Concept of Rape

Introduction

Rape is violative of the victim’s fundamental right under Article 21 of the Indian
Constitution. It is the most morally and physically abhorrent crime in society since it
violates the victim’s body, mind, and privacy. A rapist ruins and defiles the soul of a
vulnerable female, whereas a murderer destroys the victim’s physical form. Rape is a crime
against a society that infringes on the victim’s human rights. Rape, as the most despised
crime, is a devastating blow to a woman’s greatest honor, and offends both her esteem and
dignity. It causes the victim psychological and physical trauma, leaving indelible traces on
her.

While performing any act, the two essential ingredients are consent and will. Different
courts have interpreted the ingredients differently. The plain reading of consent mentions
that the act should be voluntary and willing. Many authors and researchers still believe that
willingness and consent are the same.

Section 63 BNS

A man is said to commit “rape” if he-

a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
b) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person, under the circumstances falling under any of the
following seven descriptions:
i. against her will;
 ii. without her consent;
iii. with her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt;
iv. with her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married;
v. with her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent;
vi. with or without her consent, when she is under eighteen years of age;
vii. when she is unable to communicate consent.

Explanation 1- For this section, “vagina” shall also include labia majora.

Explanation 2- Consent means an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates a
willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist the act of penetration shall not by
the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1- A medical procedure or intervention shall not constitute rape.

Exception 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under eighteen years of age, is not rape.

The history of rape laws in India begins with the enactment of the Indian Penal Code, 1860
covered Sections 375 and 376. The original IPC 1860 does not identify rape properly and it
did not count the majority of survivors. The rape laws under IPC have gone through several
amendments. This journey started with Mathura Case1 and the last amendment took place
1
Mathura was a young orphan tribal girl was living with one of her two brothers. She was
an Adivasi. The incident is suspected to have taken place on 26 March 1972, she was
between 14 and 16 years old at that time. Mathura occasionally worked as a domestic
helper with a woman named Noshi. She met Noshi's nephew named Ashok who wanted to
marry her, but her brother did not agree to the union and went to the local police station to
as a result of the Unnao-Kathua Rape Case. Our lawmakers brought amendments that are
progressive and tried to create an impact and fight a battle against sexual offences against
women. However, it is shameful that behind bringing every amendment, there was the
death of a woman. The focus of this article is to compare the rape laws before and after the
Criminal Law Amendment, 2013.

Consent of the victim

The expressions ‘Against her will’ and ‘Without her consent’ have different meanings.
Against her will means intercourse despite her opposition and implies an element of force
or compulsion. Here it is to be noted that an act done against a person’s will does not
necessarily mean that it is done without his/her consent. The expression ‘against her will’
has a much wider import than the term ‘without her consent’. An act done without one’s
will shall always be without her consent but the converse is not true. For instance, a
woman who agrees to sexual intercourse under the influence of an intoxicant or mistake of
fact will be said to have consented but that does not mean she was willing for it.
lodge a complaint claiming that his sister, a minor, was being kidnapped by Ashok and his
family members. After receiving the complaint, the police authority brought Ashok and his
family members to the police station. Following general investigation, Mathura, her
brother, Ashok, and his family members were permitted to go back home. However, as they
were leaving, Mathura was asked to stay behind while her relatives were asked to wait
outside. Mathura was then raped by the two policemen.
When her relatives and the assembled crowd threatened to burn down the police chowky,
the two accused policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama
(legal recording of evidence).
The case came for hearing on 1 June 1974 in the sessions court. The judgment returned
found the defendants not guilty. It was stated that because Mathura 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 to one and five years’ 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, in September 1979 the Supreme Court of India justices Jaswant Singh, Kailasam
and Koshal in their judgement on Tukaram vs. State of Maharashtra reversed the High
Court ruling and 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
body thereby suggesting no struggle and therefore no rape. The judge noted, "Because she
was used to sex, she might have incited the cops (they were drunk on duty) to have
intercourse with her.
The sixth circumstance made sexual intercourse by a man should compulsorily be
construed as rape whether it was with or without consent.

The first four circumstances deal with the situation where a woman is capable of giving
consent but it was either not obtained or if obtained, was obtained by way of putting her in
fear or by way of fraud and the last circumstance deals with a situation where a woman is
not capable of giving her consent.

Capacity to consent

The person is said to be capable of giving a valid consent when:

 The person should be of a sound mind: The burden of proof would be on the person
claiming this right.

For example, if A gives consent to B to sell his property to him when he is in an unsound
state of mind and later retracts from the agreement, then it cannot be enforced because the
consent was obtained when he was not in a sound mind.

 The person should have attained the age of majority: In law, it is believed that
minors are incapable of giving consent.

For example, if A and B are in a sexual relationship where B is a minor girl, though the
sexual activity is consensual, it would still amount to the offence of rape.

Consent on the promise of marriage

Consent might be expressed or implied, compelled or misled, freely given or obtained via
deception. Consent is a rational act followed by contemplation, with the intellect weighing
the good and evil on each side like a balance. There is a substantial difference between rape
and consensual sex, and the court must carefully consider whether the accused had a
genuine desire to marry the victim or had made a false promise to that effect solely to fulfil
his libido, as the latter falls under the category of cheating or deception.
There is a difference between just breaking a commitment and not keeping a false promise.
As a result, the court must determine whether the accused made a false promise of
marriage at an early stage and whether the consent was obtained after fully
comprehending the nature and implications of sexual indulgence. There may be a case
where the prosecutrix agrees to have sexual intercourse with the accused because of her
love and passion for him, rather than solely because of the accused’s misrepresentation, or
where an accused was unable to marry her despite having every intention to do so due to
circumstances he could not have foreseen or were beyond his control.

These situations must be handled differently. Only if the Court finds that the accused’s aim
was malicious and that he had hidden motives can the accused be found guilty of rape, as
has been the case in Dhruvaram Murlidhar Sonar v. State of Maharashtra (2019). When a
man and woman were living together, sometimes at her home and sometimes at the man’s,
the evidence indicated that it was not a case of passive submission in the face of
psychological pressure, and there was tacit consent that was not based on any
misconception created in her mind, a complaint under Section 375 would be unworkable.

As has been observed by the Apex Court in the landmark case of Uday v. the State of
Karnataka (2003), if the accused’s promise is not false and was not made with the express
goal of seducing the prosecutrix into engaging in sexual actions, the act(s) would not be
considered rape. Thus, if the prosecutrix submits to the accused’s passion because she
believes the accused is going to marry her, such a false act cannot be deemed to be
consensual in terms of the accused’s offence.
Criminal Amendment Act, 2013

Definition

In present law, the offence of rape consists of four types of “sexual acts” as defined in
Section 375 of the Indian Penal Code, the following are those four acts:

 “penetration of the penis into the vagina, mouth, urethra or anus.”

 “inserting any object or any part of the body (for example finger) into the vagina,
urethra, or anus.”
 “manipulation of any part of the body of a woman to cause such woman penetration
into the vagina, urethra, anus or any part of the body of such woman.”
 “application of male’s mouth to the vagina, anus, urethra of the woman.”

The Interpretation of the word ‘Penetration’, earlier urged by the Delhi-based NGO, Sakshi
in its PIL, finally found its place in the legislation after this amendment. To constitute the
offence of rape ‘Penetration’ is necessary, the depth and means of penetration do not
matters. The explanation appended to Section 375, makes it clear that even the slightest
penetration [Tarkeshwar Sahu v. State of Bihar (Jharkhand)] of a male organ into the
female is sufficient to constitute ‘sexual intercourse’ and the depth of penetration is
immaterial [Nathu Ram v. State of Haryana]. It is the ‘Penetration’ not ‘Ejaculation’, which is
the sine qua non for the offence.

Section 375 also suggests that even if the perpetrator is making a woman commit the
above-mentioned acts with a third person, he would be liable under this section. Even a
threat to commit rape has also become a crime.

The seventh circumstance was also added which reads as, ‘When she is unable to
communicate her consent’. It covers all forms of inability to communicate consent and it
may be because of any reason. The proviso to Section 375 provides that a woman who does
not physically resist the act of penetration of the penis into the vagina by a man shall not by
reason only of that fact be regarded as consenting to the sexual activity. The consent must
be active.

Comparison between the amendments

Sl. No. Offence/Issue The law before the 2013 Criminal Law
Amendment (Amendment) Act, 2013
Punishment for 10 years to life 20 years to life
gang rape imprisonment and fine, imprisonment (rigorous
IPC, 1860. imprisonment) and a fine
payable to the victim are
reasonable to meet medical
expenses.
Age of Consent Specific provision, since 18 years
the 1983 amendments in
the rape law in the IPC,
1860.