“She was powerful, not because she wasn’t scared but because she went on so strongly despite the fear.” _______ Atticus
Abstract- Rape and sexual assault are not just against women but against the whole society, against the human right, against the humanity and the human dignity. Whatever the situation is or will be no one will endure being physically, verbally, or sexually abused. Raping of newly born children to raping 84 years old women, the offence is getting worst and worst day by day. After 1860, there are many changes made under the criminal law and mainly highlighting the issue of rape. There are many definitions of rape inserted time to time. IPC included the term ‘Consent’, ‘against her will’. Despite various types of changes in rape laws, the situation is still out of control. This paper highlighted the reasons, loopholes, findings, best practices for rapists in different countries and .various amendments regarding rape laws in India. The main question that arises in the mind of every citizen of India is if there are laws in a country why do women suffer?
Keywords – Rape laws, Rape, Incest rape, Monsters, Nirbhaya Case, Amendments.
Introduction – Section 3751of the Indian Penal Code (IPC), states that rape is committed by men when he has sexual intercourse with women under any of the following circumstances:
• 
• 
• With her consent obtained by using fear of death or hurt against her or someone she cares about.
• With her consent, knowing that he is not her husband, she believes he is another man to whom she married or believes herself to be lawfully married.
• With her consent, when she is unable to understand the nature and consequence of giving consent due to unsoundness of mind, intoxication, or the administration of stupefying or unwholesome substances.
• With or without her consent, when she is under 18 years of age. • When she is unable to communicate consent.
State of Uttar Pradesh v Chottey Lal (2011)2
In this case, The Apex Court clarifies the Phrase “against her will” means that the intercourse was done by a man without the consent of a woman that h means forcibly.
It is an ironic situation, a country where women are considered goddesses the incidence of rape and sexual assault, one of the most heinous crimes, is increasing day by day making us
ashamed. Discrimination is the primary cause of rape and sexual assault, which are severe violations of human dignity and extreme denials of women’s equality. These acts affect the
human body and are a global problem recognised as hostile acts in which the perpetrator seeks to gain control over the victim through force or threat. Many victims of abuse face a great deal
of social stigma and are often unfairly blamed for the mistreatment they have suffered. Throughout history, there are many examples where the burden of proof of rape and sexual
1Indian Penal code: Section 375 (1862) (India).
2 State of Uttar Pradesh v chottey lal,(2011) 2 SCC 550 (India).
assault was placed on the victim by men who held dominance and authority in society. Educating people to see women as human beings, not luxury commodities, is crucial. The
protection of women is not only the responsibility of the police authorities but also of the general public. Changes in laws are equally important as changes in people’s mindsets.
Nowadays, teenagers and older people are also found culprits in sexual crimes. Every time rapist is not the stranger people, rather culprits are our family members, relations on whom we
have much trust and this is a matter of great shame. Why does society blame victims because no one “asks” for this type of heinous attack?
The Criminal Law (Amendment) Act,1983 also brought changes in Indian Evidence Act by inserting section 114A that if a woman alleges that she didn’t give consent for sexual
intercourse then the burden of proof shifts onto the offender or rapist to prove the existence of consent.3
Balwant Singh V. State of Punjab (1987)4
In this case, the Supreme Court held that the absence of any injury or mark on the body of the victim while she was raped is not meant or make sense that consent was given by the victim.
Research Methodology – This paper is descriptive and mainly focuses on the various amendments regarding rape laws in India, reasons for the amendments, comparison of legal responses across different countries. This Research paper is based on secondary sources of information like journals, websites, Books etc.
Review of literature – Rape and sexual assault is a form of violence which make long lasting effects on victims and society. The ongoing efforts and discussions to address these heinous crimes need strict reforms. This literature examines legal actions, policies, and practices against rapists. In the past, legal responses against rape and similar crime were highly influenced by patriarchal norms, beliefs and misconceptions just because families have the pressure of social stigma and reputation in the society which breakdown women so hard. Marital rape is one of the biggest issues which are trending since long time. After this, various
3 Criminal Law (Amendment Act) : Section 114A (1983) (India).
4 Balwant Singh v State of Punjab, (1987) Cri LJ 971 SC (India).
amendments have been passed till now. It shows the critical situation, inhuman nature, and cruelty toward women. This review provides the holistic nature of the world’s challenges and the legal framework by different countries to control these offences.
Evolution of Rape Law – The evolution of rape laws was put into effect after the enactment of the Indian Penal Code, in 1860. It included sections 375 to 376E to refer to ‘sexual offences.5It defined rape as sex without consent, with consent but the fear of death. The first amendment in IPC regarding sexual offence came after the 1st rape case of an Adivasi girl named, Mathura raped by two Policemen while she is in custody. The case came for hearing to Supreme Court where it was made a controversial opinion that Mathura was ‘habituated to sexual intercourse’as there is no mark of injury in her body that proved she was used to sex and the court stated that this was not considered as rape but a ‘peaceful affairs’ between the girl and cops. This statement raised anger across the country and showed the legal system’s failure and how hard it is to get justice. Many lawyers, social activists and prominent professors from many universities protested and wrote an open letter to the Chief Justice of India against Erroneous judgement by the supreme court and demanded many changes in the criminal code for the offence of rape. This landmark case changes the landscape of rape laws in India.6 This resulted in the Criminal Amendment Act passed in 1983 and added section 228A (as per section 72 Bhartiya Nyaya Sanhita). It deals with the disclosure of the victim’s identity in such an offence.
As per section 376(2) of IPC, if the rape is committed by the person mentioned below are liable for the punishment of 10 years in jail and it can be extended to life imprisonment:
• Within the confines of the police station, there is a police officer.
• Any station house has a police officer on the grounds.
• On a woman in his custody, a Public Servant
• Armed force personnel.
• A woman at a hospital was subjected to the facility’s staff and management. • On a woman who is pregnant.
• On a woman under the age of 16 years.
5 Pamini Kasera, A Historical Analysis of Rape Laws in India, SSRN (June 29,2020,) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3619807.
6 Shweta Sengar, Habituated to sex, May have incited Cops: How 1972 Mathura Rape case changed Nation & Laws, India Times (November 24, 2021, 2:55 Pm), https://www.indiatimes.com/explainers/news/laws-against rapes-in-india-555038.html.
• On a woman who is unable to consent.
• On a lady who is psychologically or physically challenged.
• Who rapes the same woman multiple times.
Rape Statistics in India7– India is against rape but there is no improvement rather it is increasing day by day. It is the fourth most common crime in India against women. 31,677 rape cases were registered across the country, according to the 2021 annual report of the National Crime Record Bureau (NCRB). One rape was reported every 16 minutes in India in 2019. It shows the critical situation, inhuman nature, and cruelty toward women. 86 cases rise daily from 2020 with 28,046 cases. The NCRB 2021 statistics showed Rajasthan reported the highest number of rapes among Indian states. Delhi has the highest number of rape incidences
(1,226 cases in 2021) among, Metropolitan cities in India. Kolkata had the least number of registered rape cases. These statistics do not just end to rape but also the murder of the rape victim. India was ranked 7th for sex trafficking and crime like rape against minors. 100,000 minors are raped each year in our country and many girls minor trafficked for prostitution. NCRB also reported that most the rape case is still unreported because of the humiliation by society, social stigma, and the reputation of the society. Statistics also reported that 71% of the cases were unreported. Only one case in India resulted in the conviction of an offender among four cases. Victim blaming is one of the main reasons that make it tough to come forward for justice. Section 375(2) of the IPC states that sexual intercourse by a man against his wife, not being under 18 years of age, is not rape. In India, Marital Rape is not considered as a criminal offence. Despite many amendments happening attempts to rape occurs every 5 minutes in the United States.
8Japan has enhanced the definition of rape as “forced sexual intercourse” to “non-consensual sexual intercourse” and encompasses a wider range of scenarios where victims may be unable to refuse or express their consent to engage in sexual intercourse.
Reasons for Rising rape in India-
• Lack of awareness about Gender equality, consent and sexual rights of an individual mainly in Rural areas, address the sexual offence.
7 The Wire staff, Nearly 20% Increases in Rapes across India in 2021, Rajasthan Had Highest Cases: NCRB, The Wire, August 30, 2022.
8Juliana Kim, Japan expands the definition of rape and raises the age of consent to 16 from 13, Health News Florida( June 17, 2023, 6:00 AM), https://health.wusf.usf.edu/2023-06-17/japan-expands-the definition-of-rape-and-raises-the-age-of-consent-to-16-from-13?_amp=true.
• India has several backlogs of rape cases, and a lengthy and complex process to deal with rape cases causes failure in the legal system.
• The biggest reasons for the rise of this horrific crime is, that society just blames the victim, judges victims by their dress, timing of outings etc. and supports the tag of “Boys are Boys”.
• Poor investigation of offences by Police is another reason criminals go unpunished. Case Study: Mukesh V. State of NCT Delhi (NIRBHAYA CASE) 20179
Whenever the topic of rape comes up no one can forget the Nirbhaya Gangrape murder case. This horrific landmark case led to landmark changes in the whole criminal law on Sexual Violence and Rape. This case not only shocked India but also gained international attention.
On December 16, 2012, a 23-year-old girl and her male friend while returning home boarded a bus where six other men including the bus driver were already on the bus. The bus driver deviated his bus on another path and other men who were already in the bus before Nirbhaya, and her friend shut the door and switched off the lights in the bus. Her male friend suspected something was wrong and raised an objection. He was beaten up by one of the culprits, and other culprits pulled Nirbhaya and gang-raped her one by one. She was not just sexually violated but one minor culprit inserted a rod in her vagina and pulled out her intestine and later throw out her body from the bus. The doctor said she was in extremely critical condition and suffered various injuries due to sexual assault. The police reported that she struggled very bravely. Many youths started to protest through slogans, candle March, media etc. A three judge bench accorded that the act done by the monsters did not deserve any sympathy. A British documentary called “India’s Daughter” was banned by the Indian Government because it highlighted India very negatively and derogatorily.
The legal system fails to give justice to Nirbhaya immediately. It took 7 Years, and 3 Months to get much-awaited justice and that monster was hanged to death. “There will be no second Nirbhaya. Police, Courts, State Government – everyone has to take a pledge that together we will remove the loopholes of the system and will not let this happen to any daughter in future,” Kejriwal said.10
9Mukesh & Anr v State of NCT Delhi ( Nirbhaya Case),(2017) 6 SCC 1.
10 IANS, Nirbhaya case show loopholes in the judicial system: Kejriwal (March 20, 2020) , https://www.mangalorean.com/nirbhaya-case-show-loopholes-in-judicial-system-kejriwal/ .
Best Practices and Lessons Learned from different countries11– Though rape and sexual assault are international problems and many countries across the world came up with strict laws against rapists to make their countries the safest place for women. Here are the rape Punishments of different countries.
India – After the Nirbhaya Gang Rape case, Anti- Rape Bill passed in April 2013 and made many changes in rape law. The culprit of the rape case is subject to life imprisonment which is considered 14 years and the death sentence in the rarest of rarest cases.
Pakistan –Assault, Rape, Molestation especially, gang rape is punishable by death in Pakistan.
China – The punishment for rape in China depends on various factors such as the gravity of the offence. The common punishment for rape is death which is also followed in China. Castration is the exception in some rarest cases of rape.
Afghanistan – This country applies very straightforward punishment for rape. Rapists in this country are shot in the head or sentenced to death by hanging advised by the court according to their judgement in any case.
Iran– Iran practices the death penalty by hanging and sometimes stoning rapists. According to the studies Iran hanged 834 people approx. in 2023.
Saudi Arabia – Saudi Arabia practices horrific punishment as heinous the rape is. The person convicted of the offence of rape in Saudi is punished by flogging to Beheading after administering the rapist with sedatives.
North Korea – North Korea practices capital punishment for many offences such as Murder, Drug smuggling, theft etc. The rapist in North Korea is sentenced to death by firing squad.
However, many countries practice strict punishment against rapists but no countries including India considered Marital Rape as an offence.
Proposed reforms and policy Recommendations against rape – The new bill proposed by the central government enhanced the criminal laws and proposed a separate law
11 TBS Report, Punishment for rapists in different countries, The Business Standard (12 october,2020,1:35Pm) https://www.tbsnews.net/world/punishment-rapists-different-countries-144115.html.
for rape and separate laws for minor rape. A whole new fresh chapter is included in our criminal law dedicated to crimes against women and children. In 2016, 21% of the total rape case, 39,068 Cases of rape were against the below age of 16, minor girls. The punishment for rape has been upgraded from seven years to 10 years and the Rape of a minor girl who is under the age of 16 years will liable for punishment with life imprisonment, while the rape of a minor girl child under the age of 12 is punished with a death sentence. Essentially, For the gang rape of a minor will be punished with the death penalty. When the anti-rape bill was introduced for the very first time the law highlighted the terms stalking and voyeurism and considered it a non-bailable offence. Indian Government have given 6 rights to the victim of rape.12
Rights of Rape Victim to Zero Fir: The term Zero Fir defines that the woman can file an FIR at any police station irrespective of their jurisdiction. It came into force on the recommendation of the Justice Verma Committee formed in the context of the brutal Nirbhaya Gangrape Case in Delhi in 2012.
• Medical treatment at free of cost: Section 357C of the Code of Criminal Procedure (CrPc) talks about, Victims of rape need not pay any charges or fees to any private and government hospitals for medical treatment.
• Banned two-finger test: While doing a medical examination, no doctor shall possess the right to do two-finger test to rape victims.
• Right To Compensation:According to section 375A of the CrPc(a new provision) which states the compensation scheme for rape victims.
Recommendation and Findings 13
• Indian Criminal law is gender biased.
• Provisions are still lacking for Incest rape which means blood relation eg. Father, Brother, Cousins etc.
• In today’s criminal system it still following traditional ways to deal with cases and the major problem arising is there is a delay in the trial procedure.
• The trial should be set up immediately for the rarest rape case.
12 Neha Ranjan Gupta, “Know your Rights”, Rights of Rape victim, My Lawman innovation in law (June 25,2022) https://www.mylawman.co.in/2022/06/know-your-rights-rights-of-rape-victim.html?m=1 . 13 Samriddhi Thakur, All you need to know about Laws against Rape in India (September 11, 2021, 5:14 Am), https://www.lawinsider.in/columns/all-you-need-to-know-about-rape-in-india .
• A few fast-track courts should be set up that are mainly dedicated to sexual assault victims.
Conclusion and Suggestions: There are many changes and Amendments still happening though this heinous violence cannot be controlled much. The changes are inserted when the women of our nation suffer from this pain but changes should be made after analysing all the different factors so that next time no women will become victims again. Men should respect the sex which gives them birth. Only Amendments cannot change this horrific scenario it just gives the punishment to the offender. If a nation wants to change this situation there is an urgent need for strict laws and hard punishment for rape accused. The changes should be from own home because “Charity begins at home”. Sex Education can play a crucial role which can help to reduce the percentage of crimes like rape. Government should establish zero
tolerance policies for crimes like rape or sexual harassment. The government should introduce a policy for self-defence training for women in every school. We should not wait for another big case, together we should fight against those monsters. We should raise the voice against social stigma which is more toxic than rape. The government should promote gender equality. Society needs to change its mindset especially regarding the rape victim because what’s happening to one woman today could happen to any of us tomorrow.
Name – Kangna Mishra
College – Sister Nivedita University.