Laws against Rape and Other Sexual Offences in India

A look into the current laws in place in India to protect its citizens from all kinds of sexual exploitations and rape and other crimes.

Rape and IPC: Rape and sexual crimes against any gender have long since been considered a crime under the ambit of Indian Law, by virtue of the Indian Penal Code, 1860 (IPC). As far as the definition goes, it has been provided under section 375 which defines rape as the following:

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 de-scriptions:

• Against her will.
• Without her consent.
• 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.
• 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 law¬fully married.
• With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• With or without her consent, when she is under sixteen years of age as per the law. This implies that any sort of penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape. However, there still exist certain exceptions which are a topic for much debate. These exceptions can be summarised below:
• Any sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape. As per the provisions, before 2017, sexual intercourse, even without the consent of a man with his wife, even if the wife was a minor, however, above the age of 15, shall not constitute as rape either. But, in 2017, a Division Bench of the Supreme Court of India, constituting of Justices Madan B Lokur and Deepak Gupta in the matter of Independent Thought (Petitioners) and The Child Rights Trust (Intervener) vs. Union of India and Others, read down Section 375 of IPC and held that sexual intercourse with any minor girl, even if the minor is married and the accused is the husband, shall now constitute the offence of rape. This Bench stated that it found no reason as to why a married minor female of the ages 16 till 18 should not have protection against unwanted sexual intercourse against her husband, simply due to their marriage. The Bench, however, refrained from making any comments on forcible sexual relations between an adult husband and an adult wife. The Delhi High Court is still deliberating the issue of marital rape of an adult married woman by her husband.

 

Laws for Statutory Rape in India

While normal rape, comprises of the element of lack of consent, or consent obtained through fraud or force, statutory rape varies in the sense that the consent so obtained, is not considered to be valid. This offence has been created to protect the exploitation of minors by such adults who would manipulate their way into having sexual intercourse with an otherwise unwilling party. Under this sort of offence of rape, the adult gets punished in case he had any kind of physical interaction with any woman or a girl, of the age of 18 or below, regardless of whether she had voluntarily participated in the act or not. Such consent, if obtained by the minor is inconsequential and shall not be considered as a defence to the accused. The minimum age of consent in India is 18 years old and the age of consent implies the age at which an individual is considered legally old enough to consent to participate in any sexual activity. The individual who is still of 17 years of age or younger, shall not be considered as legally old enough to give their viable consent to participate in any kind of sexual activity. Hence, if a male and a female, both of the age 17 enter into voluntary intercourse, the male can still be arrested and charged with rape.
However, more often than not in such cases, wherein there is no actual exploitation of the minor, taking into consideration the statement of the minor female, the accused is often let off.

Misuse of Statutory Rape by Families

In India, considering the cultural backdrop and religious notions still prevalent in our country, more often than not, when young men and women fall in love or elope and run away from their families, the parents of the girl usually resort to filing a false rape accusation against the boy in order to deter the couple from getting married. Since statutory rape is considered a very serious offence, it is the duty of the police to act immediately. However, in such cases, if the female stands her ground and explains to the court that she had left of her own accord and not under any compulsion or force acts then the Courts are obliged to let the male off.

Criminal Law (Amendment) Act 2013

 

• In the year 2012, the national capital of Delhi witnessed a the most horrific gang rape, which is still widely referred to as the Nirbhaya rape case, which shook the conscience of the entire nation and lead to the introduction of tougher laws in the form of the Criminal Law (Amendment) Act, 2013.
• Under the new amendment Act, the minimum sentence for rape was altered from seven years to ten years. Furthermore, in cases which resulted in the death of the victim or the victim being left in a vegetative state, the minimum sentence had been duly increased to twenty years. However, under the case cited above since one of the accused was still a minor, he had to be tried as a juvenile at that time and thus this one specific accused escaped the complete brunt of the law despite being 17 years old and just a few months shy of becoming an adult.
• In order to avoid such cases in the future, the age for being tried as an adult for violent crimes such as rape and murder had been rightfully altered from 18 to 16.
• The legislation further upheld that if children within the age of 16 to 18 undertake in activities comprising of gruesome and violent murders and rapes, they deserved to be tried and punished as adults.

 

Sexual Offenses against Minors

 

• Up till the year 2012, the term “statutory rape” implied protection for just minor victims against rape and other sexual crimes. However, between the years from 2001 to 2011, all crimes of sexual nature against minors had been increasing at an alarming rate and thus the Government with the help of several NGO’s realized that the current IPC was highly inadequate to handle such grievous crimes.
• Children were more often than not sexually assaulted by their own family members or people they knew which lft them further mentally distraught and traumatised. The repercussion was that these children, were not protected under the strict procedure under the Criminal Procedure Code. It is due to this reason that the Protection of Children from Sexual Offences Act (POCSO Act), 2012 had been enacted for the protection of minors from sexual exploitation and to provide them with easier access to the process of prosecution via the creation of special courts, with trained personals for taking care of the minor’s mental and emotional state during the trail.