The Legal Ambit of Rape in India and Beyond

Nirbhaya’s endless fight for justice, stretching over years, still echoes in our hearts. On December 16, 2012, six men assaulted a 23-year-old woman and her friend on a bus, leading to a brutal rape and attack, involving Akshay Thakur and five others.[1]

The brutal silence forced upon Dalit girls in Badaun, where caste discrimination suffocated their cries for help, is another harsh reality we cannot ignore. [2]

In Kathua, an innocent 8-year-old Bakurwal girl, with dreams gleaming in her eyes, was found bloodied and broken, a tragedy that left us shattered. [3]

The Dalit woman in Hathras, in 2020, lost not only her life but the control over her body, a life stolen too soon. [4]

The unsettling reality of these horrifying cases has left us deeply concerned about the effectiveness of our law and order system. The justice system struggles to address the profound implications of these atrocities, perpetuating a cycle of suffering. Unless society genuinely commits to confronting these challenges, countless lives will continue to endure despair.

Let us break this down into fragments for better understanding:

WHAT IS RAPE AS PER THE INDIAN LAW?

Rape is the fourth most common crime in India[5]. But what is Rape in the legal language?

Section 375 of the Indian Penal Code defines rape as an act committed by a man under the following circumstances[6]:

(a) If he penetrates, to any extent, his penis into the vagina, mouth, urethra, or anus of a woman, or forces her to engage in such penetration with him or another person.

(b) If he inserts any object or body part (other than the penis) into the vagina, urethra, or anus of a woman, or compels her to do so with him or another person.

(c) If he manipulates any part of a woman’s body to cause penetration into her vagina, urethra, anus, or any other part of her body, or makes her engage in such actions with him or another person.

(d) If he applies his mouth to a woman’s vagina, anus, or urethra, or forces her to engage in such actions with him or another person.

The power of CONSENT is empowered by the Indian law, this can be explained as[7]–

1. Against Her Will: Rape happens when a woman is forced into sexual intercourse without her voluntary agreement. It’s an act that takes away her choice and freedom.

2. Without Consent: Consent is about saying “yes” freely and willingly. If it isn’t given clearly and voluntarily, then it’s not consent.

3. Misleading Consent: Sometimes, a person’s consent is obtained through deceit or fear whether through threats of harm, pretending to be someone else, or other manipulative tactics. Such consent is not real, and the law recognizes that.

4. Incapacitated Consent: If a woman is unable to understand what’s happening due to intoxication, mental incapacity, or any other reason, her consent is not valid. Consent must be given with full awareness and understanding.

5. Minors: The law protects girls under 18 by considering any sexual activity with them as rape, no matter if consent was seemingly given, because minors cannot legally provide consent.

This structured approach clarifies the definition of rape, aiming to eliminate any ambiguity and streamline the justice process. It serves not only to ensure that justice is delivered swiftly and effectively for victims but also to act as a powerful deterrent for anyone with such malicious intentions. Rape transcends mere crime; it’s a profound violation of human dignity, demanding a response from the system that matches the gravity of the offense.

Let us flip through the definitions of Rape from the prominent Indian legal corners :

1. Justice Dipak Misra (Former Chief Justice of India):

“Rape is not merely a physical assault; it is the destruction of the very soul of the victim. It dehumanizes a woman, leaving her shattered mentally, emotionally, and socially. The brutality of such an act must be met with the full force of the law, and the punishment must reflect the heinousness of the crime.[8]“

2. Justice Verma Committee Report (2013):

“Rape is a violation of a person’s bodily integrity and autonomy. It is an affront to the fundamental rights of a woman and must be recognized as an act of domination and power, rather than a mere act of lust. The focus should be on the consent of the woman, not on the use of force.”[9]

3. Indira Jaising (Senior Advocate, Supreme Court of India):

Rape is not just about the act of sexual violence; it is a display of power and control. It’s a manifestation of deep-rooted patriarchal norms, where women’s bodies are seen as territories to be conquered. Legal definitions must emphasize the violation of a woman’s dignity and autonomy, and the law should seek to protect this dignity at all costs.”[10]

But rape is not confined in the ambit of a national issue, it is a universal issue that encircles the people around the globe. So, let us look it through the international lenses-

RAPE LAWS IN THE FOREIGN COUNTRIES-

Take the examples of these countries which are facing off rape extensively:

Saudia Arabia-

Saudi Arabia has seen 196 executions in 2022, a staggering figure that underscores the severity with which the country handles heinous crimes. [11]Rape is treated with extreme harshness, often punishable by death, especially in aggravated cases or when committed by serial offenders. Under Saudi Arabia’s interpretation of Sharia law, punishments for rape range from flogging to execution. In 2019 alone, eight individuals were executed for rape.

However, it is unsettling that there are no laws against marital rape. Some men exploit their spouses for their own desires. In 2013, a Saudi preacher raped, tortured, and killed his five-year-old daughter but received a lenient sentence—just eight years in prison, 800 lashes, and a fine of one million riyals ($270,000) as blood money to the child’s mother. In contrast, two Pakistani men convicted of rape were swiftly beheaded. This alarming disparity in sentencing exposes a deep inconsistency in the application of justice, raising questions about equality before the law.[12]

Cuba-

Cuba is striving to choke the roots of crimes like rape, aiming to suppress such inhumane thoughts before they take hold. One of the strictest measures focuses on protecting minors, as the rape of a child under 12 is met with the harshest punishment—death. Additionally, Cuba has set the age of consent at 16, ensuring that anyone engaging in sexual activity with someone younger faces prosecution under statutory rape laws.[13]

In 2022, Cuba modernized its penal code, with new measures taking effect in mid-August. The updated code aligns with the country’s 2019 Constitution and introduces reforms, including the criminalization of gender-based and domestic violence. This reflects Cuba’s commitment to addressing these critical issues.[14] The platform Yo Sí Te Creo, which supports victims of violence, applauds the law for removing previous biases based on gender and sexual orientation.[15] Article 344 sets a prison sentence of 20 to 30 years for murders motivated by gender discrimination or killings tied to gender violence.

These changes reflect Cuba’s vision to eradicate rape and related crimes, ensuring justice and safety for all citizens.

North Korea-

The country that roars in every aspect has enacted daunting rape laws. North Korean law primarily defines rape as forced vaginal intercourse between a male perpetrator and a female victim, excluding broader forms of sexual violence. Marital rape remains unaddressed, although family-related crimes can still be prosecuted. However, this issue isn’t treated as an aggravating factor, revealing a broader disregard for women’s rights within the legal system.

Troublingly, North Korea is witnessing a surge in rape cases. While the regime enforces some of the world’s most severe punishments for sexual crimes—such as the death penalty—the implementation of these laws has been inconsistent. These stringent measures were designed to scare perpetrators, but the lack of proper enforcement undermines any meaningful impact.[16]

But is North Korea softening the penalties for rape? Under its 2015 Criminal Code, Article 297 mandated labor correction of up to five years for rape, with the possibility of five to ten years for more severe cases. However, the 2022 revision of the Criminal Code, specifically Article 319, reduces these penalties. It caps labor correction at four years for general rape cases and extends to nine years for serial rape or indecent assault.[17]

UAE-

Did you know that the crime rate for rape and sexual assault in the UAE is impressively low, at just 1.5 per 100,000 women? [18]In the UAE, rape is defined as non-consensual sexual intercourse achieved through force, threat, or deception, with the law recognizing both men and women as potential victims. Consent is key in determining the crime. Before 2020, voluntary sexual relations between unmarried adults were criminalized, and victims of sexual assault risked being charged for illicit sex. However, Federal Decree No. 15 of 2020 decriminalized consensual sex between adults, as long as coercion wasn’t involved.[19]

In 2022, the UAE introduced stricter penalties for rape under the new Federal Crime and Punishment law. The punishments reflect the severity of the crime, including:

Rape of a Minor Under 18: Life imprisonment.
Forceful Rape: Potential capital punishment.
Exploitation of Disabled Individuals or Victims Unable to Resist: Imprisonment for 10 to 25 years.
Rape Resulting in Victim’s Death: Capital punishment.
Sexual Molestation by Coercion or Threat: Temporary imprisonment, with harsher penalties for crimes against vulnerable individuals, potentially leading to death sentences or 10 to 25 years in prison.
Fines: Over Dh10,000, regardless of the victim’s gender.[20]
Offenses Committed in Workplaces, Schools, or Homes: More severe punishments, with imprisonment terms ranging from five to 20 years for crimes involving force or threats.

These penalties are a testament to learning from the UAE about the measures to cut down the lines of such devilish thoughts.

RAPE LAWS IN INDIA-

Mathura Rape Case (1972): Mathura, a teenage Adivasi girl, was allegedly raped by two policemen while in custody. Despite evidence of coercion, the Supreme Court acquitted the accused due to the absence of injuries and failure to raise an alarm. This case spotlighted a flawed understanding of consent and ignited nationwide protests demanding reform.

Nirbhaya Case (2012): The horrific gang rape and murder of a young woman in Delhi, known as the Nirbhaya case, shook the conscience of the nation. The brutality sparked public outrage and led to landmark legal reforms, culminating in the Criminal Law (Amendment) Act, 2013. Under this law, the accused were sentenced to death, invoking the “rarest of rare” doctrine.

But do these tragic reminders always need to trigger grief for us to realize how backward we are in delivering timely justice? Obviously not. It’s not just about reacting to well-known cases but addressing the deeply entrenched problem. According to NCRB data, India reported an average of 86 rapes daily and 49 offenses against women every hour in 2021 (The Hindu). The picture didn’t improve much in 2022, with an average of 90 rapes reported daily as per NCRB’s latest figures.[21]

The real numbers are likely far higher. Many cases go unreported due to fear of retaliation, societal stigma, and a lack of faith in law enforcement. Of the two data sets I just presented, which one scares you more? It’s inconclusive, much like our situation. On paper, India has established stringent rape punishments, but the truth is that’s where the full stop shouldn’t sit. The ballad of agony is longer. We need to strengthen implementation and create impactful grounds for these laws to show their true colors.

Amendments are necessary to introduce proportionate punishments—where perpetrators are treated with the same cruelty inflicted on their victims. Justice should not just be done but should reduce crime rates so that no more daughters of our motherland have to suffer in silence.

Rape Punishments in the Indian Penal Code:

Here’s a summary of the provisions:

1. Section 376(1) IPC:

– Any person committing the offence of rape shall be punished with rigorous imprisonment of not less than 10 years, which may extend to life imprisonment.

2. Section 376(2) IPC:

– Rape committed under specific circumstances (e.g., by a police officer, public servant, armed forces, or a person in authority) carries a punishment of not less than 10 years of rigorous imprisonment, extendable to life imprisonment.

3. Section 376(3) IPC:

– If rape is committed on a woman under the age of 16, the perpetrator faces rigorous imprisonment of at least 20 years, which may extend to life imprisonment.

4. Section 376A IPC:

– Rape leading to the victim’s death or leaving her in a vegetative state results in a minimum of 20 years of rigorous imprisonment, extendable to life imprisonment.

5. Section 376AB IPC:

– For rape committed on a girl under the age of 12, the punishment is a minimum of 20 years of rigorous imprisonment, which can extend to life imprisonment.

6. Section 376B IPC:

– A husband who forces sexual intercourse on his wife while living separately is liable to imprisonment of 2 to 7 years along with a fine.

7. Section 376C IPC:

– A person abusing their position of authority to have sexual intercourse with a woman without it being classified as rape is punished with 5 to 10 years of rigorous imprisonment.

8. Section 376D IPC:

– Gang rape carries a punishment of at least 20 years of rigorous imprisonment, extendable to life imprisonment.

9. Section 376DA and 376DB IPC:

– Gang rape committed on a woman under 16 or 12 years of age results in life imprisonment (for the remainder of the convict’s life).

10. Section 376E IPC:

– Repeat offenders convicted under Section 376 or related provisions face life imprisonment for the remainder of their natural life.[22]

These provisions illustrate the stringent penalties imposed by Indian law for the crime of rape, especially in cases involving minors, authority figures, or aggravating circumstances.

AMENDMENTS IN THE RAPE LAWS OF INDIA-

Let us examine the key amendments made to Indian rape laws-

1. Criminal Law Amendment, 1983

Background: The amendment was indeed a response to the Mathura Rape Case (1972), where a young tribal girl was raped by police officers, leading to protests over the acquittal of the accused based on the victim’s alleged character and resistance.

Key Amendments influenced by this case were:

– Section 228A: Correctly prohibits the disclosure of the identity of rape victims.

– Sections 375-376: These sections define and punish rape, including provisions for custodial and gang rape.

– Section 498A: This section addresses cruelty against women by husbands or relatives, but is not directly related to rape laws.

– Section 327: Mandates in-camera trials for rape cases to protect the victim’s identity.

– Section 174(3): Requires police inquiries for women’s deaths within seven years of marriage.[23]

2. Criminal Law Amendment, 2013

Background: This amendment was indeed a response to the Nirbhaya Rape Case (2012), where a physiotherapy student was gang-raped, leading to nationwide protests.

Key Amendments influenced by this case were:

– Sections 166A and 166B: These sections penalize public servants for failing to act on sexual assault complaints.

– Section 154(1): Requires that women’s statements in sexual offenses be recorded by women police officers.

– Section 161: Allows audio-video recording of victims’ statements.

– Section 273: Ensures that child victims are not confronted by the accused.

– Sections 53A and 114A of the Indian Evidence Act: Exclude a victim’s past sexual history from being considered in consent cases.[24]

3. Criminal Law Amendment, 2018

Background: This amendment was prompted by the Unnao and Kathua rape cases involving minors, which led to public outrage and demands for stronger laws.

Key Amendments influenced by this case were:

– Sections 376AB and 376DA-DB: Introduced harsher penalties for the rape of minors, establishing a minimum sentence of ten years for those raping a woman under sixteen and life imprisonment or death for raping a girl under twelve.

– Section 374: Mandates expedited appeals in sexual offense cases.

– Section 438: Ensures stringent bail conditions for accused individuals in rape cases.

– Provisions for punishment: The amendment increased the punishment for raping girls under twelve to a minimum of 20 years of rigorous imprisonment and allows for the death penalty. This has sparked debate over whether such harsh penalties are effective deterrents.[25]

Such amendments shine as a beam of hope for the law, ensuring it doesn’t become obsolete and addressing modern problems with contemporary solutions, especially as the nature of crimes evolves over time. Looking at the severity of such inhumane crimes, it’s crucial to adopt a stricter stance to protect our daughters, mothers, wives, and all those who nurture future generations.

A ROAD AHEAD-

In India, the path forward for stronger rape laws is clear, but their true effectiveness lies in stringent implementation. Crimes like rape don’t just tarnish the dignity and honor of the victim, they expose the deeper societal issues and flawed mindsets that allow such acts to persist. India has much to learn from countries with harsher laws, but without proper enforcement, even the strongest legislation becomes powerless. It’s not just about writing stricter laws; it’s about reshaping how society responds to these crimes, ensuring justice while fostering meaningful change in both mindset and social development.

[1] BBC Article Published on 20^th March 2020 – https://www.bbc.com/news/world-asia-india-51969961

[2] DW Article- https://www.dw.com/en/india-will-sexual-violence-against-dalits-ever-end/a-63167654

[3] NDTV Article published in 2018- https://www.ndtv.com/india-news/kathua-rape-supreme-court-orders-security-for-victims-family-lawyer-1838392

[4] Article published in BBC- https://www.bbc.com/news/world-asia-india-64820721

[5] Drishti IAS Report published in 2023- https://www.drishtiias.com/daily-updates/daily-news-analysis/rape-crimes

[6] Legal Service India E-Journal- https://www.legalserviceindia.com/legal/article-8693-what-is-rape-what-are-the-laws-and-rights-of-rape-victims-in-india.html

[7] Berkeley Law Report- https://lawcat.berkeley.edu/record/1128891?ln=en&v=pdf

[8] Liner Research Data- https://getliner.com/search/s/19403621/t/69528024?msg-entry-type=main

[9] Liner Research Data- https://getliner.com/search/s/19403621/t/69528217?msg-entry-type=main

[10] Liner Research Data- https://getliner.com/search/s/19403621/t/69528337?msg-entry-type=main

[11] Amnesty Organisation Report- https://www.amnesty.org/en/latest/news/2024/09/saudi-arabia-highest-execution-toll-in-decades-as-authorities-put-to-death-198-people/#:~:text=In%202022%2C%20Saudi%20Arabia,in%202021.&text=in%20the%20last%2030,in%202021.&text=death%20penalty%20except%20for,in%202021.&text=drug%2Drelated%20offences%20in%20nearly,in%202021.

[12] Scoop Whoop Crisp Report- https://www.scoopwhoop.com/inothernews/punishing-rape-globally/-