Rape is a codified offence, charged contrary to the Sexual Offences Act 2003.

The offence is committed

through ‘intentional penetration of penis, in to the vagina, anus or mouth of another’(S.1) with a lack of
consent. Under the statute now, a rape victim can be a woman as well as a man, further the Act
encapsulates oral sex in the offence as well, as this can be detrimental for the victims mental health.
Apart from these significant changes, the Act goes out to deal with the issue of ‘Consent, as in most
cases it is challenging for the prosecution to prove a lack of consent, along with defining consent the Act
has a set of presumptions ‘setting boundaries for society as to what is acceptable and unacceptable
behavior’.

Before the Act, prosecution had to prove a lack of consent beyond a reasonable doubt, which was
indeed straining for the victim, discouraging the rape victims to file a complaint against this heinous
offense. Not only this, the procedures and cross examination was mainly designed in an insensitive way,
mainly to portray the victim woman as a one who has a morally loose character, who’s likely to consent.
This laid many to think the criminal justice is hostile towards the rape victim and bends towards the rape
committers. To vitiate any such doubt, the SOA has laid down conclusive presumptions (S.76), evidential
presumption (s.75) and a statutory definition to rape (S.74). The main purpose of the sections was to
encourage rape victims report cases, shift the usual burden of proof onto the defendant and to restrict
the procedural humiliations suffered by the victim.

When S.76, applies a conclusive presumption applies which can’t be rebutted by any evidence presented
by the defense counsel, and the defendant is convicted with a conclusive prove of guilt with a lack of
reasonable belief defendant consented to the act, this is when there is deception as to the nature and
purpose of the act by the defendant or when he impersonated a person known to the victim. When S.75
applies an evidential presumption is applied by the court, that is if the facts of the case suggest any of
the circumstance specified in S.75(2), is present the victim is not consenting to the intercourse, however
unlike S.76, evidences can be presented by the defense counsel to prove that there was in fact a
consent, if they fail the defendant will be convicted of rape. When S.76 and S.75, both are not applying
or when S.75 is rebutted, the prosecution relies on S.75 to prove a lack of consent. The sections are in
practice interchangeable, as seen in ‘Jheeta’, where although a successful claim wasn’t raised under S.76
(no deception as to the nature and conduct of act) but a charge under S.74, was possible as there was a
lack of freedom to make a choice to consent. This interchangeable nature of the section is an
illustration, to protect the vulnerable victims as they have various ways to establish a lack of consent,
leading to a fair and just result.