Punishment against rape in different jurisdictions

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This article is written by Aarzoo Guglani, a student at ILS Law College, Pune. This article briefly tries to take an overview of the situation regarding the crime of rape, by discussing various cases from past, statistics and laws in different countries. 

Introduction

“You save yourself or you remain unsaved.” this quote by Alice Sebold, a bestselling author and a member of the National Leadership Council for RAINN.org (Rape, Abuse & Incest National Network), explains a lot about the current justice system. Rape is one of the most heinous crimes of mankind, but are the punishment against rape, around the world, do justice to the nature of the act? This article will discuss various historical instances of rape cases, the prevalent statistics and punishment against rape in not only India but in other countries as well. 

Historical rape instances 

Sexual assault and rape can nearly be found in every document of history, be it in 1995, during World War II by Soviet soldiers admit the genocide in Rwanda or be it during the India Pakistan partition when around 75,000 to 100,000 women were kidnapped and raped. Sharon Block, professor of history at the University of California said: “(many) women are erased (from history)”, which clearly means that though many assaults in the past were protested, still many remain erased rather than not accounted for, at all. 

With the understanding of the fact that no list can comprehend the number of rape cases which raised questions and changed the history, but here are some to start with: 

  1. The rape of Recy Taylor, this case is counted under the cases which changed the history”. Recy Tylor, a 24-year-old black woman from Abbeville, Alabama, in 1944, while walking from the church was abducted and was gang-raped. Later, even though one of the six men confessed his crime, the two white juries refused to indict the accused. This instance in history is now remembered as a galvanizing moment for the civil rights movement. Rosa Park later was sent for the investigation of the case and a Committee was established for the Equal Justice for Mrs Recy Taylor. After six decades of the incident, in 2011 the Alabama State Legislature officially apologised to Tylor for its lack of precautions.
  2. The rape of Joan Little: Joan Little was a black prisoner in the Beaufort County jail, North California in 1974 during the Anti-slavery movement, in America. She was attacked and raped by the white jailer, Clarence Alligood. Joan in order to save her life, herself attacked the jailor with an ice pick, leading to his death and then broke free from the jail. She was eventually charged with murder. Angela Davis represented Joan and led the national outcry to bring justice to Joan Little. With Angela’s efforts and the public support, Joan was finally acquitted from all the charges. This incidence extended the anti-slavery movement into the famous anti-rape movement of the 1970s.
  3. The Kushan and Poshpora rape case: Kushan and Poshpora are the twin villages in Kupwara which is the border district of Kashmir. On 23rd February 1991, the two villages witnessed the most disgraceful event, 40-100 women of the twin villages were raped in quiet hamlets by the armed personnel of the 4th Rajputana Rifles. Though the State Human Rights Commission found all the charges to be true, the three courts in which the case was filed didn’t give any judgment even after 29 years of the incident. The file for this case has just been transferred from one court to another but still, there’s no justice for those 40 women.
  4. Mount Rennie Rape Case: This was the first and only case of gang-rape in Sydney during the 1880s that led to a full conviction of all the accused in the crime. On 9th September 1886, while walking to the state registry office, Mary Jane Hicks, a 16-year-old girl, was offered a lift by a cab driver, who instead took her to Mount Rennie (now Moore Park) and attempted to molest her in the cab, when she screamed for help two young men approached and pretended as if they are rescuing Mary, but instead took her to another isolated place where along with several other men (around 10) they gang-raped her, she was falling in and out of consciousness. This attack is often called the “Mount Rennie Outrage” or “Waterloo Push”. This case was a significant point in New South Wales history, coming after a history of failure of the gang-rape trials in that period. 

Apart from these heinous historical rape cases, many following cases have shocked people to their most. Nirbhaya and Kathua gang-rape cases in India created a new wave of protests for justice in rape cases. The present justice system around the world provides punishments of different levels, but the fact of punishment being for deterrence, are the present punishments successful in creating a sense of fear? Therefore it’s important first to know the different punishments given in different jurisdictions. 

Statistics and studies of rape instances all over the world

While studying the rape cases around the globe, we see that only name changes, of the place, of the victim and of the perpetrator(s) but the brutality of the act doesn’t change. 

Where India disgracefully tops the chart of “Most dangerous places for women”, Africa reports the highest number of rape cases in a year with a rate of 132.40% per 100,000 people that is 66,196 cases. There are different studies ranging from the number of cases reported and unreported to the conviction rates of the accused. 

  1. Rate of unreported cases: Worldwide there’s a rate of 91.6% of cases being unreported. A comparative study between India and the USA shows that only 10 per cent of the total rape cases in India are reported whereas in the USA around 26 to 46 per cent of the cases are reported. Reasons like fear of retaliation, offender intended to harm or family pressure and lack of trust in the legal system; are associated with this rate.
  2. Perpetrator an acquaintance: According to a study done by the RAINN, it was observed that 8 out of 10 rapes are committed by someone known to the victim. And only 19.5% of the total cases are committed by a stranger. And the major of 33% of the rapes are committed by a current or former spouse or partner.
  3. Conviction Rate of the perpetrators: In the USA only 230 out of 1000 cases are reported, where only 46 leads to arrest, only 9 will be referred to the prosecution and only 4.6 accused will be convicted. In the EU the conviction rate scales from 2 to 46 per cent, whereas India shows only 27% conviction rate in rape cases. 
  4. No. of cases every 100,000 people: Top 10 countries 

Country

Rate 

Incidents

Population 2020

South Africa

132.4

66,196

59,308,690

Botswana

92.90

1,865

2,351,627

Lesotho

82.70

1,777

2,142,249

Swaziland

77.50

849

1,160,164

Bermuda

67.30

43

62,278

Sweden

63.50

5,960

10,099,265

Suriname

45.20

223

586,632

Costa Rica

36.70

1,685

5,094,118

Nicaragua

31.60

1,829

6,624,554

Grenada

30.60

32

112,523

 Punishment against rape in different jurisdictions

India

A lot of changes in the legislation pertaining to rape laws have taken place in India after the Nirbhaya case. From extending the definition from “penetration by penis” to “penetration by a penis, or any object or any part of the body to any extent” into the vagina, mouth, urethra or anus of a woman; to specifying the death penalty in most extreme cases. In 2013, after the Anti-rape Bill (The Criminal Law Amendment Bill, 2013) was passed, Section 376A of Indian Penal Code (IPC),1860 was revised and mandated minimum punishment in certain cases. If the sexual assault inflicts an injury which causes death or causes the victim to be in a persistent vegetative state, then the convicted rapist must be sentenced to rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty.” In the case of “gang rape”, the same mandatory sentencing is now required by law. The convict is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and as per Section 357 B in the Code of Criminal Procedure, 1973. Death penalty for the most extreme rape cases is specified. 

United Kingdom (UK)

In the UK, rape is penalised under Chapter 19 of The Crown Prosecution Service, any man guilty of rape in the UK is giving life imprisonment or any shorter term which is decided by the judge. A judge decides the sentence for the convict, the prosecution which is the lawyer of the victim, does not have powers to ask for a particular sentence. But if they are not satisfied with the sentence given, an appeal can be made within 28 days through the Attorney-general. The Judiciary of the UK strongly believes that male rapes are as serious as those between a man and a woman, all types of rapes are equally serious. 

United States of America

In many states of America, the degree of punishment is in proportion with the degree of the crime (first degree, second degree). For example, in Washington rape is penalised under Chapter 9A.44 Revised Code of Washington (RWC). It depends on the vulnerability of the victim, the nature of the force used, whether the rape caused serious bodily injuries or death. Sentences differ from one year to life imprisonment (depending upon specified laws of different states, while in some states the sentence is given on discretion of the judge). Apart from this, compulsory treatment is given to sex predators inside or outside the prison or as a condition of probation. 

France

In France, rape is penalised under Article 222-23 of the Criminal Code of France, it ensures a maximum of fifteen years’ of criminal imprisonment, a maximum of twenty years in aggravated cases where the victim is below the age of 15, also a maximum of thirty years’of criminal imprisonment in the cases where the rape has caused the death of the victim, and a maximum of life imprisonment when the rape is followed by acts of brutality or torture. 

China

Article 139 of the Criminal Law of the People’s Republic of China, subscribe punishments for rape in China. The punishment for rape in China is death. Mostly execution of the accused is done without any trial. Castration which is the method of removal of the testicles of the male accused. There are instances in China where many convicted rapists who were executed were found innocent later. 

North Korea

Just like China, in North Korea the penalty for rape is death. The dictatorship orders a firing squad to open fire on the accused. This is often done publicly. 

Switzerland

Switzerland is one of the firsts countries to recognize and marital rape in 1992, and in 2004 it was declared to be prosecutable ex-officio that is even if the wife doesn’t complain the person can be prosecuted. Apart from this any person if found guilty of committing rape shall be sentenced to one to ten years under Article 190 of the Swiss Criminal Code, 1937. Recently in 2018, the Swiss legislature has tried to strengthen rape law in their country. 

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Australia

Sentences for sexual assault can range from a good-behaviour bond or a suspended sentence to a full-time jail sentence. The maximum jail sentence for sexual assault in New South Wales Consolidated Acts (NSW) is 14 years. The maximum penalty for aggravated sexual assault is life.

Laws for the punishment against rape in different territories represent different strategies to curb this crime, for example in countries like the USA where reformation is preferred over deterrence, the punishment is mainly of imprisonment is inclusive of therapy of the convict for their mental reformation. But in countries such as North Korea and China, deterrence that is fear against the crime is their top priority, and thus the punishment for rape is nothing but death. 

Conclusion

With above-discussed cases and penalties across the globe, explains that nowhere the societal conditions are successful in keeping its citizens safe from this heinous crime of rape. The laws of different countries all around the world have a different definition of “rape” and this tells us that in how many ways this crime can take place. In India every hour there are 3 cases of rape while in the USA the no. is 26 in an hour, the mere study of statistics is enough to realize the situation worldwide. These statistics only show the count of victims, but what is most worrisome about the situation is that the victim, in most of the cases, is unable to live a normal life. Their pain cannot be measured, their sorrows cannot be counted. Therefore, it’s important for us as a society to help the victims, which is necessary for them to lead a peaceful and fearless life ahead. 


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