What Amounts To The New Ordinance on Rape Under Criminal Laws in India?

A 'rape' charge under the Section 375 Indian Penal Code has two parts:

non-consensual penetration of any orifice (vagina, anus, mouth, urethra) in a woman by a man,

OR,

non-consensual touching of any orifice with the mouth. This is not restricted to having sex. Forcing a woman to do this to herself, or with someone else, is also rape.

The court will decide that these acts are rape if:

It happens without her consent,

or

She agrees, but only because she or someone she knows is in danger,

or

She agrees, but because she thinks the accused person is her husband,

or

She agrees, but she is drugged, or drunk, or mentally ill,

or

She is under 18 - then it does not matter if she agreed or not,

or

She is in no position to indicate whether she agreed

or not - for example, if she is unconscious.

Consent has been clearly defined as a clear, voluntary communication that the woman agrees to the specific sex act, leaving no room for debate. It also makes it clear that the absence of physical injuries is immaterial for deciding consent.

Marital rape is usually not a crime

As long as the wife is above 15 years old, it is not considered rape, if the husband engages in sex with her without her consent.

The situation is different if the two are separated. If a couple is married, but living separately, then the 'marital rape' exception no longer applies and the husband can be convicted of rape if there is no consent. The punishment for the husband is jail term of between two and seven years along with a fine.

What is aggravated rape?

Aggravated rape can be because of the special position of either the victim, or the criminal -

rape by someone having authority and control over the victim because of their legal status (like police officers, public servants, armed forces personnel, jail staff);

rape by someone who is in a position of trust with the victim (hospital staff, relatives or guardians, person in control or dominance);

special nature of victim (pregnant woman knowing her to be pregnant, woman under 16 years, woman who cannot give consent, woman suffering from physical/mental disability);

rape involving violent circumstances (during communal violence, causing grievous hurt/ disfiguration/ endangering victim's life, repeatedly raping same victim).

The punishment for committing such aggravated rape is rigorous imprisonment of between 10 years and life along with fine.

Another form of aggravated rape is rape which results in the death of the victim or in her ending up in a permanent vegetative state and gang rape.

Crime of rape and murder

During a rape, if the accused injures the woman so badly that she dies, or goes into a vegetative state, he can be given the death sentence, or jail of 20 years - life.

While this provision is pretty clear, the law does not define what 'persistent vegetative state' means. In a Supreme Court decision, the Court said that a person who is alive but does not show any evidence of being aware of one's environment is in a permanent vegetative state.

Gang rape

If a woman is raped at the same time by a group of people, each of them will be punished for committing the crime (Section 376D IPC). The punishment is rigorous imprisonment of between 20 years and life imprisonment.

Repeat Offenders

The law (Section 376E IPC) allows the death sentence to be imposed where a person is convicted for a second time for:

rape,

rape causing death or resulting in a permanent vegetative state, or gang rape.