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Rape is one of the most egregious offenses a human being can commit. It's not just a hideous act, it's a massive embarrassment to humanity as a species. It is a sexual assault, generally involving sexual intercourse with an individual without their consent. Through this article, we shall learn what rape exactly is; in accordance with the Indian statutes, the importance of express consent, and against whom rape may be committed.
Together with these, I'm going to describe about sentences for rape, and elaborate on various case laws about rape. Rape is one of the most egregious offenses a human being can commit. It's not just a hideous act, it's a massive embarrassment to humanity as a species. It is a sexual assault, generally involving sexual intercourse with an individual without their consent. Through this article, we shall learn what rape exactly is; in accordance with the Indian statutes, the importance of express consent, and against whom rape may be committed.
Together with these, I'm going to describe about sentences for rape, and elaborate on various case laws about rape.
Laws concerning rape in India
Every year, the National Crime Records Bureau (NCRB) releases an annual report providing data on crimes against women committed in India. It is saddening to see that rape is one of the most common crimes committed against women in India.
Rape has been defined under Section 375 of the IPC (Indian Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman:
1. Against her will;
2. Without her express consent;
3. By obtaining her consent by force, or threatening to kill or hurt her or someone she cares about;
4. By making her believe that the man has been lawfully married to her;
5. By obtaining her consent during unsoundness of her mind, when she was intoxicated, or by providing any other substances that might affect her decision-making ability;
6. With or without her consent if she is under 16 years old, and 14 years old in the case of Manipur.
This clause also states that mere penetration is sufficient to constitute sexual intercourse, which can be treated as rape.
What is rape?
Now that we've read the law that defines rape, we need to understand what acts are rapes. Was the penetration sufficient for rape? And if permission has not been expressly granted but the contact has not been expressly denied?
In order to understand all these and some other issues that arise to our minds, we need to look at the numerous judgments of the Supreme Court and the High Courts and to derive our answers from them.
In the case of Sakshi v. UOI, the Supreme Court shed light on the definition of rape and held that 'only heterosexual intercourse, i.e. penial and vaginal penetration, shall be treated as rape within the scope of Section 375 of the IPC.'
The Court's rationale behind this decision was that - there are many types of sexual assault and all of them are terrible, but not every sexual offense can be called rape. In order to constitute the offense of rape, therefore, penetration is required.
Also, in the case of Smt. Sudesh Jhaku v. K.C.J. & Ors, the Supreme Court held that the penetration of foreign items, such as a bottle in a female vagina, could cause pain and long-term psychological damage to the victim, but this would not fall under the meaning of rape in Section 375.
It was the view of the court that the entry of foreign objects would be illegal under Section 354 of the IPC, which specifies that an assault or use of criminal force on a woman to violate her modesty will be punished with imprisonment of up to two years.
But the Court, however, narrowed the scope of rape to penile-vaginal penetration without consent. When passing the judgment, the court did not take into account homosexual rape and anal or any other form of penetration.
Is express consent required?
The definition of rape referred to in Section 375 of the IPC is unequivocal and specifically shows that rape is claimed to have happened in the absence of consent. However, it would not always be practicable to give express consent in writing orally. The principle of 'No Means No' is then followed, which simply implies that express consent is not necessary, but that express refusal means the absence of consent.
Then the question arises - How to show the existence or lack of consent before the court of law? In order to respond to this, we need to look at Section 114A of the Indian Evidence Act, which states that: 'If the claimant indicates in her evidence that consent has not been given, the court must conclude that consent has not been given,' the act must then be interpreted as rape.
In the case of Miss XYZ v. the State of Gujarat, the Supreme Court reversed the decision of the High Court of Gujarat, which held that 'the victim's word would not be considered enough to convict anyone, the victim could make false claims for compensation,' because in this case, the victim was willing to withdraw the case for a monetary settlement. The Supreme Court, however, came to the conclusion that the High Court had made a huge error in failing to see whether the deal had been reached under pressure and intimidation. Upon reviewing all the factual evidence that remains, if the victim argues that consent has not been granted, the court presumes that her claims are valid.
Additionally, in the same situation, the victim was repeatedly assaulted by the perpetrator, and the former was not in a position to refute this by simply saying no, because it would have been a danger to her life. This is therefore to be considered to be the consent gained through force or intimidation, which makes this null.
The Supreme Court has left no room for confusion regarding the concept of ‘consent’; Consent must not be verbal, however, forced consent or verbal refusal shall constitute rape.
But this should not be confused with the consent gained by the pledge of marriage. In State v. Sandeep, the High Court of Delhi held that we must go beyond "no means no" and that we must also recognize that "yes means yes."
In the instant case, the accused had received the consent of the victim to have sex by agreeing to marry her, and when the promise wasn’t fulfilled, he was thrown into the accusation of rape. The court acknowledged that the consent had not been obtained by force or coercion, and it is also true that the consent had been granted (albeit based on false hopes), and this cannot be treated as a rape. When such cases turn up stating accusations of that of rape, they will all be taken before the court after a relationship has ended. So, a woman will lodge a complaint about adultery or disrespect for modesty, but not for rape, because she had given her consent.
It is not realistic to explicitly have consent for sex every time, so consent is often assumed to be inferred. As in cases of marriage, live-in-relationship, or some other kind of non-platonic relationship, permission to have sex is considered tacit.
Marital rape
Marital rape shall refer to sexual intercourse with a partner without their consent. Though this is an exception in section 375, IPC. The provision specifically notes that "the sexual intercourse of a man with his own wife, even without her permission, is not rape."
Marital rape is a major issue in India, and most people don't even think that it exists. Women are assumed to have given consent to sex any time their husband wishes, which is not only disrespectful to women but also a sinister rule.
The survey conducted by the RTI Foundation, an NGO, found that every 1 in 3 married women in India are subject to marital rape, taking the figure to about 83 percent. The numbers are very high, and the crime is disgusting, but the rule stays the same.
The NGO referred above had submitted a petition to the High Court of Delhi, requesting an amendment of the same. In the case of RTI Foundation v. Union of India (pending), the court, empty of its previous order, noted that the obtaining of consent by force of a woman or by some other means may lead to cruelty, if not rape. The other way may require the breaking of financial ties with her, not the payment of expenses for kids, etc.
The petition is still pending before the High Court and the Court is expected to adopt a pragmatic approach. Many developed countries, such as the United Kingdom and the United States, have already criminalized marital rape. The Courts are required to safeguard the dignity of women by taking effective action on rape cases.
Why isn't marital rape a crime?
It is easy to conclude that marital rape was not criminalized since the legislation decriminalizing it, was formed years earlier, when the culture in India was entirely different and the laws –enforced, used the best of their discretion. So drafting was done, keeping in mind the current needs of society.
Since then, the statute was inhumane, but there are still some eminent jurists who are in favor of keeping the clause intact.
The former Chief Justice of India, Mr. Deepak Mishra, said at a press conference that 'there is no need to criminalize marital rape, as such laws could cause utter chaos and destroy our Indian family values.'
This claim can sound harsh and inhuman at first, but when we consider it further, we realize that culture in the West is very different from ours, that customary laws are different and even our traditions are different; all these variables, combined with a high rate of illiteracy, create an atmosphere in which people are not prepared to be criminalized for marital rape.
This statement is based on a rather conservative perspective, which neglects the reform and emancipation of women. Not only does it ignore women's liberation, it even deprives them of their right to equality.
In the case of Independent Thought v. Union of India, the Supreme Court took a rather realistic view that marriage is no longer a social contract but a personal relationship, and criminalizing marriage cannot kill the institution of marriage. Although laws such as divorce and judicial division do not break the marriage, it is quite unlikely that it will criminalize marital rape.
Could a man be raped by a woman?
The definition of rape in the IPC is very limited and has made abundantly clear that only a man's forced vaginal penetration can lead to rape. Therefore, as per our rules, men can never be raped, but women can be raped.
Section 377 of the IPC is the only clause that can shield men from sexual offences, where either of a man or a woman may be found guilty of forced carnal intercourse. Moreover, forced intercourse with a man can't amount to rape. Why is that so?
The unfair treatment of our gender-based laws is largely due to our culture, where people fleeing sexual harassment are made ludicrous. Despite many misconceptions floating around, such as: 'men are not vulnerable,' 'people always want sex,' etc., it is unlikely that our laws will see a shift to help them in the near future.
However, the gender biasness doesn’t matter in the case of a child, whether male or female – all children are protected from sexual offenses under the POCSO Act.
Homosexual rape
Section 377 of the IPC was used to criminalize even consensual sex among people of the same gender stating - 'unnatural.' In the case of Navtej Singh Johar v Union of India, the Supreme Court brought a ray of hope, in which consensual gay sex was decriminalized.
It was a small step towards ensuring equality in our society. The non-consensual homosexual activity does not amount to rape, because there is no rule against it. Every forced carnal intercourse would be conceived simply as a sexual assault and not a crime.
Punishment of rape
Prior to the Nirbhaya case, Indian laws considered that only penile-vaginal intercourse had been described as rape, and the forced penetration of any foreign object into the vagina, mouth, or anus did not fall within that scope. Owing to the silence of the court, many of the convicted were set free right after committing these heinous crimes.
In this case, the term was revised to include the forced penetration of foreign objects within the scope of rape.
The sentence for rape has been given in compliance with Section 376 of the IPC. According to this clause, the punishment for rape is imprisonment for a period of not less than 7 years, which may extend to life imprisonment – depending on the facts and circumstances of the case.
In some extreme cases, the court stated that there would be a mandatory term of rigorous imprisonment for at least 10 years, which can lead to life imprisonment. The defendant may even be liable for a fine and for imprisonment.
In cases such as - Nirbhaya Rape Case, where a murder was committed after rape, and the case was so barbaric in nature that it was considered 'rare of the rarest,' amounting to the enforcement of a death sentence. Likewise, any such grievous cases of rape would amount to the death penalty by the court of law.
Conclusion
Rape laws in India cover just the tip of the iceberg and do not consider, as well as accept the presence of the majority. Rape against men or homosexual rape is not even considered rape.
The punishments are too low for such a heinous offense, and it has not been possible to discourage the crime. Rape cases in India, are increasing like wildfire day by day, most of which are not reported. It is very important to educate our society about their legal rights and responsibilities and to raise awareness, for reducing the crime ratio.
Massive changes and amendments are expected in the current law especially for ‘rape’, in our country. The law has to be modified and adapted by the society.
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