Chapter-I Introduction
The word rape itself originates from the Latin verb rapere, which means “to seize or take by force”. The word originally had no sexual connotation and is still used in a very generic sense in the English language. Legally speaking, the word “rape” means “A criminal offense defined in most states as forcible sexual relations with a person against that person’s will . As of the early 2000s, all states defined rape without any sort of reference to the sex of the victim or the perpetrator.
Though the overwhelming majority of rape victims are women, (1) a woman may be convicted of raping a man, (2) a man may be convicted of raping a man, (3) a woman may be convicted of raping another woman. Furthermore, a spouse too, irrespective of the sex, may be convicted of rape if the perpetrator forces the other spouse to have non-consensual sex. (without her consent) But, many states do not punish the perpetrators in the cases of the rape of a spouse as severely as the crime of rape in cases of a non-spouse. (also no consent) Lack of consent is a necessary element in every rape case.
But this does not qualify a person to make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or an incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex. The act of rape against a person who is below the statutory age of consent is known as “statutory rape”. Generally, When a man rapes a woman, it is assumed that he insults the victim and her family physically and emotionally.
It is also commonly assumed that a man rapes a woman because he is driven to do so by his natural sexual desire. In other word, men strike and sexually attack women under uncontrollable impulses or a sudden urge to seek sexual gratification for themselves. Rape is a terrible act of violence. The act of rape is the absolute responsibility of the rapist for which he should be punished. This can be in the form of imprisonment or fine or both of these. Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were: (1)sexual penetration, (2)force, and (3)lack of consent.
Women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. Beginning in the 1970s, state legislatures and courts expanded and redefined the crime of rape to reflect modern notions of equality and legal propriety. Now, in any allegation of rape consent is an important criterion on which this paper of mine is based on and this consent need not necessarily be expressed but also implied taking into consideration the relationship of the two parties involved i. . , a married couple. But however, the absence of objection to sexual intercourse itself does not constitute consent.
Chapter-II Consent in Rape: The Indian Judicial Approach
The Indian legal viewpoint of consent in rape: Section 375 of the Indian Penal Code says that “ a man is said to commit “rape” who, except in the case hereafter expected, has sexual intercourse with a woman under circumstances falling under any of the following descriptions: (shortened)
- Against her will.
- Without her consent.
- With her consent, but the consent is attained by threat of force or harm to her or someone she cares about.
- With her consent, but the woman believes him to be her lawfully wedded husband when he actually is not, and her consent is given under such an assumption or belief.
- With her consent, but due to unsoundness of mind or intoxication of her mind by any substance administered to her by the perpetrator under the influence of which she does not understand the consequences of her giving consent.
- With her consent, but she is lawfully under-age to give consent to sex with the age being 16 years in India. Explanation: Penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not constituted to be rape. Now, as we can see above, in every circumstance mentioned above, the consent part is the core reason to decide whether an act of sexual intercourse is rape or not, and of course this consent should be freely obtained under normal circumstances and underage sex, as mentioned before amounts to statutory rape since it is against a statute established under a statute of law.
Indian case laws on rape and the stand of the judiciary on consent in rape:
The main question that les before us today is not whether women have the right to bodily integrity, as this right is already given clearly under Article 21 of the Indian constitution which grants all citizens the right to life and personal liberty, but how urgent it is to take a decisive step towards eliminating this evil and make the contemporary and future society a safe haven for women. According to the official statistics of 1991, one woman is molested every 26 minutes. These statistics refer to the reported cases.
Whereas, if the unreported cases were to be included, it would be a matter of seconds- rather than minutes. investigation of most cases are not reported by victims because of various reasons such as family pressures, the manner of the police, the unreasonably long and unjust process and application of law; and the resulting consequences thereof. In instances where women have reported such illegal and unwelcome behaviour, there have been significant victories in the past decade or so. Also considering the fact the sometimes these victories are achieved after a wait of a decade or so.
In N Radhabai V. D. Ramchandran, when Radhabai, Secretary to D Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from the date of dismissal. This was perhaps the first judgment taken by the Supreme court that was firm in it’s punishment and took to the issue seriously. Now, Sexual harassment and rape are two sides of the same coin.
Both showcase the power of man to dominate that of women. Both have one victim- ‘women’. Both are barbaric in nature; but many people extenuate sexual harassment to rape, just because the victims are not physically harmed. Whereas in rape- the victim is ravished like an animal for the fulfilment of desire and lust of another man. Both have the same object- to undermine the integrity of the victim, physically as well as mentally, and according to me, both should be treated equally in the eyes of the law and the punishment given accordingly.
Sexual harassment has been brought to light by the many recent cases such as the Vishaka case. While the judiciary has been strict in cases of rape, there also have been cases where injustice is quite plainly seen. In the Mathura rape case, aka Tukaram Vs. State of Maharashtra, wherein Mathura- a sixteen year old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station.
When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. The case came for hearing on 1st June, 1974 in the sessions court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.
On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse. However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section114 (A) of the Evidence Act, which states that if the victim girl says that she did not consent to the sexual intercourse, the Court shall presume that she indeed did not consent. Another example of where the judiciary has indeed gone wrong is the case of Mohd.
Habib Vs State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment and it was assumed that the act was done with the consent of the girl and not held as a crime of rape. In Premchand Vs. State of Haryana , the mandatory minimum sentence of 10 years, awarded two police officers for raping a women was reduced by Supreme Court to 5 years, only because, the women were of “easy virtue” and there was no proof of physical resistance and again consent of the woman for the sexual intercourse was assumed which invalidated the accusation of rape on the two police officers. In a recent judgment i. e. Delhi Domestic Working Women’s Union vs. Union of India , the Hon’ble Supreme Court has analyzed the defects of the existing system. Firstly, complaints are handled are handled roughly and are not given such attention as is warranted.
The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the crime of rape itself. Undoubtedly the court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself. The Hon’ble Supreme Court quoted, in reference to the above case, that : “It would appear that a radical change in the attitude of defense counsel and judges to sexual assault is also required.
Continuing education programmes for judges should include re-education about sexual assault. Changes in the substantive law might also be helpful in producing new ways of thinking about this type of crime. ”
Chapter-III Types of Rape
There are five main different types of rape recognised by laws all over the world. Each of this type of rape does involve lack of consent of the victim and severely violates her rights. The following types of rape have been mentioned with a small example for each one: 1. Stranger Rape: A person who the victim does not know rapes her.
Example: Rose, age 25, was accosted at knife point in a shopping mall parking lot and forced by a stranger into his car. He drove her to a rural area, raped her, stabbed her five times, set the car on fire, and left her. Although severely injured, she survived. -CONSENT NOT GIVEN- 2. Acquaintance Rape: The victim knows her attacker, although he is not a close friend or family member. Example: Susan, age 23, went to the door of her house to find a man she recognized from one of her college classes. She opened the door to let him in the house, whereupon he threw her on the sofa and raped her.
Date Rape: The victim is dating the person who rapes her. Example: Diana, age 50, was vacationing in the Caribbean. She spent some of her time learning sailing and walking along the beach with a fellow guest. At a hotel dance, she danced with this man, and he asked her to walk outside. Once on the beach, this 6’4″ man asked to have sex and forced her to cooperate by holding her down. Diana was too afraid to resist. –
Multiple Rape (gang rape): The victim is raped by more than one man. Example: Ann, age 21, was at a friend’s home with a group of her peers.
There were three men, one other woman, and herself present. When the other woman left, the three men raped her. In this case, even a woman abetting the crime of rape will be given the same punishment, as established by the Supreme Court in a recent ruling. Marital Rape: The victim is raped by her husband. Example :A woman, Mary, aged 33, recently had a major gynaecological surgery and was advised strictly by the doctor to take complete rest for two weeks But, two days after she came home from the hospital, her husband forced her to have sexual intercourse.
- This caused her to haemorrhage; and she was re-hospitalized.
- Other kinds of rape such as war rape, prison rape, rape of minors, college campus rape, etc. , are also present.
Chapter-IV Consent Obtained, but Not Valid
As mentioned before, consent is the basic element in a rape case and implied consent can be there due to the relationship of the two parties such as marriage, but also silence does not mean implied consent. There are also three other main circumstances under which consent might have been obtained, but is invalid and the sexual intercourse act is still considered an offence of rape.
These circumstances have already been elucidated in the section 375 of the IPC, it has also been explained briefly here: 1. Duress/Coercion: is defined as “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]. ” This means that if the accused has threatened or coerced the victim into having sex with him by either threatening her or any other person she cares about physically or in any other way, then the sexual intercourse would be considered as rape on the basis that the consent given by the victim were not under normal circumstances and is not a free consent.
Thus the rapist would be punished accordingly. For duress to qualify as a defence, four main requirements should be met with: (i)Threat must be of serious bodily harm or death (ii)Harm threatened must be greater than the harm caused by the crime (iii)Threat must be immediate and inescapable (iv)The defendant must have become involved in the situation through no fault of his or her own. An example of the defence of duress would be the case of Masuddin Ahmed Vs. The State of Assam , where the plaintiff was reportedly coerced or threatened into travelling by auto with the defendant to a hotel where she got raped. . Unsoundness of mind: This is applicable both when the victim is naturally of unsound mind and is not able to take decisions for herself or it might also due to the work of the rapist by administering a substance/drug that weakens her senses and thinking/reasoning power. Under this case too, the consent of the victim is not considered legally valid. An example of this point would be the case of Iqbal vs. The State of Kerala, where the plaintiff was drugged by the defendant and then raped by him. 3. Statutory rape: A person commits statutory rape when he has sex with a woman below 16 years of age.
It does not matter if the girl herself invited him to have sex with her. It is the policy of law to protect children of immature age against sexual intercourse. The term statutory rape generally refers to sex between an adult and a sexually mature minor past the age of puberty. Sexual relations with a prepubescent child, generically called “child molestation,” is typically treated as a more serious crime. Statutory rape is a serious offence that has been spoken about in the very recent case, in the Delhi High Court, Nekh Pal Vs. State, where the victim Heena being 15. years of age was coaxed into having sex by the defendant Nekh Pal. In these circumstances, consent of Heena was immaterial; whether she had consented to the acts of the accused or not were irrelevant. Marital Exception: In R Vs. R , the House of Lords widened the scope of criminal liability by declaring that the husband could be charged as a principal offender in the rape of his wife. This decision seems to have obliterated the protection of the husband from such prosecution under the doctrine of marital exemption. This exemption was based upon the belief under which the wife was regarded as the husbands’ chattel.
She was supposed to have given a general consent to her husband as a natural implication of the marriage. This has now become an outdated view of marriage in England. However, the above decision of the House of Lords has not been followed in India- where marital exemption to the husband ‘still exists’. In the above case too, consent or rather, the lack of it,does play a major role but not as much as in a non-spousal relationship because it is assumed there is implied consent of both the parties to consensual sex when they get married to one another.
Chapter-V Attempt to Rape:the Intent Part
In cases where an indecent assault is made upon the person of a woman, but where rape is not committed- the culprit is charged with Section. 354 of IPC, because unless the Court is satisfied that there was determination in the accused to gratify his passion at any cost, and in spite of all resistance, such person is not charged with rape. Section. 354 of the IPC prescribes punishment for anyone who assaults or uses criminal force to any woman with an intent to outrage her modesty, against her consent. An indecent assault upon a woman is punishable under this section.
Rape is punished under Section. 376; but the offence under this Section is of less gravity than rape. And also because a person who is guilty of attempting rape cannot be allowed to escape with the lesser penalty of this section. An indecent assault, i. e. , an assault which right minded persons would consider as indecent- accordingly any evidence explaining the defendants conduct, or whether any admission by him or otherwise is admissible to establish whether he intended to commit an indecent assault, as is stated under Section. 21 sub clause (2) of the Evidence Act, which reads: Section. 1 (2): An admission may be proved by or on behalf of the person making it, when it consists of statements of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. This has been shown in the case of Prem Narayan Vs. State of M. P. , where the accused had attempted to rape the plaintiff which caused her to bleed in her privateparts but not actually performing the act of penetration.
Chapter-VI Judicial Steps Taken to Deal With Rape Cases
The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient. The long time that is taken to complete a rape trial often by allowing senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major obstacles.
This often causes irreparable mental trauma to the victim who is forced in the end to suffer more by the judicial process itself than the actual crime. As observed by Justice Krishna Iyer in Rafique’s case: “When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry. ” In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases: 1. The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted.
The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e. g. psychiatric consultation or medical assistance.
- Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
- The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
- A list of lawyers willing to act in these cases should be kept at the police station.
- Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
- In all rape trials, anonymity of the victim must be maintained
It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur substantial losses. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape. These measures taken by the Judiciary has been appreciated by the government and the public in general and has also increase the speed of judging cases and serving justice to victims through a procedure in which they will not be hurt emotionally or socially.
The National Commission for Women has been instrumental in asking to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes. As observed by Justice Saghir Ahmad, “Unfortunately a woman in our country belongs to a class or group of society who are in an disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution enjoy equal status. ”
Chapter-VII Conclusion
So, as to conclude, I sincerely hope this paper of mine has dealt with the consent in rape aspect thoroughly and in detail. It has been ascertained that the consent aspect in a rape case is very important and is instrumental in deciding whether the act itself is a crime of rape or not. One also feels that Section 375 of the Indian Penal Code deals extensively with rape and the consent part of it and does not, like usually in our constitution, leave loopholes for law-breakers to escape.
The Section 376 of the IPC also hands out sever punishments to those found guilty of the crime of rape and has been effective in reducing the rate of rape cases to a large extent. Credit for this also goes to this judiciary for effectively implementing the law and also the police force of the country for preventing and investigating into such cases. However on the other hand, some people do feel these punishments are light in nature. The courts and the legislature have to make many changes if the laws of rape are to be of more deterrence.
The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- which even include small children, are not going to be deterred or ennobled by such a small time of imprisonment.
Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment, which is provided in Section 376 of the IPC. However, if they truly have realized their mistake and wish to return to society, the Court and jail authorities may leave such men on parole; but only after they have served a minimum of half the sentence imposed on them.
It is outright clear that sexual offences are to be excoriated, but if death sentence is given to such convicts- so as to deter the rest, then no doubt that the graph of rape cases will come down considerably- but it may also happen that those who commit such offences- simply to leave no witnesses or evidence, may even kill their victims and dispose off their bodies (whereas it is observed that in most cases- it is the victim who is the only source of evidence in most cases), thereby frustrating the main object of the Indian Penal Code and the legislature.
As long as the satisfaction of the appetite and lust of the flesh is included in man’s ideals and aims, he can never rise above the plane of animalism. Flesh here refers to man’s material nature which violates the spirit. Is opposed to an exclusive of it. Mere animalistic sexual expression has no more places in our civilization than would mud-huts serve as modern houses. But in our pseudo-civilization worse than animalistic sexual misuses are indulged in and condoned.
Laws condemning them exist on paper but have no teeth to punish the guilty or warn the like-minded. There can be no question of real civilization until a relentless campaign against the domination of sexual urges is well on its way. A lessening of the overwhelming influence of sex is necessary before the race can claim a semblance of true culture and of becoming more civilized, where there are no sexual offences.
Studying the laws, the process, the application of those laws, one thing is certain- the entire structure of justice needs an over haul, otherwise the victim shall no longer the woman… but humanity….
Bibliography Books
- Bryan A. Garner,(ed. ), “BLACK’S LAW DICTIONARY,’ 9th edition, Thomas Reuters
- B. M. Gandhi, INDIAN PENAL CODE,2nd Edition, 2006, Reprinted 2008
- Modern Legal Studies-Rape and the Legal Process by Jennifer Temkin, 1987 Edition
- The Rape Victim: Clinical & Community Intervention”, Koss & Harvey, 1991
- Gaines, Larry; Miller, LeRoy,(2006). Criminal Justice In Action: The Core. Thomson/Wadsworth
- Abhinav Prakash, Indian Penal Code: Universal Law Series Universal law publishing house Ltd.
- Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, 29th ed. , reprint 2004
- Cassica. C. Sphon, Rape Law Reform, A Grassroots Revolution And Its Impact, Hardcover – Oct 1992 Online database 1. http://en. wikipedia.org/wiki/Rape#Consent http://www. seeklaw. com
