Theme: Rape

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

The punishment for rape is imprisonment for ten years to life imprisonment, along with a fine.(( Section 376(1), Indian Penal Code, 1860.))

The punishment is more severe in the following circumstances:

When the survivor is below sixteen years

When the survivor is below sixteen years, the punishment is imprisonment for twenty years to life imprisonment (imprisonment for the rest of the person’s life), along with a fine.(( Section 376(3), Indian Penal Code, 1860.)) If the survivor is below twelve years, the perpetrator can be given the death penalty.(( Section 376AB, Indian Penal Code, 1860.)) The fine should be just and reasonable to meet the medical expenses and rehabilitation of the survivor, and is paid to the survivor.

When rape results in a woman’s death or vegetative state

If rape results in an injury which causes the death of the woman or puts her in a persistent vegetative state, the perpetrator is punishable with imprisonment for twenty years to life imprisonment (imprisonment for the rest of the person’s life), or with death.(( Section 376E, Indian Penal Code, 1860.))

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

Gang rape refers to the rape of a woman by multiple people/a group of people acting together with the common intention to rape. In a case of gang rape, each person in the group is guilty of the crime.(( Section 376D, Indian Penal Code, 1860.))

The punishment for gang rape(( Section 376DA, Indian Penal Code, 1860.)) is imprisonment for twenty years to life imprisonment (imprisonment for the rest of the perpetrator’s life). If the survivor is below sixteen years, the punishment is life imprisonment for the rest of the perpetrator’s life. If the survivor is below twelve years, the perpetrators are punishable with death also.

Further, the perpetrators must pay a fine which is just and reasonable to meet the medical expenses and rehabilitation of the survivor. The fine is paid to the survivor.

If someone has been previously held guilty for the crime of rape/gang rape, and they are subsequently held guilty for rape/gang rape again, they are punishable with life imprisonment (imprisonment for the remainder of that person’s natural life) or death.(( Section 376E, Indian Penal Code, 1860.))

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

Indian law does not criminalise marital rape. The law does not punish a husband for having forcible sexual intercourse with his wife without her consent, unless she is below eighteen years of age (a minor).(( Independent Thought v. Union of India, (2017) 10 SCC 800.))

So, any sexual intercourse or sexual acts by a man with his adult wife is not rape.  However, this does not apply if a woman is living separately from her husband. If a couple is married, but living separately, then the husband is guilty of rape if his wife does not consent to sexual intercourse. In this case, the punishment for the husband is imprisonment between two and seven years, along with a fine.(( Section 376B, Indian Penal Code, 1860.))

Though the law does not punish marital rape, a woman can get relief under the Domestic Violence Act, 2005. This law criminalises sexual abuse, including any behaviour of a sexual nature that abuses, humiliates, degrades or violates the dignity of a woman.(( Section 3, Domestic Violence Act, 2005.)) To know more about the rights of a woman against domestic violence, read here.

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

If a man has control over a woman because of his job or position, and uses this control to make a woman have sex with him, it is a crime.(( Section 376C, Indian Penal Code, 1860.)) The law provides punishment for any person who abuses his position or fiduciary relationship (relationship of trust) to convince or seduce any woman to have sexual intercourse with him. The woman could be in his custody, under his charge or present in the premises. Here, sexual intercourse does not refer to rape, which is dealt with as a separate offence under Section 375 of the Indian Penal Code.

The person who persuades the woman to have sexual intercourse could be:

1. a) in a position of authority or in a fiduciary relationship; or
2. b) a public servant; or
3. c) superintendent or manager of a jail, remand home, other place of custody, or a women’s or children’s institution; or
4. d) on the management or staff of a hospital.

In these cases, the person in authority is punishable with imprisonment for five to ten years, along with a fine.

For example, if a male jail superintendent asks a female prisoner to have sex with him in return for supporting her release, and thus convinces her to have sex with him, he is abusing his positon. In this case, he has not forced himself on her and committed rape, but convinced her to have sex with him by using his position of power.

Police

1. If an offence of rape is committed, the first and most important thing to do is to report it to the police by filing a First Information Report (FIR).(( Section 154, Code of Criminal Procedure, 1973.)) Otherwise, call 1091 (Women’s Helpline Number) and report the rape. Even if someone does not report the crime right away, this does not mean that the delayed FIR will harm the case. It may become more difficult for the police to carry out the investigation and gather evidence, but it is possible to file an FIR at a later date as well.
2. To file an FIR, visit the nearest police station. The police station does not necessarily have to be in the area where the crime has been committed. To locate the police station, download the ‘Indian Police at your Call’ app and locate the nearest police station. Otherwise, call 100.
3. Approaching the police immediately after being assaulted can be very daunting for the survivor. However, the survivor doesn’t have to do this alone. The woman can take the help of a friend or approach a lawyer to assist her in filing a complaint. In fact, another person can file the FIR for the woman if she doesn’t want to approach the police by herself.(( Hallu and Others v. State of Madhya Pradesh, 1974 AIR 1936.)) If the survivor approaches the police with her complaint, the information is recorded only by a woman officer.(( Proviso to Section 154, Code of Criminal Procedure, 1973.))
4. If the survivor is physically or mentally disabled, the police come and take her complaint from her residence or any other place where she feels comfortable.(( Proviso (a), Section 154, Code of Criminal Procedure, 1973.)) The survivor’s statement is recorded at her residence or in any place of her choice. As far as possible, the statement is recorded by a woman police officer in the presence of the survivor’s parents/guardian/near relatives/ social worker of the locality.(( Proviso to Section 157(1), Code of Criminal Procedure, 1973.))
5. It is perfectly alright if the survivor does not remember specific details of the assault or even the attacker. It is enough if she tells the police as many details as she remembers.
6. Once the police have read out the complaint, if all the details are correct, the complainant signs the FIR.(( Section 154(1), Code of Criminal Procedure, 1973.)) Any police officer who refuses to file the FIR or fails to record information of the offence is punishable with imprisonment for six months to two years, along with a fine.(( Section 166A(c), Indian Penal Code, 1860.))
7. The complainant can get a copy of the FIR for free.(( Section 154(2), Code of Criminal Procedure, 1973.)) It is also possible to freely access the FIR online using the FIR number, date of FIR and the name of the police station.
8. After the FIR has been registered, the contents of it cannot be changed. However, additional information can be given to the police later on at any point.

One Stop Centres

A survivor can also approach One Stop Centres, which provide an integrated range of services to women affected by violence. These services include medical aid, police assistance, legal aid/case management, psycho-social counseling and temporary support services.

Survivors have the right to get immediate and free first-aid or medical treatment from medical institutions (both public and private). The institution must also inform the police of the criminal incident.(( Section 357), Code of Criminal Procedure, 1973.)) If the institution refuses to provide treatment and inform the police, the person in charge of the institution is punishable with imprisonment for up to one year and/or a fine.(( Section 166B, Code of Criminal Procedure, 1973.))

Within 24 hours of receiving information about the criminal incident, the police sent the survivor to an authorised doctor for a medical examination. The medical examination can happen only with the consent of the survivor or someone who can consent on her behalf.(( Section 164A(1), Code of Criminal Procedure, 1973.)) After obtaining consent, the doctor immediately examines the survivor and prepares a detailed report with conclusions about the survivor’s injuries, mental condition, etc.(( Section 164A(2), Code of Criminal Procedure, 1973.)) The report also records that consent was obtained,(( Section 164A(4), Code of Criminal Procedure, 1973.)) and notes the exact time at which the medical examination was started and completed.(( Section 164A(5), Code of Criminal Procedure, 1973.)) The doctor immediately sends the medical report to the concerned police officer who is investigating the case, and the officer then forwards it to the Magistrate.(( Section 164A(6), Code of Criminal Procedure, 1973.))

No one is allowed to print or publish the name or any matter which may reveal the identity of a survivor. The punishment for doing so is imprisonment for up to two years and a fine.(( Section 228A(1), Indian Penal Code, 1860.)) Without getting permission from the court, if anyone prints or publishes any matter about a rape case which is currently ongoing in court, they are punishable with imprisonment for up to two years and a fine.(( Section 228A(3), Indian Penal Code, 1860.))

The identity of the survivor can only be revealed:((Section 228A(2), Indian Penal Code, 1860.))

• For the purposes of investigation – In this case, the identity can be revealed by the officer-in-charge of a police station or the police officer investigating the case.
• By the survivor, or with her written permission.
• By the close family of the survivor, or with their permission – This is allowed if the woman is dead, or a minor, or of unsound mind. In this case, the family can give such permission only to the chairman or the secretary of any recognised welfare institution or organisation.

The inquiry and trial of a rape offence is conducted in camera i.e., not open to the public. However, the judge may allow a person to access or observe the court trial if one of the parties makes an application for the same. As far as possible, the trial is conducted by a woman judge.(( Section 327(2), Code of Criminal Procedure, 1973.))

In certain cases of rape, where sexual intercourse is proved and the survivor says she did not consent, the court legally assumes that the survivor did not consent.(( Section 114A, Indian Evidence Act, 1872.)) Then, it is up to the accused person’s lawyer to prove, if possible, that the survivor actually consented.

The inquiry or trial is completed within two months from the date of filing the charge sheet.(( Proviso to Section 309(1), Code of Criminal Procedure, 1973.))