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Rape is a heinous crime in our
world. Now a days all
civilized country enacted their own law on this topic. India is
not
exception of this, it also enacted it's own law under Indian penal
code.1860. section 375 define rape under our law which is known by
all
of us.
Rape under English law are define more particularly where the law
cover
all the aspect of rape.
Under the Sexual Offences Act 2003, which came into force in April
2004,
rape in England and Wales was redefined from non-consensual
vaginal or
anal intercourse, and is now defined as non-consensual penile
penetration of the vagina, anus or mouth of another person. The
changes
also made rape punishable with a maximum sentence of life
imprisonment.
Although a woman who forces a man to have sex cannot be prosecuted
for
rape under English law, if she helps a man commit a rape she can
be
prosecuted for the crime (see, for example, the conviction of
Claire
Marsh in 2001). A woman can also be prosecuted for causing a man
to
engage in sexual activity without his consent, a crime which also
carries a maximum life sentence if it involves penetration of the
mouth,
anus or vagina. The statute also includes a new sexual crime,
called
"assault by penetration", which also has the same punishment as
rape,
and is committed when someone sexually penetrates the anus or
vagina
with a part of his or her body, or with an object, without that
person's
consent.
Sexual offence act, 2003 states as follows:-
1 Rape
(1) A person (A) commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of
another
person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having
regard
to all the circumstances, including any steps A has taken to
ascertain
whether B consents.
With compare to this law, law of India under penal code not cover
the
penetration of mouth and if such happened then that not amount to
rape
under our present law above all in India it is observe by our
Hon'ble
courts that in case of rape if any woman help to commit such rape
she
will be not charge for the offence of rape as she help to commit
the
rape but in England it happens and their punishment are also more
than
us so any one before committing this must think and in the mind of
people there is some fear about law and it's punishment.
Where as in Pakistan, rape law, more or less are same like us but
there
is slide difference is that ?The Hudood Ordinance?. Rape law,
current in
effect in Pakistan states that either the perpetrator must confess
to
raping his victim or there must be an eye-witness testimony from
at
least four Muslim adult males in order for the perpetrator to be
convicted. Otherwise, the woman who reports the rape can be
prosecuted
herself for fornication if she is unmarried and adultery if she is
married.
There is other law under the
ordinance under which a man can be subject of a rape, in that
ordinance A man and a woman are said to commit "zina"
if they willfully have sexual intercourse without being validly
married
to each other.
Zina is liable to hadd [punishment] if--
(a) it is committed by a man who is an adult and is not insane,
with a
woman to whom he is not, and does not suspect himself to be
married; or
(b) it is committed by a woman who is an adult and is not insane
with a
man to whom she is not, and does not suspect herself to be married
.Under its heading of zina, the Zina Ordinance includes the
category
"zina-bil-jabr" (zina by force) which lays out the definition and
punishment for sexual intercourse against the will or without the
consent of one of the parties. The section articulating the crime
of
rape, as zina-bil-jabr, states:
A person is said to commit
zina-bil-jabr if he or she has sexual
intercourse with a woman or man, as the case may be, to whom he or
she
is not validly married, in any of the following circumstances,
namely:--
(a) against the will of the victim,
(b) without the consent of the victim,
(c) with the consent of the victim, when the consent has been
obtained
by putting the victim in fear of death or of hurt, or
(d) with the consent of the victim, when the offender knows that
the
offender is not validly married to the victim and that the consent
is
given because the victim believes that the offender is another
person to
whom the victim is or believes herself or himself to be validly
married.
Explanation.--Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of zina-bil-jabr.
Zina-bil-jabr is liable to hadd if it is committed in the
circumstances
specified [above].
Finally, the Zina Ordinance then specifies the evidence required
to
prove both zina and zina-bil-jabr:
Proof of zina or zina-bil-jabr liable to hadd shall be in one of
the
following forms, namely:--
(a) the accused makes before a Court of competent jurisdiction a
confession of the commission of the offence; or
(b) at least four Muslim adult male witnesses, about whom the
Court is
satisfied, having regard to the requirements of tazkiyah al-shuhood
[credibility of witnesses], that they are truthful persons and
abstain
from major sins (kaba?ir), give evidence as eye-witnesses of the
act of
penetration necessary to the offence .
When this law was enacted in 1977, proponents argued that it
enacted the
Islamic law of illegal sexual relations. The accuracy of that
claim is
addressed in detail later.4 First, it is important to note that
the
application of the Zina Ordinance in Pakistan has placed a new
twist and
a renewed urgency on the question of its validity. The twist is
this:
when a zina-bil-jabr case fails for lack of four witnesses, the
Pakistani legal system has more than once concluded that the
intercourse
was therefore consensual, and consequently has charged rape
victims with zina.
So in this above context we can say that law of Pakistan is in
some
sense better than us as there women are also punished for the same
offence but the process of proving the same are not adequate as in
case
of rape normally it is presume that such rapist must not confess
and
four adult male Muslim eye witness are very difficult to place
before
the court.
In the world other states are also their own type of rape law and
some
of them change their law according to the present demand of the
society.
In Canada Traditional rape laws were gender specific, providing
that
only women could be victims of rape and only men could be rapists.
In
recent years an increasing number of states have rewritten their
rape
laws to be gender neutral. In these states it is possible,
although
unlikely, for a woman to be charged with raping a man. In Canada,
statutes prohibiting sexual assault apply to both male and female
perpetrators and victims.
In France we also found rape law almost just like us where also
penetration is required for committing this offence. Criminal code
of
France republic states in its code as follows:
Article 222-23
Any act of sexual penetration, whatever its nature, committed
against
another person by violence, constraint, threat or surprise, is
rape. Rape is punished by fifteen years' criminal imprisonment.
Article 222-24
Rape is punished by twenty years' criminal imprisonment
1° where it causes mutilation or permanent disability;
2° where it is committed against a minor under the age of fifteen
years;
3° where it is committed against a person whose particular
vulnerability, due to age, sickness, to a disability, a psychic or
physical deficiency or to a state of pregnancy, is apparent or
known to
the perpetrator;
4° where it is committed by a legitimate, natural or adoptive
ascendant,
or by any other person having authority over the victim
5° where it is committed by a person misusing the authority
conferred by
his functions;
6° where it is committed by several persons acting as perpetrators
or
accomplices;
7° where it is committed with the use or threatened use of a
weapon.
Article 222-25
Rape is punished by thirty years' criminal imprisonment where it
caused
the death of the victim.
The first two paragraphs of article 132-23 governing the safety
period
are applicable to the offence set out under the present article.
Article 222-26
Rape is punished by imprisonment for life when it is preceded,
accompanied or followed by torture or acts of barbarity.
The first two paragraphs of article 132-23 governing the safety
period
are applicable to the offence set out under the present Article. So, in France we can say that in case of rape followed by torture
and
acts of barbarity have some special section, which guide those.
From the above study we can say that our Indian law need some
reform
from various aspect such us, include woman in the definitions of
rape as
rapist and punished for the same when they help some one directly
to
commit such offence.
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The
author can be reached at: swagato_paul@legalserviceindia.com /
