This article has been written by Raj Maitreya, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Rape laws have gone through many changes over the years. This article gives an overview of how rape laws evolved in the world and then how they specifically evolved in India. It also gives certain recommendations regarding the lacunae in the existing laws and provides possible solutions for the same.

A brief history of rape laws 

Rape, in the beginning, was never viewed as a crime against the victim rather it was viewed as a crime against property, and the property in question were women who were supposed to belong to their husbands or fathers. The word “rape” comes from the Latin word ‘repere’ which means to seize or take something which again did imply property. The husbands or fathers were given compensation for the crime. The code of Hammurabi, one of the earliest sets of laws known to man, has this documented according to it if you raped a virgin, compensation was paid to the father and the victim was married to a perpetrator. However, if the woman raped was married that made her an adulteress and she would be punished by death along with her rapist. 

The Hebrews had similar laws and they took the idea of an eye for an eye very seriously thus as punishment for rape the victim’s father was allowed to rape the wife of the rapist. However not all laws were bad the Celtic laws in pre-British England did recognise rape against women as a crime against the woman and even made a distinction between no consent, and being in a state where you are unable to give consent i.e. intoxication. 

These laws however were an exception and weren’t the norm in the earliest rape laws. It wasn’t until the 12th century that rape came to be viewed as a crime against the victim. The statutes of Westminster in the 13th century were one of the first such statutes where the crown was allowed to prosecute the rapists if the victim’s family refused to do so. This signalled a change because now rape for the first time was being seen as a crime against the state besides being against the victim’s family. It was in the early 18th century that rape came to be defined in similar ways to which it is defined today.

The evolution of rape laws in India 

Rape was defined by IPC in the 1860s for the first time. It was defined as the act of sex against a woman’s will or her consent it also included consent obtained by putting the victim or anyone she cares about in fear of death or hurt. The definition of rape remained unchanged for the next 100 years or so. 

Then after Mathura custodial rape case where the perpetrators were given a clean chit by the supreme court, the rape laws went through some major changes.  Custodial rape was added to the definition of rape this was regarding rapes committed by a police officer.  It led to the insertion of 114 A in the Indian evidence act of 1872. This new section presumed a lack of consent in specific situations if the victim said so and applied to custodial rapes. Section 228A was also added to the IPC this made it punishable to disclose the identity of victims of certain crimes and rape was one of them, it also prohibited character assassination of victims. Character assassination even though prohibited did not include cross-examination. This meant that when a victim took the stand lawyers made it a point to humiliate her by asking about her sexual history and discredit her evidence by showing the judges that the victim was ‘immoral’. 

This violated the sexual integrity of the victim and traumatized her even further. The Supreme court taking note of this after a PIL asked the law commission to recommend changes to our rape laws. This led to an amendment of section 155(4) of the Indian Evidence Act. After the amendment cross-examination of victims was prohibited.

POCSO Act

From 2001-2011 the national crime bureau recorded a large rise in child rape cases before this the law regarding sexual offenses against minors was the statutory rape clause which criminalized sexual intercourse with a minor below 16 years regardless of consent. Since in a majority of cases with child abuse the perpetrator was usually someone close to the child a new Act POCSO (Protection of children from sexual offences) 2012 was made. In these cases, the police were responsible for looking after the child victim during the trial. This act was gender-neutral and recognized other forms of penetration besides the peno –vaginal penetration. Child pornography, abetment to child abuse, sexual harassment of children was all covered in this Act.

Nirbhaya gang rape case 

On December 16, 2012, a physiotherapy intern was brutally gang-raped in a moving bus, later she was thrown from the bus and eventually after a few days succumbed to her injuries. This was the nirbhaya gang rape case it shook the entire country and faced a lot of media coverage because of the barbaric nature of the crime. There was a lot of public outrage now the government wanted to change the laws to prevent a crime of this degree from ever happening again. 

This led to the 2013 criminal amendment act and the Juvenile Justice Act. The 2013 criminal amendment widened the definition of rape and increased the punishment of gang rape to 20 years to life from the earlier punishment of 10 years to life. New crimes like the offenses of stalking, voyeurism, and acid attacks were added the minimum punishment for rape which had remained unchanged from 1860 was increased from 7 to 10 years. It also provided for the death penalty in cases where the victim was killed or left in a vegetative state. Vegetative state was included for the first time in the definition after the landmark Aruna Shanbaug case.

Asifa Bano rape case

In January 2018 in the Kathua district of Jammu and Kashmir, an 8-year-old girl named Asifa Bano was raped and killed by a group of men. The main accused was a priest at a temple where the rape had taken place. This shocking case led to national protests and a demand for stricter laws. In the backdrop of Jammu and Kashmir where political changes were taking place, this case was heavily politicized on communal lines. This led to the 2018 criminal amendment act, this act mainly changed POCSO as the rape was against a child. The act made the death penalty possible for the offense of the rape of a minor under 12 years old the minimum punishment is a 20 years jail term. Another section was inserted in the IPC which dealt with the offense of rape against a minor under 16 years the punishment was 20 years to life imprisonment.

The problems in our rape laws

Stricter laws 

The public outrage over specific rape cases causes the government to mete out stricter laws to pacify the public. This is a pattern that is visible in the changes in our rape laws that have taken place. The fact is that rape is a very common crime in India and the cases that we hear about are hardly the tip of the iceberg. Data shows that 99 percent of sexual violence in India goes unreported. The perpetrators in a majority of rape cases are known by the victims. This makes reporting the already unreported crime even harder for the victims especially because of the possibility of the death penalty. 

Making laws stricter and including capital punishment incentivizes the rapist to murder the victim so that she can’t complain. Countries with very harsh punishments for rape such as Pakistan, Afghanistan, Bangladesh all have the death penalty as a punishment for rape this has far from deterring rape instead reduced the convictions in these countries. Since there isn’t a lesser sentence available the police and the justice system in these countries in these countries end up helping the rapists rather than the victims .

Legality of child marriage

The Supreme court in its judgment of Independent thought vs Union of India rightly read down exception 2  of article 375 and ruled that the act of sexual intercourse of a man with his wife who is between 15-18 years old will amount to rape because this exception was archaic and not in line with current laws meant to protect women. Yet an issue with such a situation is that a marriage between a minor girl of the age of 15 years with an adult is voidable at her choice but not completely void. 

This grants legitimacy to such child marriages which should be declared completely void. It is unrealistic to believe that an adult married to a child will not try to consummate his relationship given the regressive mindset in India regarding marriages this is to be expected. This will not be a crime unless it is reported and given the rate of unreported cases in India the probability that it will be reported is fairly low. Making all marriages of minors with an adult void will stop this exploitation of minor women.

Statutory rape 

Statutory Rape is defined in Section 375 of the Indian Penal Code, (amendment of 2013) which states that “any male, who does intercourse with any female who is below the age of 18, with or without her consent will be constituting a Statutory Rape. POCSO an act that was brought in 2012  for the prevention of sexual crimes of children with the correct intent and reason. These laws however have some drawbacks for one where the age of consent has been increased to 18 years which means any sexual activity with someone below 18 is a crime irrespective of consent. 

This is because minors are deemed to not have the knowledge of sex enough to give consent.  There is no distinction between sex between two consenting minors or an adult and a minor both have severe punishments. This ignores the reality of sexual activity among adolescents. The NFHS-4 (2015–16) records that 11% of girls had their first sexual intercourse before the age of 15, and 39% before the age of 18. These laws are used more often than not by the parents of the girls in cases where parents don’t approve of the relationship for reasons such as different faiths, caste difference, etc. 

In a minority of such cases unfortunately the boys involved are unfairly convicted under the statutory rape clause. Some states in the US have Romeo and Juliet laws where they penalize consenting minors only when the age gap is more than 3 years, the Madras high court in a recent judgment said in passing or as obiter dicta that sexual activity between minors above 16 years should not be considered criminal activity. Such changes in the law should be incorporated to make it suitable in the 21st century.

Marital rape

When a stranger does it, he doesn’t know me, I don’t know him. He’s not doing it to me as a person, personally. With your husband, it becomes personal. You say this man knows me. He knows my feelings. He knows me intimately and then to do this to me – it’s such a personal abuse

India unfortunately is one of the 36 countries where marital rape is still legal. It has been criminalized in over 100 countries. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape, the JS Verma committee set up after the Nirbhaya rape also recommended the same. Domestic violence and sexual abuse of women at homes reached an all-time high during the lockdown. However, still, there is no law to protect women from this inhuman crime.

Currently, the only recourse available to women against maritial rape is section 498-A or the domestic violence act however this only makes it a civil offense with a few civil remedies such as fines, protection, etc.

The arguments against marital rape are crystal clear:

i) It violates the right to live with dignity as given in Article 21.

ii) Does not pass the test of intelligible differentia as married women below 18 years of age are protected from marital rape and women above 18 years of age aren’t protected. 

iii) Violation of the right to privacy as held in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors . This includes the right to make sexual decisions and does no exclude married women above 18 years of age.

Even though our laws were inherited from the British, while England criminalized marital rape way back in 1991 India still has an exception in its penal code supporting this crime.

Conclusion 

India’s rape laws have come a long way from their inception in the Indian Penal Code in the 1860s. Many changes that have taken place in the laws have been progressive yet some changes which have been long overdue like criminalizing marital rape still have to be done.  Some laws as the POCSO despite the best intentions end up having some negative side effects. When you see the evolution of rape laws in India it is easy to notice a pattern there’s a big rape case with a lot of publicity that shocks the nation and the government to reduce public outrage brings in some changes in the existing laws. However, for every rape that is reported and becomes public, there are thousands of case which never get the same public attention. It is time to fight this evil aggressively and proactively. Let’s not wait for the next big case to make changes in our laws let’s do it now when we have the chance. 

References

• https://www.latestlaws.com/articles/comparative-analysis-of-position-of-law-on-marital-rape-in-india-usa-by-nishita-kapoor/
• https://www.researchgate.net/publication/339174976_India’s_Rape_Crisis_Redefining_India’s_Rape_Laws_Based_on_a_Constructive_and_Comparative_Analysis_of_the_Rape_Epidemic_in_India_and_the_United_States
• https://www.theatlantic.com/ideas/archive/2020/01/american-law-rape/605620/
• https://www.law.cornell.edu/uscode/text/10/920
• https://devgan.in/ipc/section/375/
• http://probono-india.in/blog-detail.php?id=178
• https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece 
• https://ualr.edu/socialchange/2018/04/15/reflection-history-sexual-assault-laws-united-states/
• https://www.theguardian.com/world/2019/dec/06/i-dont-see-anything-changing-despair-india-rape-crisis-grows
• https://www.pulj.org/the-roundtable/consensual-sex-between-minors-in-india-a-case-for-legalization