I’ve been doing a bit of reading on rape law in India . This post deals with the existing definition of rape in the Indian Penal Code, as well as the prescribed punitive actions stated in the Code.
One of the first things I noticed was that the definition (Section 375) was written in 1860- a full 150 years ago.
It states that rape is said to have taken place when a man has sexual intercourse with a woman under the following conditions- against her will/without her consent/if her consent is obtained under threats made against her or someone known to her/if her consent is obtained by intoxicating her –either by the rapist or another/if her consent is given in the belief that she is consenting to her husband/ if she is 16 or younger (15 or younger if she is the man’s own wife).
Also, the ‘sexual intercourse’ is defined as at least a single act of penetration.
The immediate issues are quite obvious- the assumption that only women can be raped , the specific exclusion of martial sexual intercourse from the definition and the rather narrow definition of intercourse that counts as rape. I also find the intoxication clause mystifying- to me it sounds as if the list of invalid consent needs the addition of a clause on self consumption of an intoxicating substance.
Coming to the punitive aspects (Section 376), the Penal Code broadly divides rapes into 3 categories-
The first is the default category which attracts a minimum of 7 years imprisonment, a maximum of life – plus or minus a fine.
The second is the custodial rape category- which occurs in institutional premises (remand homes,jails,police stations, hospitals) and by staff working there at the time.The minimum imprisonment is 10 years , extendable to life, and may also be subject to a fine.
The third is gang-rape, the punishment for each rapist in the gang being as described in the second category.
The prison sentences to me , seem reasonable enough – though many may disagree.Some countries tend to have a separate clause on aggravated rape where other injuries and STD transmission also occur- which have more severe punishments- perhaps that is dealt with in India by bringing separate charges against the defendant?
I also feel that it should be mandatory for the State to offer free mental health services for an extended period of time to the rape survivor in cases where a conviction has been secured- taxes can be better used towards the rehabilitation of the plaintiff.
All in all, it does seem like we need to quickly act to update the definition of rape in India, make the victim gender neutral as well as add a clause on martial rape. I am not sure if changing the punishment for rape will do much- a far more effective deterrent is to ensure more cases are brought to trial and that more convictions are fairly secured.
Finally,when I studied Forensics as a med student, our professor showed us an excellent video on the ‘how to’ of the process that ideally should begin when a complainant reaches the police station.It was made to sensitize both the police and the doctors on how to make the victim feel more at ease. (I think it was made by Gujarat Police with inputs from NGOs, not sure)- Anyway, I think such initiatives should be more widespread, and everyone should be able to access a ‘what happens next’ source that can prepare them as to what to expect.