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An estimated 8-minute read

Loopholes in Rape Laws

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Loopholes in Rape Laws

Law is meaningless when all men are good and useless when all men are bad. Fortunately or Unfortunately, Man is a mixture of the two which has necessitated the birth of law. Does it mean law is flawless because it happens to monitor, limit and control human behaviour to an established set of patterns? Or is it that its authority could not be questioned as it happens to be supreme?

“Any fool can make a rule, and any fool will mind it,” said Henry David Thoreau. After all Law is another creation of one man to pull strings of many men and thus can never be ideal. Flawlessness being a mirage in any human creation, even law has succumbed to cracks and crevices.

The Indian Penal Code too, sadly is haunted by gremlins and the provision relating to rape is one among them.

The Indian Penal Code is almost a century old. It was drafted by Thomas Babington Macaulay which came into operation on 1862. However, amendments did take place but not commendable ones.

Rape being one of the most heinous crimes in the world has been poorly dealt in the Indian Penal Law. The alarming increase in sexual offences throughout the nation, it has become a matter of grave concern and hence requires a rapid amendments.

The definition of Rape according to section 375 is quite elaborate. The statute is as follows;-

375. 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 own wife, the wife not being under fifteen years of age, is not rape.

 

Marital Rape – Not rape – An absolute baloney

The statue is quite an elaborate and extensive one. It aims at covering all aspects and ingredients of the monstrous and heinous crime of rape. Albeit such a detailed statute, the exception clause in it appears to be the black mark.

Tracing the etymology of the word "rape" is derived from a Latin word rapio, which means to "seize". In elaborate terms it means forcible seizure irrespective of husband or wife or kith or kin.

What the law fails to understand here is that a wife is a woman first of all and she can never stop being a woman till the end of her days. So, if being a wife puts her into a more vulnerable position as the husband could actually have intercourse without her consent, the law itself is backfiring the very intent of the legislation, that is to protect women from such monstrous crimes.

This arbitrary and nonsensical immunity given to a husband is utterly outrageous, unacceptable and scurrilous. What is marital rape if it’s not a rape?

The notion that a woman has impliedly submitted her consent to intercourse is again utterly indiscreet. The two main ingredients of rape; Coercive and non consensual intercourse are being ignored here leading to the one the most erroneous statues in the Indian Penal Code.

Does marriage give the husband the license to rape his wife? How can marriage be a sacramental ceremony when it offers such an abusive right? This particular exception clause has made it ridiculously ironical for marriage to be a solemn, pristine and a sacramental ceremony that lays foundation for a family- the basic social institution.

 

"Penetration" – Poorly defined

The statue states mere penetration is sufficient to constitute rape. Furthermore it states that, it may not necessarily be a sexual intercourse but even partial penetration would constitute rape.

Injuries to the private organ of the women are also not a necessary ingredient to constitute rape. Ultimately, it can be understood that penetration itself would be considered sexual intercourse amounting to rape.

This part of the statue is clear and hence has to be applauded. So when penetration is exclusively given in the explanation clause as the foremost exigent ingredient, the word "penetration" carries enormous weight age here and hence must carry zero prolixity.

The word "penetration" is very obscure and indefinite. Ordinarily in the act of rape the "penetration" is made by the penal organ. Unfortunately, there are many gruesome instances where external objects have been inserted into the women’s organ such as the infamous "Delhi gang rape".

In few cases fingers have also been inserted. In such abominable situations, the law ought to be very direct and staunch but the question of whether inserting external objects would constitute rape comes into account creating such an appalling perplexity.

This is what happened in the case of Smt Sudesh Jhaku v. Kcj and Ors. In this situation the judiciary blames the legislation for poor drafting and the judiciary is blamed for poor interpretation. Ultimately it is nothing but a grave miscarriage of justice.

Therefore, either the statute must be elaborate enough to cover all such monstrous acts within the ambit of rape or the courts must exercise wide interpretation or rather a liberal approach towards interpretation of such a vague statue.

 

Requirement for an exclusive statute for paedophiles

Sexual assault on children is again on the rise yet there is no exclusive enactment or statute to address such a heinous crime.

A sex offender is most likely to be someone the boy knows and trusts.  Sexual abusers can be fathers, step-parents, uncles, neighbours, spiritual leaders, and camp counsellors.

Currently, sexual assaults on children are dealt under section 375,376 and 377. Rape is no doubt a monstrous act but child sexual assault is even more grave than rape and the perpetrators of child sexual assault need severe deterrence through an exclusive act or a provision.

The punishment for rape cannot be the same as the punishment for paedophilia but has to be more arduous.

When there are umpteen enactments from a pin to a plane in India, why not there be a separate legislation for child sexual assault? When Dowry was at the peak, the Dowry Prohibition Act came to the rescue. Similarly, when Domestic violence was a pressing social issue, The Domestic Violence act was enacted. Thus, the legislators ought to enact a special legislation to tackle the problem of child sexual assault

 

Rape law not Gender-Neutral

Section 375, though being an exhaustive statute is limited to female population. One on the face of it might feel that "rape" is something that is always projected on the female population.

I would say such a notion is very precarious. As stated earlier, rape means to seize and this seizure could be imposed even on a man by another man.

It is a myth the only homosexuals commit such acts but even bi-sexual and straight people commit such immoral and gruesome acts. Section 377 deals with "unnatural offences" but this statute again is very reserved.

The act states;-

Whoever voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

The statue contains the word "voluntarily". Therefore, it neither relates to sex without consent or a sexual assault. So if at all a man is sodomized without his consent why can he not be called a victim? Where does he seek his remedy or where does compensatory jurisprudence take foot here?

Moreover, the statute has the phrase, "carnal intercourse against the order of nature"; this phrase again limits the scope of this statute.

For example: what if a man is sexually assaulted by a weapon? Albeit rape is a crime mostly inflicted upon womanhood, even men are sometimes a prey to this heinous offence.

Human Rights Watch Report suggests that 22% of male inmates have been raped at least once during their incarceration; i.e. around 420,000 prisoners each year. Male rape has been in existence since ages. In the medieval ages, male rape was provided as a right of a soldier against his defeated enemy.

Despite rapid civilisation, male rape still exists but it is very latent. A large number of males become victim of sexual assaults, gang rape and forced sodomy in their own houses, pubs and armed forces and colleges. Considering the grave condition, there at least has to be one single provision in the Indian Penal Code which addresses Male rape or at least section 375 should be gender-neutral and not just limited to female.

 

Conclusion

The rape law is the vital instrument to extinguish heinous crimes and such an instrument must be honed prudently. When newer crimes arises, newer laws are required to eradicate or at least to dimish crimes.

For example, the cyber law was introduced to deal with crimes in the cyber world.

Law needs to be kept updated with the pace the society operates. For instance, earlier Rape law never made a clear cut distinction between "consent" and "passive submission", which led to grave miscarriage of justice.

However, sections 376A to 376D were later added to the Penal Code. A crime, particularly rape, not only affects the victim to a larger extent but also creates a wide apprehension throughout society as it possesses such a high degree of seriousness.

Thus, the rape law requires good deal of amelioration to tackle abominable social problems and crimes.

 

Salai Varun Isai Azhagan

Law student

School of Excellence in Law

Chennai 

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