E-Digest
Centre for Education and Documentation

RAPE

Definition:  

Rape - one of woman's deepest fears. A crime,  which leaves a woman physically and mentally,  scared for life. It is perhaps the most hideous of   all crimes committed by men on women.  

 The Law Commission in its report on rape  regarded it as the 'ultimate violation of the self'. It is a humiliating event in a woman's life, which  leads to fear for existence and a sense of   powerlessness.    
[Source:  - By Deepali Chandhoke www.indianwomenonline.com/womenhome/Serious/law/rape/  yr.-unknown ]
 
 

Types of Rape:
Please note: anger, power, and sadistic rape are defined in terms of the primary motivation of the perpetrator.
Anger Rape,     Power Rape,  Sadistic Rape
 
The following types of rape are defined in terms of the relationship between the perpetrator and victim and can include elements of power, anger, and sadistic rape.
Acquaintance Rape,     Marital Rape,   Stranger Rape,        Gang Rape

Other types of Rape:
Male Rape,   Elderly Rape,    Psychiartric Rape,  Custodial Rape,   Date Rape

[Source: North Carolina RAPE CRISIS - volunteers of Cumberland Country ]
 
 

Rape Laws 
India

Rape is not just a crime- it is a sacrilege to the dignity of womanhood. The Indian Law on rape is essentially a law which looks at the issue of rape from the male viewpoint. In other words, it is lacking in sensitivity to the cry of women for justice and compassion and understanding. Rarely does a woman who is raped, report to the police. One has only to read the law on rape, and to witness the treatment meted out by the police officials, to understand why this is so.
 

What constitutes the crime of Rape?
According to Section 375of the IPC, when a man has sexual intercourse with a woman.........

In any case of rape, the prosecution has to prove that :
  1. the man who did it was the accused; and
  2. the act was done against her will or that she was below 16 yrs.of age ( in this case, a birth certificate is necessary).
The usual stand taken by the defence is that the woman consented, that she was of loose morals,or that she did not shout for help, or there were no injury marks found on her body. The law requires that there should be some marks on the woman’s body to prove that she did put up a show of resistance. In the case of Mathura, a fifteen old Harijan girl who was raped by tow policemen in the police station, the Supreme Court acquitted the offenders on the ground that there was no mark of injury on her body, and that she did not cry out for help, which meant that she consented to it. This was challenged later by women’s organisations, but because of the time gap, the review petition was rejected. (However, the two policemen were later convicted by the Nagpur Bench of the Bombay High Court).

What should a victim of rape do?

  1. Get herself medically examined immediately, and keep doctor’s report.
  2. Preserve condition of place where rape took place.
  3. File an FIR in the nearest police station giving exact details of the incident, and demand a copy of the FIR, free of cost. You can write and file the FIR if the police refuse to take down your report.
  4. Also file a written complaint to the nearest Magistrate of your locality in order to ensure immediate order of investigation by the police.
  5. Take a lawyer with you to the police station.
  6. Keep all the objects obtained from the accused, e.g. cloth, watch, spectacles, pen etc.
  7. The rape victim should strictly avoid taking bath after rape, in order to preserve the evidence.
One can readily appreicate that a woman who has just undergone the trauma of rape is not in a proper state of mind to do all the above, yet the law does not seem to appreciate this.

Punishment 
Rape is a cognizable offence triable by the Court of Sessions alone. It comes under Section 375 and 376, as now amended by the Criminal Law Amendment Act, 1983. Prior to 26th December, 1983, rape trials in court used to conducted openly. Now the new i.e. Sec.327 (2) of Criminal Procedure Code, provides for ‘Camera Trial’ and it has been made unlawful for any person to print or publish or disclose the name of the rape victim without prior permission of the court. (Sec. 327 (3) or Cr. P.C.)
 

  1. Under the new law, the punishment for rape is not less than seven years of imprisonment, but it may extend to life imprisonment, or a term which may extend upto 10 years, and the accused shall also be liable for fine.
  2. The punishment for raping one’s own wife, who is below 16 years is two years’ imprisonment, or fine, or both.
  3. Rigorous imprisonment of ten years which may even extend to life, alongwith fine, is imposed on the following persons committing rape:
      4.  
    1. police officer in charge of a police station;
    2. any public servant;
    3. any staff of a jail or remand home having control over its inmates;
    4. any staff of a hospital, including doctors or other persons, in charge of patients;
    5. any person committing rape on a pregnant woman;
    6. any person committing rape on a woman under 12 years of age, &
    7. any person of a gang, committing gang rape.
In case a court imposes a sentence less than the minimum, it must record its reasons for doing so. This is to allow the appeal court to appreciate the reasons for imposing a lesser sentence.
-Case of a rapist who was awarded life imprisonment - the maximum punishment prescribed under the law
-Landmark Judgement
  1. A husband who indulges in forcible sexual intercourse with his judicially separated wife(i.e. living separatelyunder an order of judicial separation) is punishable with imprisonment for two years and fine.
Right of self defence
Sec. 100 of the IPC confers upon a woman the right to defend herself if any person :
  1. assaults her with the intention of committing rape; or
  2. assaults her with the intention of gratifying unnatural lust.
In the exercise of the right of self defence, a woman can go to the extent of killing the assailant or the aggressor and she would not be liable for murder or manslaughter.
Suggetions for changes in the law, recommended by the Law Commission
  1. The present definition must be amended to include, ‘fear of injury, either to body,mind, reputation, or property’ as reasons for submitting to sexual intercourse.
  2. Age of consent by a woman must be raised from 16 to 18, keeping in line with the minimum age of marriage. Similarly sexual intercourse by a husband with his wife who is below 18 years should be considered as rape.
  3. A woman should have a right to be accompanied by her relative or friend, when called in the police station, to make statements.
  4. Except in unavoidable circumstances, a woman should not be arreestd after sunset or before sunrise.
  5. A arrested woman should not be detained except in a place of custody meant exclusively for women, In the absence of such a place, she must be detained in an institute meant for welfare of women.
  6. An officer-in-charge of a police station, who refuses to record the statement of the commission of a cognisable offence, reported to him, should be punished with imprisonment upto one year, or fine, or both.

    7. Except in rare cases, a victim of rape should not be questioned in cross-examinaion about her past sexual experience.
 [Source: The Banyan Tree : A Textbook for Holistic Health Practioners]
 
 

172nd Report on Review of Rape Laws- March, 2000  [Source: Law Commission of India]

 

CASES
  
 
Case of a rapist who was awarded life imprisonment - the maximum punishment prescribed under the law  

In a case of rape, (Prem Pal Vs. Union of India, Delhi Adminstration) the accused, a 23 -yr- old junk dealer, of West Patel Nagar, West Delhi, had been convicted, on 14 July 1983, by S. M. Aggarwal, Additional Sessions Judge of Delhi, under Section 376. He was accused of raping a 4-yr-old girl of his neighbourhood in a public latrine, while she was returning from school. Rejecting the plea for probation, advanced advanced by the defence the Judge sentenced him to life imprisonment.   

This is the first case of its kind in the country where a rapist has been awarded life imprisonment - the maximum punishment prescribed under the law.  
[Source : P. D. Mathew. The Law on Rape (ISI Booklet No.11) ISI, New Delhi, 1985.]
  
The Mathura Case: (June 1, 1974).
Mathura, a 16-year-old tribal girl, had the misfortune to experience  this at firsthand. On March 26, 1972, she was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur  district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act  was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. (more on judgement)
[Source: written by Ms. Cynthia Rodrigues   http://www.womenexcel.com/law/rapelaws.htm ]

Aftermath of Mathura Mathura Case
 Clearly the law needs to be more sensitive to the feelings of the victim, who has had a traumatic time and scarcely needs to be  reminded of it. Often the victim is abused and humiliated. "Don’t try to tell us that you didn’t enjoy it."

 Fortunately, the outrage, resentment and demand for more stringent anti-rape laws, generated by the Mathura case, led to the  Criminal Law Amendment Act 1983. It amended section 376 of the Indian Penal Code and stipulated that the penalty for rape should  not be less than 7 years. It also provided for trial in camera and inserted a clause, making the disclosure of the victim’s identity a  punishable offence.
 [Source: by Cynthia Rodrigues  http://www.womenexcel.com/law/rapelaws.htm]

Mango Ram's Case: ( UNDER Section 375 of the IPC)
In this particular case, 17-year-old Mango Ram had been accused of raping his sister’s 13-year-old daughter.
[Source: by Cynthia Rodrigues http://www.womenexcel.com/law/rape.htm]

Bhanwari Devi's Case: a backward-caste voluntary worker from Bhateri village in Rajasthan filed a complaint with the police in 1992 alleging that she had been gang-raped.
[Source : Article by The Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women].

Kuldip Kaur's Case: Kuldip Kaur alleged that she had been raped by the police during her detention Case Studies of Mrs.Kaur's case
[Source : Article by The Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women].

Ms. Katia's case: a 24 year old French visitor to Punjab, was abducted and allegedly gang-raped by five men suspected of having been police.
[Source : Article by The Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women].

Rape in Kashmir: Rape by the Border Security Force
Custodial rape is frequently reported in Kashmir, where it has a greater significance than mere abuse of authority, but has become a tool of war. Since Indian crackdowns began against militants in Kashmir in 1990, rape has been used as a weapon by both the Indian Border Security Force (BSF), and by militant groups.
[Source : Article by The Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women].
 

Zawra and Wahab Noori of Theno Budapathry village in Kashmir were allegedly collecting firewood from a local forest when several soldiers took them to a nearby house and repeatedly raped them at gunpoint. It is reported by village elders that several families had fled Theno Budapathry to search for safer places to live after Indian soldiers were apparently looking around for more young women.
[Source : Article by The Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women].
 
 

Important Court Interventions 

The National Commission for Women can and it has intervened in some important court  matters.
-Bhateri  Gang Rape Case ( Rajasthan )
-Capital Punishment/Death Penalty ( Ramshree's Case)
-Obscenity Cases
-Against out dated customs & traditions Maimon Baskari's Nuh ( Haryana ) Case
-Divorced Muslim Women's entitlement to maintenance beyond the Iddat Period 
[Source: by National Commission for Women ]
 
 

Judgements:
 
 
Landmark Judgement 

In case (Bhardada B. Haribhai vs. State of Gujarat, AIR 1983 SC 753) concerning a government servant’s conviction for assaulting two minor girls and raping one of them, the Supreme Court in its judgement on 24 May, 1983, reaffirmed that corroboration is not essential for conviction of rape.   

The Court has ruled that in India, it is rare for a woman to make false accusation of rape because in reporting the crime of rape, she has to suffer a serious embarrassment and public humiliations; especially during cross-examination in court and medical examination, and the publcity given by the press. In he circumstances, the court has held : ‘ Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society’.  
The above case involved a Government employee in Gandhinagar, Gujarat who assaulted two girls aged 10and 12 yrs. One girl escaped, but the other, according to medical evidence, (and by confession) was assaulted. The local women’s organisation took up the matter and filed a criminal case against him. He was convicted by the Sessions Court, and later by the High Court which confirmed the sentence.  

N.B. : Since corroboration is not compulsory in the law, the court may accept the uncorroborated evidence of a woman, but it must be prudent in accepting it.  
[Source: Ibid p.11]
  
Other unjust Judgements
 
 

 

Working Groups

-Women in Arms
Special Cell for Women and Children-Office of Commissioner of Police,Annex III, Ground Floor, Crawford Market, Bombay – 400 001 Ph: 262 0111 ext. 206
Special Cell for Women and Children-Dadar Police Station,Bhawani Shankar Road,Bombay – 400 028.Ph: 484 0303 ext. 181
Special Cell for Women and Children-Kandivali Police Station,S V Road, Bombay – 400 067.Ph: 802 0111 ext. 312
Stree Mukti Sanghatana-31, Lokmanya Tilak Vasahat Road no 3,Dadar (East), Bombay – 400 014
Forum against Oppression of Women-501, Neelambari, near Portuguese Church,Dadar (West), Bombay – 400 028. ph: 614 0403
Swadhar Keshav Gore Smarak Trust-Smruti building, A Reay Road,Goregaon (West), Bombay – 400 062.
Majalis (A legal resource centre)-A-2, Golden Valley # 4,Kurla-Kalina Road, Opp. Canara Bank,Santacruz (East), Bombay – 400 055.Ph: 618 0394
Maadhyam helpline
[Source: Cynthia Rodrigues http://www.womenexcel.com/law/rapelaws.htm]
 
 

Other Articles:
1. UNMASKING RAPE-by  M Nadarajah

2. THORNY ROSE -Marital Rape: Women bear the brunt of this 'crime' in a society that celebrates marriage  -by FARWA C. MIYAN in Chennai
     (The week magazine , January 25, 1998)

3. RAPE VICTIMS-Networking for a Supportive Infrastructure- A Report by Delhi Commission for Women

4.WHAT IS RAPE? [by North Carolina RAPE CRISIS - volunteers of Cumberland Country]

5. RAPE LAWS IN INDIA - Rape law -Dr. Anil Aggrawal

6.MYTHS OF RAPE [-by North Carolina RAPE CRISIS- Volunteers of Cumberland Country ]

7.OBTAINING BAIL  [-by  Deepali Chandhoke ]
  


Compiled by Nalini with inputs from John,Manjulika and Veena  2002

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