December 11, 2014 1 Comment
The World Health Organization defines rape as ‘physically forced or otherwise coerced penetration … of the vulva or anus, using a penis, other body parts or an object’. Rape is a subset of sexual assault, which is defined as any sexual act (including but not limited to penetration or intercourse) committed using coercion or without the victim’s consent. People of any gender can be victims of rape and sexual assault, but the majority of victims are women. The Sage Publications Multimedia Encyclopedia of Women in Today’s World notes that most legal definitions of rape involve sexual penetration through force and without consent. The Sage entry, however, also acknowledges that there remains ‘widespread disagreement regarding the meanings of “penetration,” “force,” and “consent”’; definitions and application of the laws on rape vary from country to country, and even from jurisdiction to jurisdiction within a country. Rape victims may thus be left to seek justice amid confusing laws, or be faced with sceptical law enforcement personnel who doubt their claims and experiences.
Another issue related to rape and sexual assault is that of ‘victim blaming’: holding victims of sexual assault responsible for the rape or assault because of their attire, appearance or actions. In India, there have been several documented cases of victim-blaming by politicians, spiritual leaders, lawyers, police officers, and even women’s commission members. A pervasive victim-blaming culture can deter women from reporting rapes, can cause them to fear further victimisation at the hands of law enforcement, and can make it difficult to successfully prosecute those rapes that are reported.
Feminists and advocates combating violence against women have argued that acts previously not recognized as rape should in fact be included in legal definitions. For instance, many countries have included an exception for marital rape, either previously or in current laws, stating that intercourse between a husband and wife cannot be deemed rape regardless of whether one party did not consent. Advocates have also argued against the notion that ‘in order for an encounter to count as rape, the victim must have displayed “utmost” (or even any) physical resistance. Nevertheless, ambiguity remains both in many legal definitions of rape and in enforcement of those laws.
The problem of rape is often compounded by widespread misunderstandings about the nature and incidence of rape and sexual assault. Many believe, for instance, that perpetrators are usually strangers to their victims, that women must have been ‘asking for it’ by behaving promiscuously or going out alone at night, or that lack of overt physical resistance implies consent. In fact, many if not the majority of perpetrators are known to their victims; rapes can occur at any time of day in virtually any context, not just when a woman is along at night; and victims may be unable to resist or choose not to struggle out of fear of even greater violence.
The issue of rape in India has garnered much greater national and international attention in recent years, in large part due to the 2012 Delhi gang rape case that spurred mass protests and an international outcry.
2012 Delhi Gang Rape: A Case Study
On the evening of December 16, 2012, a 23-year-old physiotherapist and her male friend caught a bus home after seeing a movie in a Delhi suburb. The six men on the bus, including the bus driver, began to taunt the pair for being out late together. The man, to protect his friend, tried to stop the teasing, upon which the situation turned violent. The man was beaten with an iron rod and gagged, while the woman was dragged to the rear of the bus, brutally raped and beaten repeatedly by the six men over the course of several hours. Finally, the men threw the two victims out of the moving bus, leaving them on the side of the road.
The pair was taken to a hospital, where the man began to recover from his injuries. The woman, however, remained in critical condition for several days before dying from her injuries in a Singapore hospital on December 29, 2012.
This incident became a watershed in spurring discussion and action on violence against women in India. It provoked national and international outcry over the status of women in India, prompting the Indian government to re-evaluate its procedures for the treatment, prosecution and compensation of gender violence. The Delhi gang rape case catalysed numerous mass demonstrations and increased activism around gender violence in general and the legal system’s handling of it in particular.
In response to public pressure for a speedy trial, the Delhi High Court in December 2012 approved the creation of five fast-tracked courts to prosecute rape and sexual assault cases. It was in one of these courts that five of the men accused of the gang rape were prosecuted on charges of kidnap, rape, murder, attempted murder and destruction of evidence. The sixth man, a minor at the time of the attack, has been prosecuted in the juvenile court system.
In March 2013, one of the accused committed suicide in prison while still on trial. The juvenile offender was sentenced to three years in a reform centre. The remaining four were convicted; the court issued death sentences in all four cases.
In March 2014, the Delhi High Court upheld the verdict of the death sentence for all four convicts. As of mid-July 2014, the execution was stayed pending an appeal by the lawyers of the accused, who alleged that the trial had not been conducted in a ‘free and fair’ manner.
In a wider response to the issue, the national government and state governments of India set up various commissions to better investigate violence against women. On December 22, 2012, the national government commissioned a judicial committee headed by former Chief Justice of India J. S. Verma, to investigate the legal framework and precedents regarding the prosecution of sexual assault as well as to make recommendations for amendments to criminal law. The Justice Verma Committee appealed to lawyers, the non-profit sector, women’s groups, the civil sector and the general public for their input and suggestions. The report, released in February 2013, points to failures of government institutions and the police in recognizing and prosecuting sexual assault in a timely and constitutional manner.
In April 2013, based on the recommendations given by the Justice J. S. Verma Committee, President Pranab Mukherjee gave his assent to the Criminal Law (Amendment) Act, 2013, which made changes to the Indian Penal Code and Indian Evidence Act on laws related to sexual offences.
Know the Law
The Criminal Law (Amendment) Act, 2013, introduced various amendments to existing laws on rape and sexual assault in the Indian Penal Code (IPC). The Delhi gang rape case and the resultant public outcry were a powerful impetus in amending the laws. As Indian law stands today, the Act describes rape explicitly and exclusively as committed by male perpetrators against female victims. While this does encompass the majority of rape cases, it does not account for rape that occurs between other victim-perpetrator combinations, such as the rape of a man by another man.
Following the amendments introduced by the Criminal Law (Amendment) Act, 2013, Section 375 of the IPC defines rape as non-consensual intercourse, penetration using the penis or ‘any object or a part of the body’, or oral intercourse. The Act also specifies circumstances where consent may be nominally given but not valid, such as: consent obtained through coercion or threats; consent obtained by falsely impersonating the victim’s husband; and consent from a victim ‘unable to understand the nature and consequences’ of what she is agreeing to due to ‘unsoundness of mind or intoxication’. When a victim is below 18 years of age, penetration or intercourse is considered rape regardless of whether consent was given.
The law specifies that mere lack of physical resistance is not sufficient to be regarded as consent. However, it also states that consent may be given ‘by words, gestures or any form of verbal or non-verbal communication’, creating potential ambiguities in determining when a woman has consented to a given sexual activity and possibly making it more difficult to prosecute rape complaints.
Section 376 states that rape is punishable by imprisonment of at least seven years and up to a life sentence, plus a fine. In certain cases, perpetrators are required to receive harsher sentences, such as when the perpetrator is a police officer, public servant or member of the military; when he holds ‘a position of trust or authority towards the woman’; or when the victim is pregnant, disabled or a minor. In these situations, the minimum sentence is ten years, with the possibility of a life sentence, plus a fine. Section 376A prescribes a minimum sentence of twenty years when a perpetrator commits rape or sexual violence that ‘causes the death of the woman or causes the woman to be in a persistent vegetative state’, while under Section 376D, a perpetrator in a gang rape faces a minimum sentence of twenty years, up to life imprisonment, plus a fine.
The Criminal Law (Amendment) Act, 2013, has faced criticism for ignoring the Verma Committee’s recommendations on a number of issues; for example, the Act has raised the age of consent from 16 to 18, and has failed to make changes to the Armed Forces (Special Powers) Act, which currently makes it more difficult to try members of the armed forces for gender-based crimes. The Act also includes an exception for marital rape, stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’. This means that, under Indian law, marital status takes precedence over lack of consent in determining rape and sexual assault cases. The Criminal Law (Amendment) Act, 2013, does criminalise rape committed by a husband against his wife when they are ‘living separately, whether under a decree of separation or otherwise’, and prescribes a sentence of between two and seven years’ imprisonment, plus a fine. For the majority of women assaulted by their husbands, however, there is no legal avenue for a criminal prosecution. The only legal remedy available to wives is the Domestic Violence Act, 2005, which is a civil rather than criminal law that provides for domestic violence reporting mechanisms and monetary compensation for victims. It does not provide for punishment of offenders. Women’s advocates have argued that the marital rape exception prevents India’s criminal laws from adequately protecting women and effectively legalises countless cases of rape and abuse that occur within marriages.
The National Crime Records Bureau (NCRB) keeps track of cases of rape reported under Section 376 of the Indian Penal Code. The NCRB reported 33,707 cases of rape in 2013, an increase of 35.2% from 2012 (24,923 cases). Although many rapes and sexual assaults are not reported, reports of rapes have increased in recent years as more victims have stepped forward. It is possible that growing public attention towards the issue has emboldened more women to seek justice; it has also been suggested that the actual incidence of rape is increasing, contributing to the growing number of reports. One estimate suggests that in India, a woman is raped on average every 20 mintues.
Table 1 and Figure 1 show the number of rape cases reported between 2009 and 2013 according to the NCRB data.
Table 1: Number of Reported Rape Cases, 2009-2013
|Number of reported rape cases||21,397||22,172||24,206||24,923||33,707|
Note that the NCRB data only includes cases that fall under the Indian Penal Code definition of rape, not other forms of sexual assault that do not meet that definition.
The actual incidence of rape and sexual assault is difficult to determine with accuracy, as experts agree that the majority of rapes worldwide likely go unreported. Estimates of the proportion of unreported rapes vary from 54% to 90% of all rapes.
Of the rapes that are reported, the majority do not result in a successful prosecution. As of 2013, as many as three fourths of the perpetrators of the 24,206 rape cases brought forth in 2011 were either yet to face trial, had been acquitted or had the charges dropped. Many rape and assault victims may decide not to report the assaults because of the fear of indifference or even retaliation from police officers and other law enforcement personnel. Victims have reported being asked demeaning questions by police, feeling as if the questioning procedures were like a second assault, waiting for hours to receive medical attention and being pressurized to marry their attackers or withdraw their complaints.
 Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, World Report on Violence and Health, ed. Krug, E. G. et al, 2002, p. 149, http://whqlibdoc.who.int/hq/2002/9241545615.pdf, accessed 1st December 2014.
 Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, p. 149. See above note 1.
 Stange, M. Z., Oyster, C. K. & Sloan, J. E., ‘’Rape, legal definitions of’, The Multimedia Encyclopedia of Women in Today’s World, 2011, http://study.sagepub.com/sites/default/files/Ch09_Legal%20Definitions%20of%20Rape.pdf, accessed 1st December 2014.
 ‘NCW Notice to Mirje over Rape Remark’, The New Indian Express, 29th January 2014, http://www.newindianexpress.com/nation/NCW-Notice-to-Mirje-Over-Rape-Remark/2014/01/29/article2026716.ece, accessed 11th December 2014; Hullinger, Jessica, ‘India’s Deadly Gang Rape: 6 Troubling Attempts to Blame the Victim’, The Week, 9th January 2013, http://theweek.com/article/index/238542/indias-deadly-gang-grape-6-troubling-attempts-to-blame-the-victim, accessed 11th December 2014; Bhalla, Abhishek & Vishnu, G., ‘The Rapes Will Go On’, Tehelka Magazine, Vol 9, Issue 15, 14th April 2012, http://archive.tehelka.com/story_main52.asp?filename=Ne140412Coverstory.asp, accessed 11th December 2014.
 ‘Feminist perspectives on rape’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/feminism-rape/#CriWhaCou, accessed 1st December 2014.
 See above note 5.
 Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN, 16 December 2013, accessed 2nd December 2014.
 ‘Delhi gang rape: Chronology of events’, The Hindu, 10 September 2013, http://www.thehindu.com/news/national/delhi-gang-rape-chronology-of-events/article5079321.ece, accessed 2nd December 2014.
 Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.
 ‘Delhi gang rape: Chronology of events’, The Hindu. See above note 9.
 ‘Court puts off execution of two men convicted of 2012 Delhi rape’, Reuters, 14th July 2014, http://www.reuters.com/article/2014/07/14/us-india-gangrape-idUSKBN0FJ16P20140714, accessed 2nd Decemer 2014.
 Ed. Sanyal, P., ‘Recommendations of the Justice Verma Committee: 10-point cheat sheet’, NDTV, 24th January 2014, http://www.ndtv.com/article/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-321734, accessed 2nd December 2014.
 Justice (retd.) Verma, J.S., Justice (retd.) Seth., L, & Subramanium, G., ‘Report of the committee on amendments ot criminal law’, Justice Verma Committee on Amendments to Criminal Law, January 2013, http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf, accessed 2nd December 2014.
 Denyer, S., ‘India gang rape prompts tough new laws on sexual assault’, The Guardian, 5th February 2013, http://www.theguardian.com/world/2013/feb/05/india-gang-rape-stricter-laws, accessed 2nd December 2014.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Sec. 9 of the Act inserts Sections 375, 376 and 376A-D into the Indian Penal Code. Section 375 defines ‘rape’.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375,. See above note 17. This section defines consent and lists circumstances in which consent may be given but not held to be legally valid.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375. See above note 17.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(1). See above note 17. This section establishes sentencing rules for rape convictions.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(2). See above note 17. This section lists circumstances in which a stronger sentence is required.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376A. See above note 17.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376D. See above note 17.
 ‘India: Reject New Sexual Violence Ordinance’, Human Rights Watch, 12th Febuary 2013, http://www.hrw.org/news/2013/02/11/india-reject-new-sexual-violence-ordinance, accessed 11th December 2014.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375, Exception 2. See above note 17.
 Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376B. See above note 17.
 ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26th September 2014.
 Special Correspondent, ‘Majority of rape cases go unreported: MPs’, The Hindu, 27th August 2013, http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/majority-of-rape-cases-go-unreported-mps/article5063089.ece, accessed 2nd December 2014.
 Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.
 ‘Chapter 5: Crimes against Women’, p. 81. See above note 26.
 Figure 1 was generated from the data in Table 1.
 Kark, M., ‘Understanding Indian and Pakistani cultural perspectives and analyzing US news coverage of Mukhtar Mai and Jyoti Singh Pandey’, University of North Texas Master’s Thesis, UNT Digital Library, p. 4, http://digital.library.unt.edu/ark:/67531/metadc271840/, accessed 2nd December 2014. Kark quotes a figure from the Rape, Abuse & Incest National Network (RAINN).
 Srivastava, M., ‘The iceberg of rape’, India Today, 17th June 2009, http://indiatoday.intoday.in/story/The+iceberg+of+rape/1/46911.html, accessed 2nd December 2014.
 Fisher, M., ‘India’s rape problem is also a police problem’, Washington Post, 7th January 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/01/07/indias-rape-problem-is-also-a-police-problem/, accessed 2nd December 2014.
 Fisher, M., ‘India’s rape problem is also a police problem’. See above note 33.
This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.