The mere thought of a physical assault is enough to send chills down the spine. Rape is not only a heinous crime but an issue of great concern. If reports and surveys are believed, it is the fourth most common crime against women in India.
The offence involves sexual assault by way of sexual intercourse or other types of sexual penetration that the offender commits against the victim's consent. This victim can be a man or a woman who does not consent to such an act of sexual intercourse.
History of the offence and punishment in India
Before 1860, there were often diverse and conflicting laws prevailing across India. With the codification of Indian laws through the Charter Act, 1833, ‘rape’ was first identified and introduced as an offence in the Indian Penal Code (IPC) in 1860. Enacted in October 1860 and enforced on January 1, 1862, the Indian Penal Code formulated the substantive law of crimes.
Chapter XVI, Section 299 to 377 of the IPC deals with the offences affecting the human body. There is a separate heading for ‘sexual offences’ that encompasses Section 375, the offence, Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D Section 376-E, punishments for the offence. Rape is defined in Section 375 of the Indian Penal Code as follows:
A man is said to commit ‘rape’ if he:-
- penetrates his penis, to an extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person, or
- manipulates any part of the body of a woman to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
- Firstly- Against her will
- Secondly- Without her consent
- Thirdly- 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
- Fourthly- 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
- Fifthly- With her consent when, at the time of giving such consent, because 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
- Sixthly- With or without her consent, when she is under eighteen years of age.
- Seventhly- When she is unable to communicate consent.
Thus, according to Section 375 of the IPC, rape can be explained as a punishable act of sex by a man with a woman if done against her will or without her consent. Here, the definition clarifies that there must be a lack of consent for the offence to be committed.
Punishment for Rape in India -
When dealing with penalization for the offence of rape, Section 376 lays down strict punishments that differ from case to case. Earlier, Section 376 of the IPC provided a minimum punishment of 7 years of jail term and a maximum punishment of life imprisonment to the offender. There was a need for stricter laws, but the issue was never given the attention that it deserved. However, the 2012 gang rape case that took place in New Delhi shook the entire nation. The judicial system was thus forced to bring about several changes in the laws relating to the sexual offence of rape in the country.
The Criminal Law (Amendment) Act of 2013 was enforced on April 2, 2013, to increase jail terms in most sexual assault cases and created new offences such as the criminal force on a woman with intent to disrobe, stalking and voyeurism. The minimum jail term for rape, which had remained unchanged since the IPC introduction in 1860, was increased from seven to ten years. The Act also provided for the death penalty in rape cases that caused the death of the victim or left her in a vegetative state and increased the punishment for gang rape to a minimum punishment of 20 years of jail term and maximum punishment of life imprisonment from the earlier minimum punishment of 10 years to maximum punishment life imprisonment. The provisions under the Act of 2013 defined offences such as the use of unwelcome physical contact, demand or request of sexual favours and showing pornography against a woman's will. As there was no specific provision in law to allocate punishment for such offences, the Act of 2013 was enforced with the necessary changes.
Further, the January 2018 nationwide protests in response to the rape and murder of an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir led to the harsher provisions in cases of assault minors. Hence, after the enforcement of the Criminal Law (Amendment) Act, 2018, the death penalty was introduced as a punishment for the rape of a girl less than 12 years of age. According to the Act's provisions, the minimum punishment for rape of a girl less than 12 years of age is 20 years in jail.
Today, the offence of rape is an issue that plagues the world. What the victims need is stricter laws and support from society. Rape is the most underreported crime in the country because our society is conditioned to blame the victim in such cases. It is time that we put an end to this rape culture and demand justice for the victims. The judiciary must also realize that harsher punishment for the offenders is the only to deal with the rising number of rapes in the country.
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Author: Jinal Vyas