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Reconceptualising the term ‘Rape’

Decades ago India was known as the Golden bird – known for its prestigious culture, values, ethics and its rich land. But the question is, is India still that golden bird? Or has the bird been caught in a cage of animosity, anger, fear and bad blood? There is a constant buzz about rapes in the country.

Introduction

Much has been spoken about the term ‘Rape’ it’s biological, psychological impacts. Laws have been discussed, attempts have been made to effectively punish offenders and protrct the victim. In this whole process somehow the term “rape” has undergone so many changes, these changes come from a place of how the law has dealt with this crime and allowed people to perceive it. There have been ongoing debates on how the cases have been increasing, most of them focusing on statistics but none of these debates have actually focussed on what is the exact meaning of rape. All that everyone talks about is that rape is unwanted penetration but has anyone thought that it’s something more than just sexual intercourse?

An Overview on the Laws against Rape

‘Rape’ as an offence was first defined in the Indian Penal Code in 1860[1]. After 1860, the criminal law relating to rape and sexual assault cases remained unchanged until the watershed incident of the Mathura custodial rape case[2]. That’s when the first amendment known as the 1983 amendment [3] was made and this incident was perceived as a miscarriage of justice among the ‘intelligent-sia’[4] and other group of people. However this amendment ignored several suggestions in making this act comprehensive.

The controversial incident sparked wide scale protests across the country seeking a change in existing rape laws. This culminated into the Criminal Law (Second Amendment) Act of 1983. A new Section 114A in the Indian Evidence Act of 1872 was inserted which presumed that there is absence of consent in certain prosecutions of rape if the victim says so. This applied to custodial rape cases. Also, Section 228A was added to the Indian Penal Code, which makes it punishable to disclose the identity of the victim of certain offences including rape.

Almost 30 years after the 1983 amendment another brutal case known as the Nirbhaya case blew the minds of the people. It was ‘that’ case that people understood that rape laws had been limited to penile-vaginal inter-course. Five months after this case The Criminal Law (Amendment) Act, 2013 was enacted with progressive provisions of standing consent, gestures, and stringent punishments.

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Other forms of penetration were, indeed, covered by S. 377, IPC, which prescribes carnal intercourse against the order of nature[5]. These gestures altered the concept of rape in the eyes of law, earlier it was easy for the accused to prove their innocence and the victims were left powerless. Moreover the understanding of rape has evolved from force to power. The realisation was after the Nirbhaya case, where the Supreme Court felt that it failed to empower rape victims[6].

A new era for ‘Rape Laws’

Section 375 of Indian Penal Code defines what constitutes rape as “penetration”, to commit  “sexual intercourse” which is essential to attract S375. Full penetration is not required in case of rape; “if any part of the organ of male goes within the labium of the pudendum of the woman, no matter how little it amounts to rape”.

Let’s start talking of the larger perspective, only including penetrative intercourse should not account to rape. Other forms of sexual activities should also be considered. The whole essence of rape is denial of consent and that should not only be for penetration but also other sexual activities. Both of these acts leave a grave impact on the victim. It is time we stop putting other sexual acts into boxes and distinguishing it from penetration.

Rape under a crime is not crime against body but against property, a property of a father, brother, husband etc. ideally the crime was only rape if it was inflicted upon a virgin. The Victim is required to show that it was against their will and was forceful along with a proof that they tried all its force to resist the attack. This is not difficult to understand as mentioned above, rape is a crime against property and that property belongs to men. So this whole act is from a male perspective, for their carnal knowledge, intercourse i.e. penile-vaginal penetration is done. So in simple words rape is sexual intercourse just without consent.

Feminists, social workers are working towards widening the scope of law to make it gender neutral. In India Rape is gender bias, the predator is a male and victim is a female [7] but there are times when homosexuals and transgender also get raped and that is not included. This is a violation of Article 14, Constitution of India, which requires equal protection of laws to all persons placed in equal circumstances[8]. Its time we look forward to gender neutral laws, where almost all the sections are getting justice and not being left behind.

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There is risk of over criminalizing if one expands beyond the definition is certainly there is something to look forward when reconceptualising the term rape would include non penetrative acts and most importantly denial of victims consent as punishable. Talking in reality the reconceptualising may cause discomfort. This discomfort has been coming from the long standing patriarchy and orthodox belief in sex and rape. But since when has the judiciary started looking into the discomfort of society? With a thorough reconceptualising might cause some misuse of the provisions but that does not mean that laws should not be enacted. The understanding of misuse comes from a place of privilege, it should not be a reason to overshadow legal efforts in solving social problems.

Conclusion  

200 years ago Sati was practiced, where women had to jump into fire after her husband’s death- does not make sense right? In today’s time it’s the women who has to bear the brunt of a man’s doing. In sati it was death and in Rape it’s the “sanskar” that’s not been taught to boys. If you found Sati unreasonable and worked towards abolishing it then why can’t the same happen to Rape too?  The laws need to evolve with evolving times, reconceptualising should be implemented not only in books but in reality too. Further amendments are needed giving importance to non-penetrative acts on all genders which cause equal harm as penetrative acts with gradations of stringent punishments. In the light of the same, a direction to seeking help for thousands of victims in seeing light at the end of the tunnel and restoring their faith in the third pillar of democracy.


[1] Prior to this, there were often diverse and conflicting laws prevailing across India. The codification of Indian laws began with the enactment of the Charter Act, 1833 by the British Parliament which led to the establishment of the first Law Commission under the chairmanship of Lord Macaulay.

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[2] . On March 26, 1972 a young Adivasi girl named Mathura was allegedly raped by policemen in the Desai Gunj Police Station in Maharashtra. In the trial that ensued, the Sessions Court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was habituated to intercourse.

[3]  Criminal Law (Amendment) Act, 1983, No. 46, Acts of Parliament, 1983 (India).

[4] .See, An Open Letter to the Chief Justice of India written by Upendra Baxi, (1979) 4 SCC J-17.

[5] S 377, Indian Penal Code, 1860: Unnatural offences.- “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[6] The Hindu: “Are rape laws stricter now” 17th December 2019.

[7] The 172nd report led to the amendments in the Indian Evidence Act in 2002.

[8] The Constitution of India- Article 14.


Cite this article (The Bluebook 20th ed.)-

Priyanka Shahani, Reconceptualising the term ‘Rape’, Ex Gratia Law Journal, (October 28, 2020), https://exgratialawjournal.in/blawg/criminal-law/reconceptualising-the-term-rape-by-priyanka-shahani/.


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Author

Priyanka Shahani
Student - K C Law College, Mumbai