Rape – Does This Evil End At Any Time Soon? – by Vaishnavi Sabhapathi

By | May 4, 2018

Introduction

India is well on its way to being the rape capital of the world. For women across India, fear is a constant companion and rape is the stranger they may have to confront at every corner, any road, any public place, at any point in time. Rape is a growing problem in today’s society and it is becoming increasingly difficult to ignore the startling statistics about this crime. This is becoming the fastest growing crime in India. According to the data [1] of the home ministry, India stands third, leaving behind countries like Sri Lanka, Jordan, and Argentina, when it comes to rape cases.

The heinous offense of ‘rape’ is one of the worst forms of violence against women. Rape is the violation of the violence of the private person of a woman and outrage by all means. It shatters the entire personality of a woman and pushes her into deep emotional catastrophe. It is an inhuman act and a stigma in the society. It is a violation of the basic human rights, a violation of the victims most cherished Fundamental Rights, i.e. Right to life and Personal liberty guaranteed under Article 21 of the Indian Constitution. By committing it, the offender degrades the very soul of the victim. The offense of rape has devastating effects on the survivors, which is described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt complex, suicidal action, diminished sexual interest etc. and above all the stigma attached to the victim and her family which indeed faces virtual social ostracism.[2]

Rape is, in fact, an act of violence that uses sex as a weapon. The researchers have established that rape is motivated by aggression and by the desire to exert power and humiliate the victims. While committing rape, he is not, as believed, succumbing to uncontrollable sexual desire but in providing his own masculinity by degrading the victim. A rapist derives an eroticised pleasure not from sexual act but through ha horrendous assault on victim’s body. Therefore, it may be accepted that the intention of the offender in rape cases is more aggressive than sexual.[3]

Most of the rapes occur in rural India of all the sections of society, often the most vulnerable victims are Adivasi and Dalits. Since time immemorial, the influential members of upper castes have been using rape as a potent weapon to suppress the women of weaker and downtrodden sections of our society. Reference may be made to a famous Bhawnvari Devi case[4] where a social worker was gang-raped on September 22, 1992, in her village Bhateri in Rajasthan in the presence of her husband. The act of rape was a weapon used by the powerful Gujjar community to teach her lesson because she obstructed a case of child marriage. Ironically, this was a part of a government-sponsored campaign against child marriage. This case and victim’s subsequent treatment by the police, and court acquittal of the accused attracted widespread national and international media attention and became a landmark episode in India’s women’s rights movement.[5]

However, now it seems like the scenario in India regarding hasn’t changed a bit even after 29 years of the case and in fact has degraded more. The recent case of an 8-year-old girl near Kathua, Jammu, and Kashmir caused turmoil in the whole of the nation.

Purported Facts of Kathua Rape Case

The rape and murder of an 8-year-old child’s, according to police, was part of a line of attack to drive out members of her community from a village named Rasana.

The alleged accused’s of the case are Sanjhi Ram, the suspected mastermind, who is a former revenue official and local strongman; his son Vishal Kumar, a college student; police officer Deepak Khajuria; Ram’s 16-year-old nephew who is the juvenile, and his friend Parvesh Kumar.

The girl was a member of the nomadic Bakerwal tribal community. According to police, the attackers decided on kidnapping the girl among other Bakerwal children because of her age.

By the first week of January, the conspiracy was well in place, and the juvenile and Khajuria had been assigned their respective roles by Ram. While Khajuria had to procure drugs to keep her sedated, the juvenile would kidnap her. On 8 and 9 January, the juvenile lay in wait for an opportunity to abduct the victim but got one only on 10 January. He allegedly heard her voice as she came near his house to graze her family’s ponies, and called his friend Parvesh to help him out. Both of them allegedly misled the girl while she was searching for her animals, and, when she lost her way, forced her to eat a bhang, later she was raped in the forest before the two carried her to the temple, known locally as ‘Devsthan’, of which Ram is the custodian.

On 11 January, Asifa was allegedly given a high dosage of clonazepam — a drug used to control seizures and treat anxiety — after a lower-grade sedative failed to keep her sedated for a longer time which kept her unconscious until the next day.

On 13 January, the juvenile and Vishal visited the temple and allegedly raped the child, the assault continued on 14 January, when the victim was allegedly raped by the juvenile as well as Khajuria. She was then taken to a culvert and allegedly strangulated with a shawl and her head was also hit with a stone, reportedly later recovered from the spot by police.

According to police, her body was then taken back to the Devsthan. The original plan was to take her body in a car to a nullah, where it would have been washed away but was instead dumped the next day in the forest.

The crime has put fuel on communal passions in the politically sensitive Jammu region.The arrest of the accused has triggered demonstrations in Kathua and neighboring areas amid claims that the investigation was unfair and there have been demands for a CBI investigation. They are led by a new group called ‘Hindu Ekta Manch’ and backed by BJP leaders Lal Singh Chaudhary and Chander Prakash Ganga — both ministers in the state’s PDP-BJP government.

As per the report of medical experts, the victim was found prima-facie raped before being killed. Furthermore, investigations in this regard have established that the victim was raped by more than one accused with common intention. Accordingly, section 376-D IPC was added in the case. The Medical opinion also established the fact that the victim had been kept without food and administered sedatives and her cause of death were Asphyxia leading to a cardiopulmonary arrest.

The trial for the Kathua murder and rape case began in Jammu and Kashmir on 16 April 2018 before the Principal Sessions Court judge, Kathua. The second hearing is scheduled for 28 April 2018. The Supreme Court has sought a response from the Jammu and Kashmir government regarding shifting the trial to Chandigarh by 27 April 2018.

Apart from this, the lawyer Deepika Rajwat, who is fighting for the victim, has complained to the Acting Chief Justice of Jammu and Kashmir’s High Court

The Delhi High Court issued a fine of 10 lakh rupees on 12 media houses in India, including The Hindu, Times of India, Republic TV, Indian Express, The Week and NDTV…etc. for disclosing the name of the rape victim as well as other details including the usage of photographs of the victim. This action by the High Court of New Delhi was taken suo motu and under the Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code. The fine was to be paid within a week which would go to the Jammu and Kashmir Victim Compensation Scheme.

Provisions in Indian Laws for protection against Rape

In the light of the rampant rape cases happening everywhere in the country, an ordinance has been passed as Parliament was not session amending the Indian Penal Code, Indian Evidence Act, and Protection of Children from Sexual Offences Act.

Provisions under Indian Penal Code

Section 375 – Rape

A man is said to commit “rape” if he –

  • penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
  • inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
  • manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or
  • applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

Firstly — Against her will.

Secondly — Without her consent.

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly — with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — with or without her consent, when she is under eighteen years of age.

Seventhly — when she is unable to communicate consent.

Explanation 1 — For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2 — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates the willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1 — A medical procedure or intervention shall not constitute rape.

Exception 2 — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

In respect to the new ordinance passed on 21st April 2018

 376 – Punishment for rape

Minimum Punishment for Rape has been made Ten Years. It was Seven Years earlier. The Maximum punishment remains the same, i.e. Life imprisonment. A new clause (3) has been added to Section 376, which prescribes the Minimum punishment of twenty years to a person committing rape on a woman under Sixteen years of Age.

Section 376AB has been inserted which prescribes the minimum punishment of rigorous imprisonment for twenty years which may extend to natural life of the person with fine or death for a person committing rape on a woman less than 12 years of age and such fine must be just and reasonable as to cover the medical and rehabilitation expenses of the victim, which shall be paid to victim.

Section 376DA has been inserted which where one or a group of persons with common intention commits rape of woman under 16 years of age shall be punished with imprisonment for natural life and with fine or death and such fine must be just and reasonable as to cover the medical and rehabilitation expenses of the victim, which shall be paid to victim.

Section 376DB has been inserted which where one or a group of persons with common intention commits rape of woman under 12 years of age shall be punished with imprisonment for natural life and with fine or death and such fine must be just and reasonable as to cover the medical and rehabilitation expenses of the victim, which shall be paid to victim.

376A – Punishment for causing death or resulting in the persistent vegetative state of the victim

In such case where 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.

376B – Sexual intercourse by the husband upon his wife during separation

In the cases where a person has intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent shall be the punishment not be less than two years but which may extend to seven years, and shall also be liable to fine.

376C – Sexual intercourse by a person in authority

Whoever, a person in authority as in fiduciary relation or public officer or superintendent of jail or any caretaker of hospital has committed any sexual intercourse with any women under their care, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine.

376D – Gangrape

Where a woman is raped by one or more persons constituting a group or acting in common intention 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.

376E – Punishment for repeat offenders

Whoever has been previously convicted of an offense punishable under section 376 or section 376A or section 376D and is subsequently convicted of an offense punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Provisions under Indian Evidence Act

Section 53 A – Evidence of character or previous sexual experience not relevant in certain cases.

In a prosecution for above mentioned sections of IPC or for an attempt to commit any such offence, where the question of consent is raised, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

Section 144 – Questions lawful in cross-examination.

This section provides an exception that, in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.

Provisions under Criminal Procedure Code

  • The investigation in relation to in all Rape cases may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.
  • It prescribes six months’ time to dispose of an appeal in rape cases.
  • No Anticipatory bail can be granted to a person accused of rape of girls of age less than sixteen years.
  • Appeal in such cases must be disposed of in 6 months
  • It mandates the presence of informant or any person authorized by him at the time of hearing the application for bail to a person accused of rape of girls of age less than sixteen years.

Conclusion

In 2012, a woman was raped and left to die on road, the Parliament has passed Criminal Law Amendment Act, 2013. Now an 11-year-old girl has been brutally gang-raped and murdered, the Ordinance of 2018 has been passed. Is the law truly effective? Passing a law when a heinous crime happens is enough to curtail them?

According to the data collated by the NCRB, Madhya Pradesh with 4,391 cases, Maharashtra with 4,144, Rajasthan with 3,644, Uttar Pradesh with 3,025, Odisha with 2,251 and Delhi with 2,199 recorded the highest number of reported rape cases. However, it must be noted that a lower rape count could mean a lower ‘reported’ rape count. And in 95 percent of the cases, the offender knows the victim.[6]

Passing stringent laws for is not the only solution it must be followed by a stringent justice system. There are still situations where the rape is still unreported because of the stigma associated with the subject of rape — more so when it happens within the family, by someone known to the child. Even though laws have been made as to secrecy of the identity of the victims, it is not futile. Hence the lawmaking sector of the country, instead of merely making laws need to make sure there has to be the stringent execution of such laws.

Apart from the Parliament, every individual must teach their younger generations regarding the equality between people, in case of caste, creed, sex, religion, and region. Every person is equal and deserves respect. Sex education must be made compulsory to children in schools like the Netherlands, where they at a young age teach their children as the result it has very less teen pregnancy and would be able to clearly understand their body.

The major problem in India is the restrictive measures against women as to clothes, in and out timings and blaming the victim. This has to be stopped. Instead, women must be taught self-defense acts.


– Vaishnavi Sabhapathi

Content Writer at Legal Bites


References

  • K. Pachauri, Women and Human Right 164 (1999).
  • Criminal
  • Times of India
  • First Post
  • The Print Media

[1] Minister of state for home Kiren Rijiju said according to UN Crime Trends Survey 2010, the US recorded 85,593 cases of rape in that year followed by Brazil with 41,180 rape cases. – https://timesofindia.indiatimes.com/india/India-comes-third-in-rape-cases-second-in-murder-in-the-world-Report/articleshow/38936240.cms

[2] S.K. Pachauri, Women and Human Right 164 (1999).

[3] Supra note 1.

[4] State of Rajasthan v. Vishakha, AIR 1997 SC 3014

[5] Jungthapa, Vijay (15 December 1995). “Women’s group shaken after Jaipur court dismisses Bhanwari Devi rape case and clears accused”. India Today.

[6] https://www.firstpost.com/india/ncrb-data-shows-95-rape-victims-in-India-known-to-offenders-3433136.html


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