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Insufficiency in legislation related to rape in India
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This article is written by Aniket Pandey who is pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Rape Laws in India
Insufficiency in the current legislation
Understanding of consent- A Progressive change
Factors responsible for causing hindrance to the protection of a rape victim
False cases involving bogus victims
Social stigma surrounding a rape victim
Archaic and Unscientific practice of two-finger test for determining the occurrence rape
Menace of fake rape cases in India
Recent case matter involving false rape case
Recommendation of the NHRC with respect to the growing fake rape cases menace
Criticism by a woman right activist lawyer regarding fake rape cases
Rape is a sordid reality all across the world, which reflects the sexism in society where there is unequal power distribution between men and women. It is both serious and controversial in nature. There is no other crime as interwoven with conflicts and sexual politics as rape. The consequent distress and the psychological damage done to a victim destroys her aspirations in life which is deplorable. While the lawmakers have presented a progressive set of laws to counter this gruesome criminal act. However, the wave of rape still rages across the nation.
Insufficiency in the current laws related to rape is one of the biggest reasons for the same. Other than this, there are some more factors responsible for the instant scenario. One of those includes filing false rape cases by bogus victims. Now, this article is dedicated to examining the two questions of whether the laws relating to rape sufficient to protect the rightful victims, but prevent the misuse by bogus victims? Examining the two questions, the article shall make certain suggestions based on facts as to how these laws can be made sufficient enough in dealing with the issues.
In order to understand whether the current rape laws sufficient in protecting the rightful victims, we need to understand the legal provision relating to rape in India. The Criminal Law (Amendment) Act of 2013 made several changes to the definition of rape under Section 375 of the Indian Penal Code (IPC). Under the new definition, a man is said to commit rape when he penetrates his penis to any extent into the vagina of a woman. Now, how far has the penis gone inside the vagina is immaterial. Even a slight penetration of penis by a man into the vagina of a woman amounts to rape.
Clause (a) of Section 375 has clearly said that insertion of penis by a man to any extent into the vagina, mouth, urethra or anus of a woman is rape.
Now, under clause (b) of the said section, notwithstanding the fact whether a man himself inserts the same or makes the woman do so, the same shall be considered rape.
Clause (c) to the said action provides that if a man manipulates any part of the body other than penis into the vagina, the urethra or anus of a woman or any part of the body of such woman or makes her to do so with him or any other person.
Lastly, we have clause (d) to the section clearly says that a man is said to commit rape if he applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person. Now, the acts defined under these four clauses (a) to (d) under Section 375 of the Indian Penal Code must be under the circumstances falling under any of the seven descriptions, which are as follows:
First- Against her will.
Second- Without her consent
Thirdly- With her consent but the consent was obtained by putting her or any person close to her in fear of death or of hurt.
Fourthly- With her consent but the man knows that he is not her husband and the consent was given because the woman believes that he is the man with whom she is or believes herself to be lawfully married.
Fifthly- With her consent but at the time of giving such consent the woman was unable to understand the nature and consequences of her consent.
Sixthly- With or without her consent, when the woman is below the age of 18 years.
One of the biggest issues with the legislative definition of rape is its adherence to the penetration paradigm. This is one of the biggest reasons why rape laws are insufficient in protecting the rightful victim. It may be noted that, penetration is not the only essence of the offence of rape. It is rather a denial of sexual autonomy, or simply subjecting the victim without her consent to any overtly sexual act, whether penetrative or not, and further humiliation and degradation that come with this physical invasion, making a travesty of the autonomy of the individual to make out who she wishes to engage in sexual act, at what time and to what extent.
This was recognised as the harm caused by the rape by the Justice Verma Committee. According to the Justice Verma Committee, penetrative acts which presently constitute the offence of rape along with the non-penetrative acts which violate the sexual autonomy and bodily integrity of the victim together may be consolidated into 'sexual assault', with gradations based on harm. Also, if we look at the definition of rape from the Canadian Criminal Code and the UN Handbook, both have suggested to shift the focus from penetration paradigm.
Although, the aforesaid amendments have included non-peno-vaginal act under the definition of rape, yet the focus on penetration remains unchanged. It is important to understand that fondling of breasts or touching one's penis to a woman's breasts, or ejaculating onto a woman's face or body or her mouth without even touching her are no less humiliating and invasive than penetration. Therefore, it is no longer desirable to distinguish penetration from other overt sexual activities. This would give a definition to the said crime from a woman's perspective which currently is based on the male idea of sex.
The Criminal Law (Amendment) Act, 2013 has however brought over some reformative provisions making the laws related to rape crime sufficient to some extent. Some of those progressive steps include understanding of 'consent' where the focus has been shifted to action of the accused and not the sexual history of the victim. Therefore, a lack of resistance or submission has now been distinguished from overt agreement or 'consent'.
It may be understood that every act done, "against the will" of a woman is done, "without the consent" but an act done, 'without the consent' is not necessarily 'against her will'. The expression 'against her will' imports that the act is done in spite of the opposition of the woman to the doing of it. However, where the man had carnal knowledge of a girl's imbecile mind and it was discovered that the act was without the consent of the girl, as she was incapable of giving the same because of the defect in understanding. In such a case, it was held that the man was guilty of rape.
The introduction of the new provisions following amendments have other than expanding the definition of rape, included varying degrees of punishment, ranging from a minimum of seven years in jail to the death penalty, in cases where the victim dies or is left in a vegetative state. The legal age of consent was also raised from 16-18 and it is compulsory now for all the government and private clinics to give free medical treatment to victims of rape.
However, in the earlier paragraphs, we saw the issues with respect to the current legislations of rape. Now, it may be important to note a few factors which are responsible for causing hindrance in rendering justice to a rightful victim. One of the biggest factors for responsible for the same is the filing of false rape cases by bogus victims. Other than this, we have the Social Stigma surrounding a rape victim and the archaic practice of two-finger test for determining the occurrence of rape. In the upcoming paragraph, we shall be dealing with each of them, however emphasising on the false rape case issue.
One of the biggest reasons for the failure in rendering protection to a rightful victim is the filing of false cases by bogus ones. Even though the new rape laws of 2013 have been designed with an exceptionally inclusive approach in providing justice to rape cases. However, still, there has been a number of incidents where rape laws have been misused leading to number of frivolous cases.
The Delhi Commission of Woman (DCW) has put up a remarkably shocking statistics underlining that 53.2 % of the rape cases filed with the Police between April 2013 and July 2014 were frivolous. The changes brought over in respect of rape laws by the Criminal Law Amendment Act, 2013 are prone to gross abuse and misuse by woman having some evil or ulterior motive.
Other than increasing the minimum punishment from seven to ten years and maximum up to death sentence, the new Act has raised the age of consent from sixteen to eighteen with the condition that the same needs to be absolute and cannot be established by circumstantial evidence. These changes, though progressive for rightful victims, provide an opportunity to the bogus ones to misuse it with ulterior motive. In the upcoming paragraph, we shall discuss the menace of false rape cases which is causing injustice to both an innocent accused and a rightful victim.
One of those factors is the social stigma surrounding rape. It may be noted that only 5-6% of rape cases are reported in India every year. So many cases go unreported citing the fear of humiliation and retaliation on the part of the victim. The victims find it difficult to register an FIR against the offender itself. The judiciary is itself divided over whether the police have an obligation or not under the law to investigate accusations of rape before lodging an FIR.
Along, with the aforementioned stigma, there are some bogus practices in the medical industry with respect to the surgical determination of rape incident. This is the famous two-finger test, wherein the doctor fingers into the vagina to see if the same is lax and the hymen is absent. Now, in this case, if the same is proved, then it is concluded that the sex was routine and therefore consensual. This test was traumatising because ultimately hindered shifted focus to the sexual history of the victim and not the action of the accused. Fortunately, In June, 2020, a division bench of the Gujarat High Court observing the practice of two-finger test archaic and outdated deemed it unconstitutional, as the same was violative of the victim's rights to privacy, physical and mental integrity and dignity.
According to the court, whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Also, under Section 155 of the Evidence Act, a rape victim's credibility cannot be compromised on the ground that she generally is of immoral character. This decision of the Judiciary is welcoming and a grand step towards a future where women's privacy and integrity shall not be compromised for outdated practices.
As discussed above, not every rape victim is genuine, there are some who file bogus cases with ulterior motive. This makes it difficult for the law-makers to bring any change with respect to the laws related to rape. One of the criticisms made against the expansion of the definition of rape beyond penetration is its over-criminalisation which might consequently lead to dilution of the value of sanctions made.
In 2020, the Kerala High court expressing its displeasure at a false rape complaint lodge by a woman against a health inspector granted bail to the latter. The Health inspector as a result was detained behind the bars for seventy-seven days. The complaint was made under Sections 323 (voluntarily causing serious injury), 506 (i) (criminal intimidation), 376, 376(2)(n) and 376C (b) (rape) of the Indian Penal Code. However, later she withdrew the same saying that the same was a consensual sex and not rape.
The National Human Rights Commission (NHRC) has recommended securing the rape accused from frivolous cases by making their identities confidential, until they are found guilty. A study which was conducted by the Centre for Women's Development Studies affiliated to the Ministry of Education and commissioned by the National Human Rights Commission sought to understand sexual violence against women from the perspective of sexual predators. It conveyed that a time has come, when it is necessary to safeguard and protect the identity of the alleged or actual offender, whose personal details can be freely circulated. While revealing the identity of the victim of sexual crime is punishable under the law, the same principle does not apply to the offender. Securing the accused from any false claim by a bogus victim is the need of the hour.
Also, a study titled, "Interrogating violence against women from the other side: An exploratory study into the world of perpetrators"- made similar a assertion. The study prescribed that keeping the identity of an accused and particularly juvenile ones anonymous would be beneficial. It further said that however the issues of identification and naming of the principal accused may not appear important in the larger scheme of things, they have ramifications especially for the accused himself, who later is found innocent.
It has been therefore recommended to introduce progressive reforms for perpetrators rather declaring them guilty at the time of lodging charges against them. A crime like rape must not only be understood from the context of an illegal activity that breaches a given statutory law, but as a transgression targeted at violating the agency of the victim(s).
According to a lawyer and women rights activist, Vrinda Grover, raising the age of statutory rape to 18 years, the state has criminalised consensual sexual relationship between adolescents and permitted parental and societal control over the lives of such people. This consequently provides fodder for the "false cases" narrative. According to Vrinda Grover, there is compelling proves available for the state to change the law and revert the age of statutory rape to sixteen years.
From the above paragraphs, few important points may be concluded, which are as follows:
Penetration is not the only essence of a rape case. Shifting the focus from the penetration paradigm is the need of the hour. Penetrative acts which presently constitute the offence of rape along with the non-penetrative acts which violate the sexual autonomy and bodily integrity of the victim together may be consolidated into 'sexual assault', with gradations based on harm.
Filing of false cases by bogus victims if one of the important factors why genuine victims fail to get protection against rape incidents. Therefore, as per NHRC and Centre of Women's Development Studies, a rape accused must have his identity concealed until the same is found guilty before the court of law.
Not only this, a proper criminal justice system for effective enforcement of the current laws are still in-adequate. Huge pendency of criminal cases and inordinate delay in the disposal of cases makes the victim lose faith in the said system. Therefore, there is a lot to be done to have a set of laws sufficient in securing the aspirations of a rightful victim.
Lastly, our society along with the media is gradually strengthening their concentration on women's incidents of abuse. But sometimes there are bogus victims who lodge frivolous cases with an ulterior motive. In such cases, it becomes important to save the offender from the consequent destruction of his image, reputation and his overall life.
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