The narrow legal definition of rape, recently reiterated in the Sakshi case, has been criticized

by Indian and international women's and children's organizations, who insist that broader
interpretations are needed to protect victims, and also to serve justice. Rape is defined in
India as intentional, unlawful sexual intercourse with a woman without her consent. The
essential elements of this definition under Section 375 of the Indian Penal Code are sexual
intercourse with a woman and the absence of consent. This definition therefore does not
include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those
actions are criminalized under Section 354 of the IPC, which deals with criminal assault on a
woman with intent to outrage her modesty and Section 377 IPC, covering carnal intercourse
against the order of nature.
A plain reading of Section 375 of the IPC would make it apparent that the term "sexual
intercourse has not been defined and is, therefore, subject to and is capable of judicial
interpretation. And the Section also does not in any way limit the term penetration to mean
penile/vaginal penetration. Limiting the understanding of "rape" to abuse by penile/vaginal
penetration only, runs contrary to the contemporary understanding of sexual abuse law and
denies majority of women and children access to adequate redress in violation of Article 21 of
the Constitution. Sexual abuse of children, particularly minor girl, children by means and
manner other than penile/vaginal penetration is common and may take the form of penile/anal
penetration, penile/oral penetration, finger/vaginal penetration or object/ vaginal penetration. It
is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or
377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section
2(f) therein is defeated. The said interpretation is also contrary to the contemporary
understanding of sexual abuse and violence all over the world.
Rape obviously is a very serious crime with severe trauma to the victim. The victims of rape
are generally women. The crime of rape punishes victimizers for entering into an individual's
most private sphere. Laws punish individuals for that invasion. Entering a woman's most
private sphere does not have to include male type conduct in order for the invasion to be
severely punished by law. Unlike men, women have at least two most private spheres-the
clitoris and the vagina. The clitoris and the vagina are both female sex organs. The
punishment for the invasion of either of those most private spheres should be identical.

President Pranab Mukherjee has given his assent to the Anti-rape Bill
which provides for life term and even death sentence for rape
convicts besides stringent punishment for offences like acid attacks,
stalking and voyeurism.
Mukherjee accorded his assent to the Criminal Law (Amendment)
Bill-2013 on Tuesday, brought against the backdrop of the countrywide outrage over Delhi gang-rape case, and it will now be called the
Criminal Law (Amendment) Act, 2013, an official release said on
Wednesday.
The law, passed by Lok Sabha on March 19 and by Rajya Sabha on
March 21, has replaced an ordinance promulgated on February 3.
It amends various sections of the Indian Penal Code, the Code of
Criminal Procedure, the Indian Evidence Act and the Protection of
Children from Sexual Offences Act.
It amends various sections of the Indian Penal Code, the Code of
Criminal Procedure, the Indian Evidence Act and the Protection of

Children from Sexual Offences Act.

With an aim of providing a strong deterrent against crimes like rapes,
the new law states that an offender can be sentenced to rigorous
imprisonment for a term which shall not be less than 20 years, but
which may extend to life, meaning imprisonment for the remainder of
the convict's natural life and with a fine.
It has provisions for handing out death sentence to offenders who
may have been convicted earlier for such crimes.
The law, for the first time, defines stalking and voyeurism as nonbailable offences if repeated for a second time. Perpetrators of acid
attack will attract a 10-year jail.
It also defines acid attack as a crime besides granting a victim the
right to self-defence. It also has provisions for imposing a minimum
10-year jail term for perpetrators of such acts.
The law has fixed age for consensual sex at 18 years. Pranab
Mukherjee has given his assent to the Anti-rape Bill, providing
enhanced punishment for rape, making stalking and voyeurism
criminal offences and fixing the age of consent for sex at 18.
The Bill incorporates suggestions of the Justice JS Verma
Committee, formed after the brutal Delhi gang-rape of Dec 16 last
year, to make anti-rape laws stronger.
It provides for rigorous imprisonment for a minimum of 20 years,
extendable to life imprisonment, to those convicted for the offence of
gang-rape, and also defines and prescribes punishment for stalking,
voyeurism and sexual harassment.
The new law is a combination of just thinking about gender and existing
patriarchal attitudes in society, as well as those ingrained in the
colonial Indian Penal Code of 1860.
It also reflects the government's desire to be seen as tough on crimes against
women.
The new laws are closer to addressing violence as women experience it.
New crimes include stalking, which is intimidating and often leads to assault,
even murder.

Acid violence and disrobing, common now in India, are specific crimes.
Voyeurism - spying on a woman when naked or circulating her pictures
without her consent - is a new crime.
The law also expands the definition of rape and says explicitly that the
absence of physical struggle doesn't equal consent.
A major reason such a tiny percentage of crimes against women are reported
is that the police don't let complaints through.
Now the security blanket that protected misogynist police officers and other
public servants who failed to register complaints and compromised survivors'
rights during investigations has been removed.
Compulsory jail time has been prescribed for the non-military public servant
who fails to register a complaint or himself commits sexual assault.
Procedures for gathering evidence and the trial are a little easier on women
now, and more careful of disabled people's rights.
Also, all healthcare providers must now give survivors of sexual violence or
acid attacks free and immediate medical care.
There's a legal provision for compensation but the relevant governments have
not set up systems to give survivors quick and adequate restitution.
Are the laws tougher?
The word tough can be a red herring: people often think it's about higher
sentencing.
The new laws increase jail terms in most cases, and bring in the death penalty
for a repeat offence of rape, or rape that causes coma.
We don't have comprehensive, long-term studies that measure the effect of
higher sentences on the rate of sexual violence - but evidence from India and
other countries shows that the death penalty is no deterrent to violent crime.
There's also a concern that if sentences are thought of as too harsh by the
judges, the already high acquittal rate in cases of sexual violence will rise
further.

Image captionJustice Verma

criticised the way India is governed and said the public had been
failed

Certain and swift justice is more likely to reduce crime.

Without comprehensive expansion of the criminal justice system it's unclear
how fast rape and assault trials will be, but there's a hopeful amendment in
the Criminal Procedure Code - that trials "as far as possible" be
completed two months from the date of filing charges.
There are fears of false complaints, but the power to prosecute malicious
complaints already exists under law.
Besides, a recent UK study released earlier this month by the Crown
Prosecution Service says false cases of rape and sexual violence are much
rarer than many believe and compromise justice for women who have in fact
been raped, assaulted or harassed.
What about the age of consent?
The 'age of consent' is a misnomer and lead to all sorts of confusion in
public and parliamentary debates. The age of statutory rape would be more
accurate.
For about 30 years that age was 16 years. It was increased a few months ago
to 18 years without much discussion by the Protection of Children
from Sexual Offences Act, 2012.
There were those who thought keeping the age of consent at 16 years would
be a social and moral endorsement of teenage sexual activity.
But the criminal law doesn't tell you to do this or that. Families, schools,
society and free will do.
If two young people decide to engage in sexual intercourse with others around
the same age, the truncheon of the criminal law is not the appropriate societal
signal.

Now boys of 16-18 years or slightly older may be branded rapists if they have
consensual sex with a girl of the same age and the judge will have no
discretion in the matter.

Image captionThe new law

contains harsher punishments for rapists, including the death

penalty,
This is against the "best interests" of teenagers, who weren't even consulted
on this important decision, although India is a signatory to the UN
Convention on the Rights of the Child.
A "proximity clause" is badly needed: one that clarifies that sexual intercourse
between a teenager of 16-18 years with a person not more than four years
older will not be criminalised.
Parents, schools and communities are free to impart their social values to
children, whatever they may be.
What do the new laws not cover?
That the new laws only protect women from rape and sexual assault and not
men and transgender people is a major failure.
The infamous section 377 of the Penal Code penalises "carnal intercourse
against the order of nature".
Even if it survives a Supreme Court challenge, the law is limited, and
doesn't have violence or coercion at its core.
The absence of a proximity clause means 18 as the "age of consent"
criminalises intercourse between young adults that is neither violent nor
forced.
Marital rape is still legal - unless the couple are separated.
Armed forces in "disturbed areas" are still effectively immune from prosecution
for rape and sexual assault.

They benefit from the boys' club protections that are enhanced in situations of
sanctioned violence, committed against communities they are seriously
alienated from.
While in state and central legislatures politicians accused of crime may remain
in office and benefit from the slow justice system until convicted.
What lies ahead?
The Justice Verma Committee report has laid out a comprehensive roadmap
for women's constitutional equality - the panel was set up by the government,
it should use that blueprint.
It includes police reforms, educational reforms, training of personnel in the
criminal justice system, services such as well equipped rape-crisis centres.
The new amendments are only a start and a law is nothing if it's not enforced;
but you have to have a law first. And for better or for worse, now we do.

to the question if marriage in India is a contract for legal sex, among

other things - where a man doesn't need to ask for permission and is
free to impose himself on the wife?
While most of the developed world has penalized marital rape,
surprisingly, there is no law to protect married women against marital
rape in India - Home Affairs minister Haribhai Chaudhary had said
that marital rape can't be made a criminal offence in India because of
high illiteracy rate, poverty, extreme religious beliefs and the very
'sanctity' of marriage.
The best way that the law protects women subjected to marital rape
is by charging the husband with a minor offence of cruelty, the
punishment of which goes up to three years in jail or a fine. In worse
cases, she can seek restraining order and protection under domestic
violence legislation.
Anuja Shah, online senior family therapist at ePsyClinic explains, "I
once got a very disturbing case where the woman was so
traumatized that the child born out of wedlock reminded her of the
brutality of her bedroom." She adds, "Once married, men think that
any sort of sex he indulges in with the wife is normal. He believes
that even if he forces his wife to have sex, it cannot be called rape.
And most often I have observed that in such cases, there is some
sort of existing torture or physical abuse in the marriage." Marital
rape simply means that husband doesn't have sensitivity towards the
wife.

Priya Nanda, group director of social and economic development at

the ICRW (International Centre for Research on Women) had told a
leading portal, "The reason men don't want to criminalise marital rape
is because they don't want to give the woman the power to say no."
But can there be two yardsticks to define rape - rape of an unmarried
woman and that of a married woman? Is it acceptable to discriminate
a woman just because she is married to the man who raped her?
Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very
archaic sentiments, mentioned as its exception clause- Sexual intercourse by a
man with his own wife, the wife not being under 15 years of age, is not rape.
Since the discussions have not happened and social understanding not yet
developed, even the courts have been pretty slow to ensure progress. Indian
Supreme Court's decision to uphold the 150 year old sodomy/unnatural sex laws
is just an example of how much behind such discussions are. The judges were
unable to contemplate LGBT due to their unfamiliarity. Same happens in case of
marital rape.
This means husband cannot be legally punished for having forceful sex with wife
but to save wife, the law provides alternative approach. Protection of Women
from Domestic Violence Act 2005(PWDVA).
With this, women can get protection from her husband retaining all her rights.
As per definition of Domestic Violence Sec 3(a)
For the purposes of this Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it harms or injures or
endangers the health, safety, life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and includes causing physical
abuse, sexual abuse, verbal and emotional abuse and economic abuse;
sexual abuse includes any conduct of a sexual nature that abuses, humiliates,
degrades or otherwise violates the dignity of woman;
verbal and emotional abuse :- insults, ridicule, humiliation, name calling and
insults or ridicule specially with regard to not having a child or a male child
economic abuse :- deprivation of all or any economic or financial resources
If there is a law, there will be loopholes and people will use them ruthlessly. That
does not stop us from making laws against other heinous crimes.
1.

The first step towards penalizing marital rape is to accept that it

happens. We are too parochial to accept that. We feel that it is woman at
fault if she refuses the husband. It is her duty to obey her husband.
2.
Marriage is an institution that hides a lot of ugliness of our
patriarchal society - forced abortions, extortion, torture (mental and
physical). We are squeamish of dissecting marriage. Arranged Marriage is a
barter. An exchange of promises. Sex is one of them. Marital right to sexual
intercourse is a firmly held belief.

3.

Marriage is a solution to rape in many parts of India. Its like you walk
into a store and damage any product, you need to buy it / pay the price of it.
A raped woman is damaged goods. Marry her and rid the family of a liable
asset, you are redeemed of your crime. Such a society is incapable of
understanding marital rape.