Author: Akshat Garg
Rape is one of India’s most common crimes against women. It is reported that every 20 min, a woman is raped in India. The majority of reports reveal that female youth are a vulnerable group for rape victimization. According to experts, only 10% of rapes are reported, and the conviction rate for rape cases is 24.2%. According to the National Crime Record Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by someone known to the victim (98% of the cases).
According to 2012 statistics, published on The Hindu News on September 2013, New Delhi, has the highest raw number of rape reports among Indian cities, while Jabalpur has the highest per capita rate of rape reports. Several rape cases in India received widespread media attention and triggered protests since 2012. This led the Government of India to reform its penal code for crimes of rape and sexual assault.
Using a small sample survey, Human Rights Watch projects more than 7200 minors – 1.6 in 100,000 minors – are raped each year in India. Among these, victims who do report the assaults are alleged to suffer mistreatment and humiliation from the police. Most rapes go unreported because the rape victims fear retaliation and humiliation – in India and elsewhere in the world. Indian parliamentarians have stated that the rape problem in India is being underestimated because large number of cases are not reported even though more victims are increasingly coming out and reporting rape and sexual assaults. Few states in India have tried to estimate or survey unreported cases sexual assault. Madiha Kark estimates 54% of rape crimes are unreported.
DEFINATION OF RAPE
Rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without their consent. The definition of rape is inconsistent between governmental health organizations, law enforcement, health providers, and legal professions. It has varied historically and culturally. Originally, rape had no sexual connotation and is still used in other contexts in English. In Roman law, it or raptus was classified as a form of crimen vis, “crime of assault”. Raptus referred to the abduction of a woman against the will of the man under whose authority she lived, and sexual intercourse was not a necessary element. Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent. The term rape is sometimes used interchangeably with the term sexual assault.
RAPE IN INDIAN PENAL CODE
Section 375 in the Indian Penal Code
Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
- Against her will.
- Without her consent.
- 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.
- 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 lawfully married.
- 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 gives consent.
- With or without her consent, when she is under sixteen years of age. Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
BURDEN OF PROOF
Unnatural offences are covered in IPC under section 377. Section 377 of the IPC states that “ whoever voluntarily has carnal intercourse against the order of nature with any man, woman 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”. As per the explanation provided under this section, penetration is sufficient to constitute the carnal intercourse. This section corresponds to the offences of sodomy and bestiality under the English law. As evident from the language of this section, consent is wholly immaterial in the case of unnatural offences and the party consenting would be equally liable as an abettor. This section is very vague as what is against the order of nature is not possible to define objectively. What is natural and what is not is a subject of debate and has led to much confusion. As per this section homosexuality is construed as an unnatural offence as it is considered to be against the order of nature. This has led to many controversies and has led to questions regarding the constitutional validity of this section. Thus, in order to determine the constitutional validity of this section and the reasons for its incorporation in the IPC it is important to look at its historical basis.
WOMEN OF EASY VIRTUE
A woman of easy virtue could not be raped by a person for that reason, the Supreme Court has ruled in a significant verdict that also brings clarity on the subject of rights of women sex workers. A Bench of Justices R. Banumathi and Indira Banerjee has noted that even if the allegations that a woman is of immoral character are taken to be correct, the same does not give any right to any person to commit rape on her against her consent. The top court’s ruling came while convicting four men of gangraping a woman in Delhi’s Katwaria Sarai area in July 1997 and sending them to 10 years imprisonment for the crime.
PUNISHMENT FOR RAPE IN SECTION 376 OF IPC
Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than seven years. Whoever,—
- being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or another place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, 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:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of fewer than ten years.
Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children.
Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]
- Nirbhay Case – On 5 May 2017, the Supreme Court rejected the convicts’ appeal and saying they had committed “a barbaric crime” that had “shaken society’s conscience,” the court upheld the death sentence of the four who had been charged in the murder. The verdict was well received by the family of the victim and the civil society.
- Unnao rape case – The 23-year-old died late on Friday after suffering cardiac arrest at 4/5/2020a Delhi hospital. She had 90% burns. She was attacked on Thursday as she was walking to a hearing in the rape case she filed against two men in March in Unnao, in northern Uttar Pradesh state. Five men, including the alleged rapists, have been arrested, Indian police.
- Vishaka vs. State of Rajasthan and Ors – This was a landmark case regarding the protection of women against sexual harassment at workplace. It was the incident of 1992 where a lower caste social worker for the women’s development program in Rajasthan named Bhanwari Devi who was trying to stop child marriage in her village was allegedly gang-raped by five men of the upper-class community. She went to the police station to lodge a complaint against the offenders but no thorough investigation was launched. Supreme Court held that the sexual harassment of a woman at a workplace would be violative 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 an Act would be considered as a violation of women’s human rights.
- State of Maharashtra vs. Madhukar Narayan Mardikar – This is the case where a police inspector of Bhiwandi town police station alone in uniform in the night went to the hutment of a woman named Banubi. There, he tried to ravish her. The woman resisted but still, he managed to falsely made out with her as if he carried out a prohibition raid. Inspector advocated that he raided her hutment on the ground that she was engaging with the dealing of illicit liquor. High Court of Bombay held that he cannot be removed from his service since Banubi was a woman of immoral character. Court held that “she was an unchaste woman so, it would be unsafe to allow the career of that inspector to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person.”
I would like to emphasize that sexual violence poses an obstacle to peace and security. It impedes women from participating in peace and democratic processes and in post-conflict reconstruction and reconciliation. As a tool of war it can become a way of life: once entrenched in the fabric of society, it lingers long after the guns have fallen silent. Many women lose their health, livelihoods, husbands, families, and support networks as a result of rape. This, in turn, can shatter the structures that anchor community values, and with that disrupt their transmission to future generations. Children accustomed to acts of rape can grow into adults who accept such acts as the norm. This vicious cycle must stop, as we cannot accept a selective zero-tolerance policy. Today’s adoption of resolution 1960 (2010), on sexual violence, is an important step in that direction. It is for that reason that Slovenia joined in co-sponsoring it.