Author: MOMINA SAEED, Student, Student, INTERNATIONAL ISLAMIC UNIVERSITY ISLAMABAD
Edited By: Gaurav Katiyar, Student, University of Lucknow
INTRODUCTION:
Rape is a serious violation of a person’s physical and emotional boundaries, involving sexual intercourse or other forms of sexual penetration without their consent. Historically, the definition and understanding of rape have evolved significantly, influenced by the feminist movement and changes in societal attitudes towards gender and sexuality. The concept of rape has expanded to include any gender of victim and perpetrator, and the definition of consent has become stricter, recognizing that victims may be incapacitated by drugs, alcohol, or other factors. The consequences of rape are devastating, leading to physical and psychological trauma, including post-traumatic stress disorder, depression, and other long-lasting effects. Understanding the complexities of rape and its effects is crucial for addressing this serious crime and providing support to its victims.
Keywords:
- Rape
- Consent
- Perpetrator
- Trauma
- PTSD
- Depression
DEFINITION:
In India, rape is defined under Section 375 of the Indian Penal Code (IPC) as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.
HISTORICAL BACKGROUND:
Rape has been recognized as a criminal act since ancient times, with early legal codes such as the Code of Hammurabi (1700 BC) and Jewish law addressing the issue. However, in ancient Greece and Rome, rape was often viewed more as a crime against the victim’s family or owner, rather than the victim themselves. The attitudes and definitions surrounding rape continued to evolve over the centuries. During the Middle Ages in Europe, rape was sometimes punished harshly, with penalties like execution or mutilation, though actual prosecutions were quite rare, especially for rapes of lower-class women or wives. Rape was often seen more as a property crime against the victim’s father or husband. The common law definition in England eventually came to define rape as unlawful intercourse with a woman over the age of 10 without her consent, though this definition shifted and expanded over time. Tragically, rape has also been used as a weapon of war throughout history, from ancient conquests to more recent conflicts like World War II, where it was often seen as a spoil of war or used to terrorize and subjugate populations. Overall, the history shows that while rape has long been recognized as a serious crime, attitudes and legal definitions have evolved significantly, often failing to adequately protect victims, especially those of lower social status or during times of war.
COMPARISON WITH OTHER PAKISTAN:
Rape is a serious issue in both India and Pakistan, with significant differences in the reporting and conviction rates between the two countries. According to available data, India reported 31,677 rape cases in 2021, with a rape rate per 100,000 population of 4.9 in 2019. In contrast, Pakistan does not have official data available on the number of rape cases. The crime index and safety scale for both countries are relatively similar, with India having a crime index of 44.33 and a safety scale of 55.67, while Pakistan has a crime index of 43.41 and a safety scale of 56.59. However, India has a higher reporting rate for rape, with a significant number of cases registered annually. On the other hand, Pakistan’s conviction rates for rape are not publicly available, making it difficult to compare the two countries. Overall, while both countries struggle with the issue of rape, there are significant differences in the reporting and conviction rates between India and Pakistan.
KINDS OF RAPE:
- Statutory rape: Sexual intercourse with a minor below the age of consent, outside of marriage.
- Marital rape: Non-consensual sexual intercourse between a husband and wife.
- Force-only rape: Rape where the husband uses enough force to coerce his wife into intercourse.
- Battering rape: Rape where the wife is beaten, slapped, pushed and shoved, involving both physical and sexual violence.
- Custodial rape: Sexual intercourse committed by a person in a position of authority, such as a police officer, doctor, or staff member of a jail or institution.
- Mass rape: Rape committed as part of ethnic cleansing or to dishonor a community.
- Rape by family members: Rape committed by a family member like a father, brother, grandfather or uncle.
ESSENTIALS ELEMENTS:
- Penetration: The defendant must have intentionally penetrated the vagina, anus, or mouth of the complainant with their penis.
- Lack of Consent: The complainant must not have consented to the penetration, and the defendant must not have reasonably believed that the complainant consented.
- Intentionality: The penetration must have been intentional.
- Age: The complainant must be below the age of consent, which varies by jurisdiction.
DEFENSES:
- Innocence: The defendant can claim that they did not commit the alleged rape, and present evidence to support their alibi, such as witnesses, surveillance footage, or vehicle GPS data.
- Consent: The defendant can argue that the sexual act was consensual, and that the complainant did not object at the time. However, consent is not a defense if the complainant is a minor or has a mental illness.
- Insanity: The defendant can claim that they were suffering from a mental illness at the time of the alleged rape, which impaired their ability to understand the nature and consequences of their actions.
LEGAL PROVISION IN INDIAN PENAL CODE:
The legal provisions on rape cases in the Indian Penal Code (IPC) are outlined in Sections 375 and 376.
- Section 375 IPC:
Definition of Rape: A man is said to commit “rape” if he penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him.The definition of rape under Section 375 of the Indian Penal Code was expanded in 2013 to include various forms of sexual assault, such as penetration by penis, any object, or any part of the body into the vagina, urethra, anus, or mouth, or making another person do so without consent.
Medical Examination: Sexual intercourse with a woman for medical purposes is not considered rape.
Sexual Intercourse with Wife: Sexual intercourse with a wife who is above 15 years of age is not considered rape.
Punishment: The punishment for rape includes imprisonment for a term of not less than 7 years, which may extend to imprisonment for life, and a fine. In aggravated situations, the punishment is rigorous imprisonment for a term of not less than 10 years, which may extend to imprisonment for life, and a fine.
- Section 376 IPC:
Punishment: The punishment for rape includes imprisonment for a term of not less than 7 years, which may extend to imprisonment for life, and a fine.
Exceptions: The punishment is less severe if the woman is the wife of the accused and is above 18 years of age, in which case the punishment is imprisonment for a term which may extend to two years with fine or with both.
- Amendments to the IPC:
Criminal Law (Amendment) Act, 1983: This Act introduced new sections to the IPC, including Section 376A, which punishes sexual intercourse with a wife without her consent by a judicially separated husband.
Criminal Law (Amendment) Act, 2006: This Act introduced changes to the IPC, including the definition of sexual assault and the punishment for such crimes.
GUIDELINES OR RULES AGAINST RAPE:
Supreme Court Guidelines: The Supreme Court has laid down the following guidelines for the trial of rape cases:
- Complaints of sexual assault cases should be dealt with utmost sensitivity.
- Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- Employers must provide a Complaints Committee headed by a woman, with at least half the members being women.
- The Complaints Committee should include an NGO or other organization familiar with sexual harassment.
- The complaints procedure should be time-bound and maintain confidentiality.
- Complainants or witnesses should not be victimized or discriminated against.
Preventive Steps: Employers are required to take preventive steps, such as:
- Expressly prohibiting sexual harassment and circulating the prohibition.
- Including the prohibition in the rules, regulations, and standing orders.
- Providing appropriate work conditions for women.
Reporting and Compensation: The law mandates that no private or government hospital can charge fees for the treatment of rape victims. Victims also have the right to compensation under Section 357A of the Code of Criminal Procedure.
Prohibition of Two-Finger Test: The law prohibits doctors from conducting the “two-finger test” during the medical examination of rape victims, as it is considered unscientific and violates the victim’s privacy.
TRADITIONAL-BASED LAW:
Traditional based law about rape refers to the laws that were in place before the modern era of feminist activism and legal reforms. These laws were often rooted in patriarchal societies and reflected the societal norms and values of the time.
In ancient societies, rape was often viewed as a crime against the victim’s family or owner rather than the victim herself. For example, in ancient Babylon, the Code of Hammurabi dictated that if a man forces sex upon another man’s wife or a virgin woman, he should be put to death.
In the United States, the traditional law defined rape as the act of a man forcing a woman to have sexual intercourse against her will. The law was based on the concept of “carnal knowledge” and required proof of force and lack of consent.
The traditional law also reflected the societal norms of the time, which often viewed women as property and viewed rape as a crime against the man’s honor rather than the woman’s rights. For example, in the United States, the law did not apply to black women, and the term “rape” was often used to describe consensual sex between a black man and a white woman.
The traditional law also did not recognize the concept of marital rape, and it was not until the 1970s and 1980s that laws were passed to criminalize marital rape.
Overall, traditional based law about rape reflects the societal norms and values of the time, which often viewed women as property and viewed rape as a crime against the man’s honor rather than the woman’s rights.
CASE LAWS:
- Mathura Rape Case (1972): This case involved the custodial rape of a young tribal girl named Mathura by two policemen. The Supreme Court acquitted the accused, leading to widespread protests and eventually leading to amendments in the Indian rape law via The Criminal Law Amendment Act 1983 (No. 43).
- Vishakha Guidelines (1997): The Supreme Court laid down guidelines for the prevention of sexual harassment at the workplace in the Vishakha case. The guidelines include the establishment of a Complaints Committee, the provision of a confidential procedure for filing complaints, and the prohibition of sexual harassment.
- Farooqui v State (2014): In this case, the Delhi High Court acquitted the accused of rape, holding that a “feeble no” did not signify lack of consent. The Supreme Court refused to overturn the decision, setting a dangerous precedent for interpreting consent in rape cases.
- Ms X v Mahmood Farooqi (2014): The Supreme Court refused to admit a Special Leave Petition (SLP) challenging the Delhi High Court’s decision in Farooqui v State, which set a precedent for interpreting consent in rape cases. The decision was criticized for introducing a higher threshold for consent where the survivor is acquainted with the accused.
- K. Chopra v Apparel Export Promotion Council (1999): The Supreme Court upheld the dismissal of a man who was accused of sexual harassment at the workplace. The case is significant because it applied the Vishakha guidelines and upheld the dismissal of the accused.
These case laws and precedents have shaped the legal framework for rape in India, including the definition of rape, the burden of proof, and the procedures for filing complaints and conducting trials.
INTERPRETATION:
The interpretation and explanation of rape laws in India are complex and multifaceted. Here are some key points to consider:
- Definition of Rape: The definition of rape in the Indian Penal Code (IPC) is based on the concept of penetration, which includes any act of penetration, whether by penis, object, or body part, into the vagina, mouth, urethra, or anus of a woman without her consent.
- Consent: Consent is a crucial element in determining whether a sexual act is considered rape. The Supreme Court has held that consent must be given freely and voluntarily, without coercion, force, or fraud.
- Burden of Proof: The burden of proof in rape cases is on the accused to prove that the sexual act was consensual. If the accused fails to prove consent, the court will presume that the sexual act was non-consensual.
- Punishment: The punishment for rape is severe, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, and a fine.
- Gender Stereotyping: The interpretation of rape cases in India has been criticized for perpetuating gender stereotypes. For example, the Delhi High Court’s decision in Farooqui v State, which held that a “feeble no” did not signify lack of consent, has been criticized for introducing a higher threshold for consent where the survivor is acquainted with the accused.
- Male Rape: The definition of rape in the IPC only applies to women, and there is no specific law to protect male survivors of sexual assault.
- Investigation and Prosecution: The investigation and prosecution of rape cases in India have been criticized for being inadequate and biased. The police often fail to collect evidence, and the prosecution often relies on weak evidence and witnesses.
- Prevention: The prevention of rape requires a multifaceted approach that includes education, awareness, and legal reforms. The Supreme Court has emphasized the need for a change in societal attitudes towards women and the importance of protecting their rights.
- Legal Reforms: The legal framework for rape in India has undergone several changes over the years. The 2013 amendment to the IPC expanded the definition of rape to include any act of penetration, whether by penis, object, or body part, into the vagina, mouth, urethra, or anus of a woman without her consent.
- Challenges: The interpretation and explanation of rape laws in India are challenging due to the complex and multifaceted nature of the issue. The legal framework is constantly evolving, and there is a need for ongoing education, awareness, and legal reforms to ensure that the rights of survivors are protected.
MAXIMS:
- Nemo dat quod non habet: No one can give what they do not have. This maxim emphasizes the importance of ownership and the need for a person to have a valid title to property before they can transfer it to someone else.
- Aut non servare aut servare: Either not to preserve or to preserve. This maxim highlights the importance of preserving evidence and ensuring that it is not tampered with or destroyed.
- Nemo tenetur prodere seipsum: No one is bound to betray themselves. This maxim emphasizes the right of individuals to refuse to incriminate themselves and the importance of protecting their own interests.
- Nemo est supra legem: No one is above the law. This maxim emphasizes the importance of equality before the law and the need for everyone to be held accountable for their actions.
- Veritas odium parit: Truth begets hatred. This maxim highlights the challenges that can arise when seeking truth and the potential for opposition and hostility that can come with it.
Amendments:
- Criminal Law Amendment Act 2006: This act aimed to address the inadequacies in the existing laws and provide a more comprehensive definition of sexual assault. It introduced the concept of “sexual assault” and expanded the scope of the offense to include various forms of sexual violence.
- Bharatiya Nyaya Sanhita (BNS): The BNS, which replaced the Indian Penal Code (IPC), includes a dedicated chapter on “Offences Against Women and Children.” It defines rape as an act of sexual assault against a woman and criminalises the disclosure of the identity of the victim. Other added offenses include sexual harassment, voyeurism, stalking, and criminal intimidation.
- Section 69 of BNS: This section criminalises rape on false promise of marriage. However, there have been concerns about its misuse and potential for false accusations. Critics argue that the law lacks checks and balances to protect innocent individuals from being subjected to lengthy trials without fault.
- Punishment for Rape: Section 376 of the IPC provides for imprisonment, which shall not be less than seven years but can extend up to life imprisonment or even death in extreme cases. The punishment is intended to be severe to deter such heinous crimes.
CONCLUSION:
The conclusions on rape from the provided sources are multifaceted and emphasize the need for a comprehensive approach to address this complex issue. Firstly, it is essential to examine the factors that promote sexual violence and develop a strategy that includes various projects to render people less vulnerable, education and re-education of children and adults to combat sexism, and the criminal justice system must bear the burden of regulating rape. Additionally, research on campus rape highlights the significance of known perpetrators, lack of faith in authorities, and the role of money and alcohol use in perpetuating this crime. Furthermore, the National Crime Victimization Survey (NCVS) is subject to underestimation of rape and sexual assault due to various errors and potential errors in the survey. Finally, the mental health consequences of rape are severe and long-lasting, including post-traumatic stress disorder (PTSD), depression, anxiety, and suicidal thoughts, emphasizing the need for effective interventions to address these consequences.
REFERENCES:
https://indiankanoon.org/search/?formInput=rape%20cases
https://indiankanoon.org/search/?formInput=rape%20%20doctypes%3A%20judgments+tag:rape
