A murderer kills the body, but a rapist kills the soul
J Krishnan Iyer
The term rape originated from the raptus (or raptio) used in Roman Law which meant- “kidnapping or abduction that is to seize a women for sexual violence ”. Rape as an offense in our society is one of the most morally and physically reprehensible crime, it is not only an assault on the body but also to the mind as well as privacy of an individual. The rapist leaves an irreversible deformity in the victim’s life. It offends the supreme honor of women’s life that is her dignity and her esteem. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
Section 375 of Indian Penal Code, 1860 defines rape. A man is said to commit rape when any of the act falls under the clause (a) to (d) along with the seven circumstances provided under the Section 375. For making a man liable under this charge of rape there must be sexual intercourse and without the consent of the women under the following conditions-
Against her will- that is the woman is not willing to have a sexual intercourse with the man, but the man still forcefully had the same with her. This amounts to rape. In Ram Kripal S/o Shyam Lal Charmakar v. State of Madhya 2007 II Cri. L.J. 2302(India) Pradesh the accused forcibly committed sexual intercourse with the victim even after her resistance to the same.
Without her consent- when the man has sexual intercourse with a woman without her consent or the woman is not able to give a valid consent due to insanity or intoxication or minority in such a case the man would be held liable. When a man has carnal intercourse when a woman is asleep and she can’t give consent, the nit amounts to rape. It must be said that now in a custodial rape if the girl says that she did not give consent, the Court shall presume that she did not consent
With consent, by putting the woman under a fear of death or hurt
With her consent, when the man is aware that he is not her husband and the woman is giving consent only and only because she believes that man to be her husband.
When the women are not able to give consent due to unsound of mind, influence of intoxication or the women is below the age of majority to give the consent.
In Krishna Lal v State of Haryana1980 3 SCC 150(India) - A minor girl sleeping on the street at night was taken by the accused and raped her. In Harpal Singh AIR 1981 SC 361(India), held that even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause
The criminal law amendment Act 43 of 2013 played an important role in turning the definition of Rape. the following things were introduced due to this amendment-
Section 114A inserted in The Indian Evidence Act,1872: the burden of proof is on the accused.
Section 228A inserted in IPC,1860- forbidding the disclosure of the identity of the victim. In State of Karnataka v Puttaraja 2004 Cri. L.J. 576(SC) (India), the judge didn’t disclose the name of the rape victim while giving the judgment.
Section 376A inserted in IPC- PVS (Persistent Vegetative State) When an injury caused leads to the death of the victim or the victim is left under the PVS, then the accused must be held liable and punished for not less than 20 years or till Life Imprisonment.
It is a culture where the sexual violence, assault and rape are treated as the norms and the victims are held responsible for the happenings. It's not just about sexual violence but about cultural norms and institutions that protect rapists and encourage their liberty, disgrace the victims, and demand that women make irrational sacrifices to avoid sexual assault. Rape culture pressurizes a woman more, as per rape culture its all the mistake of the woman, she might have done something for which she is being sexually assaulted.
In our society there are different rape myths, which are well-defined as detrimental, stereotyped, or dishonest opinions about rape, rape victims, and rapists. Precise opinion and attitude that contribute the sexual assault by transferring the blame to victims from the lawbreaker. Lonsway and Fitzgerald defined rape myths as “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women.” The sexual myths and attitude toward sexual myths may continue to exist, especially in the young people.
RIGHTS OF RAPE VICTIM
In India the woman, in spite of having a prohibitive approach of criminal law and the National Commission for Women, which has been established under the National Commission for Women Act,1990, to help women against the suppression caused due to social, political and economic subjugation, the women are stilled raped, sexually assaulted and abused.
The Criminal Law Amendment Act (2013) gives the women victim the following rights to fight for the sexual assault.
Right to privacy: while recording the statement of the victim under the section 164 of the CrPC,1973 a woman raped can record her statement when the case is under the trial before the presence of only and only District Magistrate and no one else. Even if she has another option that is – she can record the statement with only one police officer along with a female constable.
Right to protect the identity of the victim: "Raping a woman", according to Mr. L.K. Advani, the Union Home Minister, "is a much more heinous crime than murder, (because) rape reduces a woman to a state of living corpse." Further if her identity would be revealed the society won’t let her live her life with peace and dignity, causing her trouble and would be never led her forget that once she was a victim of Rape.
The law provisions also try to protect the identity of the victim, under the section 228A of IPC,1860 neither the police nor the media can make the name of victim in the general public. Even they are not allowed to disclose any content which would reveal the identity of the victim. This is done to protect the victim from social victimization. In fact, the judge also while giving the judgment mentions her as a victim only.
Right to have a copy of medical report: According to the section 164A of CrPC a victim of the rape needs to be medically examined and the report act as an evidence. Furthermore, the doctor cannot decide whether rape had taken place or not, as it is a legal term and the conclusion could be drawn by the court and the justice system of our country. The victim is also entitled to get her medical reports.
Compensation: In the Indian Criminal law system there is neither comprehensive legislation nor a statutory provision for the purpose of compensation to the victim by state or by the offender. Generally, the courts provide the victim, ex gratia payment, which is discretionary as well as ad hoc, also inadequate. Section 421 CrPC, 1973 has given power to the criminal court to pass the sentence of compensation or fine as per its discretion and further to recover the same it can attach and sale the moveable property of the accused.
Right to live with Human Dignity: the preamble of our Indian Constitution provides its citizens to live a life with dignity (dignity of the individual). Article 21 of the constitution also guarantees “right to life and personal liberty to individuals, except the procedure established by law.” J Bhagwati observed that life is something more than mere animal existence. The article guarantees the rape victim who has been subjected to a coercive nonconsensual (as well as consensual in a set of specified circumstances) sexual intercourse and sexual violence have the right to live with dignity. Therefore, any unlawful trespasser to her right to privacy affects not only her decency but also her self-esteem. In Vishaka & Others v. State of Rajasthan AIR 1997 SC 3011(India)., the court was asked to enforce Article 21 that is right to life of a working women, who has been a victim of a ruthless gang rape and deliberate adjournment in the investigation. The Supreme Court in this case set the guidelines and norms for a suitable mechanism for the payment pf compensation of rape victims. This case helped in fulfilling the legislative space that is the vacuum in the field of payment of compensation.
RAPE MYTHS v REALITY:
Common rape myths are and the reality of such myths-
It is myth that an act of lust, passion and the same cannot be controlled. But the fact or we say the reality is that the sexual assault is a lot about power, Supremacy and control and is not driven by sexual satisfaction.
The Myth of Willingness in consent. There might be some woman willing to have sexual intercourse, but this doesn’t mean that she is giving her consent for the same. The term “consent” and “willingness” are different and in State v Schwab103 Wn.2d 542 (1985);693 P.2d 108(US).“No lexicographer recognizes “consent” as a synonym of willingness, and it is apparent that they are not synonymous.”
People generally have a misbelief (myth) that a lot the victims filed false report that they have been raped and sexually assaulted, for the purpose of taking revenge from the accused or to get compensation from him or to defame that person. But the reality is that only around 3-8% of cases filed against the accused for rape are false, but the gravity of real cases is more, further there are a lot of cases still unreported due to societal pressure and prestige.
There is a myth that women are also willing to have a sex it’s just that they don’t express their view, but from inside they also want to be a part of it. The real fact is that many of the victims were not in position to physically resist or scream.
If the victim doesn’t fight back or resists to the rape, then it is a common belief that they also wanted.
It’s a myth that the spouse or the partner can’t be sexually assaulted. But as per the National Intimate Partner and Sexual Violence Survey, 2011, one out of ten women have experienced rape by their partner in their lifetime.
Rape doesn’t take place often(myth). As per National Crime Records Bureau (NCRB), India’s statistics recorded of 34000 registered rape cases in 2018. The situation is grave as “a woman is raped in India in every fifteen minutes.”
Victims behavior, clothing or drinking a lot of alcohol means she is asking for sexual conduct, one of the most insane myths the society is having, the truth is that the accused selects the victim- the victim’s behavior or conduct doesn’t matter to him.
People think that rape is committed only by the strangers, not the family members. If we see around us, we could find that the rate of rape committed by near ones is more as compared to the strangers and such cases remain unreported due to family pressure.
There is a myth among the people that the people with infirmity are not the victim of sexual assault. Reality check is that people with disabilities are twice the victim of sexual assault as victims without disabilities.
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U.S. Department of Justice. National Crime Victimization Survey. 2009-2013.
Groth, A., Burgess, W., & Holmstrom, L. Rape: Power, anger, and sexuality. American Journal of Psychiatry, 134(11), 1239-43. Pubmed.gov.
For details see K.I. Vibhute, "Compensating Victims of Crime in India : An Appraisal," 32 J.I.L.I 68 (1990).
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SUBMITTED BY- RICHA BOHRA