Author: Disha Anil Shah, III year of B.B.A.,LL.B(Hons.) From University of Mumbai's Thane Sub-Campus, Thane.
Co-author: Janavi Anand Chhabra, III year of B.A.,LL.B(Hons.) From Guru Gobind Singh Indraprastha university, New Delhi.
The article discusses rape, which is one of society's most terrible crimes. It explains the elements of Indian legislation designed to protect individuals from this crime and penalize those who commit it. Furthermore, it enshrines a marital exemption and how this is a loophole, as well as attempting to provide recommendations to modify the rules and make them gender neutral by including measures for protection when males are raped.
Every day, we wake up to the news of terrible rape incidents taking place all around us. Sometimes it's a three-month-old baby, and other times it's an 80-year-old woman. The term rape is so terrible, humiliating, horrific, and scary that it ruins one's entire psychology and affects the deepest feelings of the person being raped whenever it enters one's thoughts. Historically, the term "raptus," which meant "violent theft," was used to refer to both property and people in Roman society. It was identical with abduction, and a woman's abduction or sexual assault was simply the stealing of a woman without her guardian's or those with legal authority over her permission. Ironically, the injury was viewed as a transgression against her father or spouse, women being treated as wholly-owned subsidiaries.
Section 375 of the Indian Penal Code made it illegal for a male to have intercourse with a woman if it was done against her will, without her permission, or with the use of force. Rape also includes sex when a woman's permission was acquired by placing her or any other person she is interested in fear of death or harm. The legislation also expressly says that simple penetration is enough to constitute rape. Anyone who commits the crime of rape faces a sentence ranging from seven years to life in prison under Section 376.
Every year, the National Crime Records Bureau (NCRB) publishes an annual report detailing the statistics on crimes against women in India. Rape is one of the most prevalent crimes perpetrated against women in India. According to the 2020 report, it accounts for 7.9% of all crimes perpetrated against women. The Supreme Court clarified the concept of rape in Sakshi v. UOI, ruling that "only heterosexual intercourse, i.e. penial and vaginal penetration, shall be treated as rape under the ambit of Section 375 of the IPC."
However, in a recent ruling, The Kerala High Court has ruled that non-penetrative conduct that offers sexual satisfaction to the accused in a manner comparable to that of penetrative sex would be considered rape under the Indian Penal Code.
SOME INCIDENTS WHICH SHOCKED THE WHOLE NATION
1. TUKARAM AND ANOTHER VS. STATE OF MAHARASHTRA
In Tukaram and Another v. State of Maharashtra, the problem of custodial rape was witnessed by the victim. A 16-year-old girl named Mathura was raped in spite of her resistance by two policemen in the washroom of Desai Ganj Police Station in Chandrapur. The accused were acquitted by the session Judge, as he concluded that it was “consensual sexual intercourse” and not a case of rape. However, the words “passive submission” and “consent” were rightly distinguished by the Bombay High Court. According to the court, since they were strangers to Mathura and her brother had just filed a complaint at the same police station, the possibility that she would approach. them was highly unlikely. Later, in 1979, the Supreme Court overturned the judgment of Bombay High Court and acquitted the policemen on the basis that Mathura had a habit of sex and did not seek any help.
As a result of this case, there was great passion and resentment in the society at large. There was a need for a new law that treated victims' feelings with greater empathy and protected their dignity and human rights. The 1st Amendment to the Criminal Law was made in 1983. It amended Sec. 114(A) of the Indian Evidence Act and Sec. 376 of the IPC.
2. MUKESH AND ANR. VS. STATE FOR NCT OF DELHI & OTHERS
The infamous case of Mukesh & Anr. v State for NCT of Delhi & Others, more commonly known as the Nirbhaya Rape Case. In this case, a 23-year-old girl was raped by six people and was brutally assaulted on the bus while she was returning back to home after watching a movie with her friend. The victim and her friend were thrown out naked from the bus after the rape. During her treatment in a hospital in Singapore, the victim died.
Four of the six accused were given the death penalty by the Supreme Court. One of them, a juvenile, was sentenced to prison and sent to the correctional home by the Juvenile Justice Board. Before the judgment was delivered, the other one committed suicide. Due to this case, the Criminal Law (Amendment) Act, 2013 was passed to amend certain provisions of Section 375 of IPC.
INDIA - LEGALITY OF MARITAL RAPE
India is one of the world’s 36 countries that does not legalize marital rape. It codifies the marital rape exemption as a genuine one under section 375 IPC. A woman is supposed to provide permanent permission to a sexual connection, resulting in marital rape, which is defined as non-consensual sexual intercourse between the couples. is not within the authority of commuting the rape offender. Marital rape is a legal loophole in our nation since it is not punishable by conviction. In India, marital rape is defined as the ultimacy of what we call "implicit consent." As a result, if the spouse is over the age of 15, the males have the legal authority to rape her.
In Independent Thought v. Union of India, an NGO named Independent Thought asked the Supreme Court to file a writ petition under Article 32 to declare the section 375 IPC exemption unconstitutional. The court expressly said in their case that marriage is a personal matter and that criminalizing anything linked to it may go against the fundamental concept of marriage.
The Gujarat high court decided in Nimishbhai Bharat Bhai Desai v. State of Gujarat 2 April 2018 that a non-consensual act of marital rape breaches a marriage's faith, respect, and trust, and that this problem has ruined the institution of marriage.
The Kerala high court recently declared that marital rape is a viable cause for divorce, despite the fact that it is not punishable in the country, maintaining a family court's decision to allow divorce on the grounds of "marital cruelty."
Some of the counter-arguments against criminalizing marital rape include:
1. Consent is assumed eternal & implied.
It is deeply ingrained in the minds of individuals that once a woman marries, she grants her husband unrestricted sexual permission for the rest of her life. According to the National Family Health Survey N4 (2014-2015), around 31% of married women in India have experienced physical, sexual, and emotional abuse and assault from their spouses.
Although the percentage of married women who are subjected to physical and sexual abuse by their spouses has decreased from 37% in 2005-2006, it remains alarmingly high.
2. Women might misuse laws
The affidavit presented to the Delhi high court in the case of Rit Foundation v. Union of India said that if marital rape is criminalized under the legislation of the nation, it may become an easy weapon to harass husbands. Furthermore, it was claimed that if any and all sexual behavior between the couples might be termed marital rape, the wife would have exclusive authority to make the final choice. The misuse argument is deceptive since it ignores how impoverished and disadvantaged women may make use of marital rape laws if they exist. Even if they are subjected to harassment, they will not report it.
3. Against the Indian culture
Deepak Mishra, the former Chief Justice of India, stated in 2019 that marital rape cannot be declared a crime in India. In a Times of India report, he said that “There is no necessity to bring such a law; it is my personal view.” The argument here is that, due to substantial socioeconomic and cultural disparities, marital rape cannot be criminalized in India as it is in Western nations.
Furthermore, because equality has already been granted as a fundamental right under article 14, this exception becomes incongruent. It infringes on the rights of women who have been sexually abused by their spouses and are denied protection. Second, it makes a distinction in seeking justice between married and unmarried women.
The criminalization of marital rape in India will make justice more accessible to all women, regardless of marital status. It will send a clear message that women still have the right to decide whether or not to have physical relationships and with whom.
MEN ARE CURRENTLY IMMUNE IF THEY RAPE THEIR WIVES; THIS HAS TO STOP.
INDIA’S LAW SHOULD RECOGNIZE THAT MEN CAN BE RAPED TO
Rape in India is defined as the insertion of a penis, or any foreign object, into a woman's or girl's vagina without the woman's or girl's permission. Even if the woman does not consent, there is no label of rape when the man is married to the woman. The only exceptions are if the wife is under the age of 16, or if they are separated. According to Indian law, men cannot be raped - they can only be "sodomized”, which is classified under section 377 of the Indian Penal Code. As rape is defined as "the penetration of the vagina by a man", women cannot be charged with rape. The most they can be charged with is sexual assault or forced unnatural sex under section 377 of IPC. Even though POCSO ("Protection of Children from Sexual Offenses") addresses sexual assaults of male children, no similar provision applies to adult males.
Until recently, just two laws have recognized that males may be raped as well. The first is the POSCO (Protection of Children from Sexual Offenses) Act, which covers both male and female children who have been sexually abused. The second is the UGC's "Sexual Harassment of Women at Workplace Act," which recognizes that men, like women, are prone to sexual harassment at work. Different organizations of women spoke out against Public Interest Litigations (PILs) that sought to make rape a gender-neutral offence.
The time has come for society to focus on gender equality. Due to gender-biased laws favoring women in sexual violence cases, most cases where men face sexual violence are never reported, and justice is not provided. Creating gender-neutral laws or amending existing laws that are gender-neutral will make sure that men and women are treated equally in India.
PSYCHOLOGICAL IMPACT OF THE RAPE ON THE VICTIMS
Victims of rape in childhood and adulthood are more prone to try or commit suicide. As early as childhood, the trauma of being raped can contribute to suicidal behavior. Rape and other types of sexual assault on children can cause short- and long-term damage, as well as psychopathology later in life. Depression, posttraumatic stress disorder, and anxiety are examples of psychological, emotional, physical, and social consequences. In the case of child sexual abuse, most of the cases remain unreported as the child victim is not aware of what had happened with him or her and they remain silent because of some fear but, as they grow up and understand what had happened with them they might feel insecure and have a lasting psychological impact which would not let them work/ love or do anything happily and it keeps haunting them from inside. So, awareness amongst the children about sexual abuse must be done.
FEAR AND ANXIETY
Fear and anxiety are the most commonly recognized symptoms following rape. Using the Modified Fear Survey (MFS; Veronen & Kilpatrick, 1980), or the Derogatis Symptom Check List-90-Revised, an instrument especially intended to measure fear in rape victims (SCL-90-R; Derogatis, 1977). Several studies have revealed variations in fear levels between victims and nonvictims on the phobic anxiety subscale, which has a phobic anxiety subscale.
POST-TRAUMATIC STRESS ORDER
In their initial study, Burgess and Holmstrom (1974) defined traumatophobia as a set of symptoms that encompassed all three elements: nightmares, fears, and avoidance, a sense of unreality, and physical symptoms.
Rape victims have been found to suffer depression in studies on the long-term effects of rape. In a study of women 1 to 16 years after a rape, Ellis et al. (1981) discovered that rape victims were substantially more depressive than a matched control group. According to the BDI, 45 percent of the rape victim sample was moderately or seriously depressed. The rape survivors did not vary from the comparison group in terms of how often they engaged in activities on the Pleasant Events Schedule (MacPhillamy & Lewinsohn, 1976), but they did express considerably less enjoyment from the activities. Rape is not just a crime against the person, body, law, and society however, it is also the battle against mental health.
Despite advances in rape laws, there are still certain concerns to be addressed, such as gender neutrality under the IPC, the fact that a man cannot be a rape victim, and the idea of marital rape. The laws are dynamic; they change with time; nevertheless, the primary difficulty with rape laws is that they are only changed when someone suffers; thus, it is important that the rape laws function in all of its dynamism and that necessary adjustments be made.