October 19, 2021

Analysis of Problem of Rape in India and Laws Related to It

law

Abstract

Rape is especially stigmatizing in cultures with strong customs and taboos regarding sex and sexuality. For example, a rape victim (especially one who was previously a virgin) may be viewed by society as being “damaged.” Victims in these cultures may suffer isolation, be disowned by friends and family, be prohibited from marrying, and be divorced if already married, or even killed. This phenomenon is known as secondary victimization. Secondary victimization is the re-traumatization of the sexual assault, abuse, or rape victim through the responses of individuals and institutions. Types of secondary victimization include victim blaming and inappropriate post-assault behavior or language by medical personnel or other organizations with which the victim has contact. Secondary victimization is especially common in cases of drug-facilitated, acquaintance, and statutory rape.

Key Words-Rape, Abuse, Victim

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.

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 .

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.

The crimes under the Indian Penal Code (IPC)

  1. 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.

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.

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.

  1. 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.

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. 

Author– Ayushi Gurnani

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