Rape:

Rape is a type of sexual assault which usually involves sexual intercourse or other type of sexual penetration, committed by perpetrator against consent of victim. Until 2012, it was considered as a crime only committed by males against females. But in 2012 the definition of rape was changed and now it recognizes victim of every gender. The main ingredient of rape is consent: There must be lack of consent.

History:
In ancient time, Rape was considered as a weapon of war. Women were raped by soldiers during war in a country. Women belonging to ethnic groups were impregnated through rape by enemy soldiers and were sometimes raped HIV-infected men. In 1993, military sexual slavery and systematic rape were declared crimes against women by UN.

Rape in India:

In India, Rape is undoubtedly a heinous crime and an issue of great concern. According to National Crime Records Bureau 2013 report, Rape is fourth most common crime against women in India. Madhya Pradesh has highest raw number of rape reports among Indian states, while Jodhpur has highest per capita rape report which followed by Delhi.

Rape is defined in section 375 of Indian Penal Code as-

A man is said to commit rape if he:-

(a) Penetrates his penis, to an extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) Inserts to any extent, any object or part of the body, not being penis, into vagina, the urethra or anus of a woman or makes her to do so with him or any other person, or
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) Applies his mouth to vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of following seven descriptions:-

Firstly- Against her will
Secondly- Without her consent,
Thirdly- With her consent, when her consent has been obtained by putting her on 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 purpose of this section, vagina shall also include labia majora.

Explanation2- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act,

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

Exception1- A medical procedure or intervention shall not constitute rape;
Exception2-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 2013, after Delhi Gang Rape case many laws have been amended, age of consent is also increased from 16 to 18. Even the definition of rape is expanded, now according to this section penetration means penetration to any extent. A fast-track court system is also implemented by government for rape cases.

Punishment for Rape in India:

Punishment for rape is given in section 376 of Indian Penal Code. Except in cases, provided in sub section 2 of the same section, punishment will be rigorous imprisonment which is not less than 7years, which may extend to life imprisonment, and fine.

In April, 2018, it allows Capital Punishment for anyone convicted of raping children under the age of 12.

Punishment for Rape across the Globe:

1. Egypt- The rapist is hanged till death.
2. Israel- Here, Rape convict gets 4 years minimum and 16 years maximum imprisonment.
3. United Arab Emirates- Here also punishment for Rape is Death.
4. China- In China, Rape is considered as a brutal crime and Death Penalty is awarded to Rapist.
5. Afghanistan- The rapist is hanged to Death or shot dead by a bullet in the head. The punishment is given within 4 days of crime.
6. France- Rapist is given 10 years of imprisonment, but if victim dies, punishment is increased to 30 years.
7. USA- Here, maximum punishment granted in 30 years in jail.
8. Greece- Rapist is punished with incarceration.
9. Iran- Death Penalty is granted to rapist.
10. North Korea- The offender is either shot in his head or vital organs by a firing squad.

Capital Punishment:

When we listen the word Capital Punishment, the question that comes in our mind is what is Capital Punishment and why it is needed?
Capital Punishment, also known as Death Penalty, is a legal process where a person is put to death by the state as a punishment of crime. It is only applied in “rarest of rare” cases i.e. where crime is of such nature that it can’t be vitiated without penalty of death. It is different from other punishments because of its irreversible nature. A man once executed for a crime can never be brought back to life. It is currently practiced in 58 countries.
In India, validity of Capital Punishment has been questioned several times.

There is a conflict among judges regarding practice of Death Penalty, as it is violative of reformative theory, which is a base of punishments given in India. According to some judges, it violates Article 19, 20, 21 of Constitution of India. But it is valid as in offences like- Waging or attempt of waging war against government of India, Murder, Dacoity with Murder, Abetment of Mutant, Criminal conspiracy, it is important to give death as a penalty.

Capital Punishment for Rape:
Punishment in Muslim- dominated countries is instant death. According to a report, the percentage of rape crimes in these countries is low as compare to countries where punishment other than death is granted to rapists.
In India, Capital Punishment is a debatory issue in cases of rape. In Laxman Naik v. State of Orissa, 7 years old girl was sexually assaulted by her uncle, according to Court, the degree of injuries of victim were enough to prove the brutality with which rape and murder were committed and death penalty was awarded to accused.

Nirbhaya Gang Rape case, also known as Delhi Gang Rape case is the famous case of Capital Punishment. The outpouring anger and grief of people following the rape and murder gave rise to hopes for change in India. In this case, Supreme Court said that brutality with which the offence is committed can’t be ignored and there is no chance of reformation, so accused should be hanged to death. Government of India passed an ordinance which provides death penalty in cases of rape that lead to death or leaves victim in “persistent vegetative state”. It is still a debatory issue that Capital Punishment should be granted or not to accused in case of rape.

My Opinion:
However, In April, 2018, Capital Punishment is allowed for anyone convicted of raping children under the age of 12. But what about rape of a woman above 12 years, Rape is Rape. There is no difference between committing Rape of a girl below 12 years or above 12 years, then why such a huge difference is there in the punishment. Why death is penalty only for rapist of children below12 years of age. This new law may protect children below 12 years, because rapist will think several times before raping a child below 12, as there will be fear of death among such people, but what about girls who are above 12. Committing Rape, not only injures a girl physically, but also injures her mentally. It spoils the whole life of a girl.

While committing this heinous crime, accused is in his sense. There is always presence of mental element to make physical relationship with a girl even without her consent. Granting imprisonment for several years can’t change the mindset of the accused person.

According to me, a rapist is not safe for the society and hence should be given death penalty i.e. Capital Punishment, so that there could be an example in front of society and the cases of rape can be reduced. In rape cases, age of the victim should be considered immaterial for granting death penalty to the rapist.

Even the age of rapist should not be considered for granting death penalty, as we see in Nirbhaya Gang Rape case, the fourth rapist who was a minor, was not treated like other rapists of the same case even when it was proved that he was more brutal towards victim and his act caused death of the victim. Just because he was minor he was not given death penalty. According to me even he should be hanged till Death.

Written By: Meghna - BBA LLB, Student Of Banasthali Vidyapith

Email: [email protected]