PRERANA KAUSHIK

B.A.LLB (SEMESTER-7)
41019103817
CRIMINOLOGY RESEARCH PAPER
 RAPE: A VIOLENT CRIME

ABSTRACT
Crime was defined as an act or omission of an act that is prohibited and punishable by the federal
system. A crime is deemed by law to be harmful to society in general, even though its immediate
victim is an individual. If the punishing of a wrongdoer is the remedy given and enforced by the
prosecution at the suit of the crown, the wrong as addressed is crime or criminal in nature.

Almost 50% of rapes are committed unexpectedly, without the pre-existence of a personal
relationship between the victim and the offender. Rape is not committed only for the sexual
satisfaction alone; the victim often suffers serious physical injuries and sexual perversion also
occur in rape situation. Basic patterns are involved in the committing the offense of rape such as
sadistic rape which sometimes end in murder, gang rape, anger rape committed to hurt the
victims physically and psychologically etc. Causes of rape involve biological, psychological and
social dimensions.

So this paper will try to find out various patterns involved in committing the offense of rape,
causes, punishments, etc.

KEYWORDS: Crime, Rape

INTRODUCTION
India is the epicenter of most versatile culture and spirituality. Here women hold a high status in
society and are considered as “LAKSHMI”. Rape is considered as a most heinous crime done on
women and statics states that it is quite prone in India. It is worse than a murder. Off all crimes,
rape is the one that leaves a person feeling a more violated. A rape victim is often left with the
feeling that that a part of them has been torn apart, because the feeling is still with them, the
victim may have a sense that the crime is continuously occurring. To use another person’s body
and ignore the soul that resides within is the most egregious crime that one person can commit
against another.

DEFINITION:

In India, rape is defined as an intentional and unlawful sexual intercourse with a woman without
her consent. The definition provided under Section 375, IPC, states the essential elements of rape
as, ‘sexual intercourse with a woman’ and ‘the absence of consent’.
Section 375, IPC, states:
A man is said to commit “rape” if he-
a) penetrates his penis , to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
b) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person, under the circumstances falling under any of the following
seven descriptions:
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.
5. With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or unwholesome Substance, she is
unable to understand the nature and consequences of that to which she gives
consent.
 6. With or without her consent, when she is under eighteen years of age.
7. When she is unable to communicate consent.

EXPLANATION:

1. For the purposes of this section, “vagina” shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall
not by the reason only of that fact, be regarded as consenting to the sexual activity.

Section 375 made it clear that intercourse would amount to rape only during the absence of the
woman’s consent

Earlier ‘rape’ under section 375 was defined only to be a penile vaginal penetration but by the
new law, the act of penetration has been expanded and it will now include any kind of
penetration, be it a penile penetration or a penetration by any other part of the body of man or
even of the woman into any part of the body of the man, or any object.

The larger purpose now is to include within the definition of rape, any kind of sexual penetration
which may be done at the time of the commission of the offence of rape.

In cases of small girl child (tender age), it may not be possible to do the act of actual penetration
still the force used upon the part of the body of the girl while trying to do the act of penetration
will amount to ‘penetration’ for the purposes of this section.

The mere fact that the woman did not physically resist the act cannot per se be a ground to
believe that there was consent.
In cases where the woman consents to the sexual act in description (3), (4), (5) or (6), the
physical resistance might not be there.

This provision may also be misused by the women who voluntarily engages into the sexual act
but later accused the man of the offence of rape. However, merely because of the misuse, the
larger sections of the society cannot be deprived of the benefits.

Explanation 2: The age provided under the explanation is 15 years. However, this age is too
young for a girl to raise a child and thus, this age should have also been revised. If the husband is
already liable in cases of Child marriage, if an additional liability is imposed upon the husband
by increasing the age under explanation 2, it would have acted as a deterrent
If a man engages into the sexual act with his own wife, even with force, then it will not amount
to rape, if the wife is above 15 years of age.

‘Without her consent’ v. ‘Against her will’ :-‘Without her consent’ would mean a case where
the woman had not validly given her consent i.e. she may have remained silent or may have
acted upon a misconception of fact or may have been unconscious, unsound, intoxicated or may
have been sleeping. It is not necessary to prove ‘without consent’ to prove that the victim had
opposed the act. ‘Against her will’ requires that there should have been an explicit opposition by
the victim to the act and still the accused committed the sexual act upon her.
Unless the woman has manifested her unwillingness for the act, it cannot be said that it was
against her will. If the woman has submitted to the sexual act under some physical or
psychological compulsion, then it will be said to be without her consent and if before such
submission she had made an explicit opposition also, then it will be a case of ‘against her will’.

TYPE OF RAPE

Rape can be categorized in different ways such as, by the identity or characteristics of the victim
or by the identity or characteristics of the perpetrator, or by reference to the situation it has
occurred. These categories are referred to as the TYPES OF RAPE.

1) Acquaintance Rape:
It is a non-domestic rape committed by someone who knows the victim. For example,
someone the victim is dating, classmate, co-worker, family member, etc.
Acquaintance rape includes a subcategory of incidents labeled ‘date rape’ that involves
people who are in romantic or sexual relationships with each other.
In United States, the Rape, Abuse and Incest National Network (RAINN) has reported
that 45% of sexual assaults are committed by an acquaintance and an additional 25% by a
current or former intimate partner.
Acquaintance rape is a broad category, and so the motivations of acquaintance rapists are
varied. However, researchers say that acquaintance rapists generally share common
characteristics: the ability to enjoy sex even with someone who is intoxicated, crying,
pleading, resisting, unconscious, sense of entitlement and lack of guilt.
Researchers say acquaintance rapists primary motivation is sexual gratification and that
they tend to see their actions as seduction, not rape.

2) Gang Rape:
Section 376(2)(g) uses the term ‘Gang Rape’. When rape is committed by more than one
person on a woman against her will and consent. This kind of rape involves more than
one perpetrator.
It is not necessary for each individual in the gang or group to commit the crime of rape
that is to have a high degree of culpability.
Any activity performed by any person who is a part of that group or gang with a common
intention to commit the offence of rape is penalized in the eyes of law and is considered
as rape.
 Even when some person does not indulge or commit any sexual assault but help others to
commit such a crime are still regarded as rapists and cannot escape by claiming that they
did not commit the offence o rape.
In the case of Priya Patel v. The State of M.P1
The question ‘Can a woman be charged for gang rape?’ was answered in this case. Here,
it was stated that a woman cannot commit rape as per the definition of rape mentioned in
Section 375 of the IPC, 1860, but if a woman facilitates the act of committing rape then
she could be prosecuted and convicted for the offence of gang rape.
This rule was based on the principle of common intention contained in Section 34, IPC,
1860.

3. War Rape:
War crime is a form of sexual violence committed by combatants during armed conflict
war or military occupation often as spoils of war.
During war and armed conflict, rape is frequently used as a means of psychological
warfare in order to humiliate the enemy. Wartime sexual violence may occur in a variety
of situations, including institutionalized sexual slavery, wartime sexual violence
associated with specific battles or massacres. Rape can also be recognized as genocide
when committed with the intent to destroy, in whole or in part, a targeted group;
however, rape remains widespread in conflict zones.

4. Custodial Rape:
Indian Penal Code, 1860 contains Section 376(2)(a), (b) and, (c) that create a new
category of offence which is termed as ‘custodial rape’. In the general sense, the term
custody means the legal right to take care of something or somebody, especially children.
It is the temporary possession or care of somebody else’s property. But in the legal sense
it is the state of being imprisoned or detained, usually pending in trial. It is different from
child custody and hence both should not be misunderstood. Such a person who is given
custody is known as custodian. The custodian has absolute control over the person on
whom he has the custody.
The control includes mobility, liberty, freedom, food, water, outside relations with the
world of the individual. The offence of committing rape under such situations and
circumstances is considered as serious crime and violation of his duty to take care along
with the bodily integrity of the individual who was raped.
The issue of custodial rape came into light in the late 1970s and early 1980s when a
continuous series of incidents of rape of women in police custody came to picture. This
issue was mobilized by the women’s movement.

1
(2006 SC)
The concept of custodial rape not only includes security forces but also hospitals, mental
institutions, shelter homes and juvenile homes where people are sent for rejuvenating
their health but instead are brutally raped.
The Mathura rape case was an incident of custodial rape in India on 26 March 1972,
wherein Mathura, a young tribal girl, was allegedly raped by two policemen on the
compound of Desaiganj Police Station in Gadchiroli district of Maharashtra. After the
Supreme Court acquitted the accused, there was public outcry and protests, which
eventually led to amendments in the Indian rape law via The Criminal Law Amendment
Act 1983 (No. 43) .

5. Statutory Rape:
Statutory rape refers to sexual relations involving someone below the "age of consent."
People who are underage cannot legally consent to having sex, so any form of sexual
activity with them violates the law.
In statutory rape, overt force or threat is usually not present. Statutory rape laws presume
coercion, because a minor or mentally handicapped adult is legally incapable of giving
consent to the act.
In many jurisdictions, the age of consent is interpreted to mean mental or functional age.
As a result, victims can be of any chronological age if their mental age makes them
unable to consent to a sexual act.
Statutory rape laws are based on the premise that an individual is legally incapable of
consenting to sexual intercourse until that person reaches a certain age. The law mandates
that even if he or she willingly engages in sexual intercourse, the sex is not consensual.
Some jurisdictions have passed so-called "Romeo and Juliet laws", which serve to reduce
or eliminate the penalty of the crime in cases where the couple's age difference is minor
and the sexual contact would not have been rape if both partners were legally able to give
consent.
 STATISTIC REPRESENTATION:

According to the latest NCRB report, 2019 saw over 4 lakh reported cases of crimes committed
against women, up from 3.78 lakh in 2018 and 3.59 lakh cases in 2017.
NCRB reported 32,033 rape cases which translate to a shocking 88 rape cases a day, and this is
just 10% of all crimes against women.
Experts say that picture could be far worse as most such crimes go unreported in the country.
In terms of rape incidences, Rajasthan fared worst with nearly 6,000 reported cases. Uttar
Pradesh ranked second with over 3,000 cases.
The recent incident proves that the execution of the convict in the Nirbhaya gang rape and
murder case (that took place this year) had no effect on criminals. When the execution took
place, it was assumed that it would send a strong message to perpetrators of such crimes, but the
recent incidents have proved it otherwise.

AMENDMENTS (Vide Act 13 of 2013)

After the Nirbhaya Delhi Gang Rape case, ‘The Criminal Law Amendment Act, 2013’ came in
to force w.e.f 3rd of Feb, 2013. Now this case was recorded as ‘Rarest of Rare case’ in the
history of Indian Judiciary case laws. By this amendment act, our legislators introduced some
new sections and make some amendments in Indian Penal Code, Criminal Procedure Code,
Indian Evidence Act and Protection of children from sexual offences act. Some of the important
changes brought about by the Act 43 of 1983 and Act 13 of the 2013 and other provisions are
listed below:-
 Consent of woman of unsound mind or under intoxication is not to be considered valid
defense.
  Burden of Proof of innocence on accused – Section 114A was inserted in The Indian
Evidence Act, 1872 vide Criminal Law (Amendment) Act 43 of 1983.
 Prohibition of disclosure of the identity of the victim– Section 228A IPC added vide
Criminal Law (Amendment) Act 43 of 1983.
 Persistent Vegetative State– A new section 376 A has been added vide Criminal Law
(Amendment) Act 13 of 2013. When an injury caused to the victim results in death of the
women or causes women to be in a persistent vegetative state, then the accused shall be
liable for imprisonment for a term which cannot be less than 20 years or may extend to
imprisonment of life or remainder of that persons natural life or till death.
 Trial in Camera– Section 327 CrPC,1973 has been amended vide Criminal Law
(Amendment) Act 13 of 2013, to the effect that the inquiry into and trial of rape or an
offence under section 376, section 376A, section 376B, section 376C or section 376D of
the Indian Penal Code shall be conducted in camera.
 Custodial Rape– Section 376C, IPC comprise a group of sections that create a new
category of offence, known as custodial rape which does not amount to rape because in
such cases the consent of the victim is obtained under compelling circumstances.
(Substituted by Criminal Law (Amendment) Act 13 of 2013)
 Intercourse with wife during judicial separation– Section 376 B IPC inserted vide
Criminal Law (Amendment) Act 13 of 2013 makes sexual intercourse with one’s own
wife without her consent under a decree of separation punishable, with a minimum of 2
years that extend to 7 years.
 Minimum punishment for Rape– This provision has been made more stringent vide
Criminal Law (Amendment) Act 13 of 2013.
 Character assassination of prosecutrix prohibited– A ‘Proviso clause’ to section 146 of
the Indian Evidence Act, 1872 inserted vide Criminal Law (Amendment) Act 13 of 2013
has disallowed to put questions about prosecutrix character in cross-examination.

Definition of rape (After amendment of Sec 375)

A man is said to commit “rape” if he –

1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any
other person; or
4. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person, under the circumstances falling under the seven descriptions.
 Analysis of the definition

The 2013 Act expands the definition of rape to include oral sex as well as the insertion of an
object or any other body part into a woman’s vagina, urethra or anus. A man is guilty of rape if
he commits sexual intercourse with a woman either against her will or without her consent as
enumerated under clauses firstly to seventhly under section 375.

Punishment of rape

It states that if the rape is committed by persons listed below, they shall be punished with
rigorous punishment of not less than 10 years, but can extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable
to fine.
 Police officer within the limits of the police station.
 A police officer in the premises of any station house.
 A police officer on a woman in the police officer’s custody.
 Public servant on a woman’s in his custody.
 Member of the armed forces.
 Any person in the management of the jail, remand home etc. on inmate of such place.
 Staff/management of a hospital on a woman in that hospital.
 By a person who is in a position trust or authority or control or dominance towards a
woman on such woman.
 During communal or sectarian violence.
 On a pregnant woman
 On a woman less than 16 years of age
 On a woman incapable of giving consent
 On a mentally or physically disabled woman
 Who causes grievous bodily harms or endangers the life of a woman.
 Who commits rape repeatedly on the same woman
If any other person commits rape on any woman, he shall be punished with rigorous
imprisonment of either description for a term which shall not be less than seven years, but which
may extend to imprisonment for life, and shall also be liable to fine.

Section 376-A of the IPC – Punishment for causing death or resulting in

persistent vegetative state of victim
It says if a person commits an offence which is punishable under section 376 which causes the
death of the women or causes the women to be in a persistent vegetative state, shall be punished
with rigorous imprisonment for a term which shall not be less than 20 years, but may extend to
imprisonment for life or with death.
Section 376-B of the IPC – Sexual intercourse by husband upon his wife
during separation
Whoever has sexual intercourse with his own wife, who is living separately, whether under a
decree of separation or otherwise, without her consent, shall be punished with imprisonment of
either description for a term which shall not be less than two years but which may extend to
seven years, and shall also be liable to fine.
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in
clauses (a) to (d) of Section 375.

Section 376-C of the IPC– Sexual intercourse by a person in authority

Whoever, being—
1. in a position of authority or in a fiduciary relationship; or
2. a public servant; or
3. superintendent or manager of a jail, remand home or other places of custody established by or
under any law for the time being in force, or a women’s or children’s institution; or
4. on the management of a hospital or being on the staff of a hospital,
abuses such position or fiduciary relationship to induce or seduce any woman either in his
custody or under his charge or present in the premises to have sexual intercourse with him, such
sexual intercourse not amounting to the offence of rape, shall be punished with rigorous
imprisonment of either description for a term which shall not be less than five years, but which
may extend to ten years, and shall also be liable to fine.

Section 376-D of the IPC– Gang rape

It prescribes punishment for gang rape and says where a woman is raped by a group of persons,
then they shall be punishable with rigorous punishment of not less than 20 years, but may extend
to life imprisonment, and with fine.
Note: Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of
the victim. Also, any fine imposed under this section shall be paid to the victim.

Section 376-E of the IPC– Punishment for repeat offenders

Whoever has been previously convicted of an offence punishable under Section 376 or Section
376-A or Section 376-D and is subsequently convicted of an offence punishable under any of the
said sections shall be punished with imprisonment for life which shall mean imprisonment for
the remainder of that person’s natural life, or with death.’

ANALYSIS

Justice for rape victims is still a far cry or justice system should be speedy or there should be
special Fast-Track Courts for providing justice to the rape victims.
As per the legal research done, it is analyzed and can be seen from the NIRBHAYA RAPE
CASE victim of the rape case (Nirbhaya) who was raped on 16 th December 2012, she was 23rd
year old psychotherapy intern who was brutally gang-raped inside the moving bus in South-
Delhi.
The ineffectiveness and lack of proper medical treatment led to the death of the victim. The lack
of proper law and provisions available led to the delay in the judgment i.e., after 7 years. The
government was forced to enact new laws and systematic changes to insure perpetrators gets
swifter and more stringent punishment, thereby creating a strong deterrence against such crimes.
After a long span of time the Supreme Court administered justice to the family of the victim and
all the women in the country by confirming the punishment of death sentence to the four convicts
in the Nirbhaya gang-rape and murder case, terming it as the ‘rarest of rare’, most brutal and
barbaric attack.
Until 2012, the definition of rape was restricted just to sexual intercourse. The Criminal Law
(Amendment) Act, 2013 gave a broader meaning to the term rape. It amended the definition
under Section 375 of the IPC. Section 375 of the IPC, after the amendment, defines rape as any
involuntary and forceful penetration without the woman’s consent into the woman’s body parts
like the vagina, urethra, mouth or anus. New offences have been added like acid attack, sexual
harassment, voyeurism, stalking with related punishments.

Parliament made the amendment on the recommendation of the Justice J S. Verma Committee,
which was constituted to re-look the criminal laws in the country and recommended changes to
remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of
sexual violence.
After 2013 amendment gave a broader meaning to the term rape. Some important highlights of
this are:-
 The Criminal Amendment Act, 2013 is also popularly referred to as the “Anti-
rape Act”.
 Under this change, new offences such as stalking, acid attacks, and voyeurism
were added into the definition of rape and provisions mentioned in the Indian
Penal Code, 1860.
 Even the threat of rape is now a crime and the person will be punished for the
same.
 The minimum sentence was changed from seven years to ten years considering
the increase in the number of rape cases.
 In cases that led to the death of the victim or the victim being in a vegetative state,
the minimum sentence was increased to 20 years.
 The ‘character of the victim’ was totally irrelevant to rape cases and it doesn’t
make any difference in granting punishment for the crime.
 Since one of the accused in this case was a juvenile, another flaw in the system
was identified after this case. So, the age for being tried as an adult for violent
 crimes like rape was changed from 18 to 16 years, that to the Juvenile Justice Act,
2015.
 Insertion of Section 326A and B which cover the issue of Acid attack. The
amendment Act has made it a Specific Offence under the act, punishable with 10
years Imprisonment extendable to life imprisonment or fine or both.
 Repetition of offences is punishable with life imprisonment or death.
In January 2018, an 8 year old girl in Rasana village near kathua in Jammu & Kashmir was
abducted, raped and murdered by a group pf men. The news of the shocking act led to
nationwide protests and calls for harsher punishment. This led to the passing of the Criminal Law
(Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for
rape of a girl under 12 years, the minimum punishment is 20 years in jail. Another new section
was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision
made the offence punishable with minimum punishment of 20 years which may extend to
imprisonment for life.
Another example of aggravated rape is the UNNAO RAPE CASE. In June 2017, a minor girl in
the Unnao district of Uttar Pradesh was allegedly raped by BJP MLA Kuldeep Sengar, his
brother and other accomplices. The victim’s family reported the incident to the police and
according to the family, the authorities refused to file an FIR. And so, the family filed a case in
court.