape.
  2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, i.e marital rape does not constitute rape.

Section 376 of the IPC prescribes punishment for rape which will be imprisonment for a term of not less than 7 years, which may extend up to life imprisonment – depending on the facts and circumstances of the case. 

For more critical circumstances, it will be in the nature of rigorous imprisonment for at least 10 years, which may extend to life imprisonment. The convict may also be held liable to pay a fine, along with imprisonment.

Other laws that govern the rape proceedings include:-

  • Punishment for a term that may extend to two years along with a fine is imposed for disclosing the name of the rape victim under Section 228A of IPC.
  • Section 114-A of the Indian Evidence Act allows presumption to be made as to the absence of consent in certain prosecutions for rape.
  • Under Section 53(1) of Code of Criminal Procedure, in case of arrest on the charge of commission of such crime and there is a reason to believe that an examination will provide evidence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer, not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such a reasonable examination in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
  • Section 164A of the Code of Criminal Procedure provides provisions relating to the medical examination of a rape victim.
  • Section 327(2) of the Code of Criminal Procedure requires an in-camera trial for all rape victims.
  • Despite all the laws and protection, in a poll conducted by the Thomson Reuters Foundation in 2018, India emerged as the most dangerous country for women. Considering even the annual report released by The National Crime Records Bureau (NCRB) – the department which works towards collecting and analysing the crime data in India shows such depressing statistics of offences pertaining to rape. If one goes by the latest crime statistics released on 9th January 2020, a woman is raped every 16 minutes and 89 rape cases are recorded daily on an average. Further, there exists a huge disparity between the reported cases versus the convicted ones where according to the report out of 85 percent of cases that led to charges only 27 percent of them led to a conviction. All of these contribute to the sorry state of affairs and stand proof of the devastating reality of the country.

The loopholes in the structure of rape laws

Among the many loopholes present in the existing laws of the country, many stem from the absence of them. As much as laws on specific subjects are required to be made, we need to ensure that the existing ones are properly implemented and reformed as and when required. To understand the matter more critically we shed light on some of the problematic areas. 

  • Definition of rape and lack of gender-neutral provisions

For the longest time, we observed the restrictive approach taken by the court in interpreting the definition of rape by not taking into account the anal form of penetration or penetration through other modes. It was not until the Nirbhaya Case,(2012) that the term was expanded beyond heterosexual intercourse i.e penial and vaginal penetration, and included the insertion of foreign objects into a female’s vagina as an offense of rape under Section 375. 

However, the definition still remains problematic as the definition fails to take into account rape against males, homosexuals, and members of the transgender community. It has perhaps become the most distinctive feature of Indian rape laws. Neither does it recognize them as victims nor does it consider the non-consensual acts done on the man.

So much so that even the Criminal Law Amendment Act, 2018 has further widened the gap with its provisions. Where in the case of minors, the POCSO Act recognizes the victims and the offenders in the binary of male or female but under IPC – the notion is that an adult male can never be a victim of rape. Rather than constitute rape, the offender has to be a male and the victim a female. Even in terms of punishment under the POCSO Act, the penalty is the same irrespective of gender. However, the IPC provisions which apply only to the rape of female victims carry a higher punishment.

The punishment for a crime should be proportionate to the crime committed and it should be applicable to everyone equally instead of being classified to a specific class. Suffering is the same for all irrespective of gender or sexual orientation, they all suffer from the same physical, mental, and emotional pain.

Even by virtue of a PIL (Public Interest Litigation) in the Apex Court, recommendations by the Law Commission of India were given directing to seek to widen the ambit and scope of sexual intercourse and make it more gender-neutral. But the issue still persists. Reforming the definition has become all the way more important now than consensual sex between homosexuals has been decriminalised. 

Ambiguity regarding consent can sometimes create tricky situations as when it is not expressed it also cannot be necessarily considered implied. And often following the provision under Section 114A, its absence is to be presumed which can be used with mala fide intention for making up a false case. Thus, keeps the victim in a higher position as the consent can always be later denied in wrongfully accusing the offender. 

  • Marital rape

As stated by the committee, marriage should not be treated as a license to commit rape. However, mixed views have been received on the topic. On one side stands the ideal of Indian household values and on the other a genuine violation of a human’s right to not consent to intercourse even if offered by her own husband. This also leaves us contemplating whether Indian values promote submissiveness. The data of a survey conducted by an NGO – RTI Foundation, suggested that every 1 in 3 married women in India is subjected to marital rape amounting to about 83%, which clearly draws a conclusion on its own about the prevalent status of marital rapes in the country. 

  • Societal stigma

Be it for a man or a woman, all have tried to hide from the shackles of rape because what is worse than to be first the victim of such heinous crime and then face the wrath of society all the same. Laws play a huge role in terms of shaping the behavior of society towards an offender or even a victim. It is high time that we understand that it is the crime that is sinister and that the offender while being rightfully punished is still human. That a specific crime can happen to anyone regardless of their age, gender, or sexual personality. However, due to the burden of societal norms, various cases go unreported. The excessive burden of placing the virtue, dignity, and family honor leads often towards a derogatory attitude towards such victims who become subject to societal outcasts and isolation and do not in turn pursue the case. Thus, these situations demand relentless support from the government as well as society. And it is this societal stigma under the guise of Indian values that have become a blockade in bringing about reforms for marital rape and rape in terms of gender-neutral laws.

Some of the recommendations as given by the “Report of the Committee on amendments to Criminal Law” that are still applicable include:

  • The scope of rape must be widened including any other form of nonconsensual penetration in sexual nature and it should not be limited only to the penetration of the vagina, mouth, or anus.
  • Non-penetrative forms of sexual contact should be regarded as a sexual assault which would also include all forms of non-consensual or non-penetrative touching of a sexual nature. Additionally, the use of words or any act or any form of gesture that fosters a threat of sexual nature should also be termed as sexual assault and be punishable for the same.
  • The two-finger test must be scrapped as the offense of rape can be committed against a woman even if she is accustomed to sex.
  • Sex education must be imparted to children at schools to raise awareness.
  • Filing of charge sheet and cognizance by the Court must be sufficient for the disqualification of a candidate under The Representation of the People Act, 1951.
  • Setting up of a Rape Crisis Cell for providing immediate notification of the case when an FIR in relation to sexual offences is made along with providing legal assistance to the victims. 

The need for change in the perception of the term “victim”

In no way whatsoever, demeaning the plight of women for being the primary subject of the crime does not allow us to disregard/ignore men or trans people who have been subjected to similar atrocities. The idea of males being the victim has been repeatedly ignored in India. And since the laws also do not support or recognize societal pressure, they tend to hide or deny their circumstances. Ram Singh, one of the accused in the Delhi gang-rape who was found hanging in his prison, claimed that other male prisoners raped him. A very recent case of Diana Dias who is a trans rights activist also faced gruesome incidents and has spoken about the plight of trans people. Further in an article, G Pramod Kumar quoted what The People’s Union of Civil Liberties had said about Tihar jail in 1981 regarding how the prisoners bid a price over the new entrant to decide on who shall have him. Thus it seems an age-old practice with a plethora of cases that have never ever been spoken about and died a silent death. Unless a safe space is not created these problems will not be addressed and men and trans people will continue to be victims of such crimes.

This disparity also often leads to the fake filing of rape cases. Some of such examples include:-

  1. In Tilak Raj v. State of Himachal Pradesh,
  • Facts: A complaint was filed by a prosecutrix alleging of being raped and physically assaulted by the appellant. It was also alleged of being threatened with dire consequences by the appellant on the phone while on her way to the police station to register her complaint. And an allegation of sexual exploitation on the pretext of marriage was also made by her in the said complaint.
  • Held: However considering the timeline of instances, the Supreme Court observed that if no there was no deliberation about marriage between the prosecutrix and the accused before the alleged consensual sexual act, it cannot be constituted as an offense under the provision of rape stating misconception of marriage. 

2. Malti Chauhan v. State (Govt. of NCT of Delhi) and Ors (2015)

  • The prosecutrix allegedly accused her uncle and cousin of rape and wrongful confinement. However, upon investigation and cross-examination, various inherent contradictions and improvements were observed with changes in admitted statements. And so the appeal was dismissed and the respondent was acquitted.

3. Raghuvinder Harna v. State of NCT of Delhi (2015)

It was noted that conviction can be based upon the sole testimony of the prosecutrix provided it lends assurance of her testimony. In case, the court has reasons not to accept the version of the prosecutrix on its face value, it may look for corroboration. However due to inconsistent statements and evidence the appeal was allowed.

As mentioned earlier, even though the particular law represents women, they still have to face societal wrath and in most cases, they end up being blamed for bringing it upon themselves. Be it the boys will be boys remark or the recent ripped jeans controversy or women looking like barrels and other derogatory remarks, often women are blamed for their behavior or clothes which is a result of using deeply ingrained misogynistic language and objectification of women’s bodies thereby creating a society that disregards women’s safety. Even to consider the timeline, it took 7 years for the Apex Court to issue death warrants for all the four convicts in the 2012 Nirbhaya case. Low conviction rate along with long procedural delays fail to serve the purpose. Besides, there is always public shaming, media trials, bribes, and corruption by influential and resourceful offenders, all of which further contribute to a failed justice system. 

As for men and trans people – there is a wide chasm in the legal landscape where the issues are not even talked about or even acknowledged. At their disposal is just Section 377[10] of IPC under which at the most they can be sodomized, where unnatural sex is an “Act against god”. Except for this Section, all other laws cater to only females. 

Though offenses against transgender people are punishable under the Transgender Persons (Protection of Rights) Act 2019, when compared it is observed that they are not being put on an equal pedestal. The punishment is a minimum of 6 months for the physical and sexual abuse of transgender people and a maximum of two years in prison with a fine. A petition seeking equal punishment for sexual crimes — including rape, assault, and harassment – against transgender victims was even heard in the Supreme Court in October. And as a result, a response was sought from India’s Ministry of Law and Justice and the Ministry of Social Justice and Empowerment. However, they are yet to make any statements. A 2017 study by the National Human Rights Commission (NHRC) found that “they (transgenders) do not get justice from police if they approach,” and even in cases of gang rape, they cannot go to the police for assistance, for fear of harassment and their inability to pay bribes. All of these go on to show that we are just at a nascent stage and there is a long way to go. From improper implementation and application of laws to almost having no law at their disposal, a lot needs to be done to ensure justice is accessible equally to all the members of society.

Judiciary being the third pillar of the government in its independent capacity from the legislature and executive plays two major roles:-

(a) to interpret laws and,

(b) judicial activism which means to go beyond the law and use its discretionary power to provide justice to the victims.

Another chief function of the judiciary is to set precedents for the general welfare of the masses,  preserving the law’s existence. The greatest strength of the judiciary has always been in the distant nature of the judges from the viewpoint of the society to have an impartial judgment that instills confidence and faith in the people towards the organisation. Thus, courts help in voicing the society’s needs and in turn providing their views in bringing about reforms.

As for women, certain areas in which courts can play an instrumental role include:-

  • Proper treatment for such victims especially in the lower courts.
  • Reduction in procedural delays.
  • Removal of exception of marital rape.
  • Mandatory legal assistance, protection, and counseling to be made.
  • Death penalty to persons convicted for rape.
  • Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.
  • Severe and certain punishment in a time-bound manner to have a deterrent value.

As for men and trans people, the first step has to be initiating a conversation in these subject matters. To grant proper recognition and acknowledgment as there have been by some judges and jurists in the past, however to no effect.

It is important for society that the laws remain adaptive to the changing times so as to remain effective and relevant. In a progressive society like ours, it is of utmost importance that laws keep up with the pace. As much as it requires the support of the judiciary, the government also needs us as citizens to be receptive to such changes. Otherwise, rape will no longer be an offence towards an individual but rather towards the whole of mankind.

[1]https://www.firstpost.com/india/ram-singhs-death-rape-and-ugly-sexual-violence-in-indian-jails-657071.html
[2]https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html


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