In this article, Himanshi Srivastava of Amity Law School Lucknow discusses the provision of Statutory rape as per the Indian laws.
What is Statutory Rape?
Statutory Rape is defined in Section 375 of Indian Penal Code, (amendment of 2013) which states that “any male, who does an intercourse with any female who is below the age of 18, with or without her consent will be constituting a Statutory Rape”. This offence is created to save the exploitation of the minor by the adults. In this kind of rape, the adult will get punished if he had any kind of physical interaction with a woman/girl, in the age of 18 or below, no matter if she has voluntarily participated in the act or not. The consent of the minor is immaterial and will not be considered any defence to the accused.
Statutory Rape is always in a shadow as the voice of victims goes unheard or they will not get any support from the society and our system. The minors who gets suffered from these acts, lives a horrifying life and it creates a massive disaster in their mind. The narrow minded people who do these acts, should be given the strict punishment so that it gives the pact lesson to the wrongdoers.
Age of Consent
The age of consent in India is 18 years old. The age of consent is the minimum age at which an individual is considered legally old enough to consent to participate in sexual activity. The individual within 17 years of age or younger, will not be considered to be legally old enough to give their consent to participate in any kind of sexual activity.
Statutory rape law is violated in circumstance where an individual engages himself in the sexual activity with a person under age of 18. The age of consent lowers to 15 years old in case if the couple is married.
The Protection of Children against Sexual Offences Act, 2012 was passed by both the Houses of Parliament on May 22. This Act aims to define various offences against the minor/children to provide penalties to them. Before this Act was passed, the age of consent was 16 years of age. As the new Act came into force the exploitation of children will reduce at some extent.
Key Points of Statutory Rape
- The Statute for this offence is The Protection of Children against Sexual offences Act, 2012 (POCSO) but it is regulated by the Section 375 of IPC.
- This Act regulates the exploitation against the children by the adults,
- The consent is immaterial of the victim in these type of offences,
- This offence includes punishment under Section 376 of IPC.
Definition as given in Section 375 of IPC:
Section 375 defines Rape as:
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under 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.
Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
New Provision: (As of Amendment 2013)
A man is said to commit “rape” if he:
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;
- or inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person;
- or manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person;
- or applies his mouth to the 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 the following seven 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 eighteen years of age.
- Seventhly.- When she is unable to communicate consent.
Explanation I.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’
Rationale of Statutory Rape Laws in India
Statutory rape laws are about the circumstances where a private person is lawfully incapable of willing to sexual activity till that person reaches a particular age. The law mandates that although he or she willingly engage in sexual activity, the sex isn’t consensual. Critics argue that the person’s age limit cannot be used to determine the ability to consent to sex, since a young juvenile might possess enough social sense to make aware and mature choices about sex, while some adults might never develop the ability to make mature choices regarding sex, as even several mentally healthy people stay naive and simply manipulated throughout their lives.
Another point of law comes from the fact that minors are generally economically, socially, and legally is not equal to adults. By making it a punishment for an adult to have sex with a minor, statutory rape laws focuses to give the minor some safeguards against adults in a position of power over the youth.
Another heated argument presented in defense of statutory rape laws relates to the difficulty of prosecution in prosecuting a rape case (against a victim of any age) in the courtroom. Because forced sexual activity with a minor is considered a particularly heinous form of rape, these laws helps the prosecution relieving the burden to prove lack of consent. This makes conviction more flexible in cases involving minors.
The aim of statutory rape laws is to protect young minor females from males who might exploit them and do not take responsibility by giving support for the child. In the past, the solution to such problems was often a shotgun wedding, a forced marriage by the parents of the minor girl in question. This rationale is to preserve the marriageability of the minor girl and to stop their unwanted teenage pregnancy.
Analysis of the Statutory Rape falling under the Sixth Clause of the above definition
Any Sexual activity with a woman with or without her consent when she is below 18 years of age constitutes rape. A woman under the age of 18 is considered incapable of giving consent for any kind of sexual activity. The age of consent was raised from 16 to 18 by the Criminal Law (Amendment) Act of 2013.
The Supreme Court in Harpal Singh held that ‘even if the girl of 14 is a willing party and invited the accused to have sexual intercourse with her, the accused would be liable for rape under this clause’.
In Mana Ramchandra Jadhav v. State of Maharashtra the victim left her mother’s house and started living with the accused because her mother had declined the proposal of her marriage with the accused on the ground that she was too young. While she was with the accused they had sexual intercourse which was against her will. The act of intercourse with the prosecution will be covered under this clause.
Exception to this Clause
“Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.”
Since child marriage in India is not yet void and is only voidable, such law was must to restrain men from taking advantage of their marital rights prematurely. No man can be held guilty of rape on his own wife when she is over 15 years of age on account of the matrimonial consent that she has given.
In Bishnudayal v. State of Bihar, where the victim, a girl of 13 or 14, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376.
However under section 376 B, IPC sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment.
Punishment for Statutory Rape: [Section 376]
As per section 376 of IPC the Statutory Rape comes under the purview of the definition of Rape, so the punishment for Section 375 is:
As per Sub- Section (2) of the Section
|RIGOROUS IMPRISONMENT FOR 7 YEARS TO LIFE + FINE
RIGOROUS IMPRISONMENT FOR 10 YEARS TO LIFE + FINE
Section 376 reads as:-
Punishment for rape.—
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.