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Rape is one of the grossly inhuman act which violates a woman’s chastity and completely strips away her dignity and self respect. It completely destroys her life and may lead to life long emotional scarring in addition to the emotional trauma. The rape victim is ravished like an animal for the fulfillment of desire and lust of another man. This savage act undermine the integrity of the victim physically as well as mentally. it destroys all her hopes of being rehabilitated , and taints her and makes future relationships a virtual impossibility. Thus it can be said that rape of a woman will lead to a future which may seem worse than death. In India raped women are ridiculed rather than getting sympathy. So it can be said that rape of a woman which may seem worse than death.

Unfortunately , despite all these considerations , the number of rapes is on the increase in our country and many criminals are indulging in this to satisfy their carnal desire while completely disregarding the effect of their act on the victims. It has always been recognized as a crime and can be classified as a mala in se, i.e. a crime which is wrong by itself and which has been designated so by the society .

As observed by Justice Arjit Pasayat:

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

 

What does INDIAN PENAL CODE 1860 states?

Section 375 of the Indian Penal Code deals with rape :-

[1][375. Rape- A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 her 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.

Sixthly, With or without her consent, when she is under sixteen years of age.

Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Rape laws in India:

“The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claimed to have understood and applied it.”  - Kiran Bedi, Joint Commissioner, Special Branch.

 

The element of mens rea has not been expressly included in the statute regarding rape in India or England. This has been the cause of a heated debate where some people are in favour of taking account of the mental state of the accused whereas the others believe that it is immaterial in proving rape.

The question was vehemently raised in DPP v. Morgan,[2]In the case the husband a RAF commandant managed to convince three of his junior officers that they should have sexual intercourse with his wife. He also managed to convince them that even if she protested , it would be play acting. Accordingly the accused went to the house and dragged the victim out of the bed where she was sleeping with her son. When she was being dragged off , she told her son to call the police but the accused did not stop and proceeded to rape her. Afterward she contended that she had not consented to the act hence it was a rape.

In the case of Tukaram v. State of Mahrashtra,[3] popularly known as the Mathura rape case. The facts of the case are as follows:-

Mathura and her brother Gama worked as labourers. Mathura came in contact with one Ashoka and they decided to become husband and wife . Mathura left the house with Ashok and Gama lodged a complaint at a police station that Mathura was kidnapped by Ashok , his uncle and niece. Whereupon all these persons along with Mathura were brought to police station. The statement of Mathura and Gama was recorded and the problem solved , and as they were leaving, one Ganpat a constable asked Mathura to stay back. The directions were complied with. Thereafter Ganpat took her to a latrine and lowered her undergarment , then he dragged her to a charpai and raped her despite stif resistance and protest from her. After that another constable, Tukaram came and wanted to rape her but couldn't do so because he was heavily drunk. Ashok and Gama who were waiting for Mathura got suspicious and went to the backside of the police station. After some shouting Tukaram came and told them that Mathura had left but after sometime she herself emerged and told them that she had been raped by Ganpat. The prosecutors wanted the court to convict the accused of rape on the basis of clause thirdly of section 375 which disregards any consent given when given in fear of hurt or death to her or any person she is interested in. The sessions court failed to believe in this story and said that the only believable part was that Mathura had sexual intercourse when she was inside the police station and it was most probably with Ganpat.

On appeal , the High Court reversed the decision. It said that Mere passive or helpless surrender of the body and its resignation to the others lust induced by threats or fear cannot be equated with desire or will , nor can it furnish an answer by the mere fact that the sexual act was not in opposition to such desire. It said that the fact that the only reason Mathura was in the police station was because of the complaint filed by her brother , makes it more probable that any effort to have sexual intercourse was made by the accused and was without the consent of the prosecutrix. Even her subsequent declaration made her husband and all the persons present proves that she was not a willing party.

Unfortunately the Supreme Court did not agree with this. It said that unless the fear was of hurt or death , it would not vitiate consent and in this case the circumstantial evidence proves that the fear if any was not the kind to vitiate consent. The medical evidence also proved that Mathura was used to sexual intercourse, how is that relevant considering she was married to Ashok , the researcher fails to see.

In State of Punjab v. Gurmit Singh,[4] when the three accused after abducting the prosecutrix, subjected her to sexual intercourse forcibly , the apex Court held that the act was against her will and hence amounted to rape within the meaning of section 375clause (1). In this case when the prosecutrix, a girl of sixteen years was returning from her school when an Ambassador car stopped near her and the accused forced her inside it. Then they took her to the tube well of one of the accused, there they forced her to consume liquor misrepresenting it as juice. Then one of the accused removed her clothes and she was made to lie on a cot. Then the first accused committed rape on her. She resisted and cried as she was suffering from pain but he threatened to kill her if she persisted in raising alarm. Afterwards the other two accused also committed rape on her . it was clearly a case of the act being against her will.

In the case of Queen v . Flattery,[5] the accused was charged for rape upon a 19 year girl. The girl who was in ill health and subjected to fits visited the accused clinic along with her mother and sought has advice for treatment. The accused, after examining the girl, advised her to have a surgical operation, to which she consented, and under the pretence of performing it, had sexual intercourse with the girl. It was held that the girls consent would not excuse the accused from getting convicted.

In addition, rape can occur between people of the same sex. The National Violence Against Women survey found that 10% of women rape or sexual assault victims or assaulted by females. Results of one study of  sexual coercion within gay or lesbian relationships indicated that 50% of the lesbians who had experienced sexual coercion reported unwanted penetration and 32% reported unwanted fondling.

Rape is often characterized as not being a “clear-cut” crime such as murder. For various reasons, most rapes go unreported. Infact an estimated 58% of rapes are never reported to the police. These unreported rapes may be perceived as threat to public safety.


New Dimensions of Rape:

The new offence of rape is created by section 1 of the Sexual Offences Act of 2003, which states that the prosecution has to prove intentional penetration of the vagina, anus or mouth of the complainant and an absence of a reasonable belief that the complainant was consenting. ‘Reckless rape’ as it was previously understood has been abolished. Thus, the mens rea under the old was an intention to have to have sexual intercourse with  A (i) knowing that A does not consent or (ii) being aware that there is a possibility that she does not consent.

Another significant effect of the 2003 Act is to reverse Morgan,[6] a genuine but unreasonable belief in consent will be a sufficient mens rea for the offences in sections 1 to 4.[7]

Section 2 of the Act provides entirely a new offence. The conduct element of the offence includes penetration with any part of the body, such as with fingers and inanimate objects, like knives, pencils, bottles, etc. Such acts under the previous law would have fallen into the category of an indecent offence only. This new offence carries a maximum sentence of life imprisonment.

Section 3 is a new section which makes sexual touching of another’s body without his or her consent with any part of the body such as a finger, but also including the penis so that the offence overlaps with rape or penetration with an instrument, such as a bottle. The penetration must be without consent.

Section 4, altogether a new offence which has one of its purposes of criminalizing the action of women who force men to penetrate them. Thus a female can aid and abet the offence as where she encourages or assists a man, A, to penetrate B without consent. It may be possible for the woman aider and  and abetter to be convicted even though  A is acquitted of rape on the basis of his lack of mens rea. In such circumstances, a female can also now be charged with an offence under section 4 - causing a person to engage in sexual activity.[8]

Consent of the victim is the most important aspect of rape law as it is this which distinguishes normal social behaviour from a crime. Therefore it is necessary to see that the law is formulated in such a way that it is easy for the victim to prove that there was no valid consent.

ANWESHA SAHA, III YEAR

HALDIA LAW COLLEGE



[1] . Subs. By Act 43 of 1983, sec 3 for sec 375 (w.e.f. 25-12-1983)

[2] (1975)2 All ER 347(HL)

[3] AIR 1979 SC 185

[4] AIR 1996 SC 1393

[5] (1877) QBD 410

[6] Ibid

[7] Smith and Hogan, Criminal Law: Cases and Materials, 9th Edn., 2006 (Oxford University Press), pp. 726-735.

[8] Ram, (1893) 17 Cox CC 609; Lord Baltimore’s case, (1768) 1 Black W 648; Cogan and Leak, (1975) 2 All ER 1059


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