ABSTRACT
Rape is a crime that destroys a person’s life and Digital Rape is a form of it, these crimes make a person vulnerable for their lifetime and gave them many traumas as there is much victimization happens by society and this thing is the major concern for every individual irrespective of their gender as because of these crimes a person don’t lead their life fully by their way and these all prevents both our Fundamental And Human rights so we have to know about the problem and then we need to find the ways to get rid of it but current data says that ‘In the state of Orissa more than 10,000 women and minor girls were allegedly raped between 2019 and 2022 (until April), despite restrictions on the movement of people and vehicles during two years of the lockdown due to covid. Altogether 3,327 rape cases were registered in 2021 as per the written reply by the state minister for home, Tusharkanti Behera.[1], now from this data of one state we could imagine the situation of all over India thus this all needs to be paid attention to and it should be the concern of legislature to curb these all through stringent law-making and implementation and responsibility of people and organizations to produce a safe environment where no one hesitates to put forward their thought and can sense security all the time.
KEYWORDS: digital rape, penetration, sexual assault, exploitation, perpetrators.
INTRODUCTION
Digital Rape – in society in general people can’t even understand what is digital rape, when they hear about this, they think that it might be some misconduct with someone online or on a phone call and they usually get shocked when they came to know that it is exactly opposite to their expectations as they were expecting it to something of very non-harming nature but in reality, it is a cruel form of rape as it is in actual “when someone forcefully penetrates any object or body part other than the reproductive organ in the vagina, mouth, the urethra or anus of a person” and then it becomes the disturbing topic to talk in the general public. It is generally gender-neutral in nature but the Indian laws majorly focus on women in IPC and children anyone can become a victim of this gruesome act so it is most important that we know about it and spread awareness.
So why we named this Digital Rape? Only because the phrase is derived from the word digit in English which means thumbs, toe, or foot, and in this forceful penetration these happen. In India, the awareness about the crime is as less as they don’t even know that they can even report these things. It is a kind of rape in which the rapist can be of any age and any gender. For these things, we need to pay attention to the mental trauma a victim is facing after going through these all.
RESEARCH METHODOLOGY
This paper is descriptive and the research is based on secondary data from various reported cases, enacted acts, and already published news reports and the journals of various credible sources available in the public domain on the topic of digital rape.
REVIEW OF LITERATURE
To do this research successfully, the author studied many publications and reports from reputed magazines, articles, and blogs that were published. We found 5 publications that addressed the issue of digital rape, the acts related to it, and the reporting of the cases of digital rape and this helps us in the content analysis, to mention a few:
- JUS CORPUS: In this blog titled “Digital Rape: Punishment and Where it is Recognized under Indian Law”[2], the author discussed digital rape in brief and then stressed the amendment of laws came for including Digital Rape in IPC, then discussed the punishments and did data analysis and discussed recent cases of Digital Rape and concluded with the suggestion to stringent the laws and accept the policy of zero tolerance for rape cases.
- PRIME LEGAL: In this article titled “Digital Rape”[3], the author discussed digital rape and types of rape in India and dealt thoroughly with the punishment for digital rape and concluded with that how after the Nirbhaya case, the definition and rules changed regarding it.
DIGITAL RAPE – A HEINOUS CRIME
In the recent past, very frequent cases of digital rape are coming which raises the question that where we are heading as a society, so this is a moral question as well as a legal question, and to some extent, we dealt with the legal one as before 2012 this crime was only considered as molestation and there was some minimal punishment for this but after the Nirbhaya case Justice JS Verma Committee constituted which recommended to include this into the Rape Crime and then later on through Criminal Law (Amendment) Act, 2013,[4] the definition and punishment are defined in section 375 and 376 of IPC and this is also considered as rape in section 3 of POSCO Act.
The victims of digital rape have to face exploitation which hurt their integrity and self-respect and left them with trauma for the rest of their life as in these kinds of cases they felt pain with trauma. Because of this, victims develop the fear of polarization as they get segregated from society, and the humility, they get from others affects their mental health. Later on, they don’t even want to face themself thus we need social restructuring for the same because when instead of victimization of them when we will treat them as normal and will make them feel safe, then only they might get recovered from those things and can lead a better life.
Digital Rape, the major reason behind it is when one is not able to safeguard themselves because of the influence of that person on the victim or the victim is not aware of the exploitation like the children or insane person also sometimes when anyone gets trapped in a situation from where they can’t escape and also it is present in the society because we don’t have the stringent and fast implementation of the laws.
It was also held by the Supreme Court of India in the case of Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty[5] that “Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by sheer willpower that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished Fundamental Rights, namely, the Right to Life contained in Article 21[6]. To many feminists and psychiatrists, rape is less a sexual offense than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.”
SECTION 375 – 376 OF IPC & SECTION 3 – 4 OF THE POSCO ACT, 2012
Section 375[7] for RAPE – A man is presumed to commit “rape” if that person —
a) penetrates his penis to any extent into the vagina, mouth, urethra, or anus of the woman or forces her to do so with him or another person; or
b) insert any object or body part, except the penis, into the vagina, urethra, or anus of a woman, or force her to do so with herself or another person; or
(c) manipulates any part of the body of a woman to penetrate the vagina, urethra, anus, or any part of the body of such woman or compels her to do so with himself or with any other person; or
(d) binds his mouth to the vagina, anus, or urethra of a woman or forces her to do so with him or another person in circumstances that fall under any of the following seven descriptions:
- Against her desire.
- Without her agreement.
- With her agreement, if she agreed because she or any person in whom she is interested has any fear of death or injury by the offender.
- With her consent, if the man knows that he is not her husband and that her consent is given because she believes that it is another man with whom she is or thinks that she is legally married.
- With her agreement, if at the time of giving consent, she does not understand its nature and consequences due to mental health or intoxication or narcotic or harmful substances administered by him personally or through another to which she agrees.
- With or without her agreement, if she is under 18 years of age.
- If she cannot give permission or consent.
- Explanation 1 is that in this section, “vagina” also refers to the labia majora.
- Explanation 2 is that the consent or agreement means an unequivocal voluntary agreement when a woman expresses her willingness to participate in a specific sexual act through words, gestures, or any form of verbal or non-verbal communication: Provided that a woman who does not physically resist penetration shall not be deemed to have consented to sexual activity for that reason alone.
- Exception 1 is that a medical procedure or intervention is not rape.
- Exception 2 is that the Sexual intercourse between a man and his wife, the woman is not less than 15 years old, and is not rape.
Section 376[8] for the Punishment for rape.
(1). The perpetrator of sexual violence, except in the cases provided for in subsection (2), must be punished with imprisonment of at least ten years, but up to life imprisonment, with a severe prison sentence., and is also liable to be fined.
(2). Whoever, –
Subsection 2 –
j) rapes a woman who cannot give her consent; or
k) to be under the control or in a dominant position over a woman who rapes such a woman; or
l) rapes a mentally or physically disabled woman; or
(m) the rape causes serious bodily injury or mutilates or distorts or endangers the life of the woman; or
(n) repeatedly rapes the same woman, is punished by at least ten years of rigorous imprisonment, which can extend to life imprisonment, which means imprisonment for the remaining natural time of that person, and can also be punished by a fine.
(3). Rape of a woman under the age of sixteen is punished by rigorous imprisonment, the duration of which is at least twenty years, but which may extend to life imprisonment, which means imprisonment for the rest of the term of the natural life of that person and is additionally punished by a fine:
- Provided that the fine is fair and reasonable to cover the costs of treatment and rehabilitation of the victim:
- Provided that the fine determined on the basis of this subsection shall be paid to the victim.
The Protection of Children from Sexual Offences Rules, 2012
Section 3[9] for the Penetrative Sexual Assault.
A person reportedly committed a “penetrative sexual assault” when
a) he penetrates his penis into the vagina, mouth, urethra, or anus, to any extent, of the child or forces the child to do so with himself or with another person; or
(b) he inserts any object or part of the body, other than the penis, to any extent into the vagina, urethra, or anus of the child, or forces the child to do so with himself or any other person; or
(c) he manipulates any part of the child’s body to penetrate the vagina, urethra, anus, or any part of the child’s body or forces the child to do so with himself or any other person; or
d) he puts his mouth on the penis, vagina, anus, and urethra of the child or forces the child to do so on such a person or on another person
Section – 4[10] for the Punishment for Penetrative Sexual Assault.
[(1) A perpetrator of penetrative sexual violence must be punished by both types of imprisonment, which must be at least [ten years] but may extend to life imprisonment, and a fine.
(2) Penetrative sexual abuse of a child under the age of 16 is punishable by at least twenty years in prison, which may extend to life imprisonment, which means imprisonment for the remaining term of the natural life of that person and can also be fined.
(3) The fine imposed based on subsection 1 is fair and reasonable and must be paid to the victim to cover the victim’s medical and rehabilitation costs.]
In Section 5[11] and Section 6[12], aggravated penetrative sexual assault and the punishment of the same are defined.
SUGGESTIONS FOR THE BETTER IMPLEMENTATION OF LAW & PREVENTION OF SEXUAL EXPLOITATION
The real problem with why heinous crimes like digital rape happen in society is the lenient implementation of the law, no fear of the law, and the mentality of the perpetrators which needs to be changed totally otherwise the people will neither respect the law of the land and nor they will respect the integrity of any individual and in this fear of lawless society emerges as why anybody will have faith in the law if they get assaulted in the democracy where they have the fundamental rights which the right to life is given which includes to live with integrity and respectfully but in that country, that person is not getting the justice from the entire machinery and even they face problems from this machinery also when they fight for their rights and justice.
In cases of digital rape, we can easily see that the offender’s age doesn’t matter and even things happened to the persons irrespective of the victim’s age. Thus, the changes we need changes in the government machinery and the society so the authorities become easily approachable and we become able to prevent such acts from both at the legal and societal levels, they are:
- Sensitisation of the system: In India the people working as a part of the government or judicial machinery, first of all, need to be sensitized towards the sexual assaults victim and this can also be through awareness but till complete awareness comes in the society we need the regulations that how a governmental or a judicial person machinery person should have their attitude towards victims.
- Transparency and communication: We all know that rape is irreversible once it’s done so that’s why we need to prevent it this could happen when we all will start talking about it and will recognize that the problem exists and it is not something we are supposed to accept, we are here to prevent that thing and this can be done by bringing transparency in the society so a talk could be initiated among the general people and we have to start bringing transparency first at governmental level by putting all the data related to it in the public forum and then talk could be initiated at different institutions and public influencers and then people will start recognizing and problem and will develop a zeal to prevent it.
- Victim blaming needs to be stopped: When a person gets assaulted by anyone then society as a whole starts victim blaming and they start telling him or her how should them had dressed up and how they should have behaved in the particular situation and many other things but this behaviour of the society needs to be changed and we need to shift our focus on the perpetrator for blaming and we need to make them feel from there that they have done a heinous crime and then there are also chances that they change.
- De-normalize Sexual violence: In the society in general if we try to find then we will find out that there are many jokes on the jokes and this behaviour of the society normalizes sexual violence which needs to be stopped then this could happen only in two ways one is when they get themselves go through the same situation and second one is awareness through the transparency and communication in the society we talked previously so people understands the gravity of the matter.
- Reform perpetrators: Generally when the government plans policies they pay attention to the victim (which they should do) but making only a victim-centric approach is not going to do much benefit the society as a whole apart from providing care for victims we also need to reform the victims thus we should make policies also regarding them which could be like a fair and speedy trail so they don’t have to spend the equal years of punishments before the trail finalize and then in jail the psychologists should evaluate if there are chances for their reformation and if there are chances then we should work upon it with keeping the eyes on victims get justice also.
- Policy to balance the power imbalance: In society, sexual violence also happens because the perpetrator finds that they have more power than the victim in a particular organization, institution or office, etc., thus they dare to ask for sexual favours and when they don’t as they want then they misbehave as they believe that he or she will not raise their voices because they are at the superior posts so govt need to make policies so that this imbalance of power could be balanced and anyone can raise their voice and don’t get fear from doing so and for this Indian Govt is making laws but those all need to more stringent.
- Institutional education: In India where the literacy rate is increasing (In 2022 it’s 77.7%[13]) it could be believed that people are attending educational institutions so the government should start campaigns so the students could understand how consent matters before any sexual act and what are the consequences of the assault and should frame their mind in a way so they start respecting the feelings of others and other genders.
- Media’s Role and Responsibility: In a society, media plays a very important role as they are the ones who set the topic and trend of talk among the public thus the media’s role is very crucial in this so people could get transparent information and other things related to it and therefore their responsibility is to talk about digital rapes and other sexual offenses, media could play a big role in breaking the rigid mindset if people when media will interview the victims and will let them represent themselves either anonymously or face to face.
- Demand Changes: The most important is in democracy is demanding the changes you want so everyone who is getting to know about this thing should talk about it and then if they think that any policy needs to be made or should be reformed for the betterment of everyone then they all should raise their voice and should the same from their representatives and officials.
CONCLUSION
Digital Rape is the heinous crime that came to be known after the Nirbhaya case and the amendment of 2013 through which it’s get included in the IPC and POSCO Act which was earlier just considered as molestation but now we have the legislation for it but the public awareness is very less on which the government should work through campaigns so people get to know about it and they can raise their voice if they had to go through this thing at any point of their life.
Also, the recommendations which are made include transparency, awareness, education, and strict action with reformation policy as we as a society don’t have to only console the victims but have to stop any kind of sexual exploitation by educating the people and by making them know about the difficulty one’s face in their life after they get raped by communication through the govt and media and apart from all these we have to popularise the mindset of respecting all others and their life & integrity so the cases like the assault with children, insane, or old could also be stopped.
For all the things we want to get from society and the law, in a democracy we all have to demand those things and each person who thinks that they can make a positive change in society, should come forward and work for that cause, as this is the only way we could create a respectful societal condition for all in which everyone has the strong backing of law for their respectful life and integrity.
SHIVANSHU SHIVAM
CHANAKYA NATIONAL LAW UNIVERSITY
[1] Debabrata Mohapatra, Bhubaneshwar: State saw over 10 thousand ‘rape’ cases in 2019 – 22, THE TIMES OF INDIA (July 5, 2022, 11:59 AM), https://timesofindia.indiatimes.com/city/bhubaneswar/state-saw-over-10k-rape-cases-in-2019-22-govt-tells-assembly/articleshow/92666095.cms
[2] Mehar Kaur, Digital Rape: Punishment and Where it is Recognized under Indian Law, JUS CORPUS LAW JOURNAL (April 11, 2023, 11:05 PM), https://www.juscorpus.com/digital-rape-punishment-and-where-it-is-recognized-under-indian-law/
[3] Deepa Bajaj, Digital Rape, PRIME LEGAL, (Nov. 20, 2022), https://primelegal.in/2022/11/20/digital-rape/
[4] Criminal Law (Amendment) Act, 2013, Acts of Parliament, 2013 (India)
[5] Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
[6] INDIA CONST. art. 21
[7] The Criminal Law (Amendment) Act, 2013, § 375, No. 13, Acts of Parliament, 1949 (India)
[8] The Criminal Law (Amendment) Act, 2018, § 376, No. 22, Acts of Parliament, 1949 (India)
[9] POSCO Act, 2012, § 3, No. 32, Acts of Parliament, 1949 (India)
[10] POSCO Act, 2012, § 4, No. 32, Acts of Parliament, 1949 (India)
[11] POSCO Act, 2012, § 5, No. 32, Acts of Parliament, 1949 (India)
[12] POSCO Act, 2012, § 6, No. 32, Acts of Parliament, 1949 (India)
[13] Shivanshu Shivam, Hardships of Legal Illiteracy and the Need for Pro-Bono Work in Law, 3 Jus Corpus 242, 243 (2023), https://tinyurl.com/mtvu36tz