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 Table of Contents  
ORATIONS: DR. N. N. DE ORATION
Year : 2015  |  Volume : 31  |  Issue : 1  |  Page : 9-18

From rape to sexual assault: Legal provisions and mental health implications


Department of Psychiatry, MAMC and GB Pant Hospital, New Delhi, India

Date of Web Publication3-Aug-2015

Correspondence Address:
R C Jiloha
Department of Psychiatry, MAMC and GB Pant Hospital, New Delhi - 110 002
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0971-9962.161992

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  Abstract 

Sexual assault in various forms has been recognized as a crime by almost all religions and cultures throughout the recorded history. It is a crime against basic human rights of an individual and a most common crime against women in India. In India, "rape laws" began with the enactment of Indian Penal Code in 1860. There have been subsequent amendments, and the main issue of focus remained the definition of rape which has been recently broadened to include a wide range of sexual activities. The inclusion of "marital rape" in the ambit of rape remains a matter of debate. With a long history, the sexual offence in the form of sexual assault has been discussed from legal and mental health perspective in this presentation. Social and psychological impact of sexual assault on the victim has also been discussed.

Keywords: Legal provisions, mental health, rape, sexual assault


How to cite this article:
Jiloha R C. From rape to sexual assault: Legal provisions and mental health implications. Indian J Soc Psychiatry 2015;31:9-18

How to cite this URL:
Jiloha R C. From rape to sexual assault: Legal provisions and mental health implications. Indian J Soc Psychiatry [serial online] 2015 [cited 2017 Sep 20];31:9-18. Available from: http://www.indjsp.org/text.asp?2015/31/1/9/161992


  Introduction Top


Rape is the most gruesome and barbaric act of violating bodily integrity and honor of a woman. It destroys the entire physical and mental composure and pushes the victim in a deep emotional crisis and reduces her to a living corpse. [1] It is a crime against basic human rights and a clear violation of the right to life with dignity enshrined in article 21 of our constitution. [2]

Historically "Raptus," the generic name of rape was to imply violent theft, applied both to property and person in the Roman culture. It was synonymous with abduction and a woman's abduction, or sexual assault was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm ironically was treated as a wrong against her father or husband, woman being wholly owned subsidiaries. [3] Although Roman law in the historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths and legends of early Rome. [4] Rape in the English sense of "forced sex" was more often expressed as stuprum, a crime committed through violence or coercion (cum vi or per vim). [5]

Rape as an adjunct to warfare dates back to antiquity when mass rape of women as a punitive measure committed by the armies after forcibly entering a town was taken by Greek, Persian, or Roman troops. [6] Rape as an adjunct to warfare was prohibited by the military codices of subsequent rulers and this prohibition formed the basis for convicting and executing rapists during the 100 years' War (1337-1453). [7]

In some cultures, rape was seen less as a crime against a particular woman than as a crime against the head of the household or against chastity. As a consequence, the rape of a virgin was often a more serious crime than of a nonvirgin, even a wife or widow, and rape of a prostitute or other unchaste woman was not considered a crime where chastity of the woman was not harmed. Furthermore, the woman's consent was under many legal systems, not a defense. In 17 th century France, even marriage without parents' consent was classified as rape. [8] The penalty for rape was often a fine, payable to the father or the husband whose "goods were damaged." [9]

In Islamic jurisprudence, the majority of Muslim scholars believe that there is no punishment for a woman forced to have sex. [10] According to a Sunnihadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. [11] In some laws, a woman might marry the rapist instead of his receiving the legal penalty. This was especially prevalent in the laws where the crime of rape did not include as a necessary part that it be against woman's will, thus dividing the crime in the current meaning of rape, and a means for the couple to force their families to permit marriage. [12]

Violence against women during the riots of India's partition in 1947 was explicitly familial form of sexual violence charged with a symbolic meaning. Heinous form of violence - disfigurement, mutilation of sexual organs, castration, branding, slashing the breast - are the expressions of a pathological mind. [13]


  Epidemiology Top


In India, rape is one of the most common crimes against women and a serious national problem. According to the National Crime Records Bureau Annual Report 2013, there were 24,923 rape cases reported across the country in 2012. [14] Of these, 24,470 were committed by relative or neighbor; meaning thereby, the victim knew the alleged rapist in 98% of the cases. [15]

Average of rape cases between 2007 and 2011 was 22,000 a year. [14] Adjusted for population growth over time, the annual rape rate in India has increased from 1.9 to 2.0/100,000 people over 2008-2012. Currently, according to the National Crime Records Bureau 2 rapes/100,000 people are committed every year in India. [14],[16] Compared to other developed and developing countries, the incidence rate of rape is quite low in India. [17] It is lowest in Japan where 1.2 cases of rape/100,000 population are reported yearly, 3.6 in Morocco, 4.6 in Bahrain, 8.1 Western Europe, 12.3 Mexico, 14.7 in Latin America, 24.1 in United Kingdom, 28.6 United States, 40.2 in Southern African region, 66.5 in Sweden, and world's highest rate of 114.9 rapes/100,000 in South Africa. [18]

In India, state-wise distribution of total reported rape crimes in 2012 shows highest in Madhya Pradesh, followed by Uttar Pradesh and West Bengal. Adjusted for population, the rape rate per 100,000 people is found to be highest in Mizoram at the rate of 10.4/year, followed by Tripura, Meghalaya, Sikkim, and Assam. Among major cities, Delhi's rape rate of 4.1/100,000 people was highest followed by Mumbai. The rape rate per 100,000 people was lowest in Gujarat (0.98), followed by Bihar, Karnataka, Tamil Nadu. [14]

The highest number of victims and majority of victims were in the 18-30 year age group. Overall 96% of the rape cases led to charges and the offender being prosecuted. [19] However, Indian courts completed the trial process of an estimate of 14,717 rape cases in 2012 while many cases remained pending in its trial process.

Marital rape

Marital rape is not a criminal offence in India unless the victim is separated from the perpetrator. [19] The Protection of Women from Domestic Violence Act 2005 (PWDVA), provides protection against marital rape under statutes of domestic violence, in all states and union territories of India except Jammu and Kashmir. [15]

Rape of minors

Rape of minor that is someone below the age of consent is a form of statutory rape. Nearly 1 in 3 every rape victims are below 18 years in India. Of all 24,923 rapes, 12.5% or 3125 rape victims in India were a minor in 1012. [14]

In a sample survey, human rights watch projects more than 7,200 minors (1.6/100,000 minors) are raped each year in India. Among these, victims who do report the assaults are alleged to suffer mistreatment and humiliation from the police. [20] Minor girls are trafficked into prostitution in India. Thus, rape of minors conflates into lifetime of suffering. [21] Of the countries studied by Maplecroft on sex trafficking and crime against minors, India was ranked 7 th worst, among China (1 st ), Russia (11 th ), and Indonesia (14 th ). [21]

Estimates of unreported rapes

Most rapes go unreported because the rape victims fear retaliation or humiliation-in India and the rest of the world. [22] The estimates for unreported rapes in India vary widely. Kar estimates 54% of rape crimes are unreported; [23] in contrast, Srivastava estimates 90% of rapes go unreported in India. [24] In the United States, official estimates claim that 65-73% of rape cases go unreported every year. [25],[26] A University of Surrey study estimates 70-90% of rapes go unreported in the United Kingdom; [27] while a UN study of 57 countries estimates just 11% of sexual assault cases worldwide are ever reported. [28]


  Laws against Rape in India Top


The history of Rape laws in India begins with the enactment of the Indian Penal Code (IPC) in 1860 (45 of 1860) [29] covered under Sections 375 and 376. According to the original provision as in Section 375, a man is said to have committed rape who except in the case hereinafter excepted, has sexual intercourse with a woman circumstances falling under any of the six following descriptions:

  1. Against her will
  2. Without her consent
  3. With her consent, when her consent has been obtained by putting her or any person whom she is interested in under fear of death or of hurt
  4. With her consent when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
  5. With her consent, when, 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 unable to understand the nature and consequences of that to which she gives consent
  6. With or without her consent when she is under 16 years of age.


For this purpose, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

The legacy of IPC 1860 (45) is the shameful history of identifying rape that discounts the majority of survivors. The problem is not sex, it is sexual assault into which penis turns into a weapon.

The following assaults were not counted in the IPC 1860.

  1. The definition of rape with penile penetration of a vagina discounted the female survivors that had been victimized. Some perpetrators use objects such as rods, baseball bats, or other objects that may not be sex, but hate. Someone may use one's own finger to penetrate
  2. Indian Penal Code exempted rape in marriage from prosecution
  3. The extent of the prevalence of sexual assaults committed on children was underestimated and most perpetrators were not pursued
  4. Males the only possible perpetrators and only females could legally be victims
  5. The definition of rape with penile penetration of a vagina discounted all male victims of incest or other sexual assault.


The rape law under IPC has gone through several amendments. In 1983, the Section 376 (2), that is, Custodial Rape, Section 376 (A), that is, Marital Rape, and Section 376 (B to D), that is, Sexual Intercourse not amounting to rape were added. As per the Criminal Law Amendment Act (1983), revealing the identity of a rape-victim is an offence. Though this act maintains more or less the same definition of rape, it introduces many new categories of offence of sexual intercourse by persons in custodial situation-such as superintendents of hospitals, remand homes, prisons, and police officials-with women in their custody. In cases of custodial rape, burden of proof lies with men and if a woman victim makes a statement that she did not consent, the court would believe that she did not consent.

Punishment in the cases of "custodial rape" or gang rape amounts to the minimum sentence of 10 years, and the offence is cognizable and nonbailable. Sexual intercourse by a man with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent, is punishable with imprisonment, which may extend to 2 years. This offence is cognizable and bailable.

According to the Supreme Court verdict of 2012 [30] the rape trials must end within 2 months as stipulated under law. The Supreme Court also directed trial courts to "strictly adhere" to existing norms while asking them to rule out the possibility of "maneuvering" through undue long adjournments. Section 309 of the Criminal Procedure Code (CrPC) provides that in every inquiry or trial the proceedings should be held as expeditiously as possible and once the examination of witnesses begins, the same shall be continued on a day-to-day basis till all the witnesses are examined. In cases that come under Section 376 (rape) and related offences under Sections 376 A to D of the IPC, the CrPC stipulates that "the inquiry or trial shall, as far as possible, be completed within a period of 2 months from the date of commencement of the examination of witnesses." The victim of rape suffers mental and psychological trauma, which must be addressed to provide a helping hand to enable her to cope with the trauma suffered and to tide over her immediate and long-term needs so that she is able to lead a dignified and meaningful life.

Marital rape

Sir Mathew Hale, England's chief justice during the 1600s stated, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract." [31]

The provision of rape law in the IPC (Section 375 and 376), echoes very archaic sentiments of Sir Mathew Hale, when it mentions as its exception clause - "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." Law bestows an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. It is a nonconsensual act of violent perversion by a husband against the wife where she is physically and sexually abused. Marital rape is far too common in Indian society. The UN population fund states that more than two-third of married women in India, aged 15-49 have been beaten, raped, or forced to provide sex. [32] Article 2 of the declaration of the elimination of violence against women includes marital rape explicitly in the definition of violence against women. [33]

The revolution against marital rape began with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women. The importance of consent for every individual decision cannot be overemphasized. A woman can protect her right to life and liberty, as well as her body even within the wedlock. As a result, most of the Western countries have declared marital rape unlawful. [34]

The Section 376 in dealing with sexual assault, in a very narrow purview lays down that an offence of rape within marital bonds stands only if the wife be <12 years of age, if she be between 12 and 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses the permissible limit there is no legal protection accorded to the wife, in direct contravention of human rights regulations. [35]

The definition of rape (Section 375 IPC) has been criticized for other reasons as well by the Indian and international women's and children organizations, who insist that including oral sex, sodomy, and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice, or equity. Even international law now says that rape may be accepted as the "sexual penetration, not just penile penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however, slight." Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt. [36]


  The Law Commission Reports Top


There are four major law commission reports that address the law on rape-while two reports recommend on the IPC in general within which the provision of rape is discussed, the other two reports exclusively deal with reforms related to rape. [37] These are as follows:

  • 42 nd Law Commission Report
  • 84 th Law Commission Report
  • 156 th Law Commission Report
  • 172 nd Law Commission Report.


Each successive Report is an improvement over the prior one addressing the issue, however, many useful recommendations have not found their way into the Bills presented to Parliament. The 172 nd Law Commission Report had made the following recommendations for substantial change in the law with regard to rape.

  1. Rape should be replaced by the term "sexual assault"
  2. 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
  3. In the light of Sakshi v. Union of India and Others (2004[5] SCC 518), "sexual assault on any part of the body" should be construed as rape
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law
  5. A new offence, namely section 376E with the title "unlawful sexual conduct" should be created. 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.


Section 509: Word, gesture or act intended to insult the modesty of a woman:
"Whoever, intending to insult the modesty of any 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 1-year, or with fine, or with both"

  1. Marital rape: 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
  2. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act, and it is denied, the court shall presume it to be so.


The Domestic Violence Act, 2005 (DVA) provides civil remedies to what the Section 498A of IPC provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. [38] Though Section 498-A deals with cruelty to protect women against perverse sexual conduct by the husband, there is no standard of measure or interpretation for the courts, of "perversion" or "unnatural," the definitions within intimate spousal relations. Is an excessive demand for sex perverse? Isn't consent a sine qua non? Is marriage a license to rape? These are some of the questions need to be answered. [39] Section 3 of the DVA, among other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman's wants. It is about the fundamental design of the marital institution that despite being married, she retains an individual status, where she does not need to concede to every physical overture even though it is only her husband.

Section 122 of the IEA 1872 prevents communication during marriage from being disclosed in court except when it is not an offence, the evidence is inadmissible, although relevant, unless it is one married partner is being persecuted for an offence against the other. Since, marital rape prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

In view of the recommendations of the Law Commission and the growing protest from the general public in response to gang-rape of a Delhi girl in December 2012, the Indian Parliament introduced the Criminal Law (Amendment) Bill, 2013, which was passed by both the houses in March and received President's assent in April 2013. [40],[41] It provides for the amendment of IPC, IEA, and Code of Criminal Procedure (CPC), 1973 on laws related to sexual offences.


  Criminal Law (Amendment) Act, 2013 (Act 13) Top


This is an act further to amend the IPC, 1860, the CPC, 1973, the IEA, 1872, and the Protection of Children from Sexual Offences Act, 2012. The definition was expanded to include same-sex crimes and raised the age of consent to age 18.

Amendments to Indian Penal Code

  1. In S.100, 7 th clause is added:
    "Throwing/administering or attempting to throw/administer acid which may reasonably cause the apprehension that grievously hurt will otherwise be the consequence of such act".
  2. After S.166, S.166A has been added which pertains to disobedience and failure to record any information by a public servant
  3. In S.228A, in sub-section (1), for the words figures and letters, "offence" shall be substituted in S.376 (A-E)
  4. After S.326 following sections shall be inserted.


S.326A: Voluntarily causing grievous hurt by use of acid

Whoever causes permanent or partial damage or deformity to any part/s of the body of a person or causes grievous hurt by throwing/administering acid to that person or using any other means.

S.326B: Punishment

Imprisonment of either description for a term not <10 years but which may extend to imprisonment for life and with fine:

  • Such fine shall be to meet the medical expenses of treatment of the victim
  • Any fine imposed under this section shall be paid to the victim.


  1. In S.354, the punishment of imprisonment up to 2 years is replaced by, not <1-year which may extend up to 5 years. It is outraging the modesty of a woman which has been amended to enhance the punishment. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. Before: "Punished with imprisonment of either description for a term which may extend to 2 years or with fine or with both." Offence: Cognizable and bailable. Now: Shall not be <1-year but may extend to 5 years, and shall also be liable to fine" cognizable and nonbailable.


S.354: After S.354, the following sections shall be inserted:

S.354A: Sexual harassment

A man doing any of the following acts:

  1. Unwelcome physical contact and advance involving explicit sexual approaches
  2. A demand/request for sexual favors
  3. Showing pornography against the will of a woman
  4. Making sexually colored remarks, shall be guilty of the offence of sexual harassment.


Punishment

offences in clause (1), (2) or (3) shall be punished with R. I. for a term which may extend to 3 years, or with fine, or with both; offence in clause (4) punished with imprisonment of either description for a term which may extend to 1-year, or with fine, or both cognizable and bailable.

S.354B: Assault or use of criminal force to woman with intent to disrobe: Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked Punishment: Imprisonment of either description for a term which shall not be <3 years but which may extend to seven 7 years, and fine. Offence: Cognizable and nonbailable.

S.354C: Voyeurism

Any man who watches, or captures image of a woman engaging in a private act in circumstances where she would usually have expectation of not being observed either by perpetrator or by any other person at behest of perpetrator or disseminates such image.

Punishment

On first conviction: Imprisonment for a term which shall not be <1-year, but may extend to 3 years, and shall also be liable to fine, and on second/subsequent conviction: Imprisonment for a term which shall not be <3 years, but may extend to 7 years, and shall also be liable to fine. First offence cognizable but bailable, second/subsequent offence cognizable and nonbailable.

S.354D: Stalking: Any man who

  1. Follows a woman and contacts, or attempts to contact to foster personal interaction repeatedly despite a clear indication of disinterest by such woman
  2. Monitors use by a woman of Internet, E-mail or any other form of electronic communication, commits the offence of stalking.


Punishments

On first conviction: Imprisonment for a term which may extend to 3 years, and fine on a second or a subsequent conviction: Imprisonment which may extend to 5 years, and fine. First offence cognizable but bailable, second/subsequent cognizable but nonbailable.

Exception

Such stalking was for preventing or detecting crime and such conduct was just and reasonable in the particular circumstances.

  1. For S.370, the following sections shall be substituted:
    1. For the purpose of exploitation:

      (a) Recruits (b) transports (c) harbors (d) transfers (e) receives a person/persons by:

      (1) Using threats (2) using force (3) abduction (4) practicing fraud (5) abuse of power (6) inducement.
    2. Punishment for trafficking: RI for 7 years
    3. Trafficking of more than one person
    4. Trafficking of a minor
    5. Trafficking of more than one minor
    6. Punishment for repeat offence
    7. Punishment for public servant/police official.
  2. For S.375, 376 (A-D), the following sections shall be substituted: S.375. A man is said to commit "rape" if that person.
    1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of another person or makes her to do so with him or any other person; or
    2. 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 to do so with him or any other person; or
    3. Manipulates any part of the body of a woman person so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
    4. Applies his mouth to the penis, vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
      1. Against the other person's will
      2. Without the other person's consent
      3. With the other person's consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt
      4. When the person assaulted is a female, 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 to be lawfully married
      5. With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent
      6. With or without the other person's consent, when such other person is under eighteen years of age
      7. When the person is unable to communicate consent.


Explanation 1: Penetration to any extent is "penetration" for the purposes of this section.

Explanation 2: For the purposes of this section, "vagina" shall also include labia majora.

Explanation 3: Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of nonverbal communication, communicates willingness to participate in the specific act: Provided that a person who does not physically resist to the act of penetration shall not by the reason only of that fact be regarded as consenting to the sexual activity.

Exception

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 16 years of age, is not sexual assault.

Even after the 2013 reform, marital rape is not a crime in India. However, it is considered a form of prosecutable domestic violence under different sections of IPC, such as Section 498 (A) as well as the Articles of DVA, 2005 (Kinnear K. L, 201119).

S. 376 provides punishment for rape. According to this section, whoever commits rape shall be punished with imprisonment for life, or with imprisonment of either description for a term, which may extend to 10 years, and shall also be liable to fine, unless the woman raped is his own wife and is not under 12 years of age, in which case he shall be punished with imprisonment of either description for a term, which may extend to 2 years or with fine or with both.

  1. S.376A: A person committing sexual assault, inflicts an injury, which causes death or a persistent vegetative state, shall be punished with RI for a term, which shall not be <20 years, but which may extend to imprisonment for life, which shall mean the remainder of that person's natural life, or with death
  2. S.376B: Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall be not <2 years but may extend to 7 years and shall also be liable to fine
  3. S.376C: Whoever being (a) in position of authority (b) a public servant (c) Suptds/managers of jails/remand homes (d) management/staff of hospital induce/seduce any woman 5 years may extend to 10 years and liable to fine
  4. S.376D: In case of gang rape, persons involved regardless of their gender shall be punished with RI for a term, which shall not be <20 years, but which may extend to life and shall pay compensation to victim, which shall be reasonable to meet medical expenses and rehabilitation
  5. S.376E: Whoever has been previously convicted of an offence punishable under Sections of 376 and subsequently convicted under any of the same sections shall be punished with imprisonment for life which shall mean imprisonment for the remaining of natural life or death.


Changes in IEA, 1872, after S.53 of IEA, 1873 the following section is inserted:

S.53A: When question of consent is an issue, evidence of the character of the victim or previous sexual experience with any person shall not be relevant on the issue or quality of consent.

S.114A: Where sexual intercourse by the accused is proved and if the victim says no consent was given, the court shall presume that she didn't consent.

S.119A: Witness unable to speak may give evidence in writing or by sign, writing and sign made in open court as oral evidence.

S.146: When question of consent is an issue, it shall not be permissible to adduce evidence/put questions in cross-examination of victim as to general immoral character or previous sexual experience, of such victim with any person for providing such consent or quality of consent.

Amendment to the Protection of Children from Sexual Offence Act, 2012.

S.42 shall be substituted namely:
"The offence punishable under various sections of IPC, then, the offender shall be liable to punishment under this Act or under IPC as provides for punishment which is greater in degree."

S.42A: "In case of any inconsistency, the provisions of this Act shall have an overriding effect on the provisions of any such law to the extent of the inconsistency."

Current legal position

The current legal position provides for the amendment of IPC, IEA, and CPC, 1973 on laws related to sexual offences. The offence of rape under Section 375 of IPC, have made both penile and nonpenile insertion into bodily orifices of a woman by a man an offence. The definition is broadly explained in some aspect, with acts like penetration of penis, or any object or any part of body to any extent, into the vagina, mouth, urethra, or anus of a woman or making her to do so with another person or applying of mouth to sexual organs (cunnilingus or fellatio) without the consent or will of the woman constitutes the offence of rape. [42]

The Section has also clarified that penetration means "penetration to any extent," and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situations, the punishment will be imprisonment for not <7 years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term, which shall not be <10 years but which may extend to imprisonment for life, and shall also be liable to fine.

A new Section, 376A has been added which states that if a person committing the offence of sexual assault, inflicts an injury, which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term, which shall not be <20 years, but which may extend to imprisonment for life, which shall mean the remainder of that person's natural life, or with death. In case of gang rape, persons involved regardless of their gender shall be punished with rigorous imprisonment for a term, which shall not be <20 years, but which may extend to life and shall pay compensation to the victim, which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

Certain changes have been introduced in the CrPC, 1973 and IEA 1872, like the recording of statement of the victim has been made more friendly and easy, character of the victim is irrelevant for consideration, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc.

The age of consent has been increased to 18 years, which means any sexual activity irrespective of the presence of consent with a woman below the age of 18 will constitute statutory rape.

The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human rights and women's rights organizations for not including certain suggestions recommended by the Law Commission Report like, marital rape, amending Armed Forces (special powers) Act so that no sanction is needed for prosecuting an armed force personnel accused of a crime against woman. [43]


  Marital Rape and Indian Society Top


People marry for many reasons such as legal, social, libidinal, emotional, economic, spiritual, and religious. [44] In India, wife's role has traditionally been understood as submissive, docile, and that of a homemaker. Marital relationship is considered to be sacrosanct where the husband is considered to be an incarnation of God. [45],[46] Sex has been treated as obligatory in a marriage. [46] Considering marriage as a bond of trust and affection, a husband exercises sexual supremacy through any means possible. The IPC through its Section 375 legalizes it, "sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." It considers the forced sex in marriages as a crime only when the wife is below 15. As a result, marital rape is not an offence despite amendments, law commission reports, and new legislations. [47]

It is argued that declaring marital rape an offence will bring "the potential of destroying the institution of marriage." This argument assumes that marriage as an institution is not based on mutual consent and equality of rights. The fundamental right of a person over one's body, male or female, is ignored in this assumption. In practice, this results in the wife's body being considered the property of her spouse, regardless of her consent. [48]

The marital rape victims have to take refuge in Section 498-A of the IPC ("perverse sexual conduct by the husband"), or to the PWDVA. This Act came into force in 2006, effectively provides protection against marital rape or other forms of sexual perversions and domestic violence. However, it offers only a civil remedy for the offence.

At time, a question regarding the complainant's behavior is raised, which is not immediately related to the circumstances of the offence. The complainant is subjected to marked humiliation which adds insult to the injury. Rape is especially stigmatizing when a rape victim (especially one who was previously a virgin) may be viewed by society as being "damaged." Victims may suffer isolation, be disowned by friends and family, be prohibited from marrying, be divorced if already married, or even killed. This phenomenon is known as secondary victimization. [49],[50]

Psychological/social impact: Secondary victimization

Sexual assault is not like any other crime. Unlike other violent crimes, most incidents go unreported despite evidence suggesting that the rate of sexual assault is on the increase. And despite the physical nature of the act constituting the crime, much of the harm is psychological or emotional in nature. The prosecution of sexual assault is unlike the prosecution of any other criminal offence. There is an intense focus on the character and motivation of the complainant.

Childhood and adulthood victims of rape are more likely to attempt or commit suicide. [51],[52],[53] The association remains, even after controlling for sex, age, education, symptoms of posttraumatic stress disorder, and the presence of psychiatric disorders. [54],[55],[56] The experience of being raped can lead to suicidal behavior as early as adolescence. In a study of raped school girls, 6% reported having attempted suicide. Rape-victims feel embarrassed to talk about what had happened to them. [57] A study of adolescents found prior sexual abuse to be a leading factor predicting several health risk behaviors, including suicidal thoughts and attempts. [58]

Rape and other forms of sexual assault on a child can result in both short-term and long-term harm, including psychopathology in later life. [59],[60] Psychological, emotional, physical, and social effects include depression [61],[62] posttraumatic stress disorder [63],[64] anxiety [65] eating disorders, poor self-esteem, dissociative and anxiety disorders; general psychological distress and disorders such as somatization, neurosis, chronic pain [66] sexualized behavior [67] school/learning problems; and behavior problems including substance abuse [68],[69] destructive behavior, criminality, and suicide. [70],[71],[72]

The risk of lasting psychological harm is greater if the perpetrator of the sexual assault is a relative (i.e., incest), or if threats or force are used. Incestual rape has been shown to be one of the most extreme forms of childhood trauma, a trauma that often does serious and long-term psychological damage, especially in the case of parental incest. [73]

Apart from judicial awakening; what is primarily required is a generation of awareness. "Educating people to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women's human rights." Men have the economic, moral, political, religious, and social responsibility to combat all forms of gender discrimination. [74]

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to alter fast the letter of the law.

Potential abuse concerns

In April 2013, Additional Sessions Judge Virender Bhat noted that the legal principle of reliance on the sole testimony of the victim had become "an easy weapon" to implicate anyone in a case of rape. Justice Kailash Ghambhir of the Delhi High Court stated that penal provisions for rape are often being misused by women as a "weapon for vengeance and vendetta" to harass and blackmail their male friends by filing false cases to extort money and to force them get married. Saamna, the mouthpiece of Shiv Sena in an editorial noted while supporting the Deputy Inspector General of Police in Mumbai in an alleged rape complaint that it has become "a fashion to create sensation by charging someone for rape and molestation" while Shonee Kapoor, the founder of Sahodar Men's Right Group, demanded that the name of the accused should not be made public till convict.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
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