Author: Parminder Singh BA, LL.B, J.D. (Canada)
July 15, 2014
In the Act the word ‘rape’ has been extended to include acts in addition to vaginal penetration by things other than penis.
The penetration of penis, any object or any part of body, to any extent, in vagina, mouth, urethra or anus, without woman’s consent, is now rape. If an accused makes another person do these acts, he is also guilty of rape.
Touching of private parts of a woman without her consent with mouth or otherwise constitutes the offence of sexual assault.
The section has also clarified that lack of physical resistance is immaterial for constituting an offence.
Procedure & Evidence
Certain changes have been introduced in the Criminal Procedure Code and Evidence Act, like the process of recording the statement of the victim has been made more victim friendly and easy but the critical changes are:
The ‘character of the victim’ is now rendered totally irrelevant, and
There is now a presumption of ‘no consent’ in a case where sexual intercourse is proved and the victim states in the court that she did not consent. Once the victim says she did not give consent for sex and the intercourse is proved, the accused will have the burden of rebutting the victim’s allegations.
Lack of physical resistance does not mean consent was given for intercourse.
Section 146 of the Evidence Act: where the question of consent is an issue, it
shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”
A victim of rape can be charged with perjury, if she lies to court in a rape case, but courts rarely use this power because this will discourage reporting of rape by the genuine victims.
Punishment for rape or sexual assault
The punishment will be imprisonment not less than seven 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 less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Reasons for false rape cases
The rate of conviction in rape cases dipped from 40% in 2001 to 24% in 2012. In large number of acquittals the courts found that the allegations of rape were made to achieve other ends, such as: Extortion, recovery of dues, property disputes, misunderstanding, relationship problems, extra-marital affairs.
In January this year, additional sessions judge Virender Bhat suggested empowerment of courts to order compensation for persons who get implicated in false cases. The judge, while acquitting a man of rape charges filed by a married woman in March 2013, remarked it was “a voluntary liaison” which was turned into a rape under pressure from the woman’s husband.
Recently, another fast track court judge, ASJ Nivedita Anil Sharma observed that false complaints are registered by women who are caught doing extra-marital sex in order to survive humiliation.
In many cases, women stated they registered the case out of anger and due to misunderstanding.
Registration of false cases is rampant and likewise the acquittal rate is alarming. The new law is being abused because of the broad definition of rape.
Experts feel, in many cases the sex is consensual but the victim claims that the consent was given on account of promise of marriage.
Definition of rape
‘375. 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 woman or makes her to do so with him or any other person; or
(b) 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
(c) manipulates any part of the body of a woman 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
(d) applies his mouth to the 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:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—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 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 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.
Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman 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 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.
Punishment for rape
376. (1) Whoever, except in the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment of either description for a term
which shall not be less than seven years, but which may extend to imprisonment for
life, and shall also be liable to fine.
Definition of other sexual offenses
IPC Sections Offense Punishment Definition Notes
354A Sexual harassment: physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or making sexually coloured remarks; or forcibly showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Rigorous imprisonment up to five years, or with fine, or with both in case of offence described in clauses (i) & (ii)Imprisonment up to one year, or with fine, or with both in other cases
354B Act with intent to disrobe a woman: Assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked
Imprisonment not less than three years but which may extend to seven years and with fine.
354C Voyeurism: Watching or capturing a woman in “private act”, which includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.
In case of first conviction, imprisonment not less than one year, but 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 shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
354D Stalking: To follow a woman and contact, or attempt to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or monitor the use by a woman of the internet, email or any other form of electronic communication. There are exceptions to this section which include such act being in course of preventing or detecting a crime authorised by State or in compliance of certain law or was reasonable and justified.
Imprisonment not less than one year but which may extend to three years, and shall also be liable to fine Only for women.
376C. Sexual intercourse by a person in authority Non-rape type intercourse : Whoever, being—(a) in a position of authority or in a fiduciary relationship; or(b) a public servant; or(c) superintendent or manager of a jail, remand home or other place ofcustody established by or under any law for the time being in force, or a women’s or children’s institution; or (d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,
Shall be punishedwith rigorous imprisonment of either description for a term which shall not be less thanfive years, but which may extend to ten years, and shall also be liable to fine.
376B.sexual intercourse with his own wife, who is living separately: 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 not be lessthan two years but which may extend to seven years, and shall also be liable to fine.
375. Rape type Sexual intercourse with wife is not rape: No punishment but civil remedies available:Marital rape that occurs when spouses are living together can only be dealt under the Protection of Women from Domestic Violence Act 2005 which only provides civil remedies to victims (it is a form of non-criminal domestic violence). Marital rape is not a criminal offense, except when spouses are separated.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.‘
370. (1)Sexual exploitation or trafficking: Whoever commits the offence of trafficking shall be punished with rigorousimprisonment for a term which shall not be less than seven years, but which mayextend to ten years, and shall also be liable to fine.
Whoever, for the purpose of exploitation, (a) recruits, (b) transports,(c) harbours, (d) transfers, or (e) receives, a person or persons, by—
First.— using threats, or
Secondly.— using force, or any other form of coercion, or
Thirdly.— by abduction, or
Fourthly.— by practising fraud, or deception, or
Fifthly.— by abuse of power, or
Sixthly.— by inducement, including the giving or receiving of payments
or benefits, in order to achieve the consent of any person having control over
the person recruited, transported, harboured, transferred or received,
commits the offence of trafficking.
Explanation 1.— The expression “exploitation” shall include any act of physical
exploitation or any form of sexual exploitation, slavery or practices similar to slavery,
servitude, or the forced removal of organs.
Explanation 2.— The consent of the victim is immaterial in determination of the offense of trafficking.