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Published : April 16, 2013 | Author : siddharthlaw
Category : Criminal law | Total Views : 14906 | Rating :

Siddharth Mehta is a third year student of BA.LLB(H) at Amity Law School,Delhi(IP University).He has authored articles on various issues of national and international significance such as Piracy on High Seas, Commercial Surrogacy In India, Maritime Terrorism, Enforced Disappearances,ICC and the Crime of Aggression etc.

Rape Law In India: Problems In Prosecution Due To Loopholes In The Law

The article revolves around the law established for rape in India. Taking Section 375 and Section 376 of the Indian Penal Code as the base, the article moves towards numerous aspects indicating the areas which need attention. It uncovers the deficiencies in the rape law beginning with the analysis on the narrow definition of rape in the Indian Penal Code, keeping in view the definitions of rape in the Sexual Offences Act, 2003 of England and the Criminal Law Consolidated Act, 1935 of Australia as well as the 172nd report of the Law Commission of India. The current law does not take into account acts of forced oral sexual intercourse, sodomy and penetration by foreign objects, which needs urgent attention as the impact of these can destroy the physical frame of the victim and defile her soul equally. Considering this requirement, the article talks about the proposed Criminal Law Amendment Bill, 2010 which aims at removing the present anomalies in the archaic definition of ‘rape’ in section 375. There are various questions which haunt the judiciary on matters of ‘consent’ and ‘conduct of the victim’. A theoretical analysis, backed by observations on landmark cases, is put-forth on the various questions revolving around the rape of a girl of ‘easy virtue’. The article further submits the analysis on the derogatory practice of the Per Vagina Test and how it comes-up as an anathema for Indian women. The article triggers the broad debate on castration being a befitting sentence on any paedophile or any serial offender.

Women are the only oppressed group in our society that live in intimate association with their oppressors. So in the end, it is about making the law black and white for all. On the whole, the article goes in deep details of the rape law - both in theory and practice, suggesting changes and unveiling the loopholes & misuse it invites. Studying the laws, the process, the application of those laws, one thing is certain- the entire structure of dispensation of justice needs an over haul, otherwise the victim shall no longer be the woman alone, but humanity at large.

Rape: Meaning And Extent
Perhaps the most heinous crime against a woman is commission of rape. The word rape has been derived from the Latin term ‘rapio’ which means to ‘to seize’. Rape is “to seize or take by force”. Black's Law Dictionary defines rape as" the unlawful carnal knowledge of a woman by a man forcibly and against her wil" l. As far as the Indian Penal Law is concerned, the definition of Rape is contained in Section 375 of the Indian Penal Code and the punishment is prescribed in Section 376 of the code.

Section 375 of the Indian Penal Code clearly states that a man commits ‘rape’ when he has sexual intercourse with a woman if he fulfills six conditions. First, if he does it against her will, secondly, when it is without her consent. Thirdly, when he has her consent but he consent has been obtained by putting her 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 believes herself to be lawfully married. Fifthly, when her consent is obtained because of unsoundness of mind or intoxication, stupefication, she is unable to understand the nature and consequences of what she is consenting to. Lastly, with or without consent, when she is under sixteen years of age. Also, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Penetration does not mean full penetration, but certainly means penetration by the male organ within the pudendum of the woman.
As per Halsbury’s Law of England :

[I]t is not necessary to prove the completion of sexual intercourse by the emission of seed; intercourse is deemed complete upon proof of penetration only. The slightest degree of penetration is enough. If penetration cannot be satisfactorily proved, the defendant may be convicted of attempted rape; if the intent is not proved, he may be convicted of indecent assault.

But, sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape at all.

From a careful perusal of the aforesaid section, two things can be ascertained; that a rape can only be committed by a man and it can only be committed against a woman.

In the past, women in Ireland and England have been convicted for the offense of rape . But under the Indian Penal Code, a prosecution for the offense of rape is not maintainable under Section 376.

However, a woman can be convicted of abetment of rape under Section 109. Civil Society Groups in India have been demanding a gender neutral rape law so that “sexual assault” against men can be proceeded against under the same statute.

This definition only takes into account forced acts of penile-vaginal intercourse, it leaves instances of forced penile/oral, penile/anal, finger/vaginal or object/vaginal out of its ambit. The impact of these offences is in no manner less than the trauma of penile/vaginal intercourse; however, no amendment has been effected as of today to include these offences in the definition of rape.
Let us examine the definition of rape as per the penal laws of other nations.

The definition of Rape laid down in Sexual Offences Act, 2003 of England includes acts of intentional penetration of the vagina, anus or mouth of the complainant, without their consent . The definition is very wide, it includes within its ambit all sorts of forced sexual intercourse whether effectuated by penetration or otherwise. Thus, sexual abuse through insertion of inanimate objects in the vagina, anus or mouth is also treated as rape. Another significant feature of this definition is that it conceives rape as a gender neutral offence, which is to say that rape can be committed on members of either of the two genders and by women also.

Section 5 of the Criminal Law Consolidated Act of Australia includes anal and oral sex without the consent, in the definition of rape.

As per Section 3 of the Sexual Offences Act of South Africa rape is defined as: Any person who unlawfully and intentionally commits an act of sexual penetration with a complainant, without the consent of the complainant, is guilty of the offence of rape.

And "sexual penetration" is defined as: Any act which causes penetration to any extent whatsoever by- the genital organs of one person into or beyond the genital organs, anus, or mouth of another person; any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or the genital organs of an animal, into or beyond the mouth of another person

Implications Of The Loophole
The implications of these loopholes are that any act of forced sexual intercourse that doesn’t involve penile vaginal intercourse is not considered ‘rape’. These offences are dealt with under Section 354 and Section 377 irrespective of the fact that the above mentioned offences are as derogatory and humiliating as the offence of forced penile/vaginal intercourse is.
It is worthwhile to note that forced non-vaginal intercourse is usually practiced on children and in such cases this loophole in Section 377 defeats the very purpose for which a differential treatment was envisaged under Section 376 (2) (f).

There are some very pertinent reasons that necessitate the amendment of Section 376 and bringing a change in the definition of ‘rape’. These are:
Forced sexual intercourse where penetration is not effected is dealt with under Section 354 and is considered a less grave offence. The punishment prescribed for this section is not consistent with the gravity of the crime, it is not only a bailable offence but it is compoundable also which effectively means that there is a strong likelihood of a victim being compelled to withdraw her case

Offences in the nature of penile/anal intercourse, penile/oral intercourse, object/vaginal intercourse are covered under Section 377.This archaic law was enacted not to punish such offenders but to punish homosexuality, thus consent is no defence for a charge of unnatural sex. Therefore, this section places forced sexual intercourse at the same pedestal with consensual sexual intercourse.

Section 354 and Section 377 prescribe no minimum punishment and therefore, no obligation on the courts to record any special reasons on record for giving a lesser sentence to an offender. A careful perusal of some of the judgments of the Supreme Court would lend credence to the fact that there has been a judicial tendency to show undue leniency towards offenders of sexual crimes.
In Raju v. State Of Haryana , a young boy aged 20/21 years had committed sodomy on a hapless girl of 9 years of age for which was sentenced to 3 years imprisonment. On appeal the sentence was reduced to 6 months citing young age of the appellant as a reason. However, the court failed to take into account the ‘age’ of the victim and the unimaginable trauma that the appellant’s ghastly act had caused to her.

Similarly, in Chittaranjan Das v. State of Uttar Pradesh , the court reduced the sentence of the appellant, a ‘highly qualified and cultured individual’ who had committed the offence of sodomy on a young girl, to 2 months. The loss of service of the appellant as a result of the conviction was cited as a reason.
The result of these cases would have been different if these offences would have fallen under Section 375 since there is an obligation on the part of the courts to impose a minimum sentence as laid down in Section 376.

Under Section 327 (2) of the Criminal Procedure Code, there is no obligation on the part of the court to provide an in camera trial to the victims of offences under Section 354 and Section 377. Although, this issue has been addressed by the Supreme Court in Sakshi v. Union of India , however Section 228 A of the Indian Penal Code has still not been amended to ensure that the victim’s identity is protected. This means that the public authorities, courts as well as the media are not bound to protect the identity of a victim of the said offences.

In Phul Singh v. State of Haryana, it was clearly held that the benefit of Section 4 of Probation of Offenders Act, 1958 cannot be accorded to a person who commits a “reprehensible crime of rape”. However, there is no law to ensure that the benefit of this act is not given to a person convicted of an offence under Section 354 or Section 377.

There has been an alarming rise in the cases of sexual abuse of children, if a girl child is subjected to forced non vaginal , non anal sexual intercourse then the offender would be punished under Section 354, however, if a boy is subjected to the same then the offender will only be booked for the offence of “voluntarily causing hurt” or “use of criminal force”. It is submitted that the punishment prescribed in the code for these offences is not at all consistent with the gravity of these offences.

The current law presumes that the offence of rape can only be committed against a woman by a man. However, as mentioned above, there have been reported cases in UK wherein, women have been convicted for committing the offence of rape. Assuming that a woman subjects another woman to forced sexual intercourse through the use of an inanimate object or otherwise then she cannot be booked for any offence under IPC since penetration is a necessary element for establishing an offence under Section 377. Further, Section 354 also assumes that a woman cannot outrage the modesty of another woman.

This narrow definition of rape has been criticized by Indian and international women’s and children’s organizations and civil society organizations. Their reasons have been succinctly encapsulated in the famous Public Interest Litigation of Sakshi v. Union of India :

[...]The interpretation [by which such other forms of abuse as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and violence all over the world. There has been for some time a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behavior.
The petitioner in this case placed reliance on the following reference from Susan Brownmiller’s book “Against our will” to support this contention and to challenge the current interpretation of rape.
[..] In rape ....the intent is not merely to "take", but to humiliate and degrade ..... Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist's favorite weapon, his prime instrument of vengeance......it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the "natural" thing. And as men may invade women through other offices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self?

It was contended by the petitioner that the court should interpret Section 375 to include all forms of penetration such as penile/vaginal, penile/oral, penile/anal, object/oral, object/vaginal etc. within its ambit.

The court however declined to accept this on the ground that penal laws are to be interpreted strictly and doctrine of stare decisis has to be followed.

The 172nd Report of the Law Commission of India had made the following recommendations for substantial change in the law with regard to rape.
i. The term ‘Rape’ should be replaced by the term ‘sexual assault’.
ii. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal and ‘sexual assault on any part of the body should be construed as rape.
iii. Rape laws should be made gender neutral as custodial sexual abuse of boys is rampant.
iv. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
v. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
vi. The commission recommended that explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.

Thus, there is an urgent need to redefine ‘rape’ and to incorporate the above mentioned recommendations in the definition of rape in order to ensure that there is no travesty of justice.

Conduct Of The Victim And The Per Vagina Test
There are many questions which torment the judiciary compelling immediate attention- one of the major worries being the victim’s sexual history. What to do when a rape case is brought before the judiciary, wherein the girl is of ‘easy virtue’? How should it affect the punishment; whether one should escape punishment or get a reduced punishment for raping a girl with loose morals? And, whether the ‘consent’ should be inferred or not?

In State of Maharashtra v. Madhukar Narayan Mardikar (http://www.legalservicesindia.com/forum/topic91-maharashtra-v-madhukar-narayan-mardikar-merely-because-a-woman-is-of-easy-virtue-her-evidence-cannot-be-thrown-overboard.html) , the matter went to Supreme Court where Ahmadi, J. commented-

[...] Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not 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 it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.

Tukaram v. State of Maharashtra ( http://www.legalservicesindia.com/forum/topic48-tuka-ram-and-anr-vs-state-of-maharashtra-landmark-judgment-on-rape.html )showed the negative side of the ‘finger-tests’. This infamous case known as the ‘Mathura case’ made everybody see the criminal justice-system of India differently and uncovered shocking revelations to it.

In this case, Mathura was examined by Dr. Kamal Shasatrakar. The girl had no injury on her person but her hymen revealed old ruptures and the vagina admitted two fingers easily.
Therefore, it was indicated that Mathura was used to sexual intercourse. This judgment highlighted several problems that existed in the then prevalent criminal law. Some of them are: the issue of consent, the reference to the girl’s sexual history, the reference to two-finger tests and the question of burden of proof.

In this connection, it would be worthwhile to examine Section 155 (4) of the Indian Evidence Act, 1872 as it existed at that time. It said that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

The effect of the above section was that in every rape case, the defence was used to plead that the victim was of an immoral character. It had become so easy for the defence to question the credibility of the victim through the inhumane and severely degrading practice of ‘finger tests’. In view of this, the aforesaid provision was finally omitted by an amendment made in the said Act in 2002; this was done after the 172nd Law Commission Report recommended the deletion of this clause. Further, a provision was added in Section 146 of the aforesaid Act which said that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross examination of the prosecutrix on to her general immoral character.

All these arguments on the conduct of the victim, her sexual history and her loose virtues go against the validity of the Per Vagina Test. This test has come-up as an anathema for Indian women and despite being a derogatory practice, has still not been abolished. There are a series of judicial observations which go against it. Additional Sessions Judge, Kamini Lau observed that:
[T]he test is violative of the fundamental right to privacy of the victim……State action cannot be a threat to the constitutional rights of an individual. What has shocked my conscience is that this test is being carried-out in a routine manner on victims of sexual offences (over minors) by doctors.

Even as the higher courts in India have laid down guidelines on ''maintaining the dignity'' of the victim during a rape trial, use of finger test by the doctors on rape victims still continues. Taking a step forward to ensure the rights of a woman, a trial court has held that such medical examination (finger test) is "obsolete" and "violative of the fundamental rights" of a woman.

[I]t is this test which is the cause of concern. It is being routinely conducted by the doctors on the victims of sexual abuse and rape be it a minor, unmarried girl or married woman, without having any regards to the fact that the opinion of the doctors rendered after conducting such a test has no bearing with regard to the guilt or otherwise of the accused. the court said.

The court's observations came while hearing the rape case of a minor child. After going through the medical examination report of the victim, the court was shocked to know that the child had to undergo the PV test, which is done to determine if the person is ''habituated to sex''. The court questioned the validity of the test stating that how a test could establish if the victim was lying only on the basis of the status of her previous sexual life. ASJ Lau asked:"The character evidence of a rape victim is no longer admissible in evidence, how can this test (PV Test) which only permits the doctor to state if the woman is habituated to sex or not, continue to inform the rape trials,' ' .Maintaining that the existing medical and legal procedures were irrelevant to the trial of the rape cases and were required to be reviewed and ''stopped forthwith'', the court has asked the Directorate of Health, chief secretary of Delhi and the National Commission for Women to take ''appropriate action in this regard".

The Per Vagina Test traumatizes the survivor and gives the defence a stick with which it petrifies the rape victim in court. Victims lose their cases in court as the defence often undermines their testament leaving them astounded. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is so because survivors often wait before they go to police and as a result valuable evidence is lost resulting in several court rulings emphasizing that delay in filing a complaint should not be held against the survivor. It is one derogatory practice that compels immediate focus and should be done away with.

Debate On Castration Of Sexual Offenders
The debate on castration as a punishment for rape has gained momentum with Additional Sessions Judge, Kamini Lau again recommending castration as a suitable punishment for rapists .
She observed that:
[C]astration is the most befitting sentence which can be imposed on any paedophile or serial offender but the hands of this court are tied as the statute does not provide for it. Indian legislators are yet to explore this as an alternative to conventional sentencing. The message to be sent is to be loud and clear and that any person who messes with the child will not be spared.

Noted jurist Fali S Nariman supported the idea mooted by the ASJ and said:
[M]y instinctive reaction is to applaud what has been recently recommended by a Delhi Court. The punishment recommended does fit the crime. The horrendous offence of rape debases and stigmatizes the victim as almost no other offense. It has been proved that a long term imprisonment is no deterrent; something more drastic is definitely required to put the fear in the perpetrator. If you say this is uncivilized, my answer is, so is death penalty for murder.

What is Castration?
Castration is any action, surgical, chemical or otherwise by which a male loses the function of the testicles. Castration is used in many countries as a mode of punishing sexual offenders
Castration is practiced in two ways: One is Surgical Castration: The process of surgical castration, called orchiectomy involves the removal of the testes with the idea that the removal of testes would result in loss of testosterone which would in turn cause elimination of sexual desire. And the other is Chemical Castration: Chemical Castration is practiced by the administration of medication such as Depo-Provera, which has the ability to suppress testosterone and cause a loss of sex drive and reduction in sperm production of the subject.

Many countries use either of the two procedures to punish a sexual offender. California was the first state to specify the use of chemical castration as a punishment for Child Molestation . Later, Florida passed a similar law in 1997. In 2009, Poland approved a similar law which allows forcible castration for paedophiles. In March 2010, Mendoza, a province in Argentina also passed a law which authorizes the courts to punish sexual offenders by chemical castration. Similarly, in Czechoslovakia, even first time sexual offenders can be subjected to surgical castration.

The moot question is can such a law be enacted in India?
The above discussion raises certain pertinent questions regarding the applicability of such a law in India. While the intention of the ASJ in making such a recommendation is commendable, yet, at the same time it is submitted that this form of punishment is a manifestation of a regressive outlook.
If such a law is made it would not be a sound law for a number of reasons
First, the argument of castration as a punishment for rapist is based on the premise that penetration is the only way of committing a rape. It ignores the other ways (already dealt with in this article) in which a rape can be committed. The Criminal Law Amendment Bill, 2010 seeks to widen the definition of rape. If the aforesaid amendment is effected then such a law would lose its relevance, as it is contrary to the definition of rape as envisaged in the amendment.

Secondly, Castration as a form of punishment cannot be sustained, if a gender neutral law is enacted because women cannot be castrated and if castration is advised only for men then the law would most likely fall as it would be violative of Article 14.

Thirdly, Forced Castration is barbaric and is not commensurate with the rights of the prisoners. It is worthwhile to note that the Supreme Court in its various judgments has accepted that prisoners are also entitled to enjoy fundamental rights.

Desai, J. in Harbans Singh v. State of UP pointed out that the conviction of a person for a crime did not reduce him to a non-person vulnerable to major punishments imposed being imposed on him. The SC has also recognized the right of a prisoner not to be subjected to torture . Requiring Castration for rape would mean that it is acceptable to treat prisoners as less than humans.
Fourthly, this argument is based on the premise that Rape is essentially a sex crime only which is not true. Leading psychiatrists are of the view that Rape is about violence, power, domination and humiliation of a victim. It also ignores the fact that many a times repressive societies use rape as a weapon of political persecution. Such incidents have happened in the past in Zimbabwe, Haiti, Libya, and Srilanka etc.

How can castration solve that problem?
Fifthly, there is no evidence to suggest that persons subjected to castration will not commit a sexual crime again. Ales Butala, a member of The Prevention of Torture Committee of The council of Europe noted that:
The delegation that visited the Czech Republic in March and April came across three cases in which the offenders had committed serious sex related crimes, including serial rape and attempted murder, after being surgically castrated.”

Finally, Rape is a brutal criminal act and incarceration should be the punishment for it, looking for medical remedies would be misplaced. Thus, rather than prescribing barbaric punishment like this, there should be an attempt to weed out the problems prevalent in our Criminal Justice System so that criminals are brought to the book. That alone would be sufficient in deterring individuals from committing this heinous crime.

The Criminal Justice system of India needs reconditioning on the rape law. Considering all aforesaid arguments, it can be concluded that the definition of ‘Rape’ needs to widened and should include acts of forced oral sexual intercourse, sodomy and penetration by foreign objects, in theory. There have been instances when absurd questions have been put-forth to the victim by the investigating bodies, regarding the type of clothes she was wearing at that time, about how many times penetration took place, about how long did it take to penetrate her. There is no specific law which safeguards a girl from such treatment. It should be understood that the conduct of the victim holds no importance in matters pertaining to rape and that even a woman of loose morals is entitled to fundamental rights and that nobody can violate her right to privacy, dignity and bodily integrity. Also, the petrifying and derogatory practice of the ‘Per Vagina test’ should be abolished as it is violative of the fundamental rights of a woman rendering it constitutionally invalid and leaving the survivor deeply traumatized. In the end, instead of enforcing barbaric and fierce punishments like castration, the law for rape in India should be critically examined and the legislature should do away with all the anomalies that could possibly pester the victim anywhere during the process of seeking justice.

Authors contact info - articles The  author can be reached at: siddharthlaw19@gmail.com

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