There are different ways of looking at criminal law, one such way is through the contextual understanding of the law, i.e. in what context did criminal liability come into existence. The Criminal law amendment act, 2013 was enacted following the public outcry as a result of the Nirbhaya gang rape. Today, one of the most common forms of violence against women is rape.[1] It is reported that every 20 minutes, a woman is raped in India.[2]

Data suggests that only 10% of rapes are reported, and of these, the rate of conviction is as low as 24.2%.[3] According to the National Crime Records Bureau (NCRB), there has been a substantial increase in rape crimes, which indicates a failure in stringent preventive measures by the State.

Old practices remain still prevalent such as compromise settlement between a rape victim and the accused, degrading tests performed by medical professions, attitudes of judges and police exhibiting the same attitude towards the rape and its victims, etc.[4] Liberty is centred on autonomy and the rationality of human beings characterized, the ability to control their own destiny. It is a product of free and rational choices.[5]

The values attach to certain autonomy differ from state to state and society to society, however, in every society rape is considered as a violation of one’s basic human rights.[6] In this article, the author tries to see rape laws through the prism of autonomy principle in the backdrop of the Criminal Law Amendment Act, 2013.

Perception of “harm” in Rape

In Rafiq v State (1980),[7] the court held rape to be an act causing a "deep sense of deathless shame". Likewise in the Madan Gopal Kakar case (1992),[8] rape was held to be the "loss of virginity, honour, chastity of woman". It was observed that there was "no monsoon season in the life of victim" after rape. Recently, In State of Uttar Pradesh v. Chhotey lal (2011), [9] the court termed rape "a loss of face and value which a woman considers most sacred or dearest to her".

However, after the 2013 Amendment, rape is now considered as 'harm to the individual and the sexual autonomy of a person. In Bodhisattwa Gautam vs. Subhra Chakraborty, [10] the Supreme Court observed that rape should not just be considered a crime against a woman's body but also a crime against her psyche.

The widening of the scope of section 375

The criminal law amendment, 2013 changed the definition of rape significantly. Before the amendment, a non-consensual and coercive act was necessary to constitute the offence of rape. However, the amendment widened the scope of rape. The offence of rape under Section 375 of IPC, now includes both penile and non-penile insertion into bodily orifices of a woman by a man.

The definition includes acts such as penetration of penis (clause (a)), or any object or any part of the body to any extent, into the vagina, mouth, urethra, or anus of a woman or making her do so with another person or applying of mouth to sexual organs (clause (b) and (d)) or manipulating any part of the body to cause penetration into the vagina, urethra, anus, or any part of the body of such woman(clause c), without the consent or will of the woman.[11] Clause (c) is quite ambiguous as “any part of the body” has no defined limits of clear demarcations. Therefore an amendment is suggested to remedy this.

The section also clarifies that penetration means “penetration to any extent,” and that physical resistance is irrelevant in determining whether or not an offence has been committed. The inclusion of non-penile acts shows that the focus is on the violation of a woman's bodily integrity and sexual autonomy. Therefore, overtly sexual acts done without consent are equally punishable as penetrative acts.

Although, there may be a gradation in sentence based on the purpose behind the commission of the act, the perpetrator's identity, how it was committed, etc. as laid down in subsequent sections. Therefore, under this approach culpability is determined not only by addressing the imbalanced power dynamic between the two genders but also applies to situations where this power dynamic is reversed. This places the bodily integrity and sexual autonomy of a woman at the focus of the offence rather than any archaic notion of rape.

The definition of Consent

Previously, “consent” was defined under section 90 of IPC. The 2013 amendment provided a positive definition of consent for the offence of rape rather than the negative one as given in Section 90. The most important feature of the amended definition is that consent is given for a specific sexual act. In other words, if the consent is given for a non-penetrative act, it cannot be extended to a penetrative act or if it is given at one time, then it cannot be extended further, to include the next time. Meaning, there should be clear communication of consent each time.

Before the amendment, courts used to ask for additional evidence such as injury marks, etc. for corroboration in instances the accused pleads to a consensual act. However, the 2013 amendment clearly states that lack of resistance does not mean consent, now the definition of "consent" shifts the focus from actions of the victim to actions of the accused. It is no longer viewed as lasting the entire event but rather only a specific act. Importantly, consent must be unequivocal, regardless of whether it is expressed through words or gestures or any other form of communication as this leaves little scope for blaming the victim. But it is also important for judges to appreciate the philosophy and intent behind the changed provisions.

However, we have examples where the real philosophy was not upheld by the courts. For instance in Mohd. Farooqui v. Govt. of NCT of Delhi (2017),[12] the court observed that the woman's unwillingness to engage in a sexual relationship was only in her mind as she obliged to perform oral sex which communicated to the accused that he can perform penetrative intercourse as well.

The court relied on the victim's statement where she told the accused that he had gone too far on the previous night. Court held her time of consent given or revoked to be uncertain and so the accused was not liable for rape. But the 2013 amendment clearly states that consent can only be given for "specific acts". Thus, if the plaintiff performed oral sex willingly does not mean that she agreed to penile penetration as well.

Furthermore, section 114A was added in the Evidence Act which states that sexual intercourse without the consent of the victim will be presumed ipso facto unless proved otherwise. This shifts the burden of proof on the accused. This limits the plaintiff's character assassination. However, this section is only available in cases that come under the ambit of clause (2) of Sec. 376. Another major change instated by the 2013 amendment was that section 146 of the Evidence Act was substituted to categorically specify that in rape prosecution, it is not permissible to give evidence or ask questions during the victim's cross-examination about her general immoral character or previous sexual experience to prove consent or quality of consent.

In many cases, women’s sexual consent has been broadly interpreted as simply the absence of refusal or resistance. However, the feminist approach critiques such interpretation as this means that even unconscious women can give consent. On the other hand, the formative approach proposes that a woman's implied or default state is not equivalent to her active and affirmatively granted consent. This contrasts with conservative patriarchal beliefs that assume that if a woman is not physically resisting, she is consenting or at least the man is justified to proceed on that assumption.

Conclusion and Suggestions
Although the jurisprudence on rape laws has positively developed in recent times with the advent of the 2013 amendment manifesting as a positive step in protecting women's bodily integrity and sexual autonomy, the rape laws in India still leave much to be desired. For instance, the amendment fails to include marital rape as the presumption of consent in marriage violates a woman's bodily integrity. The act increased the age of consensual intercourse from 16 years to 18 years in sheer discard of maturity development in children nowadays.

This can unnecessarily cause harassment to adolescents in the most vulnerable age group (16-18 years) who indulge in consensual sexual experimentations. The act also did not specify any steps or procedures that police should follow to prevent the occurrence of crimes against women. Police must be diligent in reaching out to the victim promptly as part of the preventive action. Instead of being restricted to women, the crime of rape must be broadened to include every individual's bodily autonomy by making the terminology gender-neutral.

Therefore, in conclusion, it can be said that we are still far behind the established autonomy principle and international standards.

End-Notes:

1. R. Kumar, “The History of Doing: An Account of Women's Rights and Feminism in India”, New Delhi: Zubaan; 1993. p. 128
2. Court Sentences 4 Men to Death in New Delhi Gang Rape Case. Cable News Network (CNN); Available at www.cnn.com/2013/09/13/world/asia/india-gang-rape-sentence/
3. Conviction Rate fell from 41% to 24% in 12 years – The Times of India. The Times of India. Available at http://timesofindia.indiatimes.com/city/delhi/Conviction-rate-fell-from-41-to-24-in-12 years/articleshow/22473030.cms
4. Everyone Blames Me: barriers to justice and support services for sexual assault survivors in India, November 8, 2017, available at https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors.
5. T. Takala, Concepts of "person" and "liberty," and their implications to our fading notions of autonomy, Journal of medical ethics, 33(4), 225–228. https://doi.org/10.1136/jme.2006.016816
6. G. Binion, Human rights: A feminist perspective, Human Rights Quarterly, Vol. 17, No.3 (Aug. 1995) pp.509-526, available at https://www.jstor.org/stable/762391.
7. Rafiq v State (1981) AIR 559, 1981 SCR (1) 402
8. Madan Gopal Kakar v Nayal Dubey (1992) SCR (2) 921, 1991 SCC (3) 204
9. State of Uttar Pradesh v. Chhotey lal (2011) 2 SCC 550
10. Bodhisattwa Gautam vs. Subhra Chakraborty (1996) AIR 922, 1996 SCC (1) 490
11. Section 8, Criminal Law (Amendment) Act. 2013
12. Mohd. Farooqui v. Govt. of NCT of Delhi (2017) MANU/DE/2901/2017.