Rape in India

Rape is the fourth most common crime against women in India.[1][2] According to the National Crime Records Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012.[3] Out of these, 24,470 were committed by someone known to the victim (98% of the cases).[4]

India has been characterised as one of the "countries with the lowest per capita rates of rape".[5] A 2014 piece in The Lancet states that the "8.5% prevalence of sexual violence in the country is among the lowest in the world."[6] A majority of rape cases in India, as elsewhere in the world, are never reported.[7][8][9]

According to 2012 statistics, New Delhi has the highest raw number of rape reports among Indian cities, while Jabalpur has the highest per capita rate of rape reports.[10][11] Several rape cases in India received widespread media attention and triggered protests since 2012.[12][13] This led the Government of India to reform its penal code for crimes of rape and sexual assault.[14]

Definition of rape in Indian Penal Code

Annual rape and all forms of sexual assaults per 100,000 people, for India compared to select nations[15][16]

Before 3 February 2013, Section 375 of the Indian Penal Code defined rape as:[17]

§375. Rape. A man is said to commit "rape" who, except case hereinafter excepted, has sexual intercourse[18] with a woman in circumstances falling under any of the six following descriptions:-

Firstly. –– 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[19] 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.

The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of sixteen as rape.

After 2 April 2013, the definition was revised through the Criminal Law (Amendment) Act 2013, which also raised the legal age of minor to eighteen.[20]

§375. A man is said to commit "rape" if he:–– (a) 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 (b) 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 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) 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:

Firstly.–– 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 1.–– 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 non-verbal 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. Exceptions –– 1. A medical procedure or intervention shall not constitute rape; 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.

Even after the 2013 reform, marital rape when the wife and husband live together, continued not to be a crime in India. Article 376B of the 2013 law made forced sexual intercourse by a man with his wife – if she is living separately – a crime, whether under a decree of separation or otherwise, punishable with at least a 2-year prison term.[14] Forced sex by a man on his wife may also be considered a prosecutable domestic violence under other sections of Indian penal code, such as Section 498(A) as well as the Protection of Women from Domestic Violence Act 2005.[21] The crime of sexual assault on a child, that is anyone below the age of eighteen, is further outlined and mandatory punishments described in the The Protection of Children from Sexual Offences Act 2012.[22]

All sexual acts between the members of the same sex, consensual or forced, remains a crime under Section 377 of Indian penal code, after the 2013 Criminal Law reform, with punishment same as that of rape.[23]

Rape statistics

Rape of minors

Using a small sample survey, Human Rights Watch projects more than 7,200 minors – 1.6 in 100,000 minors – are raped each year in India. Among these, victims who do report the assaults are alleged to suffer mistreatment and humiliation from the police.[24] Minor girls are trafficked into prostitution in India, thus rape of minors conflates into lifetime of suffering.[25] Of the countries studied by Maplecroft on sex trafficking and crime against minors, India was ranked 7th worst, between China (1st), Russia (11th) and Indonesia (14th).[25]

Estimates of unreported rapes

Most rapes go unreported because the rape victims fear retaliation and humiliation - in India and elsewhere in the world.[26] Indian parliamentarians have stated that the rape problem in India is being underestimated because large number of cases are not reported, even though more victims are increasingly coming out and reporting rape and sexual assaults.[8]

Few states in India have tried to estimate or survey unreported cases sexual assault. The estimates for unreported rapes in India vary widely. Madiha Kark estimates 54% of rape crimes are unreported.[27]A UN study of 57 countries estimates just 11% of rape and sexual assault cases worldwide are ever reported.[9]

Notable incidents

People silently marching to protest with candlelight at Salt Lake City in Kolkata after the female victim's death on 29 December 2012
People in Bangalore protesting outside Bangalore Town Hall on 30 December 2012 demanding justice for the 23-year-old student who was gang-raped in Delhi on 16 December 2012

The gang rape of a 23-year-old student on a public bus, on 16 December 2012, sparked large protests across the capital Delhi.[12] She was with a male friend who was severely beaten with an iron rod during the incident.[28] This same rod was used to penetrate her so severely that the victim's intestines had to be surgically removed, before her death thirteen days after the attack.[29]

The following day, there was an uproar in the Indian parliament over the incident. MPs in both houses had set aside their regular business to discuss the case and demanded strict punishment for those who carried out the attack. Leader of the opposition in the Lok Sabha, Sushma Swaraj, demanded that "the rapists should be hanged".[30] Thousands of people, mostly young, participated in a massive demonstration on 22 December in protest.[31] Police arrested six men suspected of rape.[32]

In August 2013, a 22-year-old photojournalist, who was interning with an English-language magazine in Mumbai, was gang-raped by five persons, including a juvenile, when she had gone to the deserted Shakti Mills compound, near Mahalaxmi in South Mumbai, with a male colleague on an assignment. This caused protests throughout the country since Mumbai with its very active night-life was previously considered a safe haven for women. The city sessions court found the accused guilty and sentenced death penalty to the three repeat offenders in the Shakti Mills gang rape case, making them the first in the country to get the death sentence stipulated under the newly enacted Section 376E of the Indian Penal Code.[33]

In May 2014 two girls aged 14 and 16 were allegedly gang raped in the northern state of Uttar Pradesh and girls were then hanged from a tree. Two police officers were suspected of involvement in the crimes.[13] The alleged gang rape was widely reported in the press both in India and globally.[34] After an extensive investigation, the CBI concluded that the rape and murder allegations were false.[35]

On 14 March 2015, a 71-year-old nun was allegedly gang-raped in Ranaghat, West Bengal by intruders at Convent of Jesus and Mary.[36] The six intruders were recorded on CCTV during their crime of ransacking the chapel, destroying religious items, looting cash and the gang rape. Six men were arrested and charged with the crime by 1 April 2015, and identified to be Bangladeshi Muslims.[37][38][39]

On 29 March 2016, a Delta Meghwal, a 17 year old girl's body was found in the water tank. In the FIR, Meghwal's parents also named principal Eashwar Chand Vaid for abetment to suicide. Following the complaint, warden Priya Shukla, the physical education teacher and principal were arrested by Bikaner police and kept under judicial custody. Tests conducted by the Forensic Science Laboratory (FSL) in Bikaner proved that Meghwal was raped however she was alive before drowning, suggesting it was a suicide and not murder.[40]

Jammu and Kashmir

There have been allegations of rape and mass rape in Jammu and Kashmir. Reports have shown that rape has been carried out by both Indian armed forces and Islamist militant groups.[41][42] In 1991, the 4 Rajputana Rifles unit are alleged to have entered the village of Kunan Poshpora and raped between 30 and 100 women aged between 13 and 70.[43][44] The Indian government carried out three inquiries into the allegations and concluded that it had been a hoax.[45]

The rapes by Islamic militants have been reported since the Indo-Pakistani War of 1947. On 22 October 1947, Pashtun militants invaded Baramulla in a Pakistan army truck, and raped women including European nuns.[46] In March 1990, Mrs. M. N. Paul, the wife of a BSF inspector was kidnapped, tortured and gang-raped for many days. Then her body with broken limbs was abandoned on a road.[47]

The International Commission of Jurists have stated that though the attacks had not been proven beyond a doubt, there was credible evidence that it had happened.[48] In 2011, the State Human Rights Commission (SHRC) asked for the reopening of the case.[49]

Militant organisations such as Hizb-ul-Mujahideen, Jamiat-ul-Mujahideen and Harkat ul-Ansar have been accused of carrying out rapes.[41] The Jammu Kashmir Liberation Front have been accused of ethnic cleansing by using murder, arson and rape as a weapon of war to drive out hundreds of thousands of Hindu Kashmiri Pandits from the region.[50][51] Following the rise of rapes by the Indian armed forces and militants, HRW has submitted that the victims of raper suffer ostracism and there is a "code of silence and fear" that prevents people from reporting such abuse. According to the HRW, the investigation of case of rape by Indian forces and militants is difficult because many Kashmiris are reluctant to discuss it for the fear of violent reprisals.[52]

Northeast India

Human rights groups allege that the Indian armed forces under the protection of the Armed Forces (Special Powers) Act, 1958 have carried out a large amount of rapes in the Nagaland, Assam and Manipur provinces.[53] Karlsson writes that there are reports that much of the violence against civilians, including sexual assault, is inflicted by the rebel groups and armed criminal gangs in the region.[54]

Uttar Pradesh

There is wide discrepancy among reports of rape and sexual assault. For example, according to the People's Union for Civil Liberties (PUCL), the majority of those assaulted in 2007 were poor women from remote areas and Dalits. SR Darapuri of the PUCL alleged, "I analysed the rape figures for 2007 and I found that 90% of victims were Dalits and 85% of Dalit rape victims were underage girls."[55] Darapuri allegations do not match with the data compiled by National Crime Records Bureau of India, which found 6.7% of rape and sexual assault victims were Dalits in 2007, where nearly 16% of Indian population is classified as Dalit.[56] There were 391 cases of rape of Dalit victims reported in Uttar Pradesh in 2013, or about 1 per 100,000 Dalits in the state with about 200 million people (21% pf which is classified as Dalit).[57]

During riots

In recent years, variety of rapes have taken place during the communal riots. During the post 2002 Godhra train burning, in the certain parts of Gujarat, rape was carried out by rioters.[58] Thirteen rape and assault cases were reported during the 2013 Muzaffarnagar riots.[4]

The partition of India

During the partition of India, some 100,000 women claimed to have been kidnapped and raped.[59][60]

Factors in rape

One of the root problems that stimulate rape is the low amount of private toilets. Hence, to relieve themselves, women (and men) need to use public toilets. These toilets are often frequented by sexual predators who lie and wait until they see an opportunity to rape a woman not accompanied by a friend.[61][62][63]

Tourist advisories

Rape cases against internationals have led several countries to issue travel advisories that "women travellers should exercise caution when travelling in India even if they are travelling in a group; avoid hailing taxis from streets or using public transport at night, and to respect local dress codes and customs and avoid isolated areas".[64][65][66]

In March 2013, a Swiss couple who were cycling from Orchha to Agra, decided to camp for a night in a village in Datia District. There they were physically assaulted by eight locals, robbed, the man was overpowered and tied up, while the 39-year-old woman was gang-raped in front of her husband at the village.[67][68] The Swiss government issued a travel advisory in 2013 about the "increasing numbers of rapes and other sexual offences" happening in India.[69]

The news coverage of the rapes and updated travel advisories have worried Indian tourism industry.[70][71] Some media reports stated that high-profile rape cases had led to tourist numbers to drop 20 to 30 per cent compared to previous year.[72] The Assocham agency found that of 1200 businesses surveyed more than 70% reported cancellations by female tourists from Britain, Canada, the U.S. and Canada along with a 25% decline overall.[73] However, tourist arrivals in India increased from 6.5 million arrivals in 2012 to 6.8 million arrivals in 2013.[74] Tourist arrivals in 2014 observed another 10% increase over 2013 levels.[75]

In January 2015, the Tourism Ministry of India introduced emergency helplines for female tourists.[72][76] The Indian government announced in April 2015, that tourists are now being given a "welcome card" by the immigration officer on arrival with resources to ensure their safety, that GPS-embedded tracking system are being introduced in all taxis and for tourists who want it, and tourist helplines in 12 foreign languages have been instituted.[77]

In a non-tourism related case, Russia issued travel advisory to its citizens after a Russian national was raped in December 2009.[78] The case was widely covered after a member of Indian parliament Shantaram Laxman Naik blamed the victim and the media for overemphasising the Russian rape case after, "she was raped by a state politician in his car after they had dinner together".[79] Naik was criticised by leaders of Indian political parties such as CPI-M, BJP and SP for blaming the rape victim and media.[79]

Legal response

The Indian law prior to the Nirbhaya Incident took into account only acts of penile-vaginal intercourse within the definition of rape and forcible acts of penetration of vagina, mouth, urethra or anus through penis or an inanimate object did not fall within the definition of rape. A large number of rapists would be let-off because there was no law to punish such acts.[80] The definition was expanded in 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.[81]

The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.[81]

Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused. Section 164A of the Code of Criminal Procedure deals with the medical examination of the victim.

The revised statutes of 2013 Indian law, in section 376A, mandates minimum punishment in certain cases. For instance, 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 with rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty."[81][82] In the case of "gang rape", the same mandatory sentencing is now required by law.[82] The convicted is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and per Section 357 B in the Code of Criminal Procedure. Death penalty for the most extreme rape cases is specified.[82]

The 2013 law also increased the age of consent from 16 years to 18 years, and any sexual activity with anyone less than age of 18, irrespective of consent, now constitutes statutory rape.[82]

The new law has made it mandatory for all government and privately run hospitals in India to give free first aid and medical treatment to victims of rape.[83]

On 3 November 2015 the Allahabad High Court observed that a child born out of rape will have inheritance rights over the property of the assaulter and will be treated as illegitimate,[84] however if the child is taken for adoption then he/she will not have any rights on the property of the biological father.[85][86]

Fast track courts

As a result of the 2012 Delhi gang rape case, the Indian government implemented a fast-track court system to rapidly prosecute rape cases.[87] The fast-track court system has been welcomed by some, but their fairness questioned by legal experts and scholars.[87] The legal scholars state that the fast-track courts may not be fair in an impoverished country where millions of cases are backlogged, and there are an average of just 14 judges per million people - among the lowest in a United Nations study of 65 nations.[88] Fast track courts divert limited judicial resources and add delays to prosecution of other crimes.[87][88] They noted that Delhi state had instituted five fast-track courts in 2013 to handle rape cases, but there are no fast-track courts for murder.[87] Mrinal Satish, of New Delhi's National Law University said, "there is a risk that in this emotional response and clamor for immediate justice, we could end up putting innocent people in prison".[87]

Convictions

The conviction rate for rapes has fallen at a steep rate over the past 40 years. The conviction rates for Rape cases in India were 44.3 percent in 1973, 37.7 percent in 1983, 26.9 percent in 2009, 26.6 percent in 2010 and 26.4 percent in 2011.[89]

Marital rape

Marital rape is not a criminal offense within Indian legal framework,[90] except during the period of judicial separation of the partners. In the 1980s, women's rights groups lobbied for marital rape to be declared unlawful, as until 1983, the criminal law (amendment) act stated that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape".[91][92] The government officials argued that the contract of marriage presumes consent to sex and that criminalising marital rape in turn would weaken family values in India.[90]

The Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below 15. Thus, marital rape is not a criminal offense under IPC.[93] The marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA).[94] The PWDVA, which came into force in 2006, outlaws marital rape.[95] However, it offers only a civil remedy for the offence.[96]

The Protection of Women from Domestic Violence Act 2005 (PWDVA) which came into force in 2006, provides protection against marital rape or other forms of sexual perversions and domestic violence.[95] However, it offers only a civil remedy for the offence.[96]

Earlier, in May 2014, an Indian court ruled that marital rape was not illegal in India.[97] This particular case focused on the culprit, Vikash, who allegedly got a girl intoxicated, raped her and fled.[97] It ignited a number of protests in which the citizens argued that the ruling "highlighted the failure of Indian law to protect the majority of women in the country". The culprit hid behind the outdated legislation to get away with a crime.[97]

Potential abuse concerns

In April 2013, Judge Virender Bhat has suggested that the legal proposition of relying upon the sole attestation of the victim became "an easy weapon" to incriminate anyone in rape case.[98] Justice Kailash Ghambhir of the Delhi High Court stated that penal provisions for rape are often being misused by women as a "weapon for vengeance and vendetta" to harass and blackmail their male friends by filing false cases to extort money and to force them get married.[99] Saamna, mouthpiece of Shiv Sena in an editorial noted while supporting the Deputy Inspector General Of Police in Mumbai in an alleged rape complaint that it has become "a fashion to create sensation by charging someone for rape and molestation"[100] while Shonee Kapoor, founder of Sahodar Men's Right Group, demanded that the name of the accused should not be made public till conviction.[101]

See also

Regional:

References

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  81. 1 2 3 Section 376A, Criminal Law (Amendment) Act, 2013
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  101. ↑ "Rape accused not to be made public". ABP News. 3 August 2014.

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