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Introduction:
Rape is a crime of violence; it is not sex. At common law, rape was defined as
the unlawful carnal knowledge of a woman, without her consent. Carnal knowledge
was defined as sexual intercourse. Sexual intercourse implied genital
copulation. Genital copulation, in turn, connoted the act of sexual intercourse
. Unlawful carnal knowledge required sexual penetration, however slight. Today,
in addition to the requirement of carnal knowledge, most rape statutes require
force or threat of force against the will and without the consent of the victim.
Numerous law review articles have been written on the requirements of force and
against the will of the victim. The articles focus on the force requirement and
not the penetration requirement, which is the male understanding of what is
necessary when a woman is threatened with the crime of rape.
Penetration is required
in addition to the force and against the will requirements. Penetration, at
common law, was defined as the penetration of the sexual organ of the female by
the sexual organ of the male. What is the female sex organ: the vagina, the
vulva, the labia? What is the male sex organ: the penis? The requirement of
penetration by ‘some male organ type mechanism’ removed other types of conduct
with the vulva from the crime of rape. The penetration of the vulva by the male
sex organ is not regarded as rape by most legislation. Some legislation
legislated penetration of the vulva, but required a showing of penetration of
the vagina.
Fletcher also observed that "[s]ometime in the last two or three centuries, our
scientific thinking about crime began to shift from the harm done to the act
that brings about the harm". Furthermore, [i]nstead of seeing harm first and the
action as the means for bringing about the harm, we are now inclined to see the
action first and the harm as a contingent consequence of the action. "Most
criminal statutes focus on the act, rather than social harm".
Rape is an invasion of a woman's body in which her
private, personal inner space is violated. The act of rape denies woman
autonomy by abridging her right to determine when, with whom, and how she will
allow an individual to enter her zone of body privacy. In addition to the
physical harm, the crime of rape grants man domination over the woman's zone of
body privacy. Under the Indian Penal Code (IPC), the crime of rape occurs when
the following happens:
"A male ... has sexual intercourse with a female not his wife ... and compels
her to submit by force or by threat of [force] ... [or] has substantially
impaired her power to appraise or control her conduct by administering ...
without her knowledge drugs [and] the female is unconscious ... [or she] is less
than 10 years old." reference to rape as sexual intercourse suggests that
rape is not a crime if it is sex. But rape is not sex.
Some suggest that
sexual intercourse has to include penetration of the vagina, however slight, and
anything less is not rape because it is not intercourse. Thus, the touching of
the female’s sex organ, without the penetration of the vagina, cannot constitute
rape under the IPC. Rape, however, is not sex; it is a crime, and it is a crime
of violence. The crime is complete when the act is done, or the social harm has
occurred. The act is done when the female's private, personal inner space is
violated, and that space is violated when an uninvited individual enters the
zone of protected pleasures.
Definitions Of Rape: Penetration.
The variations in definitions as to what constitutes sexual intercourse is part
of the problem in defining what has to be penetrated. With respect to the raping
of a woman by a man, most states require penetration of the vagina. Defining
what has to be penetrated is significant because if rape is viewed as a crime
against the woman, then any conduct that is perceived as violative to the woman
should be classified as rape. Many statutes, with respect to the penetration
element, provide that an offender has to engage in sexual intercourse. It is
assumed that penetration has to be effectuated in order for there to be sexual
intercourse. The statutes, however, fail to state what has to be penetrated--the
vagina, the vulva, the labia, or the clitoris? Some states refer to penetration
of the female organ without further defining penetration.
To penetrate is ‘to
enter or force a way into; [to] pierce.’ Penetration is the ‘act or process of
piercing or penetrating something.’ How do we determine what constitutes a sex
organ? And what needs to be penetrated? And can it be penetrated? Even though
there are numerous articles stating the force and against the will requirements
are male responses to being attacked, the male question has not been addressed
with respect to penetration. Penetration is required in addition to the force
and against the will requirements. Penetration, too, is a male understood type
conduct. The penetration of requirement does not necessarily require that the
vagina is completely entered or that the hymen is ruptured. Is entering the
vulva or labia sufficient?
Penetration, at common
law, was defined as the penetration of the sexual organ of the female by the
sexual organ of the male. What is the female sex organ: the vagina, the vulva,
the labia? What is the male sex organ: the penis? The requirement of penetration
by ‘some male organ type mechanism’ removed other types of conduct with the
vulva from the crime of rape. The penetration of the vulva by the male sex organ
is not regarded as rape by most jurisdictions. Some jurisdictions legislating
penetration of the vulva, but required a showing of penetration of the vagina.
At early common law
when rape statutes were initially written, women were deemed property of men.
Virgin daughters were a valuable commodity belonging to their fathers; wives
were the chattel of their husbands. The father or husband ownership right of
women made rape a crime against property. Because rape was a property offense,
the father or husband was the victim rather than the woman. Because fathers or
husbands were the victims of rape, men wrote rape laws for their own benefit and
therefore, included a penetration requirement. Penetration requires male type
conduct and therefore, evolved as the measuring rod for determining when conduct
had gone far enough to constitute a crime. One commentator has stated the
following:
"Criminal law that reflects male views and male standards imposes its judgment
on men who have injured other men. It is "boys’ rules"
applied to a boys’ fight. In rape, the male standard defines a crime committed
against women, and male standards are used not only to judge men, but also to
judge the conduct of women victims.
Delaware’s unlawful
sexual intercourse statute is common to most jurisdictions. Delaware’s statute
provides that one is guilty of a class A felony when the person intentionally
engages in sexual intercourse "without the victim's consent." Sexual intercourse
is defined as "[a]ny act of physical union of the genitalia or anus of [one]
person with the mouth, anus or genitalia of another person. It occurs upon any
penetration, however slight." Sexual intercourse is also defined as “[a]ny act
of cunnilingus or fellatio, regardless of whether penetration occurs."
Cunnilingus is "any oral contact with the female genitalia." Sexual contact is
"any intentional touching of the anus, breast, buttocks or genitalia of another
person, which touching, under the circumstances as viewed by a reasonable
person, is sexual in nature. Sexual contact shall also include touching of those
specified areas when covered by clothing." For the woman, the physical contact
of her genitalia, her clitoris, her sex organ by the penis or any object may be
considered to be as violative as the penetration of her vagina.
A Practical Approach towards Redefining.
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’.
The narrow definition
of rape has been criticized by Indian and international women’s and children’s
organizations, who insist that including oral sex, sodomy and penetration by
foreign objects within the meaning of rape would not have been inconsistent with
any constitutional provisions, natural justice or equity. Their reasons have
been succinctly encapsulated in a recent Public Interest Litigation before the
Supreme Court in Sakshi v. Union of India :
... the interpretation [by which such other forms of abuse
as offences fall under Section 354 IPC or Section 377 IPC] is ... contrary to
the contemporary understanding of sexual abuse and violence all over the world.
There has been for some time a growing body of feminist legal theory and
jurisprudence which has clearly established rape as an experience of
humiliation, degradation and violation rather than an outdated notion of
penile/vaginal penetration. Restricting an understanding of rape reaffirms the
view that rapists treat rape as sex and not violence and thereby condone such
behaviour.
But in Sakshi, the
Supreme Court did not interpret the provisions of Section 375 IPC to include all
forms of penetration such as penile/vaginal penetration, penile/oral
penetration, penile/anal penetration, finger/vagina penetration, finger/anal
penetration, and object/vaginal penetration within its ambit. Instead, the
judges sought refuge behind the strict interpretation of penal statutes and the
doctrine of state decisis - a view that any alteration [in this case, of the
definition of rape] would result in chaos and confusion. In the present case,
the respondent authorities has been trying to treat sexual violence, other than
penile/vaginal penetration, as lesser offences falling under either Section 377
or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. But it
has been found that offences such as sexual abuse of minor children and women by
penetration other than penile/vaginal penetration, which would take any other
form and could also be through use of objects whose impact on the victims is in
no manner less than the trauma of penile/vaginal penetration as traditionally
understood under Section 375/376, have been treated as offences tailing under
Section 354 of the IPC as outraging the modesty of a women or under Section 377
IPC as unnatural offenses.
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.
A purposive approach is
being adopted in some of other countries so that the criminals do not go
untouched on mere technicality of law. A strong reliance was also placed on some
decisions of House of Lords to substantiate the contentions and the most notable
being R v. R where it was held as under:
‘The rule that a husband cannot be criminally liable for
raping his wife if he has sexual intercourse with her without her consent no
longer forms part of the law of England since a husband and wife are now to be
regarded as equal partners in marriage and it is unacceptable that by marriage
the wife submits herself irrevocably to sexual intercourse in all circumstances
or that it is an incident of modern marriage that the wife consents to
intercourse in all circumstances, including sexual intercourse obtained only by
force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which
defines rape as having ‘unlawful’ intercourse with a woman without her consent,
the word 'unlawful' is to be treated as mere surplus age and not as meaning
‘outside marriage’, since it is clearly unlawful to have sexual intercourse with
any woman without her consent.’
Even international law now says that rape may be accepted as "the sexual
penetration, however slight, of the vagina or anus of the victim by the penis of
the perpetrator or any other object used by the perpetrator; or of the mouth of
the victim by the penis of the perpetrator; by coercion or force or threat of
use of force against the victim or a third person." Similarly, Article 2 of the
Declaration on the elimination of Violence Against Women reads as follows:
Violence against women shall be understood to encompass
but not limited to ... Physical, sexual and psychological violence occurring in
the family, including battering, sexual abuse of female children in the
household, dowry related violence, marital rape, female genital mutilation and
other traditional practices harmful to women, non-spousal violence and violence
related to exploitation.
Judgments by the
Australian courts reveal that insertion of objects into the victim's vagina and
anus amount to rape. The definition of rape states that sexual penetration of
the body is necessary but the slightest penetration of the body of the female by
the male organ is sufficient. Emphasis on the word "slightest" reveals the
intent behind the definition is to give the victim and not the criminal the
benefit of the doubt.
Redefining Rape
After a careful review of the rape law in vogue and an intensive deliberation
with Sakshi v. Union of India , the National
Commission for Women and the other organizations, the Law Commission in its
172nd report submitted to the Government of India recommended, inter alia that
the law relating to ‘rape’ be made gender neutral, wider and more comprehensive
to bring it in tune with the current thinking.
So the proposed re-cast
Section 375 would read as :
Section 375. Sexual Assault: Sexual assault means-
(a) penetrating the vagina (this term shall include the labia majora ),
the anus or urethra of any person with-
i. any part of the body of another person, or
ii. an object manipulated by another person except where such penetration
is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause
penetration of the vagina (which shall include the labia majora ), the anus or
urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of
another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in
circumstances falling under any of the six following descriptions:
First - Against the other person’s will.
Secondly - Without the other person’s consent.
Thirdly - With the other person’s consent when such consent has been
obtained by putting such other person or any person in whom such other person is
interested, in fear of death or hurt.
Fourthly - Where the other person is a female, with her consent, when the
man knows that he is not the husband of such other person and that her consent
is given because she believes that the offender is another man to whom she is or
believes herself to be lawfully married.
Fifthly - With the consent of the other person, when, at the time of
giving such consent, by reason of unsoundness of mind or intoxication or the
administration by the offender personally or through another of any stupefying
or unwholesome substance, the other person is unable to understand the nature
and consequences of that to which such other person gives consent.
Sixthly - With or without the other person’s consent, when such other
person is under sixteen years of age.
Explanation: Penetration to any extent is
penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own
wife, the wife not being under sixteen years of age, is not sexual assault.
Conclusion.
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.
The private sphere for
women should be defined in women's terms and from a woman's perspective;
otherwise, rape will continue to be a crime of violence on women by men, as
defined by men. This practice permits men to continue, as they have from the
beginning of history, to treat women as property. This affords men the right to
touch a woman's body, even her treasures, until she resists to the point that he
understands that she is resisting. As we approach the millennium, it is time for
women to say "no." A woman's body is not the property of a man, and he is not
entitled to touch, unless he gets permission. There is no right for anyone to
invade a woman's most private sphere. The severity of the punishment is
generally related to the invasion. The severity of the invasion of a woman's
body ought to be defined from a woman's perspective of intrusiveness. Rape is
the invasion of the female sex organs by a male. Including the clitoris as a
female sex organ in the definition of rape reflects the woman's perspective of
intrusiveness. Consequently, because the clitoris, like the vagina, is a sex
organ in which the nonconsensual invasion is so intrusive, the invasion of it,
like that of the vagina, is rape.
Nevertheless, proposal
for reforms of the fifteenth Law Commission seems to be a progressive
gender-neutral rape law in India. The proposed section 375, replacing the
present one, if enacted, will, therefore, be a mere symbolic legislative
exercise. A symbolic law, embodying certain values and expressing the consensus
of the society to adhere to theses values, nevertheless, undeniably generates a
process of creating social consensus and consequential conditions that are
conductive to mobilize such a change. The proposed reforms in the substantive
rape law, therefore, would undeniably give a further momentum to the untiring
efforts of women’s organizations to do away with the ‘pro-male’, ‘male-oriented’
and ‘gender’ biased’ sexual morals reflected in the Indian Law relating to rape.
It, if favorably responded to, by the legislature, would not only make the
substantive rape law free from the century, but would also take the rape law in
a new progressive direction in the new millennium.
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The author can be reached at :
dharmveer@legalserviceindia.com
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