This article is written by Varnika Gupta.

“I just want to sleep. A coma would be nice. Or amnesia. Anything, just to get rid of this, these thoughts, whispers in my mind. Did he rape my head, too?” ― Laurie Halse Anderson, “Speak”

Introduction

Since time immemorial, India, a nation where Goddesses like Durga and Kali are placed on the highest pedestal and revered inordinately, proves to be a dystopian world for women. The experts’ opinion says that the deep-rooted patriarchy is one of the major causes of assigning “Second class” or “the weaker sex” status to women. The subjugation of women is usual. According to Thomas Reuters Foundation 2018 report titled “The World’s Most Dangerous Countries for Women, 2018”, India has been declared the worst country for women safety after securing the fourth position in the same survey held seven years ago. It has topped the rankings in terms of human trafficking, including sex slavery and domestic servitude customary practices such as forced marriage, stoning, and female infanticide. According to NCRB 2018 report, the Annual Crime Report of Ministry of Home Affairs, one woman reports a rape every fifteen minutes on an average. Moreover, it stated that 33,356 rape cases were reported across India in 2018. Out of these, 31,320 were committed by someone known to the victim which amounts to 93.9% of the total cases.

Mental health conditions are real health problems. People with severe mental health conditions die prematurely as much as two decades early due to preventable physical conditions. According to the World Health Organization, ‘Mental Health’ is defined as a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.

To address the issue of mental morbidity, an aspirational law was enacted titled “Mental Healthcare Act, 2017” (hereinafter referred to as MHCA 2017. According to Section 2(s) of MHCA 2017;  “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub normality of intelligence. However, Section 3(1) MHCA,2017 states that Mental Illness shall be determined in accordance with such nationally or internationally accepted medical standards.

The impact of sexual violence can be utterly devastating, which is not only limited to physical trauma but extends to emotional distress as well. The emotional pain resulting from the assault is so excruciating that it leaves the victim in shackles, making her feel anxious, terrified, ashamed and even tormented by flashbacks, vexatious memories, and nightmares.

Rape survivors bear psychological scars and continuously deal with mental health issues that include depression, anxiety, post-traumatic stress disorders (also popularly known as PTSD), substance abuse disorder, alcoholism, drug addiction, chronic fatigue, social withdrawal, sleeping disorder, anorexia, bulimia, and borderline personality disorders.

The trauma caused by such sexual assaults is severe and often followed by feelings of helplessness, guilt, self-blame. In many cases, victims are so terrified with the happening of the incident that they start avoiding mirrors. The most painful reality of our society is that the victim is frowned upon and disregarded and often blamed. The structured system always fails in providing mental solace and peace to the survivors.

Rape

Section 375 of Indian Penal Code, 1860 (hereinafter referred to as IPC) provides for rape. According to the section, a man is said to commit “rape” if he has sexual intercourse with a woman under specified circumstances falling under any of the six following descriptions:
First- Against her will.
Secondly- Without her consent.
Thirdly- 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.
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 sixteen years of age.

Unlike any other offence, this offence starts with the expression “Male”. This is an offence which is typically male dominated and the offender necessarily has to be a male. However, in a case where a woman has jointly helped a man in committing rape, she will be guilty of “abetment of rape” [ Priya Patel v. State of M.P.] According to Section 10 of IPC, the word “man” denotes a male human being of any age. However, Section 82 and Section 83 of IPC offer qualified immunity to boys below the age of twelve years.

Before the ‘The Criminal Law (Amendment) Act, 2013’, to constitute the offence of rape, sexual intercourse by a man with a woman was necessary. On careful perusal of Explanation to Section 375, mere slightest or partial penetration of the male organ with the labia majora or the Vulva is sufficient to constitute sexual intercourse. Penetration is the sine qua non of the offence of rape. However, 2013 Amendment widened the definition of rape. Unlike its earlier version, ‘rape’ is not confined merely to a penile-vaginal penetration in the specified circumstances but is also extended to (i) penile-urethra, penile-oral, or penile-anal penetration; (ii)object-vaginal, object-urethra, or object-anal insertion; (iii) insertion of a part of body, other than the penis, in the vagina, the urethra or anus of a woman.; (iv) manipulation of any part of body of a woman for causing vaginal, urethral or anal penetration, and (v) application by a man of his mouth to the vagina, urethra or anus of a woman or making her to do so with him or any other person. Nevertheless, the offence, in its entire essence, means an idea of coercive non-consensual sexual intercourse between a man and a woman in a set of specified circumstances.

A man is charged with the offence of rape if he has sexual intercourse with a woman without her consent. Want of consent is the essence of the crime. Consent must be given freely and it must not be obtained by fraud or by mistake or under misconception of a fact. After the 2013 amendment and due insertion of Section 114 A, IPC, the alleged act of sexual intercourse was against or without the consent of the prosecutrix will be presumed ipso facto, unless the contrary is proved. In other words, the burden of proof shifts to the accused to prove his innocence. However, Section 114 A is available to cases that fall under Section 376(2), IPC and not to cases that fall under Section 376(1) IPC.

Section 376, IPC provides for the punishment for rape. In accordance with Section 376(1), whoever commits the offence of rape shall be punishable with rigorous imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

However, a sexual intercourse or sexual acts by a man with his own wife does not constitute an offence of Rape provided that the wife is above 15 years of age.

Classification of the offence 

The offence is cognizable and non-bailable and triable by Court of Session. According to Section 2(c) of The Code of Criminal Procedure, 1973; “Cognizable offence” means an offence for which a police officer may arrest without warrant in accordance with the First Schedule or under any other law for the time being in force. Although there is no explicit definition of a “Non bailable” offence, Section 2(a) of The Code of Criminal Procedure, 1973 says that any other offence which is not a bailable offence is a “Non Bailable” offence.

Period of Limitation

There is no statute of limitation in criminal cases. Since rape is a criminal offence, it is not barred by period of limitation. However, it becomes difficult to prove that the offence of rape has been committed if enough time elapses as the crucial evidence can be easily tampered.

Burden of Proof

The following are the essentials that need to be proved while establishing the offence of rape:
(a) The accused man had sexual intercourse with the woman in question;
(b) There was penetration;
(c) The said sexual intercourse was under circumstances falling under any of the seven descriptions as specified in Section 375; and
(d) The woman was not the wife of the accused and in case where the woman is the wife she is below the age of 15 years
In a case of rape, the onus or burden of proof is always on the prosecution to prove affirmatively each ingredient of the offence and onus never shifts. The burden of proof is on the prosecution to show lack of consent. A conviction for rape depends almost entirely on the evidence of the prosecutrix.

Tribulations Faced by the Survivor

The belief that “It is better to die than be raped” is prevalent in our society and rape victims are regarded as living corpses. In Tulsidas Khanolkar v. State of Goa, Justice Arijit Pasayat held that “While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female.” The offence is not only limited to physical injuries but leads to aggravating phobias as well.

In Shakespeare’s tragedy play “Titus Andronicus”, Lavinia is raped and has her tongue cut out and so her hands. Telling has a heavy price and so does not telling. One study of reported rapes in Delhi found that forty percent of the rape complaints filed were actually by parents when they found out that their daughters were involved in consensual sex and they moved the court to teach a lesson to their daughters and their lovers. This is just one of the various instances where rape is used as a tool for something else which does nothing but affects the credibility of the actual cases and increases the complexity of this overwhelming issue.

Seeking justice proves to be an excruciating experience for the survivors. In the report, ““Everyone Blames Me” Barriers to Justice and Support Services for Sexual Assault Survivors in India”, it was found that women and girls who are victims of sexual assault face grave humiliation in the police stations and hospitals. In most of the cases, police personnel are unwilling to register their complaints, victims and witnesses receive little protection, and medical professionals still impel degrading “two-finger” tests. These impediments are followed by a series of embarrassment and mortification faced during the criminal trials at the hands of defence attorneys.

They assassinate the character and question the intentions of the prosecutrix reprehensibly that not only triggers the fright in the victim but also makes them question their existence. Even in the 21st century, courts follow a  set of preconceived notions to define an ideal rape victim. In a recent ruling by the Karnataka High Court in the matter of Rakesh B v. State of Karnataka while granting the anticipatory bail to the accused , the Court held  “……the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” This clearly shows the stereotypical understanding of the issue by the judge. The credibility of the famed locution, “Stick and stones may break my bones but words will never hurt me” is questionable, in my opinion, words are equally competent to pierce and shake the soul of a person and create a room for aggravated phobias and self-doubt.

For a prosecutrix to be credible and trustworthy, she should be a chaste woman and not sexually active. This is the result of the continuous conditioning of the people of our misogynistic society and lack of sex education that for a woman sex is not something to be enjoyed. There are still so many deep -rooted taboos relating to female sexuality. 

What recourse can be provided?

Justice for a rape survivor is still a far-fetched dream because of the tribulations faced by the survivor. In 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines explicitly rejected the grave “two-finger test” as well as the use of medical findings for further degradation of the character of the victim to examine whether the prosecutrix was habituated to sex. However, because healthcare is a state matter under India’s federal structure, state governments are not legally bound to adopt the 2014 guidelines. Human Rights Watch found out that medical officials do not follow the guidelines even in the states where the guidelines are adopted. A few plausible suggestions in this area could be:

Firstly, there should be a proper check on whether the guidelines are being followed or not. The medical examination should be free of cost as it is not only therapeutic for the victim but also forms a piece of solid evidence for the trial.
Secondly, it happens often the victim is ostracised by her close ones and struggles through guilt, self-deprecation, and self -doubt. The rape survivors (warriors) should be assisted by psychologists for therapies. A National Crime Records Bureau (NCRB) report shows that the overall rate of suicide deaths in 2010 rose to 11.4 per 100,000 population; an increase of 5.9% in the number of suicides, from the previous year. A study shows that most of the suicides are committed by victims of sexual violence and assault. 
Thirdly, the victims from poor and marginalized communities shall be provided with effective legal assistance. Most of the cases go unreported due to the callousness of the police officers and such police officers shall be rigorously punished.
Fourthly, there should be periodic check on the functioning of fast track courts, the purpose of which is to ensure speedy redressal of the rape cases but they lack effect.
Fifthly, in most of the cases, the family members, friends and victims face retaliation for filing and reporting the offence of rape. A proper witness protection law should be enacted for the protection of the witnesses. 
Lastly but most importantly, ‘sex education’ should be prioritised in schools.  It plays an important role in shaping the psyche of a person. 

Conclusion

Sohaila Abdulali, a rape warrior herself, in her book, “What we talk about when we talk about rape”, effectively captures the trauma and agony faced by the rape victims. This well-articulated book is a boon to society to make them understand what a woman goes through while struggling with the inordinate trauma offered by the offence of rape.
Despite cases like the brutal Nirbhaya rape case (Delhi), Kathuaa rape case (Jammu and Kashmir), Unnao rape case (Uttar Pradesh) etcetera making headlines in our country, the decline in rape cases has been an insignificant one. Sadly, even in the times of pandemic, the female patients are not safe even in the hospitals under the care of the professionals as numerous rape cases have been reported against these caregivers. There still exist a number of impediments and challenges on the path of building a safe place for the women of our country. 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: