Rape, unlawful sexual activity, most often involving sexual intercourse, against the will of the victim through force or the threat of force or with an individual who is incapable of giving legal consent because of minor status, mental illness, mental deficiency, intoxication, unconsciousness, or deception. In many jurisdictions, the crime of rape has been subsumed under that of sexual assault. Rape was long considered to be caused by unbridled sexual desire, but it is now understood as a pathological assertion of power over a victim. [1]

Definition of Rape?

Under Section 375 of IPC and Section 63 of Bharatiya Nyaya Sanhita, 2023 (BNS): A man is said to commit rape if he:

1. Penetrates his penis into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
2. Inserts any object or a part of the body into the vagina, urethra, or anus of a woman or makes her do so with him or any other person; or
3. 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; or
4. Applies his mouth to the vagina, anus, urethra of a woman. [2]

Under the circumstances falling under any of the following seven descriptions:

1. against her will;
2. without her consent;
3. 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;
4. 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;
5. 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;
6. with or without her consent, when she is under eighteen years of age;
7. when she is unable to communicate consent." [3]

Types of Rape

There are so many types of rape which are as follows:

• Marital Rape
• Gang Rape
• Prison Rape
• Rape Of Children
• Statutory Rape
• Corrective Rape, etc. (legal services of India)

Objectives There are two reasons for this research objective:

• The first one is because of this article; people will know that yes, women will fight now even if they have the right to liberty, according to Article 21.
• The second reason is that fighting for women's rights is essential as they are the country's future. [4]

Sections

Women's issues other than rape, the sexual offenses listed in the IPC are:

1. Assault or criminal force on woman with Intent to Outrage her Modesty (S. 74)
2. Sexual Harassment (S. 75)
3. Assault or criminal force on women with intent to disrobe (S. 76)
4. Voyeurism (S. 77)
5. Stalking (S. 78)
6. Word, Gesture, or Act intended to insult the modesty of women (S. 79) [5]

Punishment for Rape

Section 64: Section 64 of the Bharatiya Nyaya Sanhita deals with punishment for rape.

Section 64(1) states that:
"Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine." whereas Section 64(2) states that "Whoever:

Being a police officer, commits rape:

• Within the limits of the police station to which such police officer is appointed; or
• In the premises of any station house; or
• On a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
• Being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
• Being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or
• Being on the management or on the staff 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 women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
• Being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
• Being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
• Commits rape during communal or sectarian violence; or
• Commits rape on a woman knowing her to be pregnant; or
• Commits rape on a woman incapable of giving consent; or
• Being in a position of control or dominance over a woman, commits rape on such woman; or
• Commits rape on a woman suffering from mental or physical disability; or
• While committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
• Commits rape repeatedly on the same woman,

Should be punished with rigorous imprisonment for a term not less than 10 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person's natural life and a fine.

• Section 65:
  • Section 65(1): Whoever commits an offence of rape on a woman under 16 years of age should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person's natural life, and a fine, provided that such fine should be paid to the victim and should be a reasonable amount to meet the medical expenses and rehabilitation of the victim.
     
  • Section 65(2): Whoever commits rape on a woman under 12 years of age should be punished with the punishment mentioned in sub-section (1) or with death.
     
• Section 66: Whoever commits an offence of rape and causes the death of the woman or causes her to be in a persistent vegetative state should be punished with rigorous imprisonment for a term not less than 20 years but which may extend to imprisonment for life, which should mean imprisonment for the remainder of that person's natural life, or with death.
   
• Section 67: As per this provision, sexual intercourse by a husband with his wife during separation and without her consent should be punished with imprisonment for a term not less than 2 years but may extend to 7 years and also be liable to fine.
   
• Section 68: This section deals with sexual intercourse by a person in authority being in a position of authority or a fiduciary relationship, or a public servant, or superintendent or manager (of jail, remand home, women's institution, or children's institution or other place of custody established under any law), or on the management of a hospital or being on the staff of a hospital.
  • It states that if a person in authority abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, should be punished with rigorous imprisonment for a term not less than 5 years but which may extend to 10 years and a fine.
     
• Section 69: If an individual, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, should be punished with imprisonment which may extend to 10 years and a fine.
   
• Section 70: This section deals with the punishments for the offence of gang rape.

As per Section 70(1) of the BNS:
"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 imprisonment for 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 rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim."

As per Section 70(2) of the BNS:
"Where a woman under eighteen years of age 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 imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death. Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this sub-section shall be paid to the victim."

Apart from these provisions, the new law BNS, 2023 also defines punishment for repeated offenders for an offence of rape under Section 71. It states that if a previously convicted person of an offence punishable under Sections 64, 65, 66, or 70 of BNS commits the same offence and is convicted under the same Sections then they should be punished with imprisonment for life which should means imprisonment for the remainder of that person's natural life, or with death. Moreover, the law also punishes those who disclose the identity of a victim of certain offences, etc., and those who print or publish any matter relating to Court proceedings without permission under Section 72 and Section 73 respectively. [6]

What are the Major Recommendations and Amendments in Rape Law?

• 84th Law Commission Report (1980):
  • Recommended substituting 'consent' with 'free and voluntary consent' in the definition of rape under Section 375 IPC.
  • Suggested adding threat of injury to victim or others as vitiating consent under Section 375 IPC.
  • Recommended raising age of consent to 18 years under Section 375 IPC.
  • Proposed new sections 376C, D, E to cover custodial rape by persons in authority.
     
• Criminal Law (Amendment) Act, 1983:
  • Introduced concept of 'aggravated rape' with higher punishments under Section 376(2) IPC.
  • Covered custodial rape by staff under Sections 376B, 376C, 376D IPC.
  • Shifted burden of proof on accused in custodial/gang rapes under Section 114A IEA.
     
• From 172nd Law Commission Report (2000):
  • Recommended making rape laws gender neutral.
  • Suggested expanding definition of rape under Section 375 IPC to include non-penile penetration.
  • Proposed retaining marital rape exception but raising wife's age to 16 under Exception to Section 375.
  • Recommended new Section 376E IPC for 'unlawful sexual contact'.
  • Suggested provisions for recording victim statements by female officers under Section 160 CrPC.
     
• Justice Verma Committee (2012):
  • Include all non-consensual penetrative acts as rape, beyond just vaginal, oral, or anal penetration.
  • Remove the marital rape exception, treating it as any other rape.
  • The relationship between victim and accused should not impact the determination of consent.
  • Life imprisonment for rape, opposing the death penalty.
  • Discontinue the two-finger test for assessing rape victims.
  • Establish a cell to provide immediate legal assistance upon FIR filing.
  • Train police officers to handle sexual offences appropriately and sensitively.
     
• Criminal Law (Amendment) Act, 2013:
  • Expanded definition of rape under Section 375 IPC.
  • Raised age of consent to 18 years under Section 375 IPC.
  • Introduced Sections 376A (rape causing vegetative state/death), 376D (gang rape), 376E (repeat offenders).
  • Added provisions under Section 327 CrPC for in-camera trials.
  • Introduced Section 53A IEA rendering past sexual history irrelevant.
     
• Criminal Law (Amendment) Act, 2018:
  • Introduced death penalty for rape of girls below 12 years (Sections 376AB, 376DB, IPC).
  • Increased minimum punishments for various rape offenses (Sections 376, 376AB, 376DA, IPC).

Case Analysis:
Three Cases Are The Most Highlighted And Worst Cases That Can Ever Happen.
Three Are As Follows:

1. Nirbhaya Gang Rape
2. Hathras Case
3. Priyanka Reddy Case

Other Case Laws:

• Tukaram and Ganpat v. State of Maharashtra (1972):
  • This case is also known as the Mathura rape case.
  • The judgment of the trial court favored the accused, stating that Mathura's consent was voluntary since she was accustomed to sexual intercourse.
  • The Bombay High Court set aside the judgment and sentenced the accused to imprisonment.
  • The Supreme Court (SC) later acquitted the accused, sparking public outrage. This case highlighted the need for reforms in rape laws.
• Mukesh & Anr. v. State for NCT of Delhi & Ors. (2017):
  • This case is known as the Nirbhaya rape case.
  • The Supreme Court upheld the death penalty awarded to the accused and stated that the case fell under the "rarest of rare" category.
  • This incident brought the 2013 criminal law amendment.
• State of Punjab v. Gurmit Singh (1984):
  • The Supreme Court advised the lower judiciary not to describe a victim as having a loose character even if she is shown to be habituated to sex.
  • The judgment emphasized the need to focus on the act of rape and not on the victim's character.
• Delhi Domestic Working Women v. Union of India (1995):
  • The SC laid down important guidelines in this case:
  • Providing legal representation to complainants of sexual assault cases.
  • Ensuring legal assistance and guidance of a lawyer at the police station.
  • Maintaining the anonymity of the victim in rape trials.
  • Establishing a Criminal Injuries Compensation Board.
  • Providing interim compensation to rape victims.
  • Providing medical help and allowing abortion if the victim becomes pregnant due to the rape.

End Notes

1. britannica.com
2. drishtijudiciary.com
3. freelaw.in
4. legalsevirceindia.com
5. devgan.in
6. Bharatiya Nyaya Sanhita, 2023

Written By:

• Harshi Shrimali - (A section) [email protected]
• Kunika Patel - (A section) [email protected]
• Prince Jain - (B section) [email protected]