Rape is an act of violence expressed through sexual means. In so far as the law is concerned rape is the slightest degree of penetration by the male sex organ of the female sex organ which is sufficient to constitute intercourse without anything more occurring. Sections 375 and 376 A to D of the Indian Penal Code deals with rape.
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -
First: - Against her will.
Secondly: -without her consent.
Thirdly: - 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.
Fourthly: -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.
Fifthly: - 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.
Sixthly: - With or without her consent, when she is under sixteen years of age.
Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: -Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape].
Section 376. Punishment for rape
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(1) Whoever: -
(a) Being a police officer commits rape-
(i) Within the limits of the police station to which he is appointed; or
(ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or
(b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or
(c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be pregnant; or
(f) Commits rape when she is under twelve years of age; or
(g) Commits gang rape,
Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
Explanation 2-"Women's or children's institution "means an institution, whether called an orphanage of a home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation: 3. - "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation].
In what was popularly known as “the Mathura trial” the honourable Supreme Court reversed the Bombay High Court’s decision and held the accused not guilty sighting 3 reasons. One that there was no injuries shown by the medical report and thus no stiff resistance was put up and the other being the girl was of easy virtue as she was open to premarital sex with her lover. But one has to ask does that mean she is ready to be violated by a police officer. Another judgement of the Supreme Court written in poor taste was in the case of Prem Chand Vs State of Haryana where the minimum sentence of 10 years was reduced to 5 years due to the “conduct of the girl”. The Supreme court seemed to be justifying the rapist’s conduct unintentionally.
There is some respite in many other well crafted judgements. One which particularly stands out is the words of Justice Krishna Iyer in Rafiq Vs State of UP “When rapists are revelling in their promiscuous pursuits and half of humankind-womankind- is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury, but 'the deep sense of some deathless shame".
Child abuse and the law:
Unfortunately there are no specific legislations tackling with this gruesome offence inspite of the mounting statistics that show that one in ten Indian children are victims of child abuse. In the case of Sakshi Vs Union of India it was emphasized that india is in dire need of legislations tackling child sexual abuse. Sections 375 and 376 of the IPC seem inconsistent with current affairs of the society.
There are very few sections under the Indian Penal Code that deal with child sexual abuse. Some terrible home truths are:
• The laws for women are extended to include children.
• The major weakness of these laws is that only penile penetration is considered a grave sexual offence. The crime is considered lesser when it is oral, or through penetration with an object.
• Although section 377, dealing with unnatural offences, prescribes seven to ten years of imprisonment, such cases can be tried in a magistrates court, which can impose maximum punishment of three years.
• If the abuse is repeated several times it affects children more severely, however as yet there is no law for repeated offenses against the one child.
According to a study conducted by the women and child welfare (WCD) ministry in 2007, more than half the children in the country have been victims of abuse. A shocking 53 per cent of an estimated 420 million children below 18 years have undergone some form of sexual victimisation. Since 2003, the WCD ministry has been drafting the Prevention of Offences Against Children Bill. The proposed legislation will cover all crimes against children, ranging from corporal punishment to sexual abuse and trafficking.