This article is written by Gaurav Purohit. 

Abstract 

“Forgetting is Difficult. Remembering is Worse”. Women don’t need your so-called Empowerment but they need Safety and Respect in Society. Any Individual who is committing or has committed Rape should not be considered as a Child as his act shows his Actual Mentality or Maturity so he should be punished because he has committed a Heinous Crime in Nature. Rapes are generally divided into 2 Categories, one is Incest Rape (Rape Committed by the blood relative) and the other one is rape committed by someone other than a blood relative. Incest Rape is Slightly Increased in India. Age group 18 is the more vulnerable group as compared to other age groups in some studies. More than 70% of States have above the National Average level of Rape Cases.

This Anonymously written article details the anger of someone who experienced Sexual Assault and feels the “Strong Survivor” narrative places the impetus on those who are raped to deal with it and move on rather than on the rapist who shouldn’t have been raped in the very first place. This article drives home the idea that the discourse about rape needs to envision a world in which the accountability process for rapists is more important than congratulating people who are raped for dealing with something they never should have had to deal with at all. 

Introduction

Rape has been characterized under Section 375 of the IPC (Indian Penal Code, 1860), which expresses that Rape is said to have been committed when a man has sexual intercourse with a woman: 

• Against the will of a woman ; 
• Without her express assent or consent; 
• By acquiring her consent forcibly, or taking steps to threaten to kill  or hurt  her or somebody she cares about; 
• By causing her to believe  that the man has been legitimately married to her; 
• By getting her consent during unsoundness of her mind, when she was intoxicated, or by giving whatever other substances that may influence her decision-making ability; 
• With or without her consent if she is under 16 years of age, and 14 years of age if the place of offence is Manipur. 

This provision likewise expresses that simple penetration is adequate to establish sexual intercourse, which can be treated as Rape. 

In the case of Sakshi v. Union Of India, the Supreme Court shed light on the meaning of Rape and held that Only Sexual Intercourse, i.e, penial and vaginal entrance will be considered as Rape inside the domain of Section 375 of the IPC’. 

The thinking of the court behind this decision was that there can be numerous types of sexual maltreatment or sexual abuse and every one of them are awful and horrific, nonetheless, not every sexual offence can be considered as Rape. Thus, Penetration is essential to constitute the offence of Rape. 

In the case of Smt. Sudesh Jhaku v. K.C.J. and Ors, the Supreme Court held that insertion of foreign objects, for example, a bottle into a female’s vagina may cause trauma and long term mental harm to the person in question, nonetheless, such act would not fall under the meaning of Rape under Section 375 of Indian Penal Code 1860. 

It was the perspective of the court that, insertion of foreign objects will be punishable under Section 354 of the IPC, which expresses that an assault or utilization of criminal force on a lady to outrage her modesty will be punished with imprisonment up to 2 years. 

Yet, the Court has restricted the meaning of Rape to penial-vaginal penetration without consent. While the judgment was passed the court neglected to take homosexual rape, and anal sex, or some other types of penetration into consideration. 

Rape is perhaps the most heinous crime an individual can commit. It isn’t only a heinous crime however a disgrace to humankind as an animal category. It is a rape that typically includes sex with an individual without their assent or consent.

Other provisions related to rape 

Section 376A provides punishment in the event of death for the persevering vegetative condition of victims. The punishment for such conditions is 20 years imprisonment which may reach out to imprisonment for life. 

Section 376B provides sex by husband on wife during partition. The punishment for the same will not be under two years of imprisonment which may reach out to seven years and fine. 

Section 376C provides the punishment for sex by people in power which is imprisonment for at least 6 years which may stretch out to 10 years and a fine. 

376D states when there has been any rape, punishment for the same will be at least or 20 years of detainment which may stretch out to life detainment and fine. 

376E IPC refers to punishment for the habitual perpetrators which is detainment for life or death. 

Section 228A[2] of the Indian Penal Code expresses that the name of the assault victim can’t be revealed and if anybody does that he will be punished for a term that may stretch out to two years or fine or both. 

Other related provisions of the Code of Criminal Procedure expresses the provisions for clinical assessment of the rape victim and compulsory camera trial for all the rape victims, and so forth

Marital rape 

Marital Rape alludes to sex with one’s life partner without their consent or assent. Nonetheless, it is an exemption in Section 375, IPC. The provision plainly expresses that “sex by a man on his wife even without her assent or consent won’t result in offence of Rape “. 

Marital Rape is a major issue in India, and a great many people accept something like this doesn’t exist. The wife is considered to have offered to agree to sex each time her husband requires or needs, which isn’t simply degrading to ladies yet a sinister law. 

An overview directed by an NGO – RTI Foundation, showed that each 1 of every 3 married ladies in India is exposed to marital rape, which carries the number to about 83%. The measurements are high, and the offence is appalling, in any case, the law stays as before. 

The previously mentioned NGO had filed a petition in the High Court of Delhi, looking for an amendment of the same. In the issue of RTI Foundation v. Union of India, the court vide its previous order saw that procuring a women’s consent through power, or by some other methods amount to cruelty if not rape. Some other methods could incorporate cutting monetary ties with her, not giving expenses to kids.  The petition is still pending before the   High Court and a realistic methodology is normal from the court. Many created nations, for example, the U.K and the USA have effectively condemned Marital Rape. It is required of our Courts to shield the equality of ladies by taking proper steps.

It is easy to expect that Marital Rape has not been criminalized because the statute decriminalizing it was framed years ago when the general public in India was unique and the framers of the law utilized the best of their judgment while drafting it according to the current necessities of the general public. 

The law was harsh and still, after all, that it is, in any case, some prominent law specialists are agreeable to leaving the provision un-touched.

In Independent Thought v. Union of India, the Supreme Court adopted an extremely realistic strategy that marriage is not,  a social contract, however, an individual contract, and not in any event, criminalizing marriage itself can destroy the foundation of marriage. If laws like Judicial Separation and Divorce couldn’t destroy marriage, it is impossible that criminalizing marital rape will. Even though marital rape is as yet not a crime, we can expect the laws to change soon.

Homosexual rape  

Section 377 of the IPC used to condemn even consensual sex among individuals having a place with similar sex as being ‘unnatural’. A ray of sunlight was brought upon by the Supreme Court in the case of Navtej Singh Johar v. Union of India, wherein consensual homosexual sex was decriminalized. 

This is only a child step towards accomplishing fairness and equality among our general public. In any case, non-consensual homosexual intercourse won’t amount to rape, as there are no laws concerning it. Any forceful carnal intercourse will only be conceived as a sexual offense and not rape.

Punishment for rape 

Before the Nirbhaya Case, Indian Statutes thought about just penile-vaginal intercourse under the meaning of Rape, and coercive penetration of any foreign item to vagina, mouth, or anal didn’t fall under this ambit. Due to the Silence of law, many accused people strolled free even in the wake of having carried out such heinous crimes. 

The definition was extended after this case to incorporate the powerful inclusion of foreign objects inside the definition of rape. 

The Punishment for Rape has been given under Section 376 of the IPC. As indicated by this section, the punishment for rape will be punishment for a term not less than 7 years, which may stretch out up to life imprisonment – relying upon current facts and conditions of the case. 

In more extreme circumstances, the punishment will be thorough imprisonment for in any event 10 years, which may stretch out to life imprisonment. The convict may likewise be at risk to pay a fine, alongside imprisonment. 

In circumstances like Nirbhaya Rape Case, wherein murder is committed after a rape, and the case is so cruel in nature that it qualifies as rarest of rare, a capital punishment i.e. death sentence is given.

Can a man be raped by a woman 

The meaning of Rape in IPC is extremely tight and has made it evident that solitary powerful vaginal penetration by a man will amount to Rape  Along these lines, according to our laws, men can never get raped and ladies can never be guilty of Rape. 

The solitary provision that can shield men from sexual offences is Section 377 of the IPC, wherein the wrongdoer either a man or a lady can be held liable for constrained carnal intercourse. In any case, constrained intercourse with a man can not amount to an assault. 

The inconsistent treatment by our resolutions dependent on sex is mostly because of our general public, where men confronting sexual maltreatments are liable to ridicule. With various myths streaming around, for example, ‘men are not helpless’, ‘men consistently need sex’.etc, it is improbable that our laws will see a change to help soon. 

Gender doesn’t make any difference if there should be an occurrence of a child, regardless of whether male or female – all kids are shielded from sexual offences under the POCSO Act.

Reasons for high sexual violence cases in India 

• Less number of female police can be one reason for the sexual violence issue in India. When a lady is being raped she is bound to report her case to a female cop. Generally discussing which New Delhi has quite recently 7% of female cops. Genuinely talking 161  jurisdiction police headquarters in Delhi have just a single female station house official. 
• Accusing of Indecent Clothing The Indian culture some way or another expects that the victims feeling of clothing have acquired them that state. This has been proved in the overview of judges in India where 68% of the respondents consented to a similar point. Cruel yet true. 
• Tolerating Domestic Violence – Indian culture views domestic violence to be something deserving. UNICEF, in one of its reports, tracked down that 57% of Indian young men and 53% of young girls believe that the beating of a wife is justified. 
• No Public Safety Women who drink, smoke, or go late-evening clubbing are viewed as corrupt in the majority of the Indian culture and are the justification for being raped. If the actual public thinks and approves of this sort of thinking behind Rape then Women in India are unquestionably undependable out in public places. 
• Discouragement of Rape Victims to bargain None of the families in Indian culture are prepared to acknowledge the way that somebody in their family has been raped and they regularly encourage the victims to avoid the haphazard caused after rape in the police headquarters. This is the sole motivation behind why a large portion of the rapes is not registered in India. 
• With the rising number of rape cases being enrolled in India consistently, the inquiry concerning the security of ladies in India isn’t significant in any way. In India, not a single day passes without hearing a case related to the rape of a lady. India is a nation of billions out of which 48% are ladies however it is as yet dangerous for the ladies.

Even though laws are being outlined to secure the victims of rape and to give them their legal rights, still there is an issue in the execution of laws that are being framed.

Preventive measures against rape 

• There is no age factor, race, or social status which can cause the heinous offence of rape. 
• Directing a meeting of safety tips for everybody. 
• To give all the information to the police whenever required. 
• To make aware about what comprises rape, good touch and bad touch  for kids, and so on

Landmark cases 

Vishakha v. State of Rajasthan

in this case, Bhanwari Devi was raped by five men as she was preventing youngster marriage. She attended the court date court however the trial; court cleared each of the five accused. Later Vishakha a group for ladies’ schooling and exploration attempted the case of Bavaria Devi and recorded an appeal before the Supreme court for inappropriate behavior in the work environment. The Supreme Court held that the wellbeing of ladies in the working environment is an absolute necessity and indicted the five accused and gave another definition for sexual harassment. 

Tukaram and another v. State of Maharashtra

In this case, Mathura Case the Rape of a  tribal young girl in 1978 by two police officers in a police headquarters in the Chandrapur region was seen by the Supreme court a lot later. Later on, this case prompts corrections in Indian Rape law by the Criminal law 1983.

R v. Furoll

A 6-year-old child was raped yet not hurt. Nonetheless, after that occurrence, she experienced gonorrhea. For this situation, it was held that the accused is guilty of committing rape. 

Premchand v. State of Haryana

In this case, the judgment of the Supreme court, was vigorously condemned by the public because the Supreme court, for this case, diminished the punishment of 100 years for rape to 5 years. The review petition was additionally recorded after that however it failed as the Supreme Court properly supported their action by giving a significant proclamation. 

State of Maharashtra v. Madhukar

in this case, Madhukar was a police examiner who needed to be physical with one young lady and went to her cabin. After the complaint was recorded against that inspector he got this dismissed. The high court considered the way that the lady was of simple virtue and gave judgment in favor of the inspector. The Supreme Court overruled this and said that any lady of simple excellence is qualified for her fundamental rights accordingly the judgment was reversed.

In-State v. Deepak

in this case, the Session court decides to conclude that being a sex worker doesn’t mean tolerating consent for sexual intercourse. The sex worker has the option to be looked for consent for such acts of sexual nature. 

State of Punjab v. Gurmit Singh

In this case, the Supreme court held that regardless of whether the victim enjoys or appreciates the sexual intercourse the court ought not to choose the case and not depict the victim to be of loose character.

Conclusion 

The laws concerning rape in India just cover a glimpse of something larger and neglects to perceive just as recognize the presence of the rest. Rape of men or Homosexual Rape isn’t viewed as Rape. 

The punishments are excessively less for a particularly heinous offence, thus, it has neglected to prevent the crime. The instances of rape in India are rising each day, most of which go unreported. It is truly essential to teach our general public to view their legal rights just as obligations and spread more awareness. 

There are huge changes and increases needed in the current rape laws of our country. The law needs to change and adjust to society.

Raising the boys directly since birth is the main factor that will prompt a decrease in an immense number of rape cases. The issue with Indian culture is that at whatever point any rape happens only the victim is addressed and not the attacker. The Victim needs to go through incalculable questions from the general public and here and there even blamed for the rape herself. In any case, when any theft happens nobody questions the burglarized individual and discloses to him that it was his flaw, also nobody questions the relatives of the murdered individual. Moreover, every one of the people in Indian culture is caught up with teaching the victim how to prevent or shield themselves from rape yet doesn’t instruct the opposite side of the party in regards to the customs. Large numbers of us don’t realize that the children in India are being raped however many young ladies yet they don’t discuss it because there are no help centres for them. The laws are even gender-biased as for rape. So everybody should receive the act of instructing and making awareness about the right and some unacceptable among the general public since they are the ones who will make the difference in future.

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