17 Rape laws II

Radhika Gupta

Learning Outcomes:

By the end of the chapter you should be able to:

• Trace the evolution of anti-rape laws through amendments in substantive and procedural laws via Criminal Law (Amendment) Act, 2013.
• Understand the significance of landmark judgments and public opinion in inducing a legislative change in anti-rape laws.
• Critically understand and analyze certain contentious questions surrounding anti-rape laws in contemporary India.

The Delhi Gang Rape Case

The 16th December 2012 Delhi gang rape case involved the brutal assault and gang rape of a 23-year-old woman by six men on a private bus in which she was traveling with her friend. The extreme injuries inflicted upon her resulted in her eventual death.

The public outrage that followed the death of the young woman who came to be known as ‘Nirbhaya’ demanded legal and social change and asked for the establishment of fast-track courts for speedy justice in cases of sexual violence. One of the most problematic issues confronting the courts in the prosecution of the Nirbhaya accused was the criminal liability of a juvenile, that is a person below the age of 18 years, for heinous offences such as rape, even when the juvenile is close to the age of majority. One of the accused in the case was 17 years and 6 months old at the time of the gang rape. Juveniles in conflict with the law, under the Juvenile Justice (Care and Protection of Children) Act, 2000, can be sentenced to a maximum punishment of three years in a reform facility irrespective of the offence and notwithstanding the degree of punishment for an adult committing the same offence. Usually, punishments vary from house arrests to counseling, curfews and probation.

Despite great public demands to try the juvenile as an adult on account of the extremely violent nature of the offence and his proximity to turning 18 years old, including the Janata Party petition for the same, the juvenile was dealt with by the Juvenile Justice Board as per the procedures of the above-mentioned Act. The defendant was held guilty of having committed rape and murder, and given the maximum sentence of three years of imprisonment in a reform facility, inclusive of the eight months he spent in remand during the proceedings. Ram Singh, the prime accused, was found dead in his cell in Tihar Jail in March 2013 and the proceedings against him stood abated. The other four accused persons were convicted by the trial court and awarded the death penalty. The High Court of Delhi on appeal upheld the death penalty by placing the gruesome offence committed by the convicts in the ‘rarest of rare’ category.

Verma Committee Recommendations

Following the Delhi gang rape case, the Verma Committee, headed by former Chief Justice of the Supreme Court Justice J.S. Verma, was constituted on 23rd December 2012 to recommend amendments to criminal laws in India, particularly with regard to crimes against women. Some of the important suggestions to anti-rape laws made by the Committee are discussed below:

• Definition of Rape: The Committee recommended that the definition of ‘rape’ should be broader beyond the confined scope of penile-vaginal penetration to include any non-consensual penetration, as advocated for previously in Sakshi v. Union of India, which highlighted how sexual acts are not falling within the strict and narrow construction of penile-vaginal intercourse are classified as unnatural offences under s.377 IPC or an outrage to public modesty under s.354 IPC and subsequently granted more lenient punishments.
• Gender neutrality: The Committee proposed a gender-neutral section prosecuting men for raping both men and women, and not only women as per the current provision. Thus, as per the recommendations, while only a man may commit the offence of rape, it may be committed against any person irrespective of the gender. The Committee also sought a wider compass that accommodated sexual assault against men, homosexuals, transgenders and transsexuals to facilitate law in reflecting social reality.
• Marital Rape: The Committee recommended that the exception for marital rape in Section 375 should be removed. The amendment in 1983 allowed for prosecution of husbands for marital rape only if their wives were between the age of twelve and fifteen. This implies that wives aged either below twelve or above fifteen would not be able to institute a criminal proceeding against their husbands under the ambit of s.375 and s.376.
• Punishment for crimes against women: The Committee removed chemical castration and death penalty as punishments for the offence of rape due to the absence of a link between their deterrent value and ability to prevent the ‘problem of rape’ from its roots. The Committee recommends enhancing punishment to up to 20 years’ imprisonment for rape and murder, and life for gang rape.
• Medical examination of a rape survivor: The Committee recommended banning the two-finger test, conducted to ascertain the laxity of the vaginal muscles, thereby also removing the propensity to view any current case of rape in the context of the survivor’s previous sexual history. The idea was to not let previous sexual activity or even current relationships colour the consent or quality of consent of the survivor.
• Reforms in the management of cases related to crimes against women:
  • The Committee recommended the establishment of Sexual Assault Crisis Centres operating in partnership with the sexual assault helpline.
  • Conducting the medical examination under the supervision of a female gynaecologist who guides the survivor through the procedure for uniform practice.
  • Installation of CCTV cameras at police stations and questioning rooms.
  • Technological means to file FIRs online.
  • The examination in chief and cross examination to be conducted in camera in order to protect the testimony and identity of the woman, but the rest of the trial should ideally be conducted in an open court to enable women’s organizations and the media to observe the court proceedings.
  • Registering every complaint of rape reported by civil society in police stations and the failure to do so would make the specific police personnel liable for punishment.
  • Imparting sex education in educational institutions and conducting adult literacy programs for gender empowerment.
  • A separate bill of rights for women to entitle them to life with dignity and sexual autonomy, purported to recognize the significance of the woman’s consent.

Criminal Law (Amendment) Act, 2013

The Criminal Law (Amendment) Act, 2013 followed the Verma Committee Report. It was enacted to amend statutory provisions on sexual offences.

The Act brought about the following significant changes in anti-rape laws in India:

Changes in the Indian Penal Code (IPC), 1860:

• Expansion of definition of rape: Section 375 IPC goes beyond penile-vaginal penetration to include within the meaning of rape other acts, such as penetration of penis, other part of the body or any object, or putting mouth to the vagina, anus or urethra of a woman.
• Statutory rape: Under S.375 IPC, it is now punishable for a man to have sexual intercourse with a girl (not being his wife) under eighteen years of age, irrespective of her consent. Earlier, this age was sixteen years.
• Meaning of “consent”: Explanation 2 to Section 375 IPC now explicitly defines “consent.” It has been defined as an unequivocal voluntary agreement through words or conduct, indicating the woman’s willingness to take part in the particular sexual act.

The present Section 375 IPC, as amended in 2013, reads as follows:

• Additional offences, greater punishments and introduction of the death penalty under s.376,IPC:
  • Section 376(1) has increased the maximum punishment for rape from ten years to life imprisonment.
  • Section 376(2) has been extended to include members of armed forces, guardians, relatives, teachers, men in a position of power and control compared to the woman, and punishes them for raping a woman incapable of giving consent or suffering from mental or physical disability, or for raping a woman during sectarian violence, or repeatedly raping the same woman, or causing grievous hurt to the woman in the process of raping her, with imprisonment ranging from ten years to the remainder of the person’s natural life.
  • Section 376A punishes a person, who in the process of raping a woman either causes death or compels the woman to be in a persistent vegetative state with imprisonment from twenty years to life, or even with death.
  • The statutory provision of section 376C for punishment for rape by a person in authority has been increased from five to ten years of rigorous imprisonment accompanied by a fine, and now also includes those in a position of authority or fiduciary relationship to one another within the scope of its definition.
  • Section 376E states that anyone already convicted under sections 376, 376A or 376D, and as a repeat offender again convicted of the same, would be punished with life imprisonment or the death penalty.
  • Section 376B punishes a man who engages in sexual intercourse with his wife after a decree of separation has been passed. The punishment has been increased from a maximum of mere two years’ imprisonment to a maximum of seven years with a fine.
  • Gang rape: A separate section, 376D, has been included to provide for punishment in cases of gang rape. Section 376D punishes a group of people acting in furtherance of common intention to engage in gang rape. The minimum imprisonment for gang rape is twenty years that may extend to life, along with a fine sufficient to cover medical expenses and rehabilitation.

Changes in the Indian Evidence Act, 1872:

• Insertion of section 53A: In the course of a prosecution for the offence of rape under section 375/376 IPC on the issue of consent, “evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant to the issue of such consent or the quality of consent”. It should be noted that earlier in the year 2003, Section 146 of the Evidence Act had also been amended to provide that questions regarding the survivor’s general immoral character or past sexual experience are not permissible to establish the existence or quality of consent.

Changes in the Code of Criminal Procedure, 1973:

• Amendment to section 154: This amendment necessitates the recording of information from a woman alleging the commission of the offence of rape against her by a woman officer, and requires such information to be recorded at the residence of the person seeking to report such an offence in the presence of an interpreter or special educator when the reporter is physically or mentally disabled.
• Reporting of an offence under section 164: When an offence of rape is alleged, the Judicial Magistrate is obligated to record the statement of the survivor as soon as the commission of the offence has been brought to the notice of the police.
• Explanation inserted in section 197: No sanction is required against a public servant accused of committing the offence of rape.
• Cross-examination procedure: Under section 273, evidence of a woman below the age of eighteen years allegedly subjected to rape or any sexual offence must be conducted in such a manner to ensure that she is not confronted by the accused while also ensuring that the right of cross-examination of the accused is not hampered.
• Time period for rape trials: Section 309 has been amended to provide that an inquiry or trial in proceedings relating to rape shall as far as possible be completed within a period of two months from the date of filing of the charge sheet.
• Treatment of survivor s: Section 357C has been inserted to provide that all hospitals, public or private, local bodies or any other persons must immediately provide first-aid or medical treatment, free of cost, to rape survivors and immediately inform the police of such incident.

Recent Developments

In the recent years, the Apex Court in its various judgements states that a conviction is possible solely on the statement of the prosecutrix provided the statement was found to be reliable. It is a settled principle of law that conviction can be based on the sole testimony of the survivor of sexual assault without corroboration from any other evidence. When the testimony of a survivor of sexual assault instils the confidence of the court, it may be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance to prudence under the given circumstances.

The Supreme Court in Vijay @ Chinee v. State of Madhya Pradesh has dealt with the issue of a sole testimony and held: “Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.” It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, a conviction may be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the corroboration of her statement. Corroboration of the prosecutrix’s testimony as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.

There is a catena of judgments passed by the Hon’ble Apex Court wherein it has been held that the deposition of the prosecutrix by itself is sufficient to record a conviction for the offence of rape if that testimony inspires confidence and has a complete link of truth. In Md. Ali Vs. State of UP , the Hon’ble Apex Court has held: “Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix if it is unimpeachable and beyond reproach, a conviction can be based.” and in Mohd. Iqbal v. State of Jharkhand , it was held: “There is no prohibition in law to convict the accused of rape on the basis of the sole testimony of the prosecutrix, and the law does not require that her statement is corroborated by the statements of other witnesses.”

On the other hand, there is the cruel reality where fake rape cases are filed by women and have been reprimanded by the Supreme Court. The Indian Legislation completely negates the facts that men can be victims too. In 2015, cab driver Ramesh was accused of rape by one of his passengers. She accused him of forced oral sex, and sexual intercourse. It was only six months later that Ramesh was declared innocent and it was established that no rape was committed upon the woman and the allegations have emerged because the woman refused to give the man his Rs.500 fare. In 2017 four women from Rewari were put on trial by the Rohtak Court for filing ‘false rape cases’. A report by the Delhi Commission for Women (DCW) in 2015-16 revealed shocking statistics showing that 53.2% of the rape cases filed between April 2013 and July 2014 in Delhi were found ‘false’. The current situation in the country regarding harassment is nothing short of deplorable.

Other Contentious Issues

Marital Rape

One of the most problematic notions still embodied and preserved within the IPC is Exception 2 to section 375 that disentitles wives above the age of 15 years to acquire a cause of action against their husbands due to sexual acts or forceful sexual intercourse. Exception 2 provides that sexual acts by a man with his own wife, the wife not being under fifteen years of age, cannot constitute rape. This implies that a husband raping his wife who is below the age of 15 amounts to rape. Problematic is the overt recognition of non-compliance of conditions for a valid marriage in India. For instance, section 5(iii) of the Hindu Marriage Act, 1955 requires the bride to be of eighteen years and the bridegroom to be of twenty-one years at the time of marriage. The acknowledgment of sexual acts within the compass of child marriages at one level can be construed as reflective of socio-legal reality, yet at another interpretation provides for a dichotomy in legal standards on account of the multiplicity of laws. Marital rape is not a criminal offence in India, with the only exception being a remedy under S.376B when the husband commits an act constituting sexual assault when living separately from his wife. Cohabitation having been ceased after a decree of judicial separation has been passed does not fall within the ambit of marital relations at that time, and thereby disentitles cohabiting wives to claim for relief under this statutory provision.

Various theories revolve around the contractual nature of a marriage wherein a wife is said to implicitly consent at the time of marriage to sexual intercourse at the desire of the husband for the duration of the relationship. The contractual theory permeates into the matrimonial home by reinforcing the notion of women as chattel, which is meant to justify the burden borne by the wife by virtue of the sexual desires of the husband. Many sceptics fear misuse of a marital rape provision claiming women might take undue advantage of ordinary difficulties or ‘wear and tear’ in marital relations and make false allegations of rape against their husbands. The Justice Verma Committee specifically recommended the removal of the exception regarding marital rape by citing the judgment of the European Commission on Human Rights in C.R. v UK Publ., where a rapist was held to be a rapist irrespective of his relationship with the survivor. Further, the Committee recommended a provision to specify that any relation, marital or otherwise, between the perpetrator and survivor could not form a valid defence for the criminal offence; could not be used as a relevant factor to decide the existence or otherwise of consent; and, could not be regarded as a mitigating factor justifying lesser punishment. However, the Criminal Law (Amendment) Act, 2013 failed to give effect to these recommendations and continues to immunize marital rape.

Two-Finger Test

A doctor performs the two-finger test by inserting a finger into the female’s vagina to check the level of vaginal laxity. This is used to determine if she is “habituated to sexual intercourse.” This formed a crucial part of the controversy surrounding the Mathura judgment wherein the Trial Court reaffirmed its dependence on the two-finger test to establish the survivor’s past sexual experiences, which implicitly had a bearing on her ability to consent and be raped.

There have been judgments where the judiciary has condemned the practice and use of this test. In 1994 in the Narayanamma (Kum) v. State of Karnataka case, the Supreme Court held that insertion of two fingers to check whether the hymen was torn or not was not reliable or sufficient evidence indicating that the woman was habituated to sexual intercourse. In the 2009 case State of Uttar Pradesh v. Munshi, the Supreme Court further reprimanded the medical examination processes for still using the two-finger test to pass judgments on the survivor’s character. It assertively held that even if the woman had lost her virginity earlier, it could certainly not give a license to any person to rape her. “It is the accused who was on trial and not the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape.” Calling the test “degrading and unscientific”, Human Rights Watch in 2010 urged the Indian government to ban the practice. The Indian Council of Medical Research’s 2012 guidelines encouraged the continuance of the two-finger test and received profound criticism for the recommendation. In Narender Kumar v. State (NCT of Delhi) the court in 2012 further opposed the practice of two-finger testing and the connotation it held regarding the supposed incapacity of a woman to be raped if she had once in her life consented to sexual intercourse or a regular sexual life. The Apex Court held:

“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a woman of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.”

The Supreme Court took all such views into consideration in 2013 when it condemned the two-finger test in Lillu @ Rajesh and Anr. v. State of Haryana. It adamantly held that the two-finger test and its interpretation violate the right of rape survivors to privacy, physical and mental integrity and dignity, thereby disentitling any entity from using it to give rise to a presumption of consent.

The Verma Committee report assertively held that the size of the vaginal introituses is predominantly overemphasized and therefore, a medical examination involving the two-finger test to ascertain the laxity of the vaginal muscles is irrelevant and redundant. Indrajit Khandekar’s (in-charge Clinical Forensic Medicine Unit) study report titled “pitiable & horrendous quality of forensic medical examination of sexual assault cases” triggered the rise of social activism demanding the institutionalization of a standard protocol for appropriate medical treatment of survivors of sexual assault.

The Department of Health Research and the India Council for Medical Research’s new set of national guidelines approved by the Union Health Ministry in 2014 officially bans the use of the two-finger test in Medico-Legal Cases and encourages requisite training and sensitization of hospital staff to enable removal of the social stigma attached to rape that victimizes the woman further. However, despite repeated recommendations that the two-finger test not be used in medical examinations, prescribed medical textbooks still retain the test as a method to ascertain the occurrence of rape. The fear of false allegations of rape by women has made Indian textbooks on medical jurisprudence blindly promote the test without highlighting its shortcomings and leading to prejudicial medical evidence. These very books are followed in the process of preparing medical reports to be submitted to courts as scientific evidence, and therefore unless the medical guidelines are effectively adopted, medical syllabi changed and forensic evidence books revised, the two-finger test though contrary to statutory provisions, will continue in practice and disentitle rape survivors to the justice they deserve.

Death Penalty for Rape

The controversy surrounding capital punishment verdicts for committing the criminal offence of rape was stirred by the verdict in the 2012 Delhi gang rape case wherein all of the accused parties (except the minor who was sentenced to imprisonment in a juvenile cell) were given a sentence of death penalty. A huge number of people turned to the streets protesting against the incident and demanding death for the culprits. Advocates of capital punishment inevitably argue from the standpoint of deterrence. They argue the message such a penalty sends out to society is that of state vigilance whereby the state considers violence against women a grave human rights violation and is ready to take stringent measures to punish the offenders thereof. On the other hand, human rights activists condemn the use of death penalty as punishment for any offence. Amnesty International, for example, has condemned the Indian judicial system and has argued that the death penalty does not serve as a deterrent. Further, it is argued that instead of enhancing the punishment to death, the focus should be on institutional, procedural and legal reform in a manner that provides a stringent, effective and efficient executive machinery that is able to create a link between the commission of offence and getting caught by police functionaries, or immediately responding to FIRs. Further, some feminists argue that the basis for imposing the death penalty for the offence of rape is the notion that rape is the most heinous crime that may be committed against a woman, and is equivalent to almost killing a woman. They argue this reinforces the notion that rape survivors have had a crime that leaves inescapable, life-long injuries of shame that are reinforced by society thereby limiting a woman’s life choices. They argue the death penalty reinforces, rather than tries to correct, the disproportionate focus of the blame and shame of the crime onto the woman and not the perpetrator. After the 2013 amendments, Indian law provides the death penalty as a possible punishment where rape results in persistent vegetative state or the death of the woman.

Conclusion:

This module has focused on the 2012 Delhi gang rape case which led to the formation of the Verma Committee and the subsequent criminal law amendments that were made in 2013. The module has identified some of the key legal provisions that exist today and some of the contentious issues that still affect women’s dignity and equality before the law in prosecuting crimes of rape. The module has also touched upon some of the difficulties in implementing reform measures when there are multiple authorities and perspectives and continuing practises to address.

Summary

• Rape as a criminal offence challenges the notion of gender equality and the principles of consent, equality of rights, liberty of all individuals and the right to life with dignity.
• A number of theories attempt to explain the occurrence of rapes in various contexts. These include theories around male dominance, fault, power, the absence of self-control, cultural spillover, class-patriarchy and masculinities.
• The primary provision defining rape in India is Section 375 of the IPC. Substantive and procedural provisions on rape have undergone evolution over decades. Two notable rape incidents that initiated amendments in anti-rape laws are the Mathura rape case and the 2012 Delhi gang rape case. The amendments have been made in the IPC, CrPC and Evidence Act.
• Despite several amendments, there is still need to reconsider certain contentious issues in substantive and procedural laws on rape. Some of these issues include immunity to marital rape, two-finger testing to determine rape and provision for death penalty for rape offenders.

Reference

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