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ANALYSIS OF PROBLEM OF RAPE IN INDIA AND LAWS RELATED TO IT



Introduction


“Rape is one of the most terrible crimes on earth and it happens every few minutes. The problem with groups who deal with rape is that they try to educate women about how to defend themselves. What really needs to be done is teaching men not to rape. Go to the source and start there.”Kurt Cobain

Rape has been described as an offence in all jurisdictions since time immemorial. The term "Rape" signifies to sexual wrong that basically involves sexual penetration of any form done against a person without consent. Term "Rape" derives its origin from past participle of Latin term "Rapere" meaning 'to seize, carry off by force or abduct'. Rarely this term was also used for sexually violate'. The term has a connection to Low German and Dutch term 'Rapen' in same sense. Indian Penal Code (Act of 1860) (hereinafter, 'IPC' or 'the Code) criminalizes the offence of Rape under Chapter XVI (Offences against human body), 'Sexual Offences' through Ss. 375 and 376. S.375 provides for the definition of Rape and S.376 provides for its Punishment. Ss. 376A to 376E provide for different incidences of Rape.


Definition


S. 375 as amended by Criminal Law (Amendment) Act 2013 on 3"February 2013 lays down the definition of Rape.


2 Prior to the amendment in 2013 the age of girl at which she could give consent was sixteen years and above.

3 After the amendment, the age at which her consent shall be considered to be valid consent under the Act had been increased

to 18 years.

4 Marital rape had not been included in the definition of section either before the amendment or after it.


A total of 50,74,634 cognizable crimes comprising 31.32.954 Indian Penal Code (IPC) crimes and 19.41.680 Special & Local Laws (SLL.)crimes were registered in 2018. Though it shows an increase of 1.3% in registration of cases over 2017 (50,07,044 cases), however, crime rate per lakh population has come down from 388.6 in 2017 to 383.5 in 2018.During 2018, registration of cases under IPC have increased by 2.3% whereas SLL crimes have declined by 0.1% over 2017.Percentage share of IPC was 61.7% while percentage share of SLL cases was 38.3% of total cognizable crimes during 2018. A total of 10,40.046 cases of offences affecting the human body were registered which accounted for 33.2% of total IPC crimes during 2018. out of which hurt (5.30.076 cases) accounted for maximum cases i.e. 51.0% followed by cases of causing death by negligence (1,44,031 cave Kidnapping and Abduction(1.05.734 cases) accounting for 13.8% and 10.2% respectively.




Sexual harassment is nothing but the showcasing of male dominance. Given an opportunity , such men (those committing sexual harassment) would try fulfilling their desire. However, it also not true that every one cases of harassment are such- where the accused is guilty of conceiving the intention of a sexuality . But it also depends on each individual case and circumstances, because it's visiting preferably be the case that the woman also can be guilty .

The question isn't whether women have the right to bodily integrity, as this right is already adumbrated under Article.21 of the Constitution of India. Article.21, which guarantees the right to life and liberty to men and ladies both alike- but whether it's really imperative to want a decisive step towards extirpating this evil and make the contemporary and future society a secure haven for girls .

According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics ask the reported cases. Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of Most cases aren't reported by victims thanks to various reasons like family pressures, the way of the police, the unreasonably long and unjust process and application of law; and therefore the resulting consequences thereof.


Rape is a persuasive problem in societies around the world. India is well on its way to being the rape capital of the world. For women across India, fear is a constant companion and rape is the stranger they may have to confront at every corner, any road, any public place, at any hour. Rape is a growing problem in today's society and it is becoming increasingly difficult to ignore the startling statistics about this crime. This is becoming the fastest growing crime in India. According to latest data of 2018, India stands third in the world when it comes to rape cases.


Sexual violence, particularly rape is a global problem that does not spare any socioeconomic group or culture, especially among adolescents and young adults. Sexual assault is a neglected public health issue in most of the developing countries. The word ‘rape’ has come from Latin word ‘rapio’ which means ‘to seize’. The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud”, or as “carnal knowledge of a woman, by force against her will”. Basically, Rape is the carnal knowledge of any woman above the age of particular years, against her will; or of a woman child, under that age, with or against her will.


Delhi is a place where these incidents have found to be occurring in a lob-sided manner when compared to other parts of India. That is why Delhi leading to be called the rape capital of India. Delhi city accounts for the largest number of incidences of rape in the country. According to a recent report of January 2018, New Delhi had more than five rape cases reported on an average every day last year, and in most incidents the accused was known to the victim, according to Delhi Police data.


The crimes under the Indian Penal Code (IPC)


Sec 375

Before 3 February 2013, Section 375 of the Indian Penal Code defined rape as:

A man is stated to commit "rape" who, except case hereinafter excepted, has sexual intercourse with a female in circumstances falling under any of the six following descriptions:-

Firstly. –– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With her consent, when her consent has been received by way of placing her or any individual in whom she is interested, in fear of death or of harm.

Fourthly. –– With her consent, when the man is aware of 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, by reason of unsoundness of mind or intoxication or the administration of him personally or through another of any stupefying or unwholesome substance, she is not able to recognize the nature and consequences of that to which she gives consent.

Sixthly. –– With or without her consent, when she is under sixteen years of age.

Explanation. –– Penetration is enough to constitute the sexual intercourse necessary to the offence of rape.

Exception. –– Sexual intercourse by a man along with his own wife, the wife not being under fifteen years of age, is not rape.

The above definition excluded marital rape, same sex crimes and considered all sex with a minor under the age of sixteen as rape.

After 3 February 2013, the definition was revised through the Criminal Law (Amendment) Act 2013, which also raised the legal age of minor to eighteen.

A man is said to commit "rape" if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a lady or makes her to do so with him or some other person; or (b) inserts, to any extent, any item or a part of the body, not being the penis, into the vagina, the urethra or anus of a lady or makes her to do so with him or any other person; or (c) manipulates any a part of the body of a women in an effort to purpose penetration into the vagina, urethra, anus or any part of body of such women or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a female or makes her to do so with him or another person, under the circumstances falling under any of the subsequent seven descriptions:

Firstly. –– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With her consent, while her consent has been received by using putting her or any individual in whom she is interested, in fear of death or of hurt.

Fourthly. –– With her consent, when the man is aware of that he is not her husband and that her consent is given because she believes that he's some other man to whom she is or believes herself to be lawfully married.

Fifthly. –– With her consent while, 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 not able to recognize the nature and consequence of that to which she offers consent.

Sixthly. –– With or without her consent, when she is below eighteen years of age.

Seventhly. –– When she is unable to communicate consent.

Explanation 1. –– For the purposes of this section, "vagina" shall additionally include labia majora.

Explanation 2. –– Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or non-verbal conversation, communicate willingness to take part in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by reason of that fact, be appeared as consenting to the sexual activity.

Exceptions – 1. A medical procedure or intervention shall not constitute rape; 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, in not rape.

Even after the 2013 reform, marital rape when the wife and husband live together continued not to be crime in India. Article 376B of the 2013 regulation made forced sexual intercourse by man with his wife– if she is living separately – a crime, whether under a decree of separation or otherwise, punishable with at least a 2-12 months prison term. Forced sex by a person on his wife may also be considered a prosecutable domestic violence under other sections of Indian Penal code, which includes Section 498(A) in addition to the Protection of Women from Domestic Violence Act 2005. The crime of sexual attack on a infant, that is anyone under the age of eighteen, is further outlined and mandatory punishments described in The Protection of Children from Sexual Offences Act 2012.

All sexual acts between the members of the same sex, consensual or forced, was previously a criminal offense under Section 377 of Indian penal code, after the 2013 Criminal Law reform, with punishment the same as that of rape, however it was later overturned in a landmark judgement of the Supreme Court on 6 September 2018 which stated all consensual sexual acts between adults who have met the age of consent are not violative of Section 377, for this reason decriminalizing homosexual intercourse in India.


  1. Rape (Sec. 376 IPC) –


Punishment for rape- (1) 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: 1. Ins. by Act 18 of 1924, s. 4. 2. Subs. by Act 43 of 1983, s. 3 for the heading" Of rape" and ss. 375 and 376. Provided that 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. (2) Whoever, - (a) being a police officer commits rape- (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; or

(b) being a public servant, takes advantage of his official position and Research Journal of Social & Life Sciences, Vol.-32, Year-16, June 2020 14 commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children' s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

(f) Commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with 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.


Explanation 1. - Where a women’s 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 subsection.

Explanation 2.-" women' s or children' s institution" means an institution, whether called and orphanage or a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3. - “hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.


As per section 34 IPC:


“Acts done by several persons in furtherance of common intention: -When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”. Common Intention under section 34 requires a prearranged plan and acting in concert pursuant to the plan. The Criminal act must be done in concert pursuant to the pre-arranged plan. Common Intention does not mean that all the persons should have similar intention. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them. Thus the section can be invoked when the alleged act is done in furtherance of common intention to do a criminal act. The common intention as referred to in section 376(2) relates to the intention to commit rape. But a woman cannot commit rape and hence cannot be prosecuted for “gang rape”. The court however did not express any opinion with regard to abetment, as the issue has not been dealt with by the trial court or the High Court. It was thus held that a women cannot be said to have an intention to commit rape, and the appellant (Priya Patel) therefore cannot be prosecuted under section 376(2) Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or against a person who is incapable of UGC Journal No. (Old) 40942, Impact Factor 3.928, ISSN 0973-3914 13 valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. The term rape is sometimes used interchangeably with the term sexual assault. Internationally, the incidence of rapes recorded by the police during 2008 varied between 91.6 per 100,000 people in Lesotho with 4.9 per 100,000 people in Lithuania as the median. According to the American Medical Association (1995), sexual violence, and rape in particular, is considered the most underreported violent crime. The rate of reporting, prosecution and convictions for rape varies considerably in different jurisdictions. The U.S. Bureau of Justice Statistics (1999) estimated that 91% of U.S. rape victims are female and 9% are male. Rape by strangers is usually less common than rape by persons the victim knows and several studies argue that male-male and female-female prison rape are quite common and may be the least reported forms of rape. When part of a widespread and systematic practice during international conflict, rape and sexual slavery are recognized as crimes against humanity and war crimes. Rape is also recognized as an element of the crime of genocide when committed with the intent to destroy, in whole or in part, a targeted ethnic group. People who have been raped can be severely traumatized and may suffer from posttraumatic stress disorder;[18] in addition to psychological harm resulting from the act, rape may cause physical injury, or have additional effects on the victim, such as acquiring of a sexually transmitted infection or becoming pregnant. Furthermore, following a rape, a victim may face violence or threats thereof from the rapist, and, in some cultures, from the victim's own family and relatives.

Amendments to the laws relating to rape and related provisions- The need for a new law on sexual assault was felt as the present law does not define and reflect the various kinds of sexual assault that women are subjected to in our country. The Supreme Court in Sakshi vs. union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes. The law commission had examined the entire law relating to rape and sexual assault in IPC and suggested a complete overhauling of the law. Bill, drafted by Ms. Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women.


Assault on women with intent to outrage her modesty (Sec. 354 IPC)


(1) Any man who—

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) Monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who pursued it proves that-


  1. it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

  2. it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

  3. in the particular circumstances such conduct was reasonable and justified.


(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.


Section 509 - Word, gesture or act intended to insult the modesty of a woman.

Section 509 IPC, as defined under the code states as, “Whoever intending to insult the modesty of a woman, utters any word, makes any sound, or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine”.

Sec 509 IPC is one of the most important sections of the Indian Penal Code. The object of this section is to protect the modesty and chastity of a woman. To establish an offence under this section, a person requires the following essential elements. These are as follows:

  • Intention to insult the modesty of a woman,

  • The insult must be caused-

  1. by uttering some word, or making some sound, or gesture or exhibiting any object or so as to be heard or seen by such woman, or

  2. by intruding upon the privacy of such woman.



Amendments to the laws relating to rape and related provisions-


The need for a new law on sexual assault was felt as the present law does not define and reflect the various kinds of sexual assault that women are subjected to in our country. The Supreme Court in Sakshi vs. union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes. The law commission had examined the entire law relating to rape and sexual assault in IPC and suggested a complete overhauling of the law. Bill, drafted by Ms. Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women.


Landmark Cases

Nirbhaya case

The victims, a 23-year-old woman, Jyoti Singh and her male friend, were returning home on the night of 16 December 2012 after watching the film. They boarded the bus at Munirka for Dwarka there are only six others on the bus, including the thrust . one amongst the lads , identified as minor, had involved passengers telling them that the bus was going towards their destination. Her friend became suspicious when the bus deviated from its normal route and its doors were shut. When he objected, the group of six men already on board, including the actuation , taunted the couple, asking what they were doing alone at such a late hour. During the argument, a scuffle ensued between her friend and thus the group of men. He was beaten, gagged and knocked unconscious with an iron rod. the lads then dragged Jyoti to the rear of the bus, beating her with the rod and raping her while the busman continued to drive. A report later said that she suffered serious injuries to her abdomen, intestines and genitals because of the assault, and doctors said that the damage indicated that a blunt object (suspected to be the iron rod) may are used for penetration

Putting the last nail within the coffin for the Nirbhaya death house convicts who were hanged this morning, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the bottom that his plea of juvenility had not been finally determined and this aspect wasn't kept in sight by the President of India while rejecting his mercy plea.

The hearing that happened late in the dark at 2:30 AM. The Court rejected Pawan’s plea of juvenility and held that the said plea has already been duly considered and rejected by the Courts before and there was no got to enter it again. On the contention that thanks to torture within the prison the petitioner had sustained head injuries which he was sutured with quite 10 sutures and proper treatment wasn't given to the petitioner, the Court held, “The alleged torture, if any, within the prison can't be a ground for review of the chief order passed under Article 72 of the Constitution of India rejecting the mercy petition.” On the bottom that petitioner won't have shared the common intention along side other co-accused which he can't be imposed the grave execution , the Court said that the said ground has been considered both by the court also because the supreme court and by this Court and therefore the petitioner Pawan Kumar Gupta has been found guilty and convicted. Hence, dismissing the petition the Court concluded, “when the facility is vested within the very high contitutional authority, it must be presumed that the said authority had acted carefully after considering all the aspects of the matter.” The 23-year-old paramedic student, mentioned as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 during a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. The friend with whom Nirbhaya boarded the bus was also beaten, gagged and knocked unconscious with an iron rod by the accused. He suffered broken limbs but survived.


Hathras case


The Hathras case is one among the foremost prominent examples of the rape of a Dalit woman receiving sustained national attention in India. The incident happened on 14 September 2020, when the victim, a 19-year-old Dalit woman visited a farm to gather cattle fodder. Four men — Sandip, Ramu, Lavkush and Ravi — allegedly dragged her away by dupatta round her neck injuring her medulla spinalis within the process. The four upper caste men accused of rape allegedly belong to the Thakur caste The violence left her paralyzed with a severe medulla spinalis injury. Her tongue was stop .The perpetrators had tried to strangulate the girl as she resisted their rape attempt. She ended up biting her tongue while being strangled.[ Her cries were heard by her mother, who came to the spot to seek out her lying down within the farm. She was initially taken to the Chand Pa police headquarters, where the police rejected her claims and, consistent with the family, humiliated them The police registered a complaint only on 20 September. The police were ready to record the victim's statement on 22 September. In her three recorded statements she mentioned that "she was raped" and was strangulated when she attempted to resist.[ The victim was initially admitted to the Nehru Medical College and Hospital in Aligarh on 14 September,[ together with her medulla spinalis severely damaged. She was later shifted to the Safdarjung Hospital in Delhi after her condition worsened. Consistent with the police, the victim had been strangled together with her dupatta. She died on 29 September 2020 Police have arrested the four accused — Sandip, Ramu, Lavkush and Ravi — on charges of plan to murder, gang rape and violations of the Scheduled Caste and Scheduled Tribe Act, 1989

India’s rape problem is basically devastating when a lady was violently gang-raped and murdered on a bus in Delhi. The victim, named “Nirbhaya” (fearless) by the Indian media thanks to laws against identifying rape victims, died during a hospital . Both cases were terrible crimes, the difference within the state’s treatment of the 2 victims reveals something about caste. The Hathras offense was very almost like Nirbhaya. Within the case of Nirbhaya, the state tried its best to form her survive. But within the case of Hathras, she was admitted to an area hospital. Even after she died, she wasn't given the respect of her body.

Submitted by AYUSHI GURNANI


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