Rape, a heinous crime, is defined in Section 375 of the Indian Penal Code, 1860. However, the legal landscape concerning women as perpetrators of rape is complex. This article explores the legal nuances surrounding the question of whether women can be held liable for rape in India, examining key legal provisions and landmark cases.

What is Rape?

Rape is defined as a "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age." under Section 375 of Indian Penal Code, 1860. (Hereby referred as IPC)

The exact wording of the section is A man is said to commit "rape" if he– and gives out several conditions which amount to rape.

Notably, the section specifies that only a man can commit rape, according to its current wording.

Can a woman be accused for the crime of rape?

While Section 375 focuses on male perpetrators and the definition of rape, Section 376 of the IPC lays out punishment for the offense of rape.

Section 376D specifically talks about the punishment for Gang Rape in India.

The exact phrasing of the article is:
Where a person is sexually assaulted 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 sexual assault, regardless of gender and shall be punished with rigorous imprisonment for a term which shall not be less than twenty 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.

Section 376D addresses gang rape, stating that any person, regardless of gender, involved in a group committing sexual assault shall be deemed to have committed the offense of sexual assault and shall be punished accordingly.

The law punishes any behaviour done in support of the group's shared aim as if it were the crime of rape itself. This means that even those who stand guard at doors cannot get away with a less sentence by saying they did not commit the sexual assault. This includes both men as well as women.

Legal Precedents:
Let us look at some legal precedents regarding the question of whether a woman can be a perpetrator of rape in India.

Case of Priya Patel vs State of M.P. & Anr on 12 July, 2006
It is a landmark case tried in the Hon’ble Supreme Court of India by a Division Bench where the question of 'whether a female can commit the offence of gang rape’ was raised.

The petitioner, Priya Patel, was escorted by the accused, Bhanu Pratap Patel, in the pretence of being instructed to do so by her father. Then, the accused committed rape on the petitioner at his house. The accused’s wife (appellant) arrived when the commission was going on. The petitioner sought help from the appellant, but rather than intervening to save her, the appellant slapped her, shut the door and departed the scene of occurrence.

The court settled the case by the apex court by upholding the appeal of the petitioner giving the ratio that a 'A woman cannot be said to have an intention to commit rape.' and hence cannot be said to have the common intention to commit rape as required by Section 376 of IPC.

But the court further said The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned court to act in accordance with law. We express no opinion in that regard.

Hence the court did not take in account for the act of abetment or facilitation to gang rape while allowing this appeal. The court did not address the possibility of charging the woman for abetting gang rape. Hence this question still remains to be explored by the courts in further cases.

Hence the charge against the woman (appellant) was dropped and thus she was not punished for the crime of gang rape.

Case of Suneeta Pandey v. State of UP & Others. APPLICATION U/S 482 No. - 39234 of 2022
The informant, the victim's father, claims that the event happened on June 24, 2015, and that he filed a missing person’s report after discovering that his 15-year-old daughter had been abducted by an unidentified individual. The victim was discovered, and during her statement, she claimed that while Suneeta Pandey, the applicant, had been engaged in the event, her name had not been included in the chargesheet. According to the victim, the lady planned her attack and brought her to a desolate location where many males were waiting for the rape to occur. In accordance with Sections 376-D and 212 of the CrPC. the opposing party submitted an application to call the appellant.

The bench of Hon’ble Justice Shekhar Kumar Yadav, presiding in Allahabad High Court, on February 13, 2022, gave a historical judgment which involved the issue of whether a woman can be tried for offence of gang rape.

The court while trying the case observed that while a woman cannot be tried for the offence of rape, as specifically written in Section 375 of IPC, she can be tried for the offence of facilitating the act of gang rape, as given in the amended provision of Section 376D.

The ratio decidendi was The term 'person' used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines 'person’ as it includes any company or association or body of persons whether incorporated or not. The word 'person' is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as 'an individual human being' or 'a man, woman, or child'; and, secondly, as 'the living body of a human being'. As such, a woman can not commit the offense of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offenses. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person

Hence, the appeal was dismissed by the court and the Appellant (Suneeta Pandey) was held liable for offence of facilitating gang rape under Section 376D of IPC, in view of amended provisions.

As opposed to the above-mentioned case of Priya Patel v. State of MP (2006), the court took into account the act of abetment or facilitation to gang rape, and hence dismissed the appeal, setting precedent that a woman can be held liable for act of facilitation of gang rape, under Article 376D of IPC.

Conclusion
In conclusion, the question of whether women can be held liable for rape in India is a complex and evolving legal issue. While Section 375 of the Indian Penal Code specifies that only men can commit rape, recent legal interpretations and amendments have acknowledged the potential culpability of women in facilitating gang rape. The cases of Priya Patel v. State of M.P. & Anr (2006) and Suneeta Pandey v. State of UP & Others (2022) illustrate the nuanced approach taken by the judiciary in addressing this issue.

While the Priya Patel case highlighted the difficulty in attributing the "common intention" required for rape to a woman, the Suneeta Pandey case recognized that women can be held accountable for facilitating gang rape under Section 376D of the IPC. These developments underscore the need for a comprehensive and inclusive approach to addressing sexual offenses, one that considers the broader context of criminal involvement and the evolving nature of legal interpretations.

It is evident that the legal framework surrounding accusations of rape involving women in India is dynamic and subject to change. As such, it is crucial for legal practitioners, policymakers, and society at large to engage in ongoing dialogue and reflection on this issue to ensure that justice is served and the rights of all individuals, regardless of gender, are protected.