- The rape laws in India are not adequate to resolve issues of 21st Century.
- The principle of equality is overlooked in rape laws as the provision only provides for rape as an offence against women.
- Are we considering marriage with victim as a possible solution in rape cases?
- Marital rape is also an important aspect which should be looked upon as a possible addition in current rape laws.
- The social stigma surrounding rape makes survival very difficult for the victims and the lack of justice acts as a voice suppressor.
- The article discusses the aspects of social stigma and loopholes in the laws that, if amended, would bring a huge wave of relief for the victims and proper justice administration in the Country.
Rape is defined under Section 375 of the Indian Penal Code, and it is punishable under Section 376 of the same code. Section 375 exclusively recognises a female as a victim, not a person of any other gender. It also does not recognise a female perpetrator. As a result, a person who is not a woman cannot claim rape under this clause. However, a crime can be established under Section 377.
Even with a provision of law which tries to ensure that a rapist gets punishment for his actions, the plight of the victim is not reduced. There are loopholes in the provision and in practice that makes it very difficult for the victims to claim justice for themselves.
Plight of Rape Victims
In India, women who become victims to the offence of rape are treated as if they were not the one who suffered instead as if they have committed a crime. Virginity is considered as an honour for women and it should belong to only her husband. Her body should belong to only her husband. If any other male, who is not her brother or father or husband, touches her then she is considered to be impure. This thought has been prevalent for centuries and day by day this mentality is slowly changing. But the treatment that women get when they are sexually abused is yet to change to a degree that they feel normal after going through such a traumatic experience.
First of all, women do not feel comfortable to open up about any kind of sexual abuse because their honour would be questioned. Their own family would not support them and they would be asked to keep quiet and not utter a word to anyone. They prefer staying quiet rather than looking at the disappointed faces of their families. If the incident goes out, then the family will have to face shame.
In many cases, the rapist is a known person to the victim. And this makes it even more difficult for them to report the case. There is also the point of who will marry the victim as her honour is ruined. This creates an invisible cage around the victim and forces them to keep quiet about the incident.
Lacunae in Rape Laws
Until recently, India’s rape law has been shaped around the needs of women rather than the needs of victims. This is problematic since sexual crimes outside of the ‘traditional' and heteronormative spectrum are on the rise these days, and the lack of a legal framework to address them leaves victims powerless. In Criminal Justice Society of India vs Union of India, it was also argued before the Supreme Court that crime has no gender, and so should our laws. Women and men commit crimes for the same reasons. The law makes no distinction between criminals and non-criminals, and everyone who commits an offence is subject to the Code’s penalties. The Court left the decision to the Parliament to make or amend laws accordingly.
There have been instances of men and transgender people being raped as well. The provision in Section 377 provided some relief to the other genders but now that it is legalised, considering the scenario, it is important to make changes to the existing rape laws. Rape is not specific to a gender and when everyone is equal in the eyes of law then an offence which is subjected to all genders should not be left out. Having gender biased laws makes it very difficult to approach the Court when the people know they would not get justice and the social stigma that states that men cannot be raped would make them a laughing stock before the people.
In Bareilly, Uttar Pradesh, village leaders and the parents of a 14-year-old rape victim married the girl to the guy who reportedly raped her and pregnant her. The girl's parents are low-wage employees who are unable to provide for her and her child. Their demands for financial assistance from the local government were turned down.
A judge may believe that marriage is the best answer to a rape case, especially one that results in an unplanned pregnancy. Judges are often swayed by stigma arguments. No law recognises the ‘marry your rapist to get out of jail free’ card. Nonetheless, it persists informally between families and village councils as well as formally inside courts.
The stigma of rape, particularly in rural regions, only affects the survivor’s life because members of the panchayat dismiss the horrible crime of rape as merely a mistake made by the guy. As a result, they believe that the fitting punishment for him would be to marry the survivor. But this only endangers the life of the victim like it happened in a recent case, where the rapist was relieved from the jail to marry the victim and later on he murdered the victim.
In other circumstances, after marriage, the rapist leaves the victim and the victim has to suffer from mental torture by the rapist. Allowing marriage of the rapist to a girl is not only giving free pass to the rapist but also puts a lot of constant mental agony to the victim as seeing her perpetrator every day is a daily reminder of the horrible incident she went through.
Even after the 2013 amendment, rape between a husband and wife who live together was not considered a crime in India. Article 376B of the 2013 law makes forced sexual intercourse by a man with his wife, if they are living apart, a crime punishable by at least two years in jail, whether under a decree of separation or not. Marital rape is still not a recognised provision in the Penal Law and the sufferings of the wife is not addressed. The husband can be brought under Domestic Violence but cannot be punished for raping his wife.
In India, rape laws are drafted with only women in mind. However, in this day and age, when a similar crime is committed against people of all genders, it is time to amend rape legislations to be more victim-centered. Victims of other genders can likewise seek redress under the current law in this way. Furthermore, such a step would broaden the reach of Section 375 to include other genders while not jeopardising women's rights. Furthermore, such legislation would be consistent with the spirit of the Constitution, which gives every citizen the right to life. When rapists are allowed to go free of any charges if they marry the victim, it would only give more incentive to the present day roadside Romeos to do anything they want to, and then marry the girl to get away with their actions. If the amendments are not made soon, then the crime rates and the torture for the victims are only going to increase.