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    Rape

    Indian law is very strict on rape which it sees as sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of a woman by a man without her consent. Rape is a non-bailable offence and the punishments for can range from 7 years imprisonment to lifetime.

    Actions Considered As Rape

    The law sees rape as having occurred when a man:

    • penetrates his penis or any object into the vagina, mouth, urethra, or anus of a woman or forces her to do this with him or another person;
    • manipulates any part of the body of a woman in order to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do with him or any other person;
    • applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.

    The extent of penetration does not matter and any slight penetration could also lead to rape.

    Sex with a woman under any of these circumstances will be considered as rape:

    • Sex without her consent;
    • She agrees, but only because she or someone she knows is in danger;
    • She agrees, but because she thinks the accused person is her husband
    • She agrees, but she is drugged, or drunk, or mentally ill;
    • She is under 18 - then it does not matter if she agreed or not;
    • She is in no position to indicate whether she agreed or not - for example, if she is unconscious.

    A medical procedure or intervention cannot be considered as rape. For example: The doctors while examining the patients have to follow certain procedures which would require them to examine the private parts of the patient.

    Punishment for Rape

    The punishment for rape is rigorous imprisonment of minimum seven years. The punishment may extend to imprisonment for life, and shall also be liable to fine.

    Aggravated Rape

    Aggravated rape is rape when it takes place because of the special position of either the victim, or the criminal. There is punishment with rigorous imprisonment for minimum ten years and which might extend to imprisonment for life, and shall also be liable to fine.The following are aggravated crimes or the special circumstances:

    • Police officer, who within the premises of the police station, commits rape on a woman who is in his custody or the custody of this subordinate.
    • Public servant rapes a woman in his custody or in the custody of a public servant subordinate to such public servant.
    • A member of the armed forces deployed in an area by the Central or a State Government.
    • In the management or 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 women's or children's institution.
    • When the management or the staff of a hospital commits rape on a woman in that hospital.
    • A relative, guardian or teacher of, or a person in a position of trust or authority towards the woman.
    • Someone who commits rape during communal or sectarian violence.
    • Someone who commits rape on a woman knowing her to be pregnant.
    • Someone who commits rape on a woman when she is under 18 years of age.
    • Someone who commits rape on a woman incapable of giving consent.
    • Someone being in a position of control or dominance over a woman, commits rape on such woman.
    • Someone who commits rape on a woman suffering from mental or physical disability.
    • Someone who while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman.
    • Someone who commits rape repeatedly on the same woman.

    No Means No

    Consent has been clearly defined as a clear, voluntary communication that the woman agrees to the specific sex act, leaving no room for debate. It also makes it clear that absence of physical injuries is immaterial for deciding consent. For example, if a woman says that she is uncomfortable and that she does not want to have sex, yet the man has sex with her, it is after disregarding her consent.

    Marital Rape

    Husbands who have sex with their wife who is above the age of 18 and lives with them, with or without her consent, is not seen as rape, in the eyes of the law. A husband having sex with his wife who is under 18, is considered rape, irrespective of her consenting to it. If a couple is married, but living separately, then the husband can be convicted of rape if there is no consent. The punishment for the husband is jail time of between two and seven years along with a fine.

    Abuse of Position or Authority

    It is a crime if someone has some control over another person because of their job or position, and uses this control to make a woman have sex with them. This crime typically refers to situations in which the person is in a position of trust, or the man is a public servant or jail staff or on the management of the hospital. This crime is different from aggravated rape because in this the person uses his authority to take the consent of the woman and has sex with her. Here, what matters is whether the man abused his position of trust or authority to induce or seduce a woman to have sex with him.

    The punishment is rigorous imprisonment of between five and ten years along with a fine. For Example: Ashok, the jail superintendent where Tara is serving her sentence, tells her that he will support her release on parole if she has sex with him, to which Tara consents. Ashok abused his official position to induce Tara to have sex that did not amount to rape. In this case Ashok has not forced himself on Tara and commited rape, but convinced Tara to have sex with him by using his position to get her out on parole.

    Gang Rape

    If a woman is raped at the same time by a group of people, each of them will be punished for committing the crime. The punishment is rigorous imprisonment of between 20 years and life imprisonment.

    Repeat Offenders

    The law allows death sentence to be imposed where a person is convicted for a second time for rape, rape causing death or resulting in permanent vegetative state, or gang rape.

    Death Resulting From Rape

    During rape, if the accused injures the woman so badly that she dies, or goes into a vegetative state, the accused can be given the death sentence, or jail for 20 years to life. While this provision is pretty clear, the law does not define what 'persistent vegetative state' means. In a Supreme Court decision the Court said that a person who is alive but does not show any evidence of being aware of one's environment is in a permanent vegetative state.

    Reporting Rape

    Anyone can register an FIR on behalf of the victim. In general, a woman cannot be forced to go to a police station to give her statement. The police will record her statement only at her house, or at a place that she chooses. You can request the police to come to your location to record your information. The police must make sure a woman police officer records the statement, and that some family member or social worker is present there.

    If the survivor of such a crime is mentally or physically disabled, then the police have to make sure they record her statement in a place of her choice. They also must ensure that any special help that is needed is available.

    If a police officer refuses to register a crime of this nature i.e. rape, acid attacks etc., in some cases he can be punished with imprisonment for a term between six months and two years, and will also be fined.

    Protecting the Identity of the Rape Victim

    The Indian Penal Code punishes people who print or publish the name or any matter which may make known the identity of the rape victim. The punishment if imprisonment for 2 years and fine. The identity can only be revealed in following circumstances:

    • For the purpose of investigation under the order of the officer in charge of the police station or police officer.
    • By the victim herself or with the authorisation in writing of the victim
    • Where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim.

    If the authorization is given by an outside body then it has to be from the chairman or the secretary, by whatever name called, of any recognised welfare institution or organization”.

    Note: A person will need permission of the court even in publishing or printing any matter relating to a rape case in the court. If the person does it without permission then also he or she can be punished with an imprisonment of up to two years and a fine.

    Seeking Medical Help

    If you are the victim of an acid attack or rape, you have the right to get free first aid from any government or private hospital. If a hospital refuses treatment, the person in charge can be punished by up to 1 year in prison. The hospital is also supposed to immediately inform the police of the crime.

    The medical examination of the survivor is supposed to happen within 24 hours of the filing of the FIR. However, it can only happen with the consent of the survivor. The doctor who examines the survivor is supposed to make a report with full details and conclusions, and also record the exact time at which the medical examination started and was completed. Recently, updated guidelines have been issued to hospitals on the way to conduct medical examination of survivors. This medical report is supposed to be sent to the police officer conducting the investigation. The officer is then supposed to send it to the Magistrate immediately.

    If the crime has been committed against a child: If the child is less than 12 years old, the child's parents or guardian can give consent to medical examination. Between the ages of 12 and 15, a doctor can decide whether the child is mature enough to give consent.

    Rape Trial

    As far as possible, trials in rape cases are supposed to be held without any public in the Courtroom (in camera). Also, as far as possible a woman judge is to be preferred.

    The survivor will probably have to appear in court to give evidence. She does not need a lawyer, but can get one to help the government lawyer, with the court's permission.

    Legally, the court is supposed to assume that in certain cases of rape, the survivor did not consent. It will be up to the accused person's lawyer to prove, if he can, that the survivor actually consented. In cases of rape or sexual harassment, the previous sexual experiences of the survivor cannot be brought up in court to argue whether she consented or not.

    Questions and Answers
    Click on a question to view the answer

    No you cannot publish the name of the victim. The name and identity of the victims are protected by the law and it is an offence under Indian penal code to do so.

    No. Only a man can be charged with rape.

    Sometimes due to darkness or the woman not being in a good state of mind is duped by men to have sex with her making her believe that he is the husband. It is to protect women from such cheating by men.

    Yes, it will be rape because she is below 18 years old.

    No, since she is above 18 years old. The law doesn’t punish people who are of legal age. However, you can be prosecuted for other charges such as harassment and domestic violence.

    No you cannot publish the name of the victim. The name and identity of the victims are protected by the law and it is an offence under Indian penal code to do so.

    Glossary
    Persistent vegetative state
    A situation when person is alive but does not show any signs of being aware of one's environment.
    Imprisonment for life
    It means the remaining days of ones life.
    Gang rape
    Rape by one or more persons
    Sectarian violence
    Clashes between two groups or sects.
    Non-bailable offence
    Offences in which bail is not granted easily.
    First Information Report (FIR)
    The FIR is the information relating to a cognizable offence recorded in writing by the officer in charge of a police station and signed by the informant (person giving the information), to be entered in a book kept by the officer.