Rape Laws in India

Statutory recognition and development of anti rape laws in India
National University of Study and Research in Law, Ranchi
SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A.L.L.B. (HONOURS) 9th SEMESTER
SEMINAR PAPER ON
Statutory Recognition and Development of Anti rape Laws in India

[CODE-105]
Supervisor: Submitted By:
Mr. Afkar Ahmad Bhawana Parihar
Assistant Professor, Law Roll No. 164
NUSRL, Ranchi IX Semester, Sec-A
[2017]
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SUPERVISOR’S CERTIFICATE
This is to certify that the Seminar Paper titled “Statutory recognition and development of anti
rape laws in India” submitted to National University of Study & Research in Law, Ranchi in the
partial fulfillment of the requirements for papers of B.A LL.B (H) Ninth semester, is an original
and bona fide research work carried out by Bhawana Parihar under my supervision and
guidance. It is further certified that no part of this study has been submitted to any University for
the award of any Degree or Diploma whatsoever.
______________________
Mr. Afkar Ahmad
(Assistant Professor of Law)
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ACKNOWLEDGEMENT
On completion of this seminar paper, it is my present privilege to acknowledge my profound

gratitude and indebtedness towards the teachers for their valuable suggestion and constructive
criticism. I would like to thank my respected mentor, Mr. Afkar Ahmad, who despite all of his
pre-occupations, provided me all the assistance I needed for the accomplishment of this paper
and guided me while I tread on the tenebrous boulevard of ignorance. Had it not been for his
support I wouldn’t be able to grasp the cognizance of something as enthralling as this. I thank
him profusely for providing the engrossing topic to work on which helped me to learn and
relearn, to explore and re-explore the knowledge of the available literature.
I thank each and every teaching and non-teaching staff of NUSRL for their unconditional support
and infinitum. I would also like to convey the thanks to the Library Staff of NUSRL.
Last but not least, many thanks to my parents and colleagues for providing their support.
Bhawana Parihar
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TABLE OF INDEX
PART –I…………….…………………………………………………………………………….7
INTRODUCTION OF SUBJECT - “RAPE AS A CRIME”……………………………….…7
1.1.Conceptual Analysis…………………………….…………………………………………….8
1.2.Research Questions………………………………………………………………………….10
1.3.Rationale and Significance of the Study…………………………………………………....10
1.4.Objective of the study………………………………………………………………………..11
1.5.Database & Research Methodology………………………………………………………...11
PART- 2…………………………………………………………………………………………12
RAPE AS CRIME: AN OVERVIEW………………….……………………………………...12
2.1.Defining Rape……………………………………………………………………………….12
2.2. Historical Perspective………………………………………………………………………13
2.3.Definition of rape in India : an statutory overview………………………………………...13
2.4.The most important factor- consent of victim………………………….…………………...14
PART 3………………………………………………………………………..…………………15
A COMPARATIVE STUDY OF RAPE LAWS OF THE WEST…………...………………15
3.1. Definition of Rape in some parts of the world……………………………………………..16
3.1.1. U.S.A (Michigan)……………………………………………………………………..16

3.1.2. Canada………………………………………………………………………………..17
3.1.3. England……………………………………………………………………………….18
PART 4………………………………………………………………………………………….19
RAPE IN INTERNATIONAL CRIMINAL LAW…………………………………...………19
4.1. Definition of Rape- Jurisprudence Of It By ICTY and ICTR and ICC……………………………19
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4.2. The Akayesu Decision………………………………………………………………………20
4.2.1. The Conceptual Definition………………………………………………………….20
4.2.2. Furundzija judgement: The mechanical definition………………………………..21
4.3. Definition of rape in ICC statute………………………………………………………………..22
4.4. Need for ICC to include rape as genocide…………………………………………………24
PART -5…………………………………………………………………………………………25
DEVELOPMENT OF ANTI RAPE LAWS IN INDIA AND CRIMINAL LAW

AMENDMENT ACT, 2013…………………………………………………………………….25
5.1. Criminal Law (Amendment) Act 1983……………………………………………………..25
5.1.1 An attempt to commit rape ………………….………………………………………..26
5.1.2. Procedural aspects…………………………………………………………………...28
5.2. The Law Commission Reports……………………………………………………………...29
5.3. Analysis of The Criminal Law (Amendment) Act, 2013……....…………………………..31
PART 6…………………………………………………………………………………………..33
SPECIAL CASES OF RAPE…………………………………………………………………..33
6.1. Marital Rape………………………………………………………………………………...33
6.2. Rape of a woman who is under sixteen years of age………………………………………38
6.3. Rape of a woman, knowing her to be pregnant……………………………………………38
6.4. Gang Rape…………………………………………………………….…………………….39
6.5. Rape causing death or resulting in persistent vegetative state of victim…………………..40
PART-7 ……………..……………………....………………………………………………......40
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ANALYSIS OF CASE LAWS RELATING TO RAPE LAW..………………..……...…….40
7.1. Recent Development…………...…………………………..…………………………….….43
7.2. Assistance to rape victims………..….…………...…………………………………………43
PART-8…………………………...……………………………………………………………..45
RECOMMENDATIONS AND CONCLUSION…………………..…………………………45
8.1. Recommendations……………………...……...……………………………………………45
8.2. Conclusion………………………………………………………………………………..…46
8.3. Bibliography………………...………………………………………………………………47
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PART –I
INTRODUCTION OF SUBJECT - “RAPE AS A CRIME”
"While a murderer destroys the physical frame of the victim, a rapist degrades
and defiles the soul of a helpless female1."
Silence shrouds the phenomenon of rape. This study is an attempt to break through this silence
and explore. Rape is a highly gendered violent behavior whereas the majority of the sexually
violent perpetrators are men and the majority of their victims are women. Rape, the most
common form of violence against women has been a part of human culture and is a profound
violation of woman’s bodily integrity and can be a form of torture. The subject of rape comprises
more than the actual physical act as it involves many factors such as law and customs, social and
political events and so on. While the physical reality of rape has been unchanged over time and
place however, the perceptions, ideas and laws about rape have changed.
Violent crimes directed towards women such as rape poses serious violations of human rights.
The advocates of women’s rights have been able to put pressure on governments by placing
gender-based violence in human rights framework to fulfill government’s obligations under
international human rights law to punish and prevent such violence. However, despite a
substantial number of contraventions, rape still exists in some form, filling the lives of women
with pain and terror from which some might never recover.
While the United Nations continues to promote democracy as the best system to secure women’s
dignity and rights, India the world’s largest democracy fails to protect the nation’s women. This
paper is a study of rape in India and how the state system responds to it and it’s comparison with
various countries of the world.
The Criminal Amendment Act of 2013 brought about some very necessary changes in the Rape
Laws of India. However there are some provisions which are not very conducive in providing the
1
As observed by Justice Arjit Pasayat in Dinesh v. State of Rajasthan, (2006) 3 SCC 771
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fullest extent of justice that should be dispensed to the victims of this heinous crime. India is
passing through a very turbulent phase with regard to women security and cases of rapes, sexual
assaults, acid attacks etc. are on the rise on a daily basis. One of the major reasons that have been
attributed to the rise of these crimes has been the increased number of unemployed youths who
commit to crime. The rise in the number of sexual crimes is supported by empirical data.
The alarming situation is that despite the nationwide outrage, the crimes against women have
only been increasing which suggests that there is something seriously wrong with our legal
system when it comes to the prosecution and punishment of the perpetrators of these crimes.
Also the society should sensitize itself to the plight of the victims. In our country it is commonly
seen that rape victims are not treated well by the society and some people go to the extent of
blaming the rape on the victim. So not only the legal mechanism but also the society needs to
change its view towards the victims of rape and other sexual crimes.
It was often alleged that the Indian version of rape law is archaic, outdated unable to keep the
pace with the changing socio-legal mores of the society. Even before the Criminal Law
Amendment Act 2013 came into force with effect to February 3, 2013, spadework was done for
reforming the rape laws in India which included inter alia, replacing the word “rape” with
“sexual assault” to make the offence gender neutral. Finally, the Committee on Reforms of
Criminal Law (Justice J.S. Verma Committee) which was constituted in the aftermath of the
dastardly gang rape of the young paramedical student in the national capital New Delhi in
December 2012, suggested many measures to make the criminal laws more responsive to present
day challenges of rising crime against women and to make it in sync with the realities of the
Indian Society.
1.1 Conceptual Analysis
Historically, “Raptus,” the generic term of rape was to imply violent theft, applied to both
property and person in the Roman culture. It was synonymous with abduction and a woman's
abduction or sexual assault, was merely the theft of a woman against the consent of her guardian
or those with legal power over her. The harm, ironically, was treated as a wrong against her
father or husband, women being wholly owned subsidiaries2.Although Roman law in the
2
C. Gillian, Women in Late Antiquity: Pagan and Christian Life-styles (Oxford University Press, 1993).
PAGE -8
historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths
and legends of early Rome3.Rape in the English sense of “forced sex” was more often expressed
as stuprum, a sex crime committed through violence or coercion (cum vi or per vim)4.
Rape as an adjunct to warfare, dates back to antiquity when mass rape of women as a punitive
measure committed by the armies after forcibly entering a town was taken by Greek, Persian, or
Roman troops5. Rape, as an adjunct to warfare, was prohibited by the military codices of
subsequent rulers and this prohibition formed the basis for convicting and executing rapists
during the Hundred Years’ War (1337-1453).6
In some cultures, rape was seen less as a crime against a particular woman than as a crime
against the head of the household or against chastity. As a consequence, the rape of a virgin was
often a more serious crime than of a nonvirgin, even a wife or widow, and the rape of a prostitute
or other unchaste woman was, in some laws, not a crime because her chastity was not harmed.
Furthermore, the woman's consent was under many legal systems not a defense. In 17th-century
France, even marriage without parental consent was classified as rape7. The penalty for rape was
often a fine, payable to the father or the husband whose “goods” were “damaged8’.
In Islamic criminal jurisprudence, the majority of Muslim scholars believe that there is no
punishment for a woman forced to have sex9.According to a Sunnihadith, the punishment for
committing rape is death, there is no sin on the victim, nor is there any worldly punishment
ascribed to her10.
3
Moses DC. Dumbarton, Dunbarton Oaks, The Validity of Coerced Consent in Roman Law, (in) Consent and
Coercion to Sex and Marriage in Ancient and Medieval Societies, p. 50.
4
Gordon P. Baltimore, Some Unseen Monster: Rereading Lucretius on Sex, (in) the Roman Gaze: Vision, Power,
And The Body, p. 105 (Johns Hopkins University Press, 2002).
5
Phang SE. Cambridge, Roman Military Service: Ideologies of Discipline in the Late Republic and Early Principate,
p. 244. 253-4, 267-8 (Cambridge University Press, 2008)
6
Odahl CM. London: Routledge; 2004. Constantine and the Christian Empire; p. 179.
7
Sedney M.. ‘Rape (Crime)’ Grolier Multimedia Encyclopedia. (Scholastic Library Publishing House, 2006 )
Available from: http://gme.grolier.com
8
Barnes TD, Constantine and Eusebius, p. 220 (Cambridge: Harvard University Press, 1981).
9
Qudamah M al-Din Ibn, al-Mughni; p. 159. Available from: http://www.geo.tv/zs/Zina_article_Final.pdf [Last
accessed on 2016 May 4].
10
Lucas SC. Leiden, Constructive Critics, Hadīth Literature, and the Articulation of Sunnî Islam; p. 106. (Brill
Publishers, 2004)
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In some laws the woman might marry the rapist instead of his receiving the legal penalty. This
was especially prevalent in laws where the crime of rape did not include, as a necessary part, that
it be against the woman's will, thus dividing the crime in the current meaning of rape, and a
means for a couple to force their families to permit marriage11.
1.2.Research Questions:
A research question is a significant part of the research process as it guides the writer to focus on
the study and the writing process. The function of the research question is to specifically explain
what the study seeks to learn or understand from a broader subject such as gender based sexual
violence or rape. My research question will be to determine,
 What is the historical perspective of rape as crime in different countries and the
significant difference between various countries with respect to development of rape
laws?
 What are the significant steps taken by Indian Legislation for Rape laws and whether
they are sufficient enough to curb the crime from its roots?
1.3 Rationale and Significance of the Study
Cases of rape have fallen by 5.7% coming down from 36,735 in 2014 to 34,651 in 2015.
Incidents of gang rape too have shown a decrease from 2,346 in 2014 to 2,113 in 2015. There
has been a marginal increase of 2.5%, however, in other sexual offences against women. Under
the category of “assault on women with intent to outrage her modesty”, 2015 saw 84,222 cases
being registered across the country as against 82,235 in 2014. The category includes offences
such as sexual harassment, assault or use of criminal force to women with intent to disrobe,
voyeurism, and stalking12.
I decided to work on this topic for the research Paper because the issue of rape has received
increased attention as the number of victims is increasing dramatically and rape is considered as
11
Aquilia L, McGinn TA.. Prostitution, Sexuality and the Law in Ancient Rome ( Oxford: Oxford University Press;
1998)
12
http://ncrb.nic.in/StatPublications/CII/CII2014/chapters/Chapter%205.pdf [Last accessed on 2016 Nov 4].
PAGE -10
a major social and human rights issue. The elimination of violence against women remains one
of the serious challenges especially in India as the prevalence of rape has exceed to a point where
even children of five years of age are being tortured and raped.
I initially intended to do a study on a single case based on the legal system of India being given
understanding that there is an existing law but slow justice system and very few convictions. My
realization about the different types of rape (such as gang rape, prison rape, war rape etc.),
diverse actors and the dissimilar responses to cases led me instead to examine multiple cases to
see if there is a common thread running through rape cases in India and finally, I decided to
extend my research proposition and I compared the laws of different countries with respect to
rape laws.
1.4. Objective of the study:
I intend to understand the causes that increase women’s vulnerability to rape in India and world -
wide and to see the structural (the authorities) and societal (the citizens) role and reaction
towards different cases. However, the focus for the study will be on development of rape laws in
India and comparison with different countries. Legal, empirical and moral views will be
highlighted in the analysis. The elimination of violence remains one of the most serious
challenges in the present time. Therefore, I believe this subject is very much relevant to the field
of Criminal Justice System and for a research paper at this level of study.
1.5 Database & Research Methodology
The present project is a combination of both field based or empirical research and non-empirical
research. The secondary sources of data collection such as the books and various journals have
been used with the help of the access to the library and the software. The database which is used
in this particular project is from the library, Google books, Westlaw international and Westlaw
India. A host of leading books on rape laws has been referred to. Articles from Journals like
National crime reports, Economic and Political Weekly, Criminal Law Review, etc have been
used. Internet sources are used in the project. These materials or documents provide details of the
rape cases including context. I looked into the legal instruments both regional and international
in the human rights perspective to understand the violations.
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PART- 2
RAPE AS CRIME: AN OVERVIEW
2.1 Defining Rape:
The term rape is primarily perceived only as a sexual behavior since it overlooks the violence
that accompanies the action. As sexual violence is a wider concept that also incorporates rape, I
will employ both terms in the course of this paper.
The United Nations defines violence against women as “any act of gender-based violence that
results in, or is likely to result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or in private life” (General Assembly Resolution 48/104).
The definition of rape differs according to factors such as time and place, however rape is
recognized as a crime that typically is committed by a man forcing another person to have sexual
intercourse against their will, intercourse by force. Even though it is not only men who commits
rape, rape is not always the outcome of an intense or obsessive desire for sexual gratification but
mostly men employs sexual violence or rape as a method to exercise their control over the
women to maintain the positions of power. The men motivated by the combination of power and
anger especially in a patriarchal society prove their masculinity by exerting sexual violence over
women.
The subjugation or subordination of women to men is prevalent in large parts of the world but in
some parts women are also subjected to discriminations, exploitations, oppressions and violence.
2.2 Historical Perspective:
In ancient times, rape was socially accepted as something that fits within the rules of war. 13 and
during the Middle Ages rape was not regarded as a crime, so long as the war satisfies the criteria
13
K.D. Askin, War Crimes Against Women; Prosecution in International War Crimes Tribunals, 21, (The Hague:
Kluwer Law International Journal, 1997)
PAGE -12
of being ‘just’.14Rape was considered to be a reward, a bonus for soldiers and at times even
became a way of measuring victory.15In 1863 the Lieber Code was drafted, which provided
immunity for women and prohibited rape by incorporating the penalty of death. 16The Hague
Conventions of 1899 and 1907 do not speak of rape or sexual violence; however they refer to
‘family honour’ which suggests that sexual violence and rape are prohibited.17
2.3. Definition of rape in India : an statutory overview:
The history of Rape laws in India begins with the enactment of the Indian Penal Code (IPC) in
1860 covered under Section 375 and 376. According to the original provision as in Section 375,
a man is said to have committed rape who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the five following
descriptions: (1) Against her will, (2) Without her consent, (3) With her consent, when her
consent has been obtained by putting her in fear of death or of hurt, (4) With her consent when
the man knows that he is not her husband, and her consent is given because she believes that he
is another man to whom she is or believes herself to be lawfully married, and (5) With or without
her consent when she is under 16 years of age.
This definition explains that penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape. It gives an exception that sexual intercourse by a man with his
own wife, the wife not being under 15 years of age will not constitute rape. This section defines
rape as forcible penetration of the vagina by the penis. This raises questions about the adequacy
and sufficiency of this definition of rape. The scope of the law does not extend to acts of forced
oral sex, sodomy or penetration by foreign objects. This form of sexual violence is especially
prevalent among children and young girls.18It is included within the ambit of Section 354 which
14
Ibid
15
It was not until the late Middle Ages that formal prosecution for violations of war crimes took place. In 1474 Sir
Peter Hagenbach was convicted of rape committedby his troops, although this was only because he did not declare
war and therefore the war was considered illegal. See: K.D. Askin, War Crimes Against Women; Prosecution in
International War Crimes Tribunals,(29.The Hague: Kluwer Law International ,1997)
16
Supra note 4 at p. 9.
17
The Hague Convention (IV) on the Laws and Customs of War on Land and Regulations concerning the Laws and
Customs of War on Land, Art. 46., 18 October 1907.
18
Sudesh Jhaku v. K.C.J and Others [1996(3)AD Delhi 653]
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deals with outraging the modesty of a woman. Inclusion with Section 354 is a gross denial of
justice as it prescribes a paltry sentence of two years for such a serious offence. It was in direct
violation of the right to life with dignity and personal liberty available under Article 21 of the
Constitution. This problem was pointed out by the NGO Sakshi in the form of Public Interest
litigation19.
It was argued here that this narrow definition of rape runs contrary to contemporary
understanding as the intention to humiliate and degrade the sexual integrity and personal space of
its victims. The Supreme Court taking cognizance of this, directed the Law Commission to
review the law on rape. The 172nd Report dated March 25, 2000 made recommendations to
widen the ambit of the law to include forced oral sex, sodomy and penetration by objects. Also it
recommended substituting the offence of rape with the offence of sexual assault. But nothing
came out of this report and there was no change with respect to this aspect till the Criminal Law
Amendment Act, 2013.
2.4. The most important factor- consent of victim:
The absence of consent is what distinguishes rape from ordinary consensual sexual intercourse.
Initially there was emphasis by the judiciary on the use of force and physical injuries on the body
of the victim to prove that there had been rape. Passive submission would not constitute absence
of consent. This made it extremely difficult for a woman to prove that she did not consent
beyond all reasonable doubt as is required under the law. Even forensic evidence cannot be
produced in all cases as unless the woman is medically examined within 24 years, it becomes
difficult to prove rape. This perception negatively impacts especially those cases where consent
is obtained by means of misrepresentation or fraud. This changed following the infamous
judgement of the Supreme Court in Tukaram v. State of Maharashtra20 which acted as a
catalyst for reform in rape laws. In the above case, Mathura a 16 year old tribal girl had been
raped by two policemen within the police compound. The Supreme Court set aside the
conviction by the High Court on the ground that she did not raise an alarm and there were no
physical signs of injury on her body. Technically the law did not prevent the court from
perceiving non wilful submission given as a result of force as no consent. Nowhere in the statute
19
Sakshi v. Union of India , AIR 2004 SC 3566
20
Tukaram v. State of Maharashtra, AIR 1979 SC 185
PAGE -14
book has there been mentioned a need for physical marks of resistance or the use of force to
signify lack of consent. All that is needed to be proved is sexual intercourse “without consent” as
is aptly laid down in the legal definition. However the court held that the absence of injuries as
also the fact that she had been sexually active in the past showed that she was likely to have
consented to the act.
Section 376 provides punishment for rape. According to this Section, whoever commits rape
shall be punished with imprisonment for life, or with imprisonment of either description for a
term, which may extend to 10 years, and shall also be liable to fine, unless the woman raped is
his own wife and is not under 12 years of age, in which case he shall be punished with
imprisonment of either description for a term, which may extend to 2 years or with fine or with
both.
PART 3
A COMPARATIVE STUDY OF RAPE LAWS OF THE WEST:
Many western countries have totally abolished the term 'rape' and termed it as 'sexual offences';
the punishment is determined by various factors including the amount of injury caused. By this
definition the distinction between rape, attempt to rape and violation of woman's modesty is
abolished and they are treated as offences of a similar category and punishment is based on the
severity of the offences.
As per Halsbury’s Law of England, it is not necessary to prove the completion of sexual
intercourse by the emission of seed; intercourse is deemed complete upon proof of penetration
only. The slightest degree of penetration is enough. If penetration cannot be satisfactorily proved,
the defendant may be convicted of attempted rape; if the intent is not proved, he may be
convicted of indecent assault. But, sexual intercourse by a man with his wife, the wife not being
under fifteen years of age, is not rape at all.
3.1. Definition of Rape in some parts of the world:
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At common law, the elements of rape consisted of carnal knowledge, force and the commission
of the act against the victim's will or without her consent. Today, these elements still exist in
many modern rape statutes in various commonwealth nations. In particular, three commonwealth
countries, England, Australia and India still retain some form of the traditional definition of rape.
Sexual intercourse in these statutes is defined solely as penile penetration of the vagina.
Although Australia's definition of rape uses the common law words 'carnal knowledge', it is
apparent from case law that this vague term embodies only vaginal sexual intercourse.
3.1.1. U.S.A (Michigan):
In the early 1970s, the women's movement in the United States succeeded in bringing the issue
of rape to the attention of the nation. During the same decade, rape crisis centres sprang up
throughout the country and the Federal Government manifested its concern by making available
between 1973 and 1981 an estimated $ 125 million for research into sexual assault. The
Michigan legislation was not enacted in response to the proposals of an official law reform
committee, neither was it introduced by the state government. On the contrary, it was very much
the product of a grass-roots initiative resulting from dissatisfaction felt by many women working
in rape crisis centres at the criminal justice system's treatment of rape victims.
The reform lead to the Criminal Sexual Conduct Act. It has four central features. First, instead of
rape, it creates a ladder of offences, each of which is described as criminal sexual conduct. The
first degree offence carries a maximum penalty of life imprisonment, with 15 years maximum for
the second and third degree offences, and two years for the fourth degree offence. Each degree
covers a range of sexual assaults, so that, for example, the first degree covers any act of sexual
penetration. The four degrees are differentiated according to the amount of coercion used,
whether or not penetration has taken place, the extent of physical injury inflicted and the age and
incapacitation of the victim. The law describes with great particularity precisely the conduct
which is covered by each degree. In this way it is hoped to encourage prosecutors to prosecute
and defendants who are guilty to plead guilty.
The new Act also dispenses with the need for the prosecution to establish the victim's resistance.
The offences of criminal sexual conduct focus entirely on the conduct of the defendant and do
not specifically include a non-consent requirement. On the other hand, the Act cannot in all
PAGE -16
circumstances prevent the defence from seeking to allege that the victim consented, particularly
where no weapons were used and where little or no injury was sustained. The third important
feature of the Michigan legislation is its strict regulation of sexual history evidence, which is
totally prohibited save in two exceptional circumstances. These are where past sexual conduct
was with the defendant himself and where the evidence relates to the source or origin of semen,
pregnancy or disease21.
Finally, the criminal sexual conduct may be committed by one spouse against another provided
that they are living apart and one partner has filed for separate maintenance or divorce. It is
gender-neutral, so that women may perpetuate it and men may be the victims. It is believed that
this new law has not eradicated all the problems which face the criminal justice system in dealing
with sexual assault. However, its most solid achievement is to produce a clear increase in the
number of arrests and convictions for conduct of this kind. It has also improved the treatment of
victims within the legal process.
3.1.2. Canada:
In Canada, the legislation passed in 1982 was federal not provincial, but women, once again,
played a powerful role in securing it22. At the time when women were gaining a foothold in the
federal institutions of the government, developments were taking place at other levels,
particularly in relation to the issue of violence against women. Largely influenced by initiatives
taken in the United States and England, rape crisis centres began to appear. It was finally at the
end of the 1970s that activity at a number of levels on the issue of violence against women was
to accelerate and coalesce23.so Of particular significance was a publication of a book by Lorenne
21
. Davidson JR, Hughes DC, George LK, Blazer DG, The association of sexual assault and attempted suicide
within the community, at 50 (Arch Generation Press, 1996)
22
It has been highlighted that women have a very important place in the institutional structure of Ottawa. A Status
of Women Council was set up in Canada. In 1976, after the Canadian Government's endorsement of the United
Nations' 'Decade for Women', Status of Women Canada was enlarged and became an independent agency.
23
This included the coming together of influential women's organisations, including the National Action Committee
on the Status of Women (NAC), which is a very large umbrella organization.
PAGE -17
Clark and Debra Lewis in 1977 which was described as a 'break-through', providing 'the first
solid data on24 rape in Canada'25.
3.1.3. England:
The definition of Rape laid down in Sexual Offences Act, 2003 of England includes acts of
intentional penetration of the vagina, anus or mouth of the complainant, without their consent.
The definition is very wide, it includes within its ambit all sorts of forced sexual intercourse
whether effectuated by penetration or otherwise. Thus, sexual abuse through insertion of
inanimate objects in the vagina, anus or mouth is also treated as rape. Another significant feature
of this definition is that it conceives rape as a gender neutral offence, which is to say that rape
can be committed on members of either of the two genders and by women also. However, in
England, two trends were obvious, the lack of academic interest in and commitment to rape law
reform and the absence of anything resembling a cohesive and powerful women's political lobby
which might have taken up the issue, as well as the general absence of women in the 'corridors'
of power'. Both the lack of strong academic support for rape law reform and the absence of a
powerful women's voice in its favour, may have contributed to the negative approach to the
matter manifested by the Criminal Law Revision Committee (CLRC) in its final Report on
Sexual Offences published in 1984..
In its report the CLRC proposed that the law of rape should continue to cover only penile
penetration of the vagina. It was not prepared to recommend abolition of the marital rape
exemption, only that it should cease to operate where the couple were living separately. On the
issue of consent, the committee's approach was similarly restrictive. It recommended that
legislation be introduced to ensure that threats other than of immediate force be precluded from
the scope of rape. Although it received representations from a considerable number of women's
organisations and groups, their views often appear to have been rejected.
What has been highlighted in the above experiences is that in the American state of Michigan
and Canada women played a major role in the accomplishment of radical rape law reform. In
24
For example, where the complainant alleges that the criminal sexual conduct in question led to her pregnancy, the
defence could adduce evidence to show that the pregnancy was in fact caused by sexual activity with another on a
particular occasion
25
Tomaselli & Porter: 1986
PAGE -18
countries as diverse as Australia, Israel, Denmark and Sweden women have actively and
successfully campaigned against antiquated rape laws and retrogressive proposals for reform. In
England, by contrast, traditional women's organisations and those of the radical fringe, have, for
the most part, shown a marked disinclination to do battle for legal change.
Section 5 of the Criminal Law Consolidated Act of Australia includes anal and oral sex without
the consent, in the definition of rape. As per Section 3 of the Sexual Offences Act of South
Africa rape is defined as: Any person who unlawfully and intentionally commits an act of sexual
penetration with a complainant, without the consent of the complainant, is guilty of the offence
of rape.
PART 4
RAPE IN INTERNATIONAL CRIMINAL LAW
In Rwanda, between 100,000 and 250,000 women were raped during the three months of
genocide in 1994. UN agencies estimate that more than 60,000 women were raped during the
civil war in Sierra Leone (1991-2002), more than 40,000 in Liberia (1989-2003), up to 60,000 in
the former Yugoslavia (1992-1995), and at least 200,000 in the Democratic Republic of the
Congo since 1998.26
4.1. Definition Of Rape- Jurisprudence Of It By ICTY and ICTR and ICC
Focusing on the development of the definition of rape before the ICTY and ICTR existed, it may
be concluded that the ICTY and ICTR did not have much references. When the ICTR and ICTY
started their trials, there was not yet a comprehensive definition of rape and rape was never
prosecuted as an independent crime before. Therefore, it can be said that the development of the
definition of rape in international law was premature; it was in the hands of the two ad-hoc
tribunals to develop the definition rape and to prosecute rape firmly.
26
Available on the Website of United Nations,
http://www.un.org/en/preventgenocide/rwanda/about/bgsexualviolence.shtml last accessed on 19.04.2016 at 1 AM
PAGE -19
4.2. The Akayesu Decision:
Akayesu was the Mayor of the Taba commune, prefecture of Gitarama, from April 1993 until
June 1994 and was responsible for executive functions and had control over communal police.
Akayesu was indicted variously for genocide, crimes against humanity, incitement to commit
genocide, war crimes and "grave breaches." The Prosecutor amended the Akayesu Indictment
during the trial, in June 1997, to add three counts (13-15, Crimes Against Humanity based on
the allegations of rape and sexual violence) and three paragraphs (10A,12A and 12B) which are
the paragraphs that include the allegations of rape and sexual violence. He wasn't charged
himself for commission rather by reason that he failed to prevent such crimes and at times
ordered them too.
The Akayesu case is a landmark case as for the first time in history an individual was convicted
for genocide and international crimes of sexual violence. For the first time the trial chamber
enunciated a broad, progressive international definition of rape.27
4.2.1. The Conceptual Definition:
Despite the fact that rape is a crime prohibited in international law and in the ICTR statute,
neither the statute nor any conventional or other international instrument contains a definition of
rape in international law. Therefore, it was the ICTR in the Akayesu Judgment which proposed
the first international criminal law definition of rape. In its considerations about rape as a crime
against humanity, the Trial Chamber conceded that: ‘While rape has been defined in certain
national jurisdictions as non-consensual intercourse, variations on the act of rape may include
acts which involve the insertion of objects and/or the use of bodily orifices not considered to be
intrinsically sexual.’28The Trial Chamber explicitly rejected a mechanical description of the
constituent acts of rape in its next paragraph: ‘The Chamber considers that rape is a form of
aggression and that the central elements of the crime of rape cannot be captured in a mechanical
description of objects and body parts.’29Instead, the Chamber compared rape to torture which
27
K.D. Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current
Status Vol. 93, No. 1, p. 107’(The American Journal of International Law, 1999)
28
The Prosecutor v. Akayesu (ICTR Trial Chamber Judgement, 2 September 1998, par. 596)
29
Id.
PAGE -20
could not be regarded so much in terms of specific acts but rather in terms of a conceptual
framework30: ‘Like torture, rape is used for such purposes as intimidation, degradation,
humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is
a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in
an official capacity.’31By focusing on a conceptual framework of rape, the Chamber drew
analogy in its approach to the one taken in the 1984 Convention against Torture 32 In the last
paragraph on the definition of Rape the Chamber in Akayesu gives its conceptual definition:
‘The Chamber defines rape as a physical invasion of a sexual nature, committed on a person
under circumstances which are coercive.'33The Chamber does not explain how the specific
elements of this definition were derived. This definition can be seen as broad and sensible, as it
leaves room for interpretation and acts that cannot be foreseen can still be included. The Celebici
Judgement recognised this definition too.
4.2.2 Furundzija judgement: The mechanical definition:
Several months after the ICTR rendered its judgment in the Akayesu case, the ICTY rendered its
judgment in the Furundzija case. This was the first international war crimes trial in history
focusing exclusively on rape. He was not accused of committing any rapes himself but rather of
being present while they occurred and doing nothing to stop them.
The Chamber in the Furundzija case took a different approach in defining rape than the Akayesu
and Celebici Trial Chambers. First the Chamber found that international law only gave limited
assistance in defining rape. The Chamber stated that: ‘no elements other than those emphasized
may be drawn from international treaty or customary law, nor is resort to general principles of
international criminal law or to general principles of international law of any avail.’34The
Chamber continues by considering that an accurate definition of rape has to be based on the
30
A. Mcdonald, ‘Sex crimes at the ad hoc tribunals’ Vol. 12, nr. 2, p. 481 (Leiden Journal of International Law
1999).
31
The Prosecutor v. Akayesu (ICTR Trial Chamber Judgement, 2 September 1998, par. 597)
32
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1984 Annex to
General Assembly Resolution 39/46, U.N. Doc. A/39/51 (1984).
33
Supra note 31, par. 598.
34
The Prosecutor v. Furundzija, (ICTY Trial Chamber Judgement, 10 December 1998, par. 177)
PAGE -21
criminal law principle of specificity. To achieve this, the Chamber considers that: ‘ it is
necessary to look for principles of criminal law common to the major legal systems of the world.
These principles may be derived, with all due caution, from national laws.’35This approach
indicates that when there is no definition for an offence in international criminal law, such a
definition may be derived from the principles that form the basiccommon denominators of that
offence in major legal systems.36 The tribunal also recognized oral penetration as rape as because
the sole purpose was to protect human dignity.37in the Furundzija decision the court essentially
recognized rape as only in cases where coercion or force existed and failed to recognize other
factors which might be important in the definition of rape. The Kunarac judgment however
recognizes violation of sexual autonomy as an important element as it is connected with human
dignity and bodily integrity.38While this mechanical style of defining rape was originally rejected
by the ICTR, the Chamber found the comparative analysis in Kunarac to be persuasive and thus
will adopt the definition of rape approved by the ICTY Appeals Chamber. In doing so, the
Chamber recognized that other acts of sexual violence that do not satisfy this narrow definition
and thus may be prosecuted as other crimes against humanity within the jurisdiction of this
Tribunal such as torture, persecution, enslavement, or other inhumane acts.’39With this decision,
the ICTR explicitly rejected the conceptual definition of rape and adopted the mechanical
definition, derived from Kunarac in effect excluding acts of sexual violence not amounting to
rape.
4.3. Definition of rape in ICC statute:
As there is not yet any jurisprudence of the ICC concerning its definition of rape, the ICC
elements of rape have to be derived from its Statute and the Elements of Crimes.40The definition
35
Id.
36
M. Karagiannakis, Vol. 12, nr. 2, p. 483‘The Definition of Rape and Its Characterization as an Act of Genocide’,
(Leiden Journal of International Law 1999)
37
Supra Note 34
38
The Prosecutor v. Kunarac, Kovac and Vukovic, (ICTY Trial Chamber Judgement, 22 February 2001, par.
439.,440)
39
The Prosecutor v. Semanza, (ICTR Trial Chamber Judgement, 15 May 2003, paras. 344-345.)
40
Chapter 3 already showed that the ICC Statute itself does not contain a definition of rape, but that the constituent
elements of rape are included in the Elements of Crimes, which are to assist the Court in its interpretation and
application of crimes:
PAGE -22
of rape in the ICC Statute is based on three legal models: the common law definition of rape, the
conceptual definition of the Akayesu sdecision and the mechanical definition as set out by the
ICTY in Furundzija.41 Both the common law definition and the generally accepted of rape
consists of the basic requirements of intercourse, force and lack of consent. All these necessities
have highly influenced the ICC terminology, although ‘intercourse’ has been replaced by
‘penetration’ to cover acts other than vaginal intercourse. In the common law definition, the
absence of consent, demonstrated by the existence of force, is the basic difference between sex
and rape. This dual requirement has been widely criticized, as it is very difficult to prosecute
rape on the basis of the subjective element of consent by objective elements of force. Therefore,
also in the ICC definition of rape, a broader meaning of consent has evolved, with much lower
thresholds for force.42The other two models of rape, the decisions of the ICTY and ICTR are
more recent and more influential, because they are products of recent interpretations of
international law. Moreover, the decisions are based on situations that will probably be more
simultaneous with future ICC cases than that of national decisions. The ICC definition most
closely resembles the mechanical definition of the Furundzija and Kunarac decisions.
During the negotiations, there was a lot of discussion about the inclusion of the term ‘invasion’
instead of the term ‘penetration’ in the rape definition of the ICC. The term ‘invasion’ makes the
definition broader than the Kunarac definition, which uses the narrow language of ‘penetration’.
The term ‘invasion’ is used in the conceptual definition of Akayesu. The term ‘invasion’ casts
rape from the perspective of the victim, rather than the perpetrator and attributes a greater weight
‘1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of
the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with
any object or any other part of the body.
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking
advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine
consent.’[Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Article 7(1)(g)-
1 and 8(2)(b)(xxii)-1. The elements of rape are identical for war crimes and crimes against humanity under the ICC
Statute, although there are other elements required for both crimes as well to constitute a war crime or a
crime against humanity.]
41
K. Boon, ‘Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy and Consent’, Vol. 32,
p. 645 (Columbia Human Rights Law Review 2001)
42
Ibid
PAGE -23
to the victim’s perspective in being free from sexual violence. 43 The Chamber in Muhimana
endorses the conceptual definition of rape which was established in Akayesu, which further,
encompasses the elements previously set out in Kunarac thereby putting the two definitions of
rape together’44
In my view this is a good development as conceptual definition is still broad enough to consider
‘new forms’ of rape, but is specific enough in its content, based on former case law, to comply
with the international law requirements of specific crime and nullum crimen sine lege and in
such circumstances the defense cannot raise this plea.
4.4. Need for ICC to include rape as genocide:
Till date ICC has not yet charged individuals with sexual violence as acts of genocide in its cases
of prosecution even though many pending cases include charges of rape, sexual slavery and other
acts of sexual violence qualified as crimes against humanity or war crimes. The reason behind
ICC's reluctance to include genocide in the charges is the common belief among international
lawyers that for genocide proof of “special intent” is required. However, the intent requirement
in the Genocide Convention simply signifies that the acts are committed purposefully to destroy
a protected group, in whole or in part. This intent can be deduced from statements or orders or
from a systematic pattern of coordinated acts.45 A pre-existing plan or policy proving specific
intent is not required. It is required that the prosecutor of the ICC should be more proactive in
qualifying rape and other crimes of sexual violence as acts of genocide.
43
ibid
44
The Prosecutor v. Muhimana (ICTR Trial Chamber Judgement, 28 April 2005, paras.550-551)
45
On legal interpretation of intent in the Genocide Convention by Prof. Gregory H. Stanton, available at
http://www.genocidewatch.org/rapeasgenocide.html last accessed on 18.11.2016 at 9.16PM
PAGE -24
PART -5
DEVELOPMENT OF ANTI RAPE LAWS IN INDIA AND CRIMINAL LAW

AMENDMENT ACT, 2013:
5.1. Criminal Law (Amendment) Act 1983
The rape law under IPC had gone through a lot of amendments46.In 1983, amendment was made
and Section 376 (2), that is, Custodial Rape, Section 376 (A), that is, Marital Rape, and Section
376 (B to D), that is, Sexual Intercourse not amounting to rape were added. As per the Criminal
Law Amendment Act (1983), revealing the identity of a rape-victim is an offence. Though this
Act maintains more or less the same definition of rape, it introduces many new categories of
offence of sexual intercourse by persons in custodial situation-such as superintendents of
hospitals, remand homes, prisons, and police officials-with women in their custody. In cases of
custodial rape, burden of proof lies with men and if a woman victim makes a statement that she
did not consent, the court would believe that she did not consent.
This triggered a series of campaigns for changes in rape laws which finally led to the 1983
Criminal Law (Amendment) Act 1983. It produced the following results:
• Firstly it was held that consent in case of a woman who was of unsound mind or is under the
influence of intoxication at the relevant time will not be considered as valid consent. This is
basically the existing fifth clause of Section 375.
• A new category of offence that is custodial rape or rape by persons in authority was added in
the form of Section 376B to 376D of the Indian Penal Code47.
Section 376 C(b)48: Whoever, being a public servant, takes advantage of his official position and
induces or seduces, any woman, who is in his custody as such public servant or in the custody of
a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse
46
Gaur KD, Text Book on Indian Penal Code, 207–18, (Universal Publishing Delhi, 2003)
47
Indian Penal Code, 1860
48
Section 376 C of Indian Penal Code, 1860
PAGE -25
not amounting to the offence of rape, shall be punished with imprisonment of either description
for a term which may extend to five years and shall also be liable to fine.
Section 376C (c)49 : Whoever, being the superintendent or manager 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 induces or seduces
any female inmate of such jail, remand home, place or institution to have sexual intercourse with
him, such sexual intercourse not amounting to the offence of rape, shall be punished with
imprisonment of either description for a term which may extend to five years and shall also be
liable to fine.
Section 376D (d)50: Whoever, being on the management of a hospital or on the staff of a hospital
takes advantage of his position and has sexual intercourse with any woman in that hospital, such
sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of
either description for a term which may extend to five years and shall also be liable to fine.
To put it simply if any of the persons in authority who are mentioned in the above sections by
reason of their position induce or seduce a woman in their authority or custody to have
consensual sexual intercourse with them not amounting to rape, they can be punished with a
sentence which may extend to five years and even may be made to pay a fine.
 Another Section 376 B was added which basically states that forced sexual intercourse
by a husband with his wife who has been living separately by virtue of a decree of law or
custom, is liable to imprisonment which may extend to two years and also may be made to pay a
fine.
 Introduction of a minimum punishment of seven years in case of offenders under Section

375(1) and ten years which may extend to life for offenders under Section 375(2). Clause two
basically deals with the notion of aggravated rape which includes custodial rape, gang rape, rape
of a pregnant woman and rape of minor girls under the age of twelve years.
 The Evidence Act, 1872 was amended by adding Section 114A. The effect was that the
onus of proof regarding consent could be shifted to the accused in case of custodial rape.
49
Section 376 C of Indian Penal Code, 1860
50
Section 376 D of Indian Penal Code, 1860
PAGE -26
 Section 327 of the Crpc was amended to make a provision for in camera trials for
offences under Section 375 and Section 376. Publication of rape trials without the court’s prior
approval was made a bailable offence.
The 1983 improved the earlier situation to a great extent in the sense that custodial rape was
recognized as a separate offence. Recognition of the fact that it merits a greater punishment as it
involves an abuse of official position and powers associated and a violation of the trust reposed
in them by women under their care and authority is a big step forward. The second major
improvement was passing the burden of proving consent to the accused in such cases. This was
again much needed as because of their position of power they had the resources to erase or
destroy all evidences of the crime and even influence the victim and her family to drop charges
by means of threat and coercion. The law thus recognized the fact that these women were
incapable of defending themselves and hence the benefit of doubt must be given to them51.
5.1.1 An attempt to commit rape
An attempt to commit rape is punishable by half of the longest term of imprisonment for rape or
with such fine as provided for the offence52. The courts have drawn a very line between
preparation to commit rape and attempt to rape. The difference between the two lies in the
greater degree of determination in the attempt53. Prosecution has to prove that there was a
determination to fulfil the act under any circumstance or resistance. If however the act does not
go beyond preparation, it comes under Section 354 which deals with outraging the modesty of a
woman. Thus in a situation where there was an actual attempt to rape, the accused gets away
with a relatively minor sentence due to mere technicalities relied upon by the judiciary.
The most important case in this regard is that of Jai Chand v. State. Here the accused who was a
hospital orderly was accused of attempting to rape a hospital nurse. He had forcibly pushed her
down on the bed and had broken the strings of her pyjamas. But before he could proceed any
further the victim managed to push him away and reached the reception area of the hospital. But
the High Court held that since he had not attempted to stop her from leaving and had not even
undressed himself it was simply preparation and not attempt to rape. The law relating to attempt
51
MP Tandon, The textbook on Indian Penal Code, 300–4. (15th ed. Allahbad Law Agency, 1982)
52
Section 511 of the Indian Penal Code, 1860
53
Rox v Jam1es Lloyd (1836) 7C and P817:173 E.R. 141.
PAGE -27
to rape has been borrowed largely from English Common Law. However, contrary to English
Common Law, the insertion of objects or fingers in the vagina is not held to be attempt to rape in
India. This ambiguity results due to lack of legislation on the above topic. The judiciary when
dealing with attempt to rape relies on Section 511 of the Indian Penal Code with basically deals
with attempt to any kind of offence in general. There is need for clear and concise legislation on
the subject of attempt to rape. Reliance on case laws and judicial interpretations simply will not
do as it has lead to miscarriage of justice as proved in the case of Jai Chand v. State54and several
others.
5.1.2. Procedural aspects:
Punishment in the cases of ‘custodial rape’ or gang rape amounts to the minimum sentence of 10
years and the offence is cognizable and non bailable. Sexual intercourse by a man with his wife,
who is living separately from him under a decree of separation or under any custom or usage
without her consent, is punishable with imprisonment, which may extend to 2 years. This offence
is cognizable and bailable.
The Supreme Court verdict of 201455 says that the rape trials must end within 2 months as
stipulated under law. The Supreme Court also directed trial courts to “strictly adhere” to existing
norms while asking them to rule out the possibility of “maneuvering” through undue long
adjournments. Section 309 of the Criminal Procedure Code (CrPC) provides that in every inquiry
or trial the proceedings should be held as expeditiously as possible and once the examination of
witnesses begins the same shall be continued on a day-to-day basis till all the witnesses are
examined. In cases that come under Section 376 (rape) and related offences under Sections 376
A to D of the IPC, the CrPC stipulates that “the inquiry or trial shall, as far as possible, be
completed within a period of 2 months from the date of commencement of the examination of
witnesses.” The victim of rape suffers mental and psychological trauma, which must be
addressed to provide a helping hand to enable her to cope with the trauma suffered and to tide
over her immediate and long-term needs so that she is able to lead a dignified and meaningful
life.
54
AIR 1967 SC 63
55
Savarala Sai Sree V. Gurramkonda Vasudevarao & Ors. AIR 2014 SC 224
PAGE -28
The Section 376 in dealing with sexual assault, in a very narrow purview lays down that, an
offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be
between 12 and 15 years, an offence is committed, however, less serious, attracting milder
punishment. Once, the age crosses the permissible limit there is no legal protection accorded to
the wife, in direct contravention of human rights regulations.56
The definition of rape (Section 375 IPC) has been criticized for other reasons as well by the
Indian and international women's and children organizations, who insist that including oral sex,
sodomy, and penetration by foreign objects within the meaning of rape would not have been
inconsistent with nay constitutional provisions, natural justice, or equity. Even international law
now says that rape may be accepted as the “sexual penetration, not just penile penetration, but
also threatening, forceful, coercive use of force against the victim, or the penetration by any
object, however slight.” Emphasis on these provisions is not meant to tantalize, but to give the
victim and not the criminal, the benefit of doubt57.
5.2. The Law Commission Reports:
There are four major law commission reports58that address the law on rape-while two reports
recommend on the IPC in general within which the provision of rape is discussed, the other two
reports exclusively deal with reforms related to rape. These are as follows:
1. 42nd Law Commission Report

2. 84th Law Commission Report
3. 156th Law Commission Report
4. 172nd Law Commission Report.
Each successive Report is an improvement over the prior one addressing the issue, however,
many useful recommendations have not found their way into the Bills presented to Parliament.
The 172nd Law Commission Report had made the following recommendations for substantial
change in the law with regard to rape.
56
Women Rights Activists Available at http://www.worldpulse.com/pulsewire [Last accessed on 2016 Nov 11].
57
Gonasalves L. Rape: Some reflections on the need to amend the existing law. CrLJ 2005, 241–53.
58
Sen R. Law commission reports on rape XLV, 44–5. (Eco Political Weekly. 2010)
PAGE -29
1. Rape should be replaced by the term ‘sexual assault‘

2. Sexual intercourse as contained in Section 375 of IPC should include all forms of
penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal, and
object/vaginal
3. In the light of Sakshi v. Union of India and Others59 ‘sexual assault on any part of the
body should be construed as rape
4. Rape laws should be made gender neutral as custodial rape of young boys has been
neglected by law.
5. A new offence, namely Section 376E with the title ‘unlawful sexual conduct’ should be
created.
Section 509 of the IPC was also sought to be amended, providing higher punishment where the
offence set out in the said section is committed with sexual intent. Marital rape: Explanation (2)
of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife
should be treated equally as an offence just as any physical violence by a husband against the
wife is treated as an offence. On the same reasoning, Section 376 A was to be deleted. Under the
Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is
denied, the court shall presume it to be so.
The Domestic Violence Act, 2005 (DVA) provides civil remedies to what the Section 498A of
IPC provision of cruelty already gave criminal remedies, while keeping the status of the matter
of marital rape in continuing disregard. Though Section 498-A deals with cruelty, to protect
women against perverse sexual conduct by the husband, there is no standard of measure or
interpretation for the courts, of ‘perversion’ or ‘unnatural,’ the definitions within intimate
spousal relations. Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is
marriage a license to rape? These are some of the questions need to be answered60.Section 3 of
the DVA, among other things in the definition of domestic violence, has included any act
causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual.
59
[2004 (5) SCC 518],
60
The Protection of Women from Domestic Violence Act 2005 (43 of 2005) Available
from: http://indiacode.nic.in/fullact1.asp?tfnm=2016 43 . [Last accessed on 2016 Nov 10].
PAGE -30
It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life

threatening or grievously hurtful. It is not about the freedom of decision of a woman's wants. It is
about the fundamental design of the marital institution that despite being married, she retains an
individual status, where she does not need to concede to every physical overture even though it is
only her husband.
Section 122 of the IEA prevents communication during marriage from being disclosed in court
except when one married partner is being persecuted for an offence against the other. Since,
marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a
prosecution for battery, or some related physical or mental abuse under the provision of cruelty.
Setting out to prove the offence of marital rape in court, combining the provisions of the DVA
and IPC will be a nearly impossible task.
5.3. Analysis Of The Criminal Law (Amendment) Act, 2013
On 16th December 2012, a female physiotherapy intern was beaten and gang raped by four men
in the capital. Despite treatment, she died from her injuries three days later. There were huge
protests all over the country demanding better safety for women in the country. The incident got
the attention of the international media and the Government faced criticism from all quarters.
The United Nations Entity for Gender Equality and Women Empowerment called upon the
government to do everything in their power to take up radical reforms, ensure justice and reach
out with robust public services to make women's lives more safe and secure. In the wake of this
unrest and furore the Government of India set up a three member committee headed by the
former Chief Justice of India Justice JS Verma, Justice Leila Sheth and Justice Gopal
Subramanium to look into the adequacy of the legislations that afforded protection and security
to the women in India. They were asked to submit a report within thirty days. In the report they
submitted, they criticised the government, public apathy and an abysmal and old fashioned
police system as being the main cause and recommended drastic reforms in legislation30 Ss. (a)
penetration by penis into anus, mouth, vagina or urethra . Based on the recommendations of this
committee an anti rape ordinance was signed by the President and was passed by both the
Houses of the Parliament and thus the Criminal Law (Amendment) Act of 2013 came into
PAGE -31
existence. It amends the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CCP),
1973, the Indian Evidence Act (IEA), 1872 and the Protection of Children from Sexual Offences
Act, (PoCSO), 2012. This paper however talks about the amendments in the Act with respect to
rape and sexual assault only. Section 375 of the Indian Penal Code, 1860 limited rape to penile
vaginal penetration and stated that the victims could only be female and perpetrators male. The
Amendment Act of 2013 was a huge improvement over this in many ways. Firstly the offence of
rape was replaced with sexual assault. It includes within its ambit a wider range of sexual
offences than just penile vaginal penetration. It is also gender neutral and hence now both men
and women can be victims and perpetrators. Five new subsections were added to Section 375.
They are as follows:
 Ss. (a) penetration by penis into anus, mouth, vegina and urethra.
 Ss. (b) penetration by object into anus, vagina, urethra, mouth.
 Ss. (c) manipulates any part of the body of another person so as to cause penetration into
the vagina, urethra, anus or any part of body of such person or makes the person to do so
with him or any other person makes the other person do so to him or any other person.
 Ss (d) applies his mouth to the vagina, urethra, anus, penis of another person or 34 any
other person.
 Ss. (e) touching vagina, anus, breast, penis of the complainant or making the
complainant touch the accused’s vagina, anus, penis, breast or that any of circumstances
under which forced sexual intercourse would be held to be rape.
Section 375 after the amendment thus not only includes penetration by the penis but it also
includes other offences like forced oral sex, penetration by foreign objects, sodomy as also
forced sexual touching among other things. Subsections A, B, C has been taken from the
recommendations of the Justice Verma committee but Sections D and E are completely new
sections. Subsection D in the JS committee was defined simply as the offences of cunnilingus or
fellatio but in the Act these words have been replaced have been replaced with a more detailed
description of the offence. However an exception for medicinal or hygienic purposes was added
in the Act for all of the above offences. Prior to the Act Section 375 contained six circumstances
under which forced sexual intercourse would be held to be rape.
PAGE -32
The first five of them were accepted in toto. The sixth was however amended to increase the age
of consent to 18 years from the initial age of 16 years. And a new seventh situation was added
which talks about cases where the person is unable to communicate consent. However sadly
enough it retained the exception of forced marital intercourse to rape. A new proviso has been
added that lack of physical resistance will not amount to consent. This position had already been
established in the Mathura rape case.
But many courts still continued to rely on the presence of physical injuries to convict the accused
as there was no formal legislation on the same. So by its inclusion in the Indian Penal Code,
there should be a change in the mindset of the judiciary.
A new section, 376A has been added which states that if a person committing the offence of
sexual assault, inflicts an injury, which causes the death of the person or causes the person to be
in a persistent vegetative state, shall be punished with rigorous imprisonment for a term, which
shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean
the remainder of that person's natural life, or with death. In case of gang rape, persons involved
regardless of their gender shall be punished with rigorous imprisonment for a term, which shall
not be less than 20 years, but which may extend to life and shall pay compensation to the victim,
which shall be reasonable to meet the medical expenses and rehabilitation of the victim.
Certain changes have been introduced in the CrPC, 1973 and IEA, like the recording of
statement of the victim has been made more friendly and easy, character of the victim is
irrelevant for consideration, presumption of no consent where sexual intercourse is proved and
the victim states in the court that there has been no consent, etc.
The age of consent has been increased to 18 years, which means any sexual activity irrespective
of presence of consent with a woman below the age of 18 will constitute statutory rape.
The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human
rights and women's rights organizations for not including certain suggestions recommended by
the Law Committee Report like, marital rape, reduction of age of consent, amending Armed
PAGE -33
Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force
personnel accused of a crime against woman61.
PART 6
SPECIAL CASES OF RAPE
In instances like, the rape of a girl who is below twelve years of age, a rape knowing the woman
to be pregnant, gang rape, as well as custodial rape, specific (and sometimes increased)
punishment may be awarded. In the court of the law, there is a shift of burden of proof from the
victim to the in some of these cases62.
6.1.Marital Rape :
“Happy marriages begin when we marry the ones we love and they blossom when we love
the ones we marry63”
People marry for many reasons such as legal, social, libidinal, emotional, economic, spiritual,
and religious64. In India, wife's role has traditionally been understood as submissive, docile, and
65
that of a homemaker. Marital relationship is considered to be sacrosanct where husband is
considered to be an incarnation of God. Sex has been treated as obligatory in a
marriage.66Considering marriage as a bond of trust and affection, a husband exercises sexual
supremacy through any means possible. The IPC through its Section 375 legalizes it, “Sexual
intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”
As a result, marital rape is not an offence despite amendments, law commission reports, and new
legislations.
61
The Criminal Law (Amendment) Ordinance, 2013
62
Section 376 (2) (a-g) of Indian Penal Code
63
Tom Mullen, http://thinkexist.com/quotation/happy_marriages_begin_when_we_marry_the_ones_we/339288
.html[ last visited on 10.11.2016]
64
Behere PB, Rao ST, Verma K, Effect of marriage on pre-existing psychoses. 287–8 (Indian Journal of Psychiatry,
2011)
65
Nambi S, Marriage, mental health and Indian legislation. Presidential Address. (Indian J Psychiatry.2005)
66
Carstairs GM, Death of a Witch: A Village in North India ( London: Hutchinson; 1983)
PAGE -34
It is argued that declaring marital rape an offence will bring “the potential of destroying the
institution of marriage.” This argument assumes that marriage as an institution is not based on
mutual consent and equality of rights. The fundamental right of a person over one's body, male
or female, is ignored in this assumption. In practice, this results in the wife's body being
considered the property of her spouse, regardless of her consent67.
The provision of rape laws in the IPC (Section 375 and 376, IPC), echoes very archaic
sentiments, when it mentions as its exception clause-“Sexual intercourse by man with his own
wife, the wife not being under 15 years of age, is not rape.” Law bestows an absolute immunity
on the husband in respect of his wife, solely on the basis of the marital relation. It is a
nonconsensual act of violent perversion by a husband against the wife where she is physically
and sexually abused. Marital rape is far too common in Indian society. The UN Population Fund
states68 that more than two-third of married women in India, aged 15-49 have been beaten, raped,
or forced to provide sex. Article 2 of the Declaration of the Elimination of Violence against
Women69 includes marital rape explicitly in the definition of violence against women.
The revolution against marital rape began with women activists in America raising their voices
in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal
protection to women. The importance of consent for every individual decision cannot be
overemphasized. A woman can protect her right to life and liberty, as well as her body even
within the wedlock. As a result most of the Western countries have declared marital rape
unlawful.70
The marital rape victims have to take refuge in Section 498-A of the IPC (“perverse sexual
conduct by the husband”), or to the Protection of Women from Domestic Violence Act 2005
(PWDVA). This Act came into force in 2006, effectively provides protection against marital rape
or other forms of sexual perversions and domestic violence. However, it offers only a civil
remedy for the offence.
67
Rath P. “ Marital rape and the indian legal scenario” Indian Law J. 2012; 5:212
68
The United Nations Population Fund: Assault on the World's-People. Available from: http://www.c-
fam.org/docLib/20080624_UNPF.pdf [last accessed on 2016 Jun 24].
69
Declaration on the Elimination of Violence against Women. General Assembly Resolution 48/104 of 20 December
1993. Available from: http://www.un.org/documents/ga/res/48/a48r104.htm [Last accessed on 2016 Oct 30].
70
Forsythe DP, Encyclopedia of Human Rights (Oxford University Press; 2009)
PAGE -35
In R Vs. R71, the House of Lords widened the scope of criminal liability by declaring that the
husband could be charged as a principal offender in the rape of his wife. This decision seems to
have obliterated the protection of the husband from such prosecution under the doctrine of
marital exemption. This exemption was based upon the belief under which the wife was regarded
as the husbands’ chattel. She was supposed to have given a general consent to her husband as a
natural implication of the marriage. This has now become an outdated view of marriage in
England. However, the above decision of the House of Lords has not been followed in India-
where marital exemption to the husband ‘still exists’.
In India marital rape exists de facto but not de jure. While in other countries either the legislature
has criminalized marital rape or the judiciary has played an active role in recognizing it as an
offence, in India however, the judiciary seems to be operating at cross-purposes.
In Bodhisattwa Gautam v. Subhra Chakraborty72 the Supreme Court said that rape is a crime
against basic human rights and a violation of the victim’s most cherished of fundamental rights,
namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very
pronouncement by not recognizing marital rape73.
Though there have been some advances in Indian legislation in relation to domestic violence, this
has mainly been confined to physical rather than sexual abuse. Women who experience and wish
to challenge sexual violence from their husbands are currently denied State protection as the
Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption.
The foundation of this exemption can be traced back to statements made by Sir Matthew Hale,
C.J., in 17th century England. Hale wrote:
The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband,
which she cannot retract74.
The Verma committee report points out a 2010 study suggesting that 18.8 percent of women are
raped by their partners on one or more occasion. Rate of reporting and conviction also remain
71
(1987) 2 NZLR 272 (CA)
72
(1996) 1 SCC 490
73
Tandon, N. & Oberoi, N, “Marital Rape- A Question of Redefinition”, 24 ( Lawyers Collective, March 2000)
74
Hale, History of the Pleas of the Crown 629 (1778)
PAGE -36
low; aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than
other types of rape75.The recommendation of Justice Verma Committee regarding deleting
exception of marital rape is not included in Criminal Law Amendment Bill, 2013 passed by the
Lok Sabha on 19 March 2013 and by the Rajya Sabha on21 March 2013. The Bill received
Presidential assent on 2 April 2013 and deemed to come into force from 3 February 2013. The
word rape has been replaced with sexual assault in Section 37576. Rashida Manjoo, the UN
Special Rapporteur on violence against women said that Justice Verma committee’s
recommendation and subsequent legislation was a “golden moment for India” but
recommendations on marital rape, age of consent for sex, etc. were not adopted in the
legislation77. The government is hesitant to criminalize marital rape because it would require
them to change laws based on religious practices, including the Hindu Marriage Act 1955, which
says a wife is duty-bound to have sex with her husband78. The parliamentary panel examining the
Criminal Law (Amendment) Bill, 2012, said that "In India, for ages, the family system has
evolved ... Family is able to resolve the (marital) problems and there is also a provision under the
law for cruelty against women, It was, therefore, felt that if marital rape is brought under the law,
the entire family system will be under great stress and the committee may perhaps be doing more
injustice".
Another Section 376A was added which basically states that forced sexual intercourse by a
husband with his wife who has been living separately by virtue of a decree of law or custom, is
liable to imprisonment which may extend to two years and also may be made to pay a fine
6.2. Rape of a woman who is under sixteen years of age:
As per Section 376 (2) (i) of Indian Penal Code, whoevercommits rape on a woman when she is
under twelve years of age 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
75
http://www.thehindu.com/news/national/marriage-is-not-a-valid-defence-against-rapesays
committee/article4351148.ece [ last visited on 31.10.2016]
76
http://articles.timesofindia.indiatimes.com/2013-03-02/india/37389697_1_live-in-relationshipssexual-offence-
sexual-consent [ last visited on 31.10.2016]
77
http://www.hindustantimes.com/India-news/NewDelhi/Anti-rape-law-does-not-fully-reflectJustice-Verma-
committee-s-recommendation/Article1-1053389.aspx [ last visited on 1.11.2016].
78
http://blogs.wsj.com/indiarealtime/2013/03/26/why-india-allows-men-to-rape-theirwives/)[ last visited on 1.11.16]
PAGE -37
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.
The provision is based on the presumption that a girl below 16 years is legally not in the position
to give her consent for sexual intercourse. Consensual intercourse, therefore, amounts to
(statutory rape). Her consent in a no way can absolve the accused, hence completely irrelevant 79.
Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other
specialconcession is given to child rape given the increased trauma for the girl. Since even the
minimum punishment canbe reduced by the judges, much needs to be done in this area.
6.3. Rape of a woman, knowing her to be pregnant
As per Section 376 (2) (h) of Indian Penal Code, whoever commits commits rape on a woman
knowing her to be pregnantshall 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.
If the victim states in court that she did not consent, then the court shall presume that she did not
consent and theburden of proving consent shall shift to the accused.
6.4.Gang Rape
As per Section 376 D of the Indian Penal Code 1860, “Where a woman is raped by one or more
persons constituting a group or acting in furtherance of a common intention, each of those
persons shall be deemed to have committed the offence of rape and shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may
extend to life which shall mean imprisonment for the remainder of that person’s natural life, and
with fine”;Provided that such fine shall be just and reasonable to meet the medical expenses and
79
Dilip v State of Madhya Pradesh (2013) 6 SCALE 264
PAGE -38
rehabilitation of the victim;Provided further that any fine imposed under this section shall be
paid to the victim.
Section 376 D, which derives its source from the pre amended Section 376 (2) (g) read with
explanation 1 thereto, articulates the offence of gang rape in a better way.
Thus even if five men force a women into having sexual intercourse with only one of them, the
remaining four willalso be considered to have committed rape under this law. The Punishment
for such act shall be rigorous imprisonment for a term which shall not be less than ten years but
which may be for life and shall alsobe liable to fine; the court may, for adequate and special
reasons to be mentioned in the judgment, impose asentence of imprisonment of either description
for a term of less than ten years.
If the victim states in court that she did not consent, then the court shall presume that she did not
consent and theburden of proving consent shall shift to the accused.The recent 2013 amendment
provides that the compensation payable by the state government to the victim shall be in addition
to the payment of fine which would be paid to the victim by the accused in case of acid attack or
gang rape.
In the case of Ashok Kumar v. State of Haryana80, Court observed that in order to establish an
offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must
adduce evidence to indicate that more than one accused had acted in concert and in such an
event, if rape had been committed by even one, all the accused will be guilty irrespective of the
fact that she had been raped by one or more of them and it is not necessary for the prosecution to
adduce evidence of a completed act of rape by each one of the accused.
In the case ofPardeep Kumar vs Union Administration81 it was held that Section 376 embodies
a principle of joint liability and the essence of that liability is the existence of common intention;
that common intention presupposes prior concert which may be determined from the conduct of
offenders revealed during the course of action and it could arise and be formed suddenly, but,
there must be meeting of minds. It is not enough to have the same intention independently of
80
(2003) 2 SCC 143
81
(2006) 10 SCC 608
PAGE -39
each of the offenders. In such cases, there must be criminal sharing marking out a certain
measure of jointness in the commission of offence."
6.5.Rape causing death or resulting in persistent vegetative state of victim
Section 376 A is inserted in the IPC by Criminal Law (Amendment) Act 2013, provides severe
punishment for the act of inflicting injuries on women while raping her that results in her death
or causes persistent vegetative state. As per the provision, whoever, commits an offence
punishable under sub-section (1) or subsection (2) of section 376 and in the course of such
commission inflicts an injury which causes the death of the woman or causes the woman to be in
a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or with death. In this sense, Section
376 A constitutes one of the aggravated forms of the rape.
PART-7
ANALYSIS OF CASE LAWS RELATING TO RAPE LAWS
 In the case of TukaRam v. State of Maharashtra82, on 2 March 1972, a 16-year-old tribal

girl was raped by two policemen in the compound of Desai Ganj police chowky in
Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint,
were patiently waiting outside even as this heinous act was being perpetrated in the police
station. When her relatives and the crowd threatened to burn the police chowky down, the
two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the
Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to
sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set
aside the judgment holding that that passive submission due to fear induced by serious threats
could not be construed as willing sexual intercourse. However, the decision of the Supreme
Court remains a blot on its record to this day. The rationale for acquittal was that Mathura
82
1978 Cr.L.J. 1864 S.
PAGE -40
had not raised an alarm and there were no visible marks of injury on her body. The
judgment did not distinguish between consent and forcible submission.
 In Mohd. Habib v. State83, the Delhi High Court allowed a rapist to go scot-free merely
because there were no marks of injury on his penis- which the High Court presumed was a
indication of no resistance. The most important facts such as the age of the victim (being
seven years) and that she had suffered a ruptured hymen and the bite marks on her body were
not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act,
could not sway the High Court’s judgment.
 In State of Punjab Vs. Gurmit Singh84, the Supreme Court has advised the lower judiciary,
that even if the victim girl is shown to be habituated to sex, the Court should not describe her
to be of loose character.
 The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar85,
held that "the unchastity of a woman does not make her open to any and every person to
violate her person as and when he wishes. She is entitled to protect her person if there is an
attempt to violate her person against her wish. She is equally entitled to the protection of law.
Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."
 In B. Gautam v. Shubra Chakraborthy86, it was held that Rs. 1000 per month should be
given to rape victim as an interim compensation.
7.1. Recent Development:
 In the case of Santhosh Moolya and Another v. State of Karnataka87 where it held that in
cases of rape, particularly, if the victims are illiterate, their statements have to be accepted in
83
AIR 1979 SC 185
84
AIR 1979 SC 185
85
(1991) 1 SCC 57
86
(1995) 1 SCC 14
PAGE -41
toto without further corroboration for convicting the accused. A Bench of Justice comprising
Justice P. Sathasivam and Justice R.M. Lodha said: “Any statement of rape is an extremely
humiliating experience for a woman, and until she is a victim of sex crime, she would not
blame anyone but the real culprit.” Inspite of this in many cases there continues to be
emphasis on physical injuries.
 In Chairman, Railway Board Vs. Chandrima Das88, a practicing Advocate of the Calcutta
High Court filed a petition under Article.226 of the Constitution of India against the various
railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa
Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway
security men. The High Court awarded Rs.10 lacs as compensation. This case highlighted the
adverse effect of gang rape which was performed as a sovereign function and hence, was
awarded compensation.
 In Sakshi v. Union of India89, the judges sought refuge behind the strict interpretation of
penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the
definition of rape] would result in chaos and confusion, it directed the Law Commission of
India to respond to the issues raised in the petition. The Law Commission, under the
chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law
Commission Report had dealt with these issues. The Supreme Court, however, agreed with
Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In
August 1999, it directed the Law Commission to look into these issues afresh.
 As observed by Krishna Iyer, J. in Rafique v State90’s case:
"When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of
some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."
Therefore rape laws in order to be of great deterrence, must have a cooperative victim,
professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall
87
AIR 2010 5 SCC 445
88
(2011) 2 SCC 550
89
AIR 2004 SC 3566
90
Rafique v State [1980 Cr..L.J. 1344 SC]
PAGE -42
not be the law, that fails, but the applicants, the process and application. Failure of law reflects
the failure of the society to protect and serve humanity.
The National Commission for Women be asked to frame schemes for compensation and
rehabilitation to ensure justice to the victims of such crimes. As observed by Justice Saghir
Ahmad, "Unfortunately a woman in our country belongs to a class or group of society who are
in an disadvantaged position on account of several social barriers and impediments and have
therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the
Constitution enjoy equal status."
7.2. Assistance to rape victims:
In the case of Delhi Domestic Working Women's Forum v. Union of India91, the Supreme
Court gave following guidelines to assist the rape victim:
1. The complainants of sexual assault cases should be provided with legal representation. It
is important to have someone who is well-acquainted with the criminal justice system.
The role of the victim's advocate would not only be to explain to the victim the nature of
the proceedings, to prepare her for the case and to assist her in the police station and in
the court but to provide her with guidance as to how she might obtain help of a different
nature from other agencies, for example , mind counseling or medical assistance. It is
important to secure continuity of assistance by ensuring that the same person who looked
after the complainant's interests in the police station represents her till the end of the case.
2. Legal assistance will have to be provided at the police station since the victim of sexual
assault might very well be in a distressed state upon arrival at the police station, the
guidance and support of a lawyer at this stage and whilst she was being questioned would
be of great assistance to her.
91
(1995) 1 SCC 14: (1994) (4) SCALE 608: 1995 SCC (Cri) 7
PAGE -43
3. The police should be under a duty to inform the victim of her right to representation
before any questions were asked to her and that the police report should state that the
victim was so informed.
4. A list of advocates willing to act in these cases should be kept at the police station for
victims who did not have a particular lawyer in mind or whose own lawyer was
unavailable.
5. The advocate shall be appointed by the Court, upon application by the police at the
earliest convenient moment, but in order to ensure that victims were questioned without
undue delay, advocates would be authorized to act at the police station before leave of the
Court was sought or obtained.
6. In all rape trials anonymity of the victim must be maintained, as far as necessary.
7. Compensation for victims shall be awarded by the Court on conviction of the offender
and by the Criminal Injuries Compensation Board whether or not a conviction has taken
place. The Board will take into account pain, suffering and shock as well as loss of
earnings due to pregnancy and the expenses of child birth if this occurred as a result of
the rape
PAGE -44
PART-8
RECOMMENDATIONS AND CONCLUSION
8.1. Recommendations:
 Attitudes to women in the criminal justice system: Attitudes to women and recognition of
their full range of rights should be linked to recruitment, promotion. The system should
recognise and reward good police officer, a good magistrate, a good prosecutor by their
attitudes to Dalit women, to lesbians, to sexually active women wearing skimpy clothing.
Also penalise actors in the criminal justice system for the opposite, i.e. discriminatory
behaviour. So when a policeman or woman, a prosecutor or a judge is recruited, their
attitudes need to be part of the interview.
 Reform criminal justice system: The low conviction rate for rape, some figures show only 27
percent convictions is also why rapists are not that scared and victims reluctant to go to court.
Police reforms have been waiting to be implemented since the 1980s; police in India need
better investigation methods and ways to preserve evidence. We don’t have proper witness
protections program, or the best prosecutors, though the victim’s lawyer being allowed to be
present now helps somewhat.
 Compensation for victims should be awarded by the Court on conviction of the offender and
by the Criminal Injuries Compensation Board whether or not a conviction has taken place.
 Some of the important changes like quicker trials enabled by more judges and courtrooms are
reform which needs to be introduced in Criminal Justice System.
 The complainants of sexual assault cases should be provided with legal representation. It is
important to have someone who is well-acquainted with the criminal justice system.
 It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims
frequently incur substaintial financial loss.
PAGE -45
8.2. Summary and Conclusion:
To summarize, Sexual violence or rape violates the rights of the women and it interferes with the
women’s ability to function as full citizens. India has ratified the international human rights
treaties and is obliged to protect the rights of the women. In India the most recent social
movement was connected to rape and it pressurized the government to implement a new antirape
law in the country. The new anti-rape law had provisions such as death penalty for certain sexual
violent offences which were not welcomed by human rights organizations such as Amnesty
International. However, apart from the fact that it failed to meet the level of international
standards, the main problem with the new legislative reform was that it overlooks certain
recommendations and the state authorities failed to address the main issues on accountability of
the police and withdraw the legal immunity enjoyed by the security forces.
This paper attempted a broad review of laws related to rape in India in the context of some recent
enactments. While the enactments convey a positive picture of achievement, statistics show that
there has been no actual reform in the area of protection of women’s rights. Laws appear to have
been carelessly framed more as a gesture to pacify the women’s rights activists who were
campaigning for reform than to bring about any positive change in the status and position of
women. It had no real impact as it did not question the critical issues of the power balance
between men and women, women’s economic rights, conservation notions regarding chastity and
morality as well as their status within society.
The laws passed were fragmented and did not adequately define the problem and thus failed to
meet the objective behind its formulation. It paid more focus to punishment when instead greater
attention needs to be paid to covering up the procedural loopholes, effective implementation,
adequate compensation to victims and a time limit for deciding cases. Moreover these laws were
framed against the backdrop of a patriarchal framework and did not address the feminist
perspective of the issues at hand. However we argued that lack of laws or legislation is not the
sole problem. It is the law in action and not just the law which is important. Pro-active support
from the police and judiciary is required to fulfill the main objective behind the framing of the
law. There was inadequate allocation of budget and personnel by the executive for effective
implementation and monitoring of the laws passed. Sadly in India gender bias against women is
prevalent to a great extent among the police force. This is not only unprofessional but it also
PAGE -46
dangerous as it results in shoddy First Information Reports, poor investigation and collection of
evidence. We also lack a sensitized judiciary that views circumstances and situations in holistic
manner. This is ultimately a huge roadblock in the deliverance of justice.
8.3. Bibliography
1. Savitri Goonesekere, Violence, Law and Women's Rights in South Asia (SAGE
Publications-India, 2004)
2. Martha Nussbaum, Sex and Social Justice, ( Oxford University Press, Inc., 1999)
3. PB Rao Behere, ST Verma K “Effect of marriage on pre-existing psychoses”. Indian J
Psychiatry (2011)
4. Nambi S. “Marriage, mental health and Indian legislation-Presidential Address” Indian J
Psychiatry (2005)
5. UNIFEM “Not a Minute More-Ending Violence Against Women” United Nations
Development Fund for Women (2003)
6. Lynn Walter, “Women’s Rights-A Global View” ( Greenwood Press-US.2001)
7. Sylvia Walby, “Theorising Patriarchy”, Basil Black Well, Oxford, London (1990)
8. C. Gillian “Women in Late Antiquity: Pagan and Christian Life-styles” Vol. 3. (Oxford:
Oxford University Press, 1993)
9. Gaur KD “Text Book on Indian Penal Code” 207–18 (Universal Publishing Delhi, (2003)
10. Davidson JR, Hughes DC, George LK, Blazer DG, The association of sexual assault and
attempted suicide within the community, at 50 (Arch Generation Press, 1996).
11. Lucas SC. Leiden, Constructive Critics, Hadīth Literature, and the Articulation of Sunnî
Islam; p. 106. (Brill Publishers, 2004)
12. MP Tandon, The textbook on Indian Penal Code, 300–4. (15th ed. Allahbad Law
Agency, 1982)
13. Forsythe DP, Encyclopedia of Human Rights; p. 306. (Oxford: Oxford University Press;
2009.)
PAGE -47

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Rape Laws in India

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Statutory recognition and development of anti rape laws in India

National University of Study and Research in Law, Ranchi

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A.L.L.B. (HONOURS) 9th SEMESTER

Statutory Recognition and Development of Anti rape Laws in India

Supervisor: Submitted By:

Mr. Afkar Ahmad Bhawana Parihar

Assistant Professor, Law Roll No. 164

NUSRL, Ranchi IX Semester, Sec-A

Mr. Afkar Ahmad

(Assistant Professor of Law)

On completion of this seminar paper, it is my present privilege to acknowledge my profound

INTRODUCTION OF SUBJECT - “RAPE AS A CRIME”……………………………….…7

RAPE AS CRIME: AN OVERVIEW………………….……………………………………...12

A COMPARATIVE STUDY OF RAPE LAWS OF THE WEST…………...………………15

3.1. Definition of Rape in some parts of the world……………………………………………..16

3.1.1. U.S.A (Michigan)……………………………………………………………………..16

RAPE IN INTERNATIONAL CRIMINAL LAW…………………………………...………19

4.1. Definition of Rape- Jurisprudence Of It By ICTY and ICTR and ICC……………………………19

4.2. The Akayesu Decision………………………………………………………………………20

4.2.1. The Conceptual Definition………………………………………………………….20

4.2.2. Furundzija judgement: The mechanical definition………………………………..21

4.3. Definition of rape in ICC statute………………………………………………………………..22

4.4. Need for ICC to include rape as genocide…………………………………………………24

DEVELOPMENT OF ANTI RAPE LAWS IN INDIA AND CRIMINAL LAW

5.1. Criminal Law (Amendment) Act 1983……………………………………………………..25

5.1.1 An attempt to commit rape ………………….………………………………………..26

5.1.2. Procedural aspects…………………………………………………………………...28

5.2. The Law Commission Reports……………………………………………………………...29

5.3. Analysis of The Criminal Law (Amendment) Act, 2013……....…………………………..31

SPECIAL CASES OF RAPE…………………………………………………………………..33

6.1. Marital Rape………………………………………………………………………………...33

6.2. Rape of a woman who is under sixteen years of age………………………………………38

6.3. Rape of a woman, knowing her to be pregnant……………………………………………38

6.4. Gang Rape…………………………………………………………….…………………….39

6.5. Rape causing death or resulting in persistent vegetative state of victim…………………..40

ANALYSIS OF CASE LAWS RELATING TO RAPE LAW..………………..……...…….40

7.1. Recent Development…………...…………………………..…………………………….….43

7.2. Assistance to rape victims………..….…………...…………………………………………43

RECOMMENDATIONS AND CONCLUSION…………………..…………………………45

INTRODUCTION OF SUBJECT - “RAPE AS A CRIME”

1.1 Conceptual Analysis

1.3 Rationale and Significance of the Study

1.4. Objective of the study:

1.5 Database & Research Methodology

RAPE AS CRIME: AN OVERVIEW

2.1 Defining Rape:

2.2 Historical Perspective:

2.3. Definition of rape in India : an statutory overview:

2.4. The most important factor- consent of victim:

A COMPARATIVE STUDY OF RAPE LAWS OF THE WEST:

3.1. Definition of Rape in some parts of the world:

3.1.1. U.S.A (Michigan):

RAPE IN INTERNATIONAL CRIMINAL LAW

4.1. Definition Of Rape- Jurisprudence Of It By ICTY and ICTR and ICC

4.2. The Akayesu Decision:

4.2.1. The Conceptual Definition:

4.2.2 Furundzija judgement: The mechanical definition:

4.3. Definition of rape in ICC statute:

4.4. Need for ICC to include rape as genocide:

DEVELOPMENT OF ANTI RAPE LAWS IN INDIA AND CRIMINAL LAW

5.1. Criminal Law (Amendment) Act 1983

 Introduction of a minimum punishment of seven years in case of offenders under Section