Loopholes in Rape Law in India

The present article is written by Aayukta Sharma student of BBA LLB from NIMS University Rajasthan, Jaipur.

Introduction

Lord Macauley drafted Indian Penal Code which came into operation in 1862. It is almost a century-old codified law. Timely amendments were also made during the functioning. No commendable amendment has been made to date. There are many loopholes in the existing law that need amendments for the smooth functioning and delivery of justice on time. One such law which is in need of amendment is for “Rape” which terribly lacks provide justice and has massive loopholes. A loophole is an omission or ambiguity in a legal document that allows the intent of the document to be evaded. Loopholes can exist during the outset of the law or due to the changes in society and its trends. The existence of loopholes in generality is due to unforeseeable circumstances or changes in course of conduct.

Rape as a social issue and crime

Rape is the most heinous crime and barbaric in nature. It has been compared with murder by Justice Arjit Pasayat. He says –

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”

It clearly defines rape as worse than murder. After the murder, a person dies and the soul is released but after rape, if the rape victim survives, it becomes very difficult to erase that black spot of harassment and sexual assault from her soul.

The unlawful sexual intercourse with the woman forcefully or under threat of injury to her or any other person. In any of the circumstances where sexual intercourse happens where the consent is not free consent can be termed as rape. Consent is the core concept of it.

Sexual intercourse at the time of sleep, unconsciousness, or intoxication is also rape irrelevant of the fact the intoxication is voluntary or involuntary. Which states that in those conditions where the person is not in the state to communicate the consent is deemed as no consent.

There are many terms that have undergone change after the amendment of 2013. Before 2013, “sexual intercourse” meant “penetration of male sexual organ into female genitals only”. Later courts interpreted sexual intercourse as “mere slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute sexual intercourse”.

It is laid down that there is no requirements of injuries on the private parts of the women to constitute a rape

Rape laws are not gender-neutral

Rape defined in the Indian Penal Code,1860 under section 375 says- “A man is said to commit rape”, “……with a woman” is said to commit rape. The definition and description under the law frame men as the criminal and woman as the victim always. It is true in the male dominating society that the men are the sexual offender, they showcase their power they dominate the woman. Women are one of the oppressed groups. It is a general perception that rape is done for the sexual satisfaction of the person.

“Rape” is something that is always projected on the female population. The word “victim” under the rape law has always been associated with women. There is a need for a gender-neutral law in India. The issue of gender neutrality in rape laws was first raised by Delhi HC. However, the court went beyond its mandate to opine on the issue of gender neutrality as well. It observed that the men who have been sexually assaulted or harassed must have the same protection as female victims.

JS Verma committee who was behind the Criminal Amendment Act,2013 also suggested that the rape law should be gender-neutral but the suggestions were not entertained at all.

The custodial rape case of Mathura

After the Mathura rape case, there was a drastic change in the way people looked at rape, a turn in the perspective of rape’s definition and consent of sexual intercourse when an Adivasi girl from Mathura was brutally raped in Desai Ganj Police Station of Maharashtra by a policeman.

The Session court reached the conclusion, back in 1972 that the girl was habitual of sexual intercourse hence, rape could not be proved. In 1978, the Hon’ble Supreme Court said, there were no marks of injury found on the girl’s body, the absence of them makes it consensual.

The courts stressed the fact that the depth of the penetration of male organs is immortal. The essential conditions of rape are penetration and not ejaculation. Ejaculation without penetration will constitute an attempt to rape and not rape.

Marital rape

Tracing down the origin of the word “rape”, it is derived from a Latin word “rapio” which means “to seize”. Looking closely, it means forcible seizure of someone irrespective of the relations with that person. The exception of the statute has become a misery for wives. The exception states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The statute has been contrary to itself, one side it covers all the aspects and ingredients of the brutality of rape. On the other side, it gives the man advantage of becoming the husband who can rape his wife above the age of fifteen anytime. Here, inserting the exception, the law fails to acknowledge the facts that she is a woman before she became a wife. It violates Article 21 of The Indian Constitution, “Right to life”, which contains the “right to live with personal dignity”. Her dignity as a woman is snatched away with the exception of marital rape in the statue.

One of the reasons for marital rape is the traditional role assigned to the married women in our society, she is tagged as “Pati-vrata stri” which means faithful, pure, and obliged women. Thus, she is obliged to follow her husband’s direction fully and fulfill his every wish without questioning and denying it.

Statute of Paedos

It is also an unjust law on the age factors, as it states the consent of the girl under the age of sixteen is not eligible for the consent of sexual intercourse which was extended to eighteen years after the amendment. This means even if the girl aged eighteen gives consent to sexual intercourse, it will still be considered rape. The law states, “her consent is no consent” and gives a reason that she is incapable of understanding the consequences of the act.

Conclusion

The law needs to get updated with the changes in society. IPC does not recognize Marital rape as a crime, even in the latest Criminal Amendment Act of 2013 it did not make any provision related to it. Law pre-assumes that in marriage, the wife has consented to all kinds of matrimonial obligations to her husband including sexual intercourse. So, without any specific legal provision in the statute, it is almost impossible to stop this perversion of marital rape. Its high time to make the rape law gender-neutral, which is the need of the society and demand of article 14.

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