Aashi Upadhyay

Rape is the fourth most common crime against women in India. Rape is one of the most common crimes against women in India. It is reported that every 15 min, a woman is raped in India. The majority of reports reveal that the youth of females is a vulnerable group for rape victimization. According to experts, only 10% of rapes are reported, and the conviction rate for rape cases is as low as 24.2%. According to the National Crime Record Bureau 2013 report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by some known persons of the victim (98% of the cases).

Section 375 in the Indian Penal Code

SECTION 375: – A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has intercourse with a woman in the following conditions:

Against her will.
Without her consent.
With her consent but during consent, it has been taken by putting her or anyone she is interested in, in fear of Hurt or death.
When she gives consent to a man who knows that he is not her husband but the woman believes that she is lawfully married to him.
When she gives consent because of an unsound mind, she is intoxicated or she is unable to identify or understand the consequences to which she is consenting.
If she is not 18 years old (with or without consent).
When the consent cannot be communicated.

The exception to Section 375

Sexual intercourse by a man with his wife, the wife not being under sixteen years of age, is not sexual assault.

Child marriage in India is not yet void and is only voidable, such a check was necessary to restrain men from taking advantage of their marital rights prematurely. No man can be guilty of marital rape if she is over 15 years of age on account of the matrimonial consent that she has given.

BURDEN OF PROOF

Unnatural offenses are covered in IPC under section 377. Section 377 of the Indian Penal Code 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 10 years, and shall be liable to fine”. As per the explanation provided under this section, penetration is sufficient to constitute carnal intercourse. The section corresponds to the offenses of sodomy and bestiality under English law. As evident from the language of the section, consent is wholly immaterial in the case of unnatural offenses and the party consenting would be equally liable as an abettor. This section is vague as what is against the order of nature is not possible to define objectively. What is natural and what not is a subject of debate and has led to much confusion. As per this section, homosexuality is construed as an unnatural offense and 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 the section.

TYPES of rape

Forcible date rape

The term “date rape” or “acquaintance rape” refers to rape or non-consensual sexual activity between people who are already acquainted, or who know each other socially – friends, acquaintances, people on a date, or even people in an existing romantic relationship – where it’s alleged that consent for sexual activity was not given or was given under undue influence. The vast majority of rapes are committed by people who already know the victims.

Drug facilitated date rape

Various drugs are used by rapists to render their victims unconscious, some also cause temporary memory loss.

Marital rape

Also known as spouse rape, wife rape, husband rape, partner rape, or intimate partner sexual assault (IPSA), is rape between a married or de facto couple.

It is often assumed that spousal rape is less traumatic than that of a stranger. Research reveals that victims of marital rape suffer longer trauma than victims of rape from strangers, possibly because of a lack of social validation that prevents a victim from getting access to support; a problem that domestic violence services combat. Different countries hold different rape laws. In India marital rape is still not unconstitutional.

Rape of children by parents, elder relatives, and other responsible elders

This form of rape is incest when committed by the child’s parents or close relatives such as grandparents, aunts, and uncles. It is considered incestuous in nature but not in form when committed by other elders, such as priests, nuns, or other religious authorities, teachers, or therapists, to name a few, on whom the child is dependent.

Children, including but not limited to adolescents, raped by their parents and other close relatives are often called ‘secret survivors’ by psychologists, as they often are unable or unwilling to tell anyone about these rapes due to implicit or explicit threats by the adult rapist, fear of abandonment by the rapist, and overwhelming shame. Since the signs of these insidious rapes are usually invisible except to trained professionals; these children often suffer ongoing offenses in silence until independence by an adult rapist is attained.

Group rape

Group rape (also known as “gang” or “pack” rape) occurs when a group of people participates in the rape of a single victim. 15% to 20% of rape cases involve more than one attacker. It is far more damaging to the victim, and in some jurisdictions, is punished more severely than rape by a single person. The term gang bang was a synonym for gang rape when public discussion of sexual activity, in general, was taboo; in the advent of the pornography industry and relaxed sexual tensions, that term is now often used as a slang term for consensual group sex.

This is also related to rape as means of warfare, where the gang mentality is highly predominant.

Rape as means of warfare

This is also known as ‘war rape.’ During the war, rape is often used as means of psychological warfare in order to humiliate the enemy and undermine their morale badly. Rapes in war are often systematic and thorough, and military leaders may actually encourage their soldiers to rape females.

Why does India have an increase in sexual violence cases?

Less number of female police- can be one of the reasons for the sexual violence in India. Whenever a woman is being raped she is more likely to report her case to a female police officer. Historically speaking of which New Delhi has less than 10% of female police officers.
Blaming of indecent clothing- The Indian society assumes that the victim’s sense of clothing attracts men for Rape. This has been proved in a survey of Indian judges where 68% of the respondents agreed to the same point.
Accepting domestic violence – Indian society sees domestic violence to be something deserving. UNICEF, in one of its reports, found that 57% of Indian boys and 53% of Indian girls think that beating a wife is justified.
No public safety- Women who drink, smoke, or go on late-night outings are seen as immoral in most Indian societies and are the reason for being raped. Society thinks are fine with this kind of reasoning behind rape then women in India are definitely not safe in public places.
Discouragement of rape victims to compromise- Most Indian families do not file cases thinking, about what society will think and they often advise victims to stay away from the haphazard caused after rape in the police station. This is the sole reason for less registration of rape cases in India.

Though there are laws being framed to protect the victims of rape and to give them their legal rights, still there is a problem in the implementation of laws that are being framed.

Rights of RAPE VICTIMS

Right to Zero FIR.
Free Medical treatment in ANY hospital.
No two-finger test during a medical examination.
Harassment-free & time-bound police investigation.
speedy trial with full dignity and protection.
Right to seek compensation.

Preventive measures against rape

Till the time female do not get full safety from the government’s end, we can keep ourselves safe from our ends by

Conducting sessions related to safety measures for every female.
Creating awareness about what constitutes rape, good touch, and bad touch for kids.
Most importantly, raising the boys right since birth will be the most important measure that will lead to a huge decrease in the number of rape cases.

PUNISHMENT FOR RAPE IN SECTION 376 OF IPC

It states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment of not less than ten years, but can extend to life imprisonment, which shall mean imprisonment for the remainder of that person’s life, and shall also be liable to fine.

Police officer within the jurisdiction of the police station.
A police officer on the premises of any station house.
A police officer on a woman in the police officer’s custody.
Public servant on a woman’s in his guardianship.
Member of the military.
Any person in the management of the jail, remand home, etc. on inmate of such place.
Staff of a hospital on a woman in that hospital.
By a person who is in a position trust or authority or control or dominance towards a woman on such woman.
During communal or religious violence.
On a pregnant lady.
On a woman less than 16 years of age
On a woman inept of giving consent.
On a physically and mentally disabled woman.
Who causes grievous bodily harm or endangers the life of the woman.
Who commits rape repeatedly with the same woman

CASE LAWS

Nirbhay Case – On 5 May 2017, the Supreme Court rejected the convicts’ appeal and said they had committed “a barbaric crime” that had shaken society’s conscience, the court upheld the death sentence of the four who has 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 4/5/2020 a 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. Five men, including the alleged rapists, have been arrested, by police.
Vishaka vs. State of Rajasthan and Ors – A landmark case regarding the protection of women against sexual harassment at the workplace. It was the incident of 1992 where a lower caste social worker for the women’s development program in Rajasthan named Bhanwari Devi, 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 those offenders but no thorough investigation took place. 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 a violation of women’s human rights.
State of Maharashtra vs. Madhukar Narayan Mardikar – A police inspector of Bhiwandi town police station alone in uniform at 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 make out with her as if he carried out a prohibition raid. Inspector advocated that he raided her hutment on grounds that she was engaging in the dealing of illicit liquor.Bombay High Court held that he cannot be removed from his service since Banubi was a woman of immoral character. Court held “she was an unchaste woman and it would be unsafe to allow the career of that inspector to be put in jeopardy on the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person.”

Conclusion

Judiciary plays a vital role in finding a proper solution to rape cases. Laws should be rigid but allow some sense of flexibility while deciding such intense matters. Everyone is trying nowadays to bring into light the saddening part of our society and their approach towards rapes. Nowadays, Film industries are also trying to spread awareness by releasing movies on sensitive topics like Section 375, Pink, etc. Whereas there have been no strict rules framed for the protection of rape victims which shows the positive side of the picture, statistics show the actual side. If the laws are to adhere to such unlawful activities, the court and the legislation need to make some changes. The reason being the laws remain the same and the number of victims keeps on increasing annually.

There needs to be some political sensitivity, judicial sensitivity, special courts, and various training programs to be able to control the worsening situation, and most importantly there should be special webinars for males to teach them all about female sentiments that deeply get hurts after they get raped so that these types of sessions provide them with some sensitivity towards females. Our education system should also teach students about good sexual relationships between two consenting individuals and should openly talk about sex then only males will be able to know that consent from a female side is also important.