ABSTRACT
Digital rape is an offence which is quite nascent to Indian legal system as well as for people of India. There are some misconceptions regarding the term ‘Digital’ of offence of digital rape in the mind of a layman, and this article try to give a better understanding of the term ‘Digital’ as well as the whole concept of digital rape. This article shows how digital rape came into being. Also, the provisions of different laws before the term Digital Rape came into existence, are discussed in this article. While thoroughly investigating into various aspects of Digital Rape, One can understand the current provisions of law regarding Digital Rape.
It discusses provisions of law in the past as well as current position of law, with different contemporary cases in which different facets like existing relations between victim and perpetrator, intention of the accused, judgement etc… are also discussed. Various data regarding Digital Rape, what were the age of convicted persons, and victims, etc… . Various procedures that police follow in cases of Digital Rape, rights of victim and rights of accused, medical test procedures, have also been stated to impart a clear view. It also provides some suggestions that, if included in policies regarding Digital Rape, and can provide a victim friendly process to get speedy justice.
INTRODUCTION
Every day we come across different news of crimes through media, whether it is print media or digital media. In those media reports some offences are trivial in nature while some are very heinous like murder, rape, dacoity…etc. An ordinary person when read these reports, he/she may not have the whole knowledge about it, as to whether that person can recognize those offences and their graveness. The same problem one can face when he comes across the term “Digital Rape”. What does he understand? What does he think? A layman misunderstands the offence of digital rape by connecting the term Digital to some offences that occur on metaverse or internet. However digital rape has nothing to do with laptop, smartphones, or anything connected to internet or metaverse.
In digital rape the offender uses his finger or fingers or any foreign object to penetrate into a person’s vagina without their free consent. It compels sexual acts upon the women. The word “Digit” in the term Digital means a finger, thumb, or toe and in digital rape the perpetrator uses finger, fingers, or toes hence, calling the crime digital rape. The term ‘digital rape’ is gender neutral and applicable to all kinds of victims and offenders.
PROVISIONS DEALING WITH OFFENCE OF RAPE
Offence of rape is a heinous offence which is defined in Section 375 of Indian Penal Code, 1860. According to the section “a man is said to commit rape when he has sexual intercourse with a woman under following circumstances”1
∙ Against her will
∙ Without her consent
∙ With her consent, when the man knows that he is not her husband and she believes that the other man is the one to whom she is lawfully married.
∙ With her consent, when her consent is obtained by putting her or any person in whom she is interested in fear of death or of hurt.
∙ With or without her consent, when she is under sixteen years of age.
Now, to understand the penal provisions for the offence of rape one has to refer Section 376 of IPC. Sub section one statesthat whoever commits the offenceof rape shall be punished for imprisonment of either description for a term which shall not be lessthan seven years but which may be for life or a term which may extend to ten years and shall alsobe liable to fine.2 Sub section two deals with offence of rape committed by police or public servantsor staffs of women or child institutions or staffs of hospitals or a case of gang rape in which perpetrator shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.3 Also, courts may impose imprisonment of either description for a term less than ten years provided that there should be adequate and special reason to be mentioned in the judgement.4
1Indian Penal Code, 1860, § 375
2Indian Penal Code, 1860, § 376
3Indian Penal Code, 1860, § 376
4Indian Penal Code, 1860, § 376
NEED FOR THE TERM DIGITAL RAPE
After Nirbhaya gang rape case there was a feeling of outrage in the country against different offences of sexual abuses that women have to face. Also, there was a huge demand for reviewing, restructuring, and amending provisions of law related with crime against women.
In furtherance of this Justice JS Verma Committee was constituted on Dec 23, 2012 to meticulously review the laws dealing with offences against women and to come up with recommendations that needed to be done in order to make the laws more women friendly and to fill the loopholes.
These recommendations included changes in provisions of IPC, CrPC, Evidence Act, and POCSO Act. For widening the definition of offence of rape, Justice JS Verma committee recommended to amend section 376 of IPC, that not only penetrating the penis into vagina without the free consent of woman should be defined as rape but it should also include penetration of finger, toes, thumb, or any other foreign object.
Parliament passed the Criminal Law Amendment Act,2013 and a change was made in section 376 of IPC and defined the offence of rape as “forcefully penetrating a woman’s vagina, mouth, anus, or urethra by a penis, any other part of the body, or any foreign object.” Since, this new and wider definition included terms like any other part of body which included finger or toe and also this definition included any foreign object, hence making it as foundation the concept of Digital Rape came into existence.
CURRENT POSITION OF LAW ON DIGITAL RAPAE
Offence of digital rape is currently being dealt by mainly two criminal laws that is IPC and POCSO Act. Sections in POCSO Act which deals with digital rape are: –
Section 3: – This section defines penetrative sexual assault as “insertion to any extent of any part of the body or any object not being the penis, into vagina the urethra or anus of the child or making the child to do so with other or the offender himself.5
Section 5: – According to section 5, “offence of penetrative sexual assault on child below the age of 12 years is considered as aggravated penetrative sexual assault.5 Further it also gives conditions under which penetrative sexual assault can become aggravated penetrative sexual assault, and those conditions are following: 6
5 Protection Of Children From Sexual Offences Act, 2012, § 3
6 Protection Of Children From Sexual Offences Act, 2012, § 5
1. When the offender is the person is in relation or position of trust of the victim. 2. If there exist any blood relation between offender and victim.
3. After penetrative assault, victim gets pregnant.
4. The child suffers any injury.
Section 6: – It states that the offender of aggravated penetrative sexual assault shall be punished with imprisonment for a term which shall not be less than 20 years but which may extend to imprisonment for life and offender shall also be liable to fine.7
Section 42: – This section of POCSO Act, states that if the offence was committed under the POCSO Act and the same offence is also punishable under section 376 of IPC, the offender found guilty of such an offence shall be punished under that act which provides graver punishment.8
With different sections of POCSO Act, section 376 of IPC deals with offences of digital rape.
Section 376 defines rape as “forcefully penetrating a woman’s vagina, mouth, anus, or urethra by a penis, any foreign object, or any other part of the body.”9
So, the laws that are discussed above deals with penetration of any body part or any foreign object into the vagina or any part of the victim which forms the basis of offence of digital rape.
CASES BEFORE & AFTER CLA, 2013 ON DIGITAL RAPE
This section of article deals with two scenarios that is before the Criminal Amendment Act,2013 and after the passing of the said act, via analysing cases.
State v. Pankaj Choudhary, 201110
In this case victim was a 6-year-old girl and the accused was Pankaj Choudhary. According to FIR and victim’s statement, the accused put his finger into vagina of the victim and after sometime he started to put his finger into anus of the girl child. The claim of the prosecutor was that the accused should be tried and convicted for offence of rape. But at that time definition of rape was not wide enough to include penetration of finger into woman’s vagina or anus amounts to rape. Hence, the court held that the accused should be convicted for indecent assault given in section 354 of IPC that
7 Protection Of Children From Sexual Offences Act, 2012, § 6
8 Protection Of Children From Sexual Offences Act, 2012, § 42
9Indian Penal Code, 1860, § 376
10 State v. Pankaj Chaudhary, 2011, SCC Online Del 3454
is outraging the modesty of woman.
Analysis: In this case one can see that if the court would have relied on current definition of rape and section 376 of IPC. If we see the judgement from current provisions of law, the accused should have convicted for offence of digital rape under section 376 of IPC but instead of this he was convicted for outraging the modesty of woman under section 354 of IPC.
. Now, let us consider a case with similar facts and circumstances, but case after Criminal Law Amendment Act, 2013,
Akbar Ali v state of UP, 202211
In this case Akbar Ali was 65- year- old and was accused for digitally raping a three and half year old girl child in Salarpur village, Noida. After examining evidences, the court observed that indictment of digital rape on accused was correct and he used his fingers to penetrate the vagina of the girl child..
Analysis: In the case mentioned above the court based his judgement on definition of rape given by Criminal Law Amendment Act, 2013. If court would not have relied on definition before 2013 then Akbar Ali would have been convicted for outraging modesty of woman under section 354 of IPC rather than offence of digital rape as defined in section 376 of IPC.
DIFFERENT FACETS OF DIGITAL RAPE
When we study about offence of digital rape, we must take different facets of digital rape into consideration. These facets can include age of the victim and perpetrator, mindset of the offender, surrounding circumstances, relation between victim and offender etc.
To impart focus on these facets some cases as examples are given below:
1) In a case an 81-year-old sketch artist was convicted for digital rape. Father of victim used to send his daughter to learn art of sketching from the accused. But the accused sexually abused the girl for almost seven years. But she started gathering evidences and gave it to a woman then it came to the Knowledge of police and case was registered. The accused started exploiting the girl when she was 11 years old and it came to the knowledge of police
11 Economic Times, Noida digital rape case: man handed life imprisonment, economictimes.indiatimes.com, 1 sep 2022
when she became 17 years old.12
2) In other case an auto rikshaw driver was convicted for digitally raping a girl child in his auto.
3) A 60-year-old man was convicted for sexually abusing and digitally raping his niece, by luring her to come with him at an uninhabited place.13
When we talk about the relationship between victim and the accused, in most of cases offenders were those who were near and dear ones, there was relationship of trust between them. According to a data in 70% of digital rape cases, offenders are near and dear ones.
In most of cases the victims were teenager girls and the offenders were major that is above the age of 18. From this one can infer that at the time of offence, victims were not in the state to understand the degree of offence from which they were suffering.
Generally, in cases of digital rape, victims do not report offence in the police station. There can be many reasons for it but most prevalent is that if they report the incident in police station then their prestige in society will diminish, there will be no dignity of their family in eyes of the people, nobody will give them work, there will be problems in their marriage and perhaps no one would marry them. And, in most of cases victims do not know the rights they have. There is lack of awareness in victims about their rights.
So, these were the facets of digital rape, which can help in understanding the crime and targeting these facets while making policies or laws to make the policy more effective, secure and without loopholes.
PROCEDURE IN DIGITAL RAPE CASES AND RIGHTS OF VICTIM
This section of article deals with procedures that are required to be followed while investigation and the rights of victims. Generally, CrPC deals with the procedures to be followed in cases of digital rape, hence following are some sections of CrPC,
∙ Section 164 A: When a case of rape or attempt to commit rape is under investigation, the the victim should be taken for medical examination by a registered medical practitioner employed in any government hospital or in the absence of such medical practitioner, the
12 Chirali Sharma, What is digital rape? It is not what you think, edtimes.in, 18 May 2022
13 Priyanka Munshi, Explained: what is digital rape, newsroompost.com, 22july 2022
woman should be taken to other registered medical practitioner and this should be done by the free consent of the woman or consent of the person who is competent to give consent on behalf of women. Medical practitioner should make report material taken from the woman for DNA profiling, mental condition of woman should also be mentioned in the report and there should description in report about any mark of injury on women’s body.14
∙ Section 164: Criminal Law Amendment Act,2013 added sub section 5A (a) into section 164 of CrPC that makes mandatory for the investigating officer, when any information about commencement of offence of rape is brought in knowledge, to take the victim to nearest judicial magistrate to record the statement.15
So, these were some provisions of CrPC that is used during investigation of offence of rape. But these sections are sometime difficult to execute, for example, in practical situation, one can see that police often take bribe frompowerful accused persons or police comes under pressure of influential accused personssuch as politicians, higher rank officials, etc.
Other rights and procedure:
∙ Zero FIR: This means that a victim can file FIR in any police station independent of jurisdiction in which the offence has committed. And that FIR should be transfer to that police station in whose jurisdiction the offence has committed.
Idea of zero FIR came into existence after Criminal law Amendment Act, 2013 to provide women friendly access to justice system.
∙ No two-finger test during medical examination: Supreme court in Rajesh and Another v State of Haryana observed that two finger test abuses the rights of the victims to mental respectability, pride, and protection. Medical practitioner cannot do two finger tests, if he does then he will be liable under section 375 of IPC.
∙ Trial with full dignity and protection: Every victim has right to trial with full dignity and protection. According to section 53A of Evidence Act, prior sexual history of victim is immaterial in trial.16 Section 327(3) of CrPC statesthat statement given by the victim to the justice should be private. 17
∙ Right to compensation: Supreme court in Nipun Saxena v Union of India, observed that
14 Code of Criminal Procedure, 1973, § 164 A
15 Code of Criminal Procedure, 1973, § 164
16 Indian Evidence Act, 1872, § 53A
17 Code of Criminal Procedure, 1973, § 327(3)
every victim has right to be compensated. National legal services authority has given guidelines for remuneration for women victims. According to this at least 4 lakhs and maximum 7 lakhs can be provided for victims and court can increase this amount if it considers that amount specified is not sufficient.
By observing rights and procedures mentioned above one can understand that there are rights for protection of women but lacking the awareness about these rights and procedures are responsible that women face difficulty in investigation, trial and in society.
DATA REGARDING OFFENCE OF RAPE IN INDIA
According to National Crime Records Bureau, crimes against women are increasing in India. In the year 2021, number of reported offences of rape including digital rape were 31,677. Rajasthan recorded the highest number of rape cases that was 6,337. If we calculate and analyze these numbers, we can see that approximately 87 rape cases are being reported daily in India.18
If we compare these data with previous years, in 2005, reported rape cases were 18359, in 2010, it was 22,172, in 2013, annually reported cases were 33,207, in 2016, highest number of cases registered till date that is 38,947 and in 2019, it was 32,032.19
From above data we can see that from year 2005, offence of rape is increasing by every passing year in India. State wise data are also worrisome.
PROBLEMS IN COURSE OF JUSTICE
The laws regarding offence of digital rape and rape as a whole, we can see that provisions are there to give justice to the victim but in practical world victim of digital rape facesa bunch of problems whether it is legal, administrative, political, or societal problems. Some of these problems are:
Loop holes in law: Although there are provisionsfor imparting justice to victims of digital rape or rape, there are always some loop holes that exists in provisions and perpetrators often use these loop holesto free themselves fromthe clutches of justice.
∙ Police investigation: In practice, another gruesome problem for victims of digital rape is police investigation. Although there are provisions given in CrPC that police must follow but in practical life it only remains as black letter of law because in most of cases we can see that either police are pressurizing victim to revoke the complaint or because ofinfluence
18 Statista Research Department, Number of reported rape cases in India 2005-2021, statista.com, 13 Oct 2022 19 Statista Research Department, Number of reported rape cases in India 2005-2021, statista.com, 13 Oct 2022
of offender, whether it is political or social, do not register the complaint of victim. Administrative: Another problem that victims of digital rape faces is administrative. Most often cumbersome administrative rules and regulations become burden on victims. Slightly mistake in medical examination report due to negligence of administration, makes the victim to go through same test repeatedly, in which she feels the same trauma that she felt first time. Mistakes in different documents by administration compels her to make those documents repeatedly.
∙ Economical: In general, one can see that victims of rape often fail to hire a good lawyer to fight their case in court of law because of their weak financial conditions. Because of this victims’ claims and arguments remain unheard properly in court.
∙ Social: The most helpless situation is that when victim of digital rape thinks that, what will people say, will anyone marry with me, will anyone give me job, what will happen to the reputation of my parents in society, etc., before filing a complaint These problems do not let victim to go on the path of justice, rather it compels them to suffer the mental trauma alone and without justice.
WHAT THE AUTHOR SUGGESTS
From above discussions, one can clearly understands that offence of digital rape is quite nascent to general people so, at first there is a need to make awareness among people about this offence, because most of time people by hearing the term Digital, used to start thinking about internet, computers, metaverse and related offences etc. Another facet which must be catered efficiently and precisely is provisions regarding offence of digital rape. There should not be any loop holes in laws, Lawmakersshould be more careful while drafting any provision which affects the justice directly or indirectly.
As we have seen from above mentioned data that crime against women especially sexual abuses in the country is burgeoning, hence the government should focus on more empowerment of women, including sexual education in schools and colleges, or government should create an atmosphere where problems of women can be understood easily.
CONCLUSION
By taking into account all the above-mentioned facts and data, one can now easily understand the offence of Digital Rape.We canalso see some significant changes made by the government by introducing the Criminal Law Amendment Act,2013, that made path of justice more woman friendly by giving the idea of zero FIR, widening the definition of rape to give the concept of Digital rape, etc. so the government should strive for more policies like CLA of 2013. Women in India generally lack the knowledge about the rights they have, by knowing the rights provided by constitution and other laws like CrPC, they can become independent of others and it will encourage the woman empowerment.