By Shruti Sharma, Campus Law Centre, Delhi University.
RAPE- An offence which is defined under Section 375 of the Indian Penal Code, 1860. It is punishable under Section 376 of the same with maximum punishment, which may extend up to life imprisonment plus fine. Rape is considered as the fourth most common crime against women in India. A recent report of National Crime Records Bureau, 2013 shows that around 24,923 rape cases were recorded in India in the year 2012, out of which, in around 24,470 cases, which is approx 98% of the reported cases the accused person was known to the victim, however, it is pertinent to note that the above data shows the record of only those cases which were officially recorded by the authorities The irony of the above stated data is that, most number of rape cases are not even recorded or reported to the officials. This practice is very common, mostly in rural areas of our country. If we will go by statistics, our national capital, Delhi has the highest raw number of rape reports among Indian cities. No wonder why it is called as rape capital of our county by many people! The word RAPE has been derived from a Latin term “rapio” which means to seize i.e. ravishment of woman without her consent, or against her will. It can be by force, by fear, by fraud. Now the most important issue that arises when we try to elaborate this definition of Section 375 is that what does the word “CONSENT” mean? It is surprising to know that the word “consent” has been frequently used in the definition of Section 375 by the drafters of Indian Penal Code, but it has not been precisely described or defined anywhere in our Penal Code! However, generally we consider the meaning of consent in two ways i.e. it can either be express or it may be implied.
Express consent can be gathered from clear words, or unequivocal response by a person whereas implied consent can be gathered by the conduct of a person or by his or her gestures, expressions etc. It is important to note that silence does not amount to consent, however it may amount to the same when there is duty to speak on the part of a person. Basic ingredients of the offence of rape are as follows:
- Sexual intercourse by a man with a woman
- Against her will
- Without her consent
- Which falls under circumstances or sub clauses of Sec 375
While understanding the ingredients of Section 375, it is pertinent to note that words like “by a man” and “her” have been used instead of words like “by a man/woman” “her/him”, therefore, it clearly indicates that the offence of rape can never be committed by a woman against a man in our country. Hence, women cannot be made liable for this offence. This clearly shows that according to our legislature and makers of the IPC, “A MAN CAN ONLY RAPE AND CANNOT BE RAPED!!” However, under Section 109 of the IPC, women can be held liable for abatement of rape. Sexual offences constitute an altogether different kind of crime, which is a result of a perverse mind. The perversity may result in rape or even homosexuality.
Nirbhaya’s tragic incident of December 2012 resulted in bringing a drastic change in our penal laws. The infamous Mathura’s case and its inadequate judgement forced our legislature to amend and rectify Sec 375 and 376 of IPC in 1983, but those enactments were not enough to stop or even reduce this heinous crime. After 1983, under the 2013 amendment, the IPC was extensively amended and certain other penal provisions were incorporated for punishing rape offenders heavily. Nirbhaya’s incident not only brought a revolutionary change in the IPC but certain other provisions of Evidence Act and CrPC were also amended. It is important to note that before the 1983 amendment, the position of a rape victim was very much vulnerable & even worse than the accused; it was very difficult for a woman to prove in court that she has actually been subject to rape by the accused person.
Talking about the 2013 amendment, it cannot be said to be a perfectly balanced amendment as it was a result of public outcry that practically forced our legislature to add new provisions to strengthen the laws when it comes to violence against women. Some notable features of the 2013 amendment are:
- Raised the consensual age from 16 years to 18 years, i.e. where a man has sexual intercourse with a woman, under the age of 18 years, with or without her consent, it will still be considered as an offence of rape against that man.
- Where a woman is not in a position to communicate her consent, due to unsoundness of mind or due to intoxication or any other reason where she is not in the position to understand the nature and consequences of the act, and gives her consent, in such cases too, her consent will be considered as no consent.
- A new Section 376A has been inserted to straighten the punishment of offenders in situations where the injury caused to the victim by the offender results in her death or causes her to be in persistent vegetative state (PVS).
- Punishment in cases of gang rape has been increased from 20 years to maximum life imprisonment plus fine u/s 376D.
- For the first time, acts like voyeurism and stalking (not against women) have been defined u/s 354C & 354.
- Section 100 of IPC which deals with right of private defence to the extent of causing death added a 6th clause which deals with acid attacks.
- Penile penetration was replaced by penetration in the definition of Section 375.
However, even after such broad insertions, it falls short of many things. It has also been widely criticised by many feminist organisations who still demand longer jail terms and capital punishment for such rape offenders. Rape ranks amongst the most serious crimes, causing enormous emotional and physical harm that can last throughout a victim’s lifetime. Those who commit these crimes are psychologically sadistic persons exhibiting the tendency in rape forcibly committed by them. Changes in the lifestyle, living standards, changes in social ethos & lack of concern for moral values contribute to a violent approach towards women which eventually results in increase in crime against them.
Rape takes place once in every 29 minutes, sexual harassment in every 53 minutes, molestation once in every 15 minutes, cruelty by husband or relatives in every 9 minutes & dowry death in every 77 minutes. Considering such a scenario, the 2013 Amendment in criminal law can only be called as an attempt in the direction of reduction of crime against women in our society. What needs to be done is for people to understand that changing laws on paper won’t help much in reducing the rape cases; it’s actually the mindset of people when it comes to women that need to be worked on. Legislature can only incorporate new or amend existing laws, it’s ultimately US who have the power and authority to make it happen. “BE THE CHANGE YOU WISH TO SEE IN THE WORLD”.