Background
Rape is one of the most horrifying and cruel acts of violating bodily integrity and homage of a woman. It destroys the entire physical and mental composure as well as health and pushes the victim in a deep emotional trauma and reduces her to a living corpse. Rape is a plausible problem in societies around the world. It is not a lifestyle problem whereas it is behavioural problem. Rape affects basic human rights and violates right to life with dignity enshrined in article 21 of our Indian Constitution. The word rape is derived from the Latin term Rapio, which means “to seize”.
Historical Perspective
Historically Rape was known as “Raptus,” in Rome, implying violent theft-- applied both to property and person. Raptus meant theft or abduction of a woman including their sexual assault. It was known to be theft of a woman against the consent of herself, her guardian, or her protector. Although Romans were the first to designate it as a crime, however, this wrong was treated against her father or husband- not against her.
Rape in the meaning of “forced sex” was expressed as a supreme crime committed through violence or coercion (cum vi or per vim), mostly by armies invading towns in olden times. Rape was prohibited by the military codes during the 100 years’ War (1337–1453). Later in some cultures, rape was not considered as a crime against a particular woman but as a crime against the head of the household or against the whole society. The offence of rape was often punishable with a fine, payable to the father or the husband whose “goods were damaged”. Somewhere, the woman’s consent or her will was under many legal systems, not a defence. As per the majority of Muslim scholars and jurists, there is no punishment for a woman forced to have sex.
Even in the present time in India, if a girl less than 18 years of age runs away from home and gets married to a boy who is major, then parents can blame him for the rape of their child. In 17th century France, even marriage without parents’ consent was classified as rape.
Crime Against Women in Ancient India
During ancient times, It was said that Indian women held a high place of respect in society as mentioned in Rig Veda and scriptures. But later on, because of social, political and economic changes, women lost their status and were entrusted to the background (Crime against women, 2013), These statistics showed a declining sex ratio. The reasons behind this were a decline in the health, social status, literacy rate, work participation rate and political participation of women. While on the other hand, the spread of social evils like dowry deaths, child marriage, domestic violence, rape, sexual harassment, and exploitation of women workers became common in India; the crimes against women e.g. harassment, rape, molestation, dowry death, torture etc. have grown due to social change.
“The Semantic meaning of ‘crime against women’ is direct or indirect physical or mental cruelty to Girls and women. Crimes which are directed specifically against women and in which only women are victims are characterized as “Crimes against Women" but in this rape is one of the most heinous crimes against women. Mostly in rape, the woman is not a sexual being but an unsafe piece of public property. Throughout most of history, rape was considered to be a crime against the protector of women rather than it being a personal crime against women herself, because women were considered as property and henceforth, rape was a crime ‘only in terms of the property violation of another man’.
Rape in India- Statistics
Rape is the fourth most common crime against women in India. It is becoming the fastest-growing crime in India. For the women in India, fear is a constant companion. India stands third, leaving behind countries like Sri Lanka, Jordan, and Argentina, when it comes to rape cases. (Times of India, 2008). The most serious flaw of this source is the comparatively few cases of rape and sexual violence that reach the courts. But in India, 99 per cent of the cases of sexual violence go unreported because of the society. In India, girl is raped every 20 minutes. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5419017/) According to experts, only 10% of rapes are reported, and the conviction rate for rape cases is 24.2%. According to the National Crime Record Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012 out of which 24,470 were committed by someone known to the victim [almost 98% of the cases]. (National Crime Record Bureau 2013) The National Crime Records Bureau (NCRB) in India has reported data about rape cases since 1971. From 1971 to 2011, the number of reported cases increased from 2,487 to 24,206 (National Crime Records Bureau 2013). First Information Reports (FIRs) filed for rape in 2012 showed an increase of 3% from the previous year. In 2012, 24,923 cases were reported, of which only 15% went to trial and only 2% led to conviction. According to 2012 statistics, published in The Hindi News on September 2013, New Delhi has the highest raw number of rape reports among Indian cities Delhi city reported 23.8% (404 out of 1696) of total rape cases. (The Hindu, 2013) Although such statistics are published, the actual number of rapes is far from being recorded, since the unreported figure is extremely highest, and also the majority of reports reveal youth is a vulnerable group for rape victimization.
Legal Framework in India
Criminal Law
“Rape laws”, a crude, but convenient, term for laws dealing with rape, have been amended and recently enacted in Bharatiya Nyaya Sanhita, 2023 and Bhartiya Sakshya Adhiniyam, 2023 (twice in the Penal Code, 1860 (IPC) and the Indian Evidence Act, 1872 (IEA) and present day enactments under BNS, 2023 and BSA, 2023) The first amendment in old IPC, 1860 was made in 1983, in the wake of the judgement of the Supreme Court in Tukaram v. State of Maharashtra, ingrained in popular memory as the Mathura Rape Case. The Supreme Court, reversing the judgement of the Bombay High Court, had acquitted the accused policemen of charges of custodial rape of a 14-16 year old tribal girl. The rationale was that she was ‘habituated to sexual intercourse’, that she had not successfully shown vitiation of consent by fear, and that she had not offered proof of her resistance against two fully grown policemen, in a police station, at night. The judgement was bitterly criticised by the critics and thereby started a movement for changes in the rape laws. The response of the Government to the movement was swift. Finally, in 1986, The Criminal Law Amendment Act, of 1983 was passed. By this act, section 375 and section 376 of the Indian Penal Code, 1860 were amended and certain penal provisions were incorporated for punishing such custodians who molest a woman under their custody.
Nearly three decades following the 1983 Amendment, another appalling gang rape incident surfaced on the night of December 16, 2012. A 23-year-old woman from the middle class was subjected to vaginal and anal penetration by a group of men using their genitalia and an iron rod, resulting in her tragic demise. This case stands out as one of the most exceptional and unprecedented instances in the annals of Indian judicial history.
The Criminal Law (Amendment) Act, 2013 was enacted within five months of the incident. The amended provisions are highly progressive. The incident led to a country-wide agitation all over the country, the protest, led to the making of a committee under the leadership of retired Justice Verma was constituted to come up with recommendations for the amendment to law relating to sexual offences. The committee submitted its report on 23rd January 2013. (http://bit.ly/1pnzDp7). The Criminal Law Amendment Act of 2013 come into force (http://bit.ly/1GxoUuT) The amendments made in the Indian Penal Code 1860, Code of Criminal Procedure 1973 and Indian Evidence Act, 1872 relating to rape cases. Section 327 of the Code of Criminal Procedure which deals with the right of the accused to an open trial was also amended by the addition of sub-section (2) and (3).
Bhartiya Nyaya Sanhita, 2023
The Bhartiya Nyaya (second) Sanhita, 2023 has received Presidential assent, and it will replace the 163-year-old Indian Penal Code. The Home Minister Amit Shah has notified the date of enforcement which is from 1st July 2024. In the same way, the other two bills-- Bhartiya Nagarik Suraksha Sanhita and Bhartiya Shakshya Adhiniyam, 2023 will replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act 1872.
The section leaves no scope of not covering any known ideas of sexual exploitation, and is, therefore, one of the exhaustive definitions to criminalise any such act. The rape as mentioned under 63, is punishable with rigorous imprisonment which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. For certain cases of rape, it may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life
Section 66 of BNS deals with when rape is committed with the death and making the victim in a vegetative state and provides for the punishment with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Section 67 OF BNS (376-B of IPC, 1860) criminalises sexual intercourse by husband upon his wife during separation lays down the punishment of imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Section 68 OF BNS (376-C of IPC, 1860) deals with Sexual intercourse by a person in authority. It criminalises sexual abuse by, (a) in a position of authority or in a fiduciary relationship; or (b) a public servant; or (c) a superintendent or manager of a jail, remand home or other places of custody 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, and penalises the same with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.
Section 69 OF BNS criminalises sexual intercourse by employing deceitful means (false promise of employment or promotion, inducement or marring after suppressing identity), or a promise to marry to a woman without any intention of fulfilling the same, and punishes such offence of sexual intercourse not amounting to the offence of rape, with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 70 OF BNS deals with the offence and punishment of Gang Rape. The section punishes the rape of a woman by one or more persons constituting a group or acting in furtherance of a common intention. Each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine. The punishment for gang rape with a woman under eighteen years of age is punishable with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death as per S 70 (2) of BNS.
Victim Compensation and Care in case of Gang Rape victims
The section 70 also takes care of victim care and compensation under its proviso, which provides that the fine levied by the court must be just and reasonable to meet the medical expenses and rehabilitation of the victim. any fine imposed under 70 (1) or (2) shall be paid to the victim.
BNS also deals with and provides for stricter punishment for repeated offenders under section 71 of the Act. The section applies to any person previously convicted of an offence punishable under section 63 or section 64 or section 65 or section 66 or section 67 and then is subsequently convicted of an offence punishable under any of the said sections. The section punishes them with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Punishments across the Globe
SAUDI ARABIA: As an Islamic nation, Saudi Arabia operates under Sharia-Islamic Law. According to reports, in cases of rape, the punishment involves administering a sedative to the victim before publicly beheading them. This execution typically takes place with the victim kneeling facing Mecca, and the police carry out the beheading with a single stroke.
AFGHANISTAN: Even in Afghanistan, in accordance with Islamic Law, rape offenders face severe penalties. The punishment may include death by hanging or execution by a gunshot to the head. These sentences are swiftly carried out, typically within four days of the crime.
CHINA: In China, rape is considered as a brutal crime and a death penalty is declared once the rapist is convicted. This is done by firing a single bullet at the spinal cord joining the neck.
USA: In the USA, punishments are enacted depending on the different types of sexual assault, which also include rape. Punishment is categorized as 1st, 2nd, and 3rd degree rape punishment. The maximum sentence for rape is life imprisonment, which could be 30 years in jail.
Social Voices and Changes
The effects of rape on society will basically revolve around the response the society makes. The scenario is different in certain societies like Asia, Africa and other poor countries where rape victims are ignored or the crime itself is not prioritized, society response would often be in negative way. India being an orthodox or unprogressively country, many Indians look down upon girls who are outgoing and prefer to wear Western clothes. Mostly society blames the girl for what has happened to her, she always be in fear of being called a girl with a bad character. Most of the time girls don’t report the crime she had faced which gives rise to the crime.
Rape or sexual violence affects the victim, family, and widely to the community society at large. The immediate person affected by rape is the victim, every victim reacts to the assault in its own different manner some people burst their feelings out or some keep it inside. After a rape, there is a lot of social outrage due to the heinous incident. For example, after the famous Nirbhaya Rape Case, there were lots of candle marches, protests. The majority of outrages poured out on social media platforms. Rapes and other sexual assaults can result in both short-term and long-term psychological, emotional, physical, and social effects including poor self-esteem, depression, and restrictions on other girls or women. The main victim is one but almost all the females get affected because of fear which gets inside them in their parents. India is famous for being unsafe for women these rapes and sexual assaults increase the restrictions on women that be inside when it's late or don’t go alone the roads are unsafe. In the end, the victims the prisoners are the women who sacrifice their lives just because of fear just because they are women. Educating people to view women as valuable partners in life, in the development of society is very important to attain peace in society, and it is just as important as it is making laws for women’s rights. Now a day men consider rape and sexual assault as a tool of terror, which they need to control women or satisfy their inner ego they rape women just to prove that they are stronger than women.
Social outrage leads many more feminist groups and organizations to come forward which gives help to the victim to get justice. Anti-rape movement term started and was joined by many feminist groups to provide justice to the victim It is high time that the country requires changes that perpetrate such injustices worldwide. Education and spreading information is very important to change the attitude of the society towards rape. In these types of heinous crimes society and community plays a vital role as India is a democratic country people have the right to speak, and stand for their injustice, In and country like India where sexual assault such as rape goes mostly unreported because of the fear, the victim requires a lot of support which these social reactions show to the victim and to the government that this type of injustice is not acceptable after the Delhi rape case the government was way pressurized by the social movements which were started by the people of the country, the social reaction also help in changing the laws for example:
The governments at the centre and various states announced several steps for the safety of the women in the country. The government of Karnataka announced a 24/7 helpline number (1091) to help the women. The government of India also brought in Himmat App for women's safety and help.
Conclusion
This article attempted a broad review of laws related to rape in India in the context of some recent enactments and changes. The last few decade's incidents not only raised many questions about the law and its enactment process but also challenged the fundamental rights of the victim. The failure of the court to deliver justice in a feminist way is much understood to be the result of the explanation of the law in chauvinistic ways so the capacity of the laws would be freed from the biases of individuals. Due to the country's widespread misunderstanding rape, the rape victim corrupts police work and mistreatment of the victims leads to custodial rapes.
The author is Mr Mikesh Singh- a 5th-year BALLB student of Lloyd Law College, Gr Noida and can be reached at mikesh009@gmai.com
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