Author: Malek Shipchandler
“The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”
– Kiran Bedi, Joint Commissioner, Special Branch.
In light of the recent rape attack which occurred on a moving bus and shook the National Capital (or as the media calls it nowadays – the “Rape Capital”) of Delhi, this article seeks to address the following questions –
- What is the legal meaning of the word “rape” and the punitive measures provided to curb the same, particularly in the Indian scenario?
- Are these measures stringent and harsh enough to deter offenders?
- If not, what could be the possible measures/safeguards to ensure the security and freedom of women?
I. Before proceeding to answer the above, for the purpose of clarity, a summary of the relevant applicable laws in India pertaining to this matter are –
- The law on crimes in India primarily emanates from The Indian Penal Code. The code u/s 375 and 376 discusses what constitutes a rape and the punishment thereof.
- U/s 228A of Indian Penal Code, no person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.
- U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.
- U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, 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 an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
- U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.
- U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.
- There have also been numerous judicial pronouncements by the Supreme Court of India upholding the rights of women as victims of sexual offences ((Vishaka v. State of Rajasthan – It was in 1997 that for the first time sexual harassment had been explicitly and legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as 1. Sexually coloured remarks 2. Physical contact and advances 3. Showing pornography 4. A demand or request for sexual favours 5. Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. It was in this landmark case that the sexual harassment was identified as a separate illegal behaviour. The critical factor in sexual harassment is that the behavior is unwelcome, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator – which is to be considered)).
- There is a bill waiting to be discussed in the Parliament which discusses supposedly enhanced punishments for rapists.
II. On considering the above provisions of law, a view on the above questions raised is set out as below:
A) The legal meaning of the word “rape” and the punitive provisions provided to curb the same, particularly in the Indian scenario
Rape under English law is defined more particularly where the law cover all the aspect of rape. Under the Sexual Offences Act 2003, which came into force in April 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth of another person. The changes also made rape punishable with a maximum sentence of life imprisonment. Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime. A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute also includes a new sexual crime, called “assault by penetration”, which also has the same punishment as rape, and is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person’s consent.
Rape, in India, means an unlawful intercourse done by a man with a woman without her valid consent ((Section 375 of Indian Penal Code)). A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
1. Against her will.
2. Without her consent.
3. 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.
4. 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.
5. 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.
6. 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.
Further, certain amendments to rape laws were made in 1983 to address mainly 3 issues –
a) Minimum punishment in rape cases
b) Special cases of rape –
i. Child rape
ii. Rape of a pregnant woman
iii. Gang rape
iv. Marital rape
v. Abuse of official power
a) MINIMUM PUNISHMENT ((Section 376 (1) of Indian Penal Code))
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 woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both; the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Issues
Prior to this amendment, minimum punishment wasn’t specified, hence this is commendable, but if the judge decides that there is an adequate reason the punishment can be reduced.
b) SPECIAL CASES OF RAPE
In instances like, the rape of a girl who is below twelve years of age, a rape knowing the woman to be pregnant, gang rape, as well as custodial rape, specific (and sometimes increased) punishment may be awarded. In the court of the law, there is a shift of burden of proof from the victim to the in some of these cases ((Section 376 (2) (a-g) of Indian Penal Code)).
i. Rape of a woman who is under twelve years of age ((Section 376 (2) (f) of Indian Penal Code))
Punishment
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 less than ten years.
Issues
Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to child rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.
ii. Rape of a woman, knowing her to be pregnant ((Section 376 (2) (e) of Indian Penal Code))
Punishment
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; 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 less than ten years.
Exemption from burden of proof
If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.
iii. Gang Rape ((Section 376 (2) (g) of Indian Penal Code))
The provision lays down –
“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…”
Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law.
Punishment
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; 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 less than ten years.
Exemption from burden of proof
If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.
iv. Marital Rape
The House of Lords widened the scope of criminal liability by declaring that the husband could be charged as a principal offender in the rape of his wife.
This decision seems to have obliterated the protection of the husband from such prosecution under the doctrine of marital exemption. This exemption was based upon the belief under which the wife was regarded as the husbands’ chattel. She was supposed to have given a general consent to her husband as a natural implication of the marriage. This has now become an outdated view of marriage in England.
However, the above decision of the House of Lords has not been followed in India – where marital exemption to the husband still exists.
v. Custodial Rape ((Section 376 (2) (a), (b), (c) & (d) of Indian Penal Code))
This provisions speaks about rape committed on a woman by
(1) a police officer
(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;
(2) Public servant
(3) management or the staff of a jail, remand home or other place of custody
(4) management or on the staff of a hospital
Punishment
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.
Lastly, it might be of some interest to the present query raised by you to understand few cases and judgments pertaining to sexual offences –
Mathura Rape Case ((Tukaram v. State of Maharashtra, AIR 1979 SC 185))
Mathura, a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police station, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.
The case came for hearing on 1st June, 1974 in the session’s court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.
On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.
When the appeal was made to the Supreme Court, it was argued on behalf of the accused that there was no express consent but it was implied because Mathura raised no alarm, there was no tearing of clothes, no semen on clothes, no cry for help etc. He iterated that, if there had not been any consent, there would have been at least a cry for help. These circumstances are enough to show that there was implied consent. The Supreme Court acquitted both the accused and held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.
Mohd. Habib’s Case (( Mohd. Habib v. State, (1989) CrLJ 137 Delhi))
The Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was an indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye-witnesses, who witnessed this ghastly act, could not sway the High Court’s judgment.
State of Maharashtra v. Madhukar N. Mardikar (([1991] 1 SCC 57))
The Supreme Court held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law.
B) Whether the measures prescribed above are stringent and harsh enough to deter potential offenders?
In the present circumstances when offences against women are on the rise, when young girls are raped by their doctors, by presidential guards in broad daylight, the definition of rape to be of any deterrence falls extremely inadequate. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse.
It also does not recognize other forms of sexual assaults like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.
Adding to this is Section 155(4) of the Evidence Act, which allows the victim to be questioned of her past sexual history, which the defense uses to humiliate the victim in the Courtroom.
One of the major obstacles in delivering justice in rape cases is the poor quality of investigations. The reason behind this ranges from gender bias and corruption to the general inefficiency of the police. In many cases the police have even refused to lodge the FIR or have lodged incomplete FIR.
The victims are not taken for prompt medical examination, because in cases of rape, or attempt to rape, medical examination of the victim and of the accused soon after the incident often yields a wealth of corroborative evidence. Therefore, such an opportunity should not be lost by the police.
The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. Despite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. Unfortunate or not, a woman’s evidence without corroboration is not considered sufficient.
The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross-examination in the Court are some other major obstacles.
C) What could be the possible way out to secure justice for the rape victim, apart from the stereotyped demand for “death penalty” and “chemical castration”?
Instituting capital punishment for rape would be counter-productive and could make it harder to get rape convictions; it could endanger women further because assailants may kill their victims to wipe out the evidence.
In my opinion, rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application.
Taking flavor from a verdict of the Supreme Court, following could be some ways to address the grievances of rape victims –
1. The government should create fast-track courts for rape cases so that trials take two to three years instead of seven to nine years as is typical now. Some 40,000 rape cases are pending in Indian courts. The fact that half of rape cases never even make it to court because police don’t file complaints or victims come under pressure to withdraw complaints in exchange for money. A large number of rape cases aren’t even tried – that is the main failure of the criminal justice system.
- Another perspective to the above is that fast-track courts won’t improve the process of dispensing justice in rape cases because it will force an under-staffed judiciary to make rushed decisions. Instead, the government could increase spending on the judicial system so that normal courts are equipped to handle the large number of rape cases. The country has one-fifth the judges it needs to deal with all its litigation.
2. The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies – for e.g. psychiatric consultation or medical assistance.
3. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
4. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
5. A list of lawyers willing to act in these cases should be kept at the police station.
6. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police station before leave of the Court is sought or obtained.
7. In all rape trials, anonymity of the victim must be maintained
8. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under the Constitution, as some victims also incur substantial losses.
9. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board irrespective of whether a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.
10. There should also be a public registry of sexual offenders whereby they would be barred from getting a job or an apartment – create a situation from them where they’ll be totally ostracized.
11. The National Commission for Women may be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes.
This opinion would be incomplete without talking about The Criminal Law (Amendment) Bill, 2012, tabled in the Lok Sabha, which is a by-product of decades-long deliberations on improving rape laws in the country. A quick look at the contents of the Bill reveals that the most prominent change is the shift in terminology. The existing offence of ‘rape’ is set to be replaced with ‘sexual assault’, which clearly widens the ambit of the crime.
While earlier, the definition of rape under the Indian Penal Code was sexual intercourse with a woman without her consent, courts have confined it to penile penetration of the vagina. The new amendment seeks to bring under the ambit of this offence penetration of “vagina, anus, urethra or mouth with any part of the body including the penis, or any other object for a sexual purpose”.
While the new amendments retain much of the penalty clauses, with minimum punishment being seven years imprisonment and a maximum of life sentence, one important change is the role of courts.
Lawyers and activists say the Bill, once passed, would take away the powers of the court to lower sentences below what is prescribed. Therefore, it provides a sort of protection in arbitrariness in sentence-awarding.
Lastly, the amendment to the definitions has also made the law gender-neutral, which means the aggressor need not be a man. It is pointed out here that, the effect of rape on a man per se is different when looked at it from a societal point of view. In the case of women, apart from the physical effect, rape induces moral questions in a conservative society.
CONCLUSION
Law remains but the number of victims continues to increase destroying the very soul of the helpless women. Something to think about is the fact that, contrary to the popular belief rape is almost never perpetrated for sexual gratification. It is an ‘acts of violence that happens to be expressed through sexual means’.