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|Year : 2013
: 55 | Issue : 3 | Page
|Rape: Legal issues in mental health perspective
Department of Psychiatry, Maulana Azad Medical College and Govind Ballabh Pant Hospital, New Delhi, India
Click here for correspondence address and
|Date of Web Publication||28-Aug-2013|
| Abstract|| |
Rape of women by men has occurred throughout recorded history and across cultures and religions. It is a crime against basic human right and a most common crime against women in India. In this article, rape is discussed from legal and mental health perspective. In India 'rape laws' began with enactment of Indian Penal Code in 1860. There have been subsequent amendments and the main issue of focus remained the definition of 'rape and inclusion of 'marital rape' in the ambit of rape. Law Commission Reports related to rape and the psychological impacts of rape have been discussed.
Keywords: Cunnilingus, fellatio, marital rape
|How to cite this article:|
Jiloha R C. Rape: Legal issues in mental health perspective. Indian J Psychiatry 2013;55:250-5
| Introduction|| |
Rape is the most gruesome and barbaric act of violating bodily integrity and honor of a woman. It destroys the entire physical and mental composure and pushes the victim into a deep emotional crisis and reduces her to a living corpse.  It is a crime against basic human rights one is entitled to and a clear violation of the Right to Life enshrined in Article 21 of our Constitution. 
Rape in India is one of the most common crimes against women  and a serious national problem.  While per-capita reported incidents are quite low compared with other countries,  a new case is reported every 20 minutes. , According to the National Crime Records Bureau, 24,206 rape cases were registered in India in 2011, although experts believe that the number of unreported cases is much higher.  Children are more vulnerable to this crime and more than 7200 children are raped each year in India.  A survey reveals that the vast majority of children in India are physically abused and such occurrences are disturbingly common. 
| Historical Perspective|| |
Historically, "Raptus," the generic term of rape was to imply violent theft, applied to both property and person in the Roman culture. It was synonymous with abduction and a woman's abduction or sexual assault, was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.  Although Roman law in the historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths and legends of early Rome.  Rape in the English sense of "forced sex" was more often expressed as stuprum, a sex crime committed through violence or coercion (cum vi or per vim). 
Rape as an adjunct to warfare, dates back to antiquity when mass rape of women as a punitive measure committed by the armies after forcibly entering a town was taken by Greek, Persian, or Roman troops.  Rape, as an adjunct to warfare, was prohibited by the military codices of subsequent rulers and this prohibition formed the basis for convicting and executing rapists during the Hundred Years' War (1337-1453). 
In some cultures, rape was seen less as a crime against a particular woman than as a crime against the head of the household or against chastity. As a consequence, the rape of a virgin was often a more serious crime than of a nonvirgin, even a wife or widow, and the rape of a prostitute or other unchaste woman was, in some laws, not a crime because her chastity was not harmed. Furthermore, the woman's consent was under many legal systems not a defense. In 17 th -century France, even marriage without parental consent was classified as rape.  The penalty for rape was often a fine, payable to the father or the husband whose "goods" were "damaged." 
In Islamic criminal jurisprudence, the majority of Muslim scholars believe that there is no punishment for a woman forced to have sex.  According to a Sunnihadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. 
In some laws the woman might marry the rapist instead of his receiving the legal penalty. This was especially prevalent in laws where the crime of rape did not include, as a necessary part, that it be against the woman's will, thus dividing the crime in the current meaning of rape, and a means for a couple to force their families to permit marriage. ,
| Laws Against Rape in India|| |
The history of Rape laws in India begins with the enactment of the Indian Penal Code (IPC) in 1860 (45 of 1860)  covered under Section 375 and 376. According to the original provision as in Section 375, a man is said to have committed rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: (1) Against her will, (2) Without her consent, (3) With her consent, when her consent has been obtained by putting her in fear of death or of hurt, (4) With her consent when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, and (5) With or without her consent when she is under 16 years of age.
This definition explains that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. It gives an exception that sexual intercourse by a man with his own wife, the wife not being under 15 years of age will not constitute rape.
Section 376 provides punishment for rape. According to this Section, whoever commits rape shall be punished with imprisonment for life, or with imprisonment of either description for a term, which may extend to 10 years, and shall also be liable to fine, unless the woman raped is his own wife and is not under 12 years of age, in which case he shall be punished with imprisonment of either description for a term, which may extend to 2 years or with fine or with both.
| Amendments|| |
The rape law under IPC had gone through a lot of amendments.  In 1983, amendment was made and Section 376 (2), that is, Custodial Rape, Section 376 (A), that is, Marital Rape, and Section 376 (B to D), that is, Sexual Intercourse not amounting to rape were added. As per the Criminal Law Amendment Act (1983), revealing the identity of a rape-victim is an offence. Though this Act maintains more or less the same definition of rape, it introduces many new categories of offence of sexual intercourse by persons in custodial situation-such as superintendents of hospitals, remand homes, prisons, and police officials-with women in their custody. In cases of custodial rape, burden of proof lies with men and if a woman victim makes a statement that she did not consent, the court would believe that she did not consent.
Punishment in the cases of 'custodial rape' or gang rape amounts to the minimum sentence of 10 years and the offence is cognizable and nonbailable. Sexual intercourse by a man with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent, is punishable with imprisonment, which may extend to 2 years. This offence is cognizable and bailable.
The Supreme Court verdict of 2012  says that the rape trials must end within 2 months as stipulated under law. The Supreme Court also directed trial courts to "strictly adhere" to existing norms while asking them to rule out the possibility of "maneuvering" through undue long adjournments. Section 309 of the Criminal Procedure Code (CrPC) provides that in every inquiry or trial the proceedings should be held as expeditiously as possible and once the examination of witnesses begins the same shall be continued on a day-to-day basis till all the witnesses are examined. In cases that come under Section 376 (rape) and related offences under Sections 376 A to D of the IPC, the CrPC stipulates that "the inquiry or trial shall, as far as possible, be completed within a period of 2 months from the date of commencement of the examination of witnesses." The victim of rape suffers mental and psychological trauma, which must be addressed to provide a helping hand to enable her to cope with the trauma suffered and to tide over her immediate and long-term needs so that she is able to lead a dignified and meaningful life.
The provision of rape laws in the IPC (Section 375 and 376, IPC), echoes very archaic sentiments, when it mentions as its exception clause-"Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape." Law bestows an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. It is a nonconsensual act of violent perversion by a husband against the wife where she is physically and sexually abused. Marital rape is far too common in Indian society. The UN Population Fund  states that more than two-third of married women in India, aged 15-49 have been beaten, raped, or forced to provide sex. Article 2 of the Declaration of the Elimination of Violence against Women  includes marital rape explicitly in the definition of violence against women.
Roots of 'marital rape' can be traced in the statement of Sir Mathew Hale, England's chief justice during the 1600s, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract." 
The revolution against marital rape began with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women. The importance of consent for every individual decision cannot be overemphasized. A woman can protect her right to life and liberty, as well as her body even within the wedlock. As a result most of the Western countries have declared marital rape unlawful. 
The Section 376 in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 and 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses the permissible limit there is no legal protection accorded to the wife, in direct contravention of human rights regulations. 
The definition of rape (Section 375 IPC) has been criticized for other reasons as well by the Indian and international women's and children organizations, who insist that including oral sex, sodomy, and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice, or equity. Even international law now says that rape may be accepted as the "sexual penetration, not just penile penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight." Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt. 
| The Law Commission Reports|| |
There are four major law commission reports  that address the law on rape-while two reports recommend on the IPC in general within which the provision of rape is discussed, the other two reports exclusively deal with reforms related to rape. These are as follows:
- 42 nd Law Commission Report
- 84 th Law Commission Report
- 156 th Law Commission Report
- 172 nd Law Commission Report.
Each successive Report is an improvement over the prior one addressing the issue, however, many useful recommendations have not found their way into the Bills presented to Parliament. The 172 nd Law Commission Report had made the following recommendations for substantial change in the law with regard to rape.
- Rape should be replaced by the term 'sexual assault'
- Sexual intercourse as contained in Section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal, and object/vaginal
- In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], 'sexual assault on any part of the body should be construed as rape
- Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law
- A new offence, namely section 376E with the title 'unlawful sexual conduct' should be created.
Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent. Marital rape: Explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, Section 376 A was to be deleted. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.
The Domestic Violence Act, 2005 (DVA)  provides civil remedies to what the Section 498A of IPC provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Though Section 498-A deals with cruelty, to protect women against perverse sexual conduct by the husband, there is no standard of measure or interpretation for the courts, of 'perversion' or 'unnatural,' the definitions within intimate spousal relations. Is excessive demand for sex perverse? Isn't consent a sine qua non? Is marriage a license to rape? These are some of the questions need to be answered.  Section 3 of the DVA, among other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual.
It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman's wants. It is about the fundamental design of the marital institution that despite being married, she retains an individual status, where she does not need to concede to every physical overture even though it is only her husband.
Section 122 of the IEA prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.
| Current Legal Position|| |
In view of the recommendations of the Law Commission and the growing protest from the general public in response to gang-rape of a Delhi girl in December 2012,  the Indian Parliament introduced the Criminal Law (Amendment) Bill, 2013, which was passed by both the houses in March and received President's assent in April 2013.  It provides for amendment of IPC, IEA, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The offence of rape under Section 375 of IPC, have made both penile and nonpenile insertion into bodily orifices of a woman by a man an offence. The definition is broadly explained in some aspect, with acts like penetration of penis, or any object or any part of body to any extent, into the vagina, mouth, urethra, or anus of a woman or making her to do so with another person or applying of mouth to sexual organs (Cunnilingus or fellatio) without the consent or will of the woman constitutes the offence of rape. 
The section has also clarified that penetration means "penetration to any extent," and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situations, the punishment will be imprisonment for not less than 7 years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term, which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine.
A new section, 376A has been added which states that if a person committing the offence of sexual assault, inflicts an injury, which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term, which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean the remainder of that person's natural life, or with death. In case of gang rape, persons involved regardless of their gender shall be punished with rigorous imprisonment for a term, which shall not be less than 20 years, but which may extend to life and shall pay compensation to the victim, which shall be reasonable to meet the medical expenses and rehabilitation of the victim.
Certain changes have been introduced in the CrPC, 1973 and IEA, like the recording of statement of the victim has been made more friendly and easy, character of the victim is irrelevant for consideration, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc.
The age of consent has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.
The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticized by several human rights and women's rights organizations for not including certain suggestions recommended by the Law Committee Report like, marital rape, reduction of age of consent, amending Armed Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force personnel accused of a crime against woman. ,
| Marital Rape and Indian Society|| |
People marry for many reasons such as legal, social, libidinal, emotional, economic, spiritual, and religious.  In India, wife's role has traditionally been understood as submissive, docile, and that of a homemaker. Marital relationship is considered to be sacrosanct  where husband is considered to be incarnation of God. Sex has been treated as obligatory in a marriage.  Considering marriage as a bond of trust and affection, a husband exercises sexual supremacy through any means possible. The IPC through its Section 375 legalizes it, "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." As a result, marital rape is not an offence despite amendments, law commission reports, and new legislations.
It is argued that declaring marital rape an offence will bring "the potential of destroying the institution of marriage." This argument assumes that marriage as an institution is not based on mutual consent and equality of rights. The fundamental right of a person over one's body, male or female, is ignored in this assumption. In practice, this results in the wife's body being considered the property of her spouse, regardless of her consent. 
The marital rape victims have to take refuge in Section 498-A of the IPC ("perverse sexual conduct by the husband"), or to the Protection of Women from Domestic Violence Act 2005 (PWDVA). This Act came into force in 2006, effectively provides protection against marital rape or other forms of sexual perversions and domestic violence. However, it offers only a civil remedy for the offence.
| Social Impact: Secondary Victimization|| |
Sexual assault is not like any other crime. Unlike other violent crimes, most incidents go unreported despite evidence suggesting that the rate of sexual assault is on the increase. And despite the physical nature of the act constituting the crime, much of the harm is psychological or emotional in nature. The prosecution of sexual assault is unlike the prosecution of any other criminal offence. There is an intense focus on the character and motivation of the complainant. Traditionally, this focus has translated into a preoccupation with aspects of the complainant's behavior, which is not immediately related to the circumstances of the offence. The complainant is subjected to marked humiliation which adds insult to the injury.
Rape is especially stigmatizing, a rape victim (especially one who was previously a virgin) may be viewed by society as being "damaged." Victims may suffer isolation, be disowned by friends and family, be prohibited from marrying, be divorced if already married, or even killed. This phenomenon is known as secondary victimization. 
| Psychological Impact|| |
Childhood and adulthood victims of rape are more likely to attempt or commit suicide. ,, The association remains, even after controlling for sex, age, education, symptoms of posttraumatic stress disorder, and the presence of psychiatric disorders. ,, The experience of being raped can lead to suicidal behavior as early as adolescence. In a study of raped school girls, 6% reported having attempted suicide. Rape-victims feel embarrassed to talk about what had happened to them.  A study of adolescents found prior sexual abuse to be a leading factor predicting several health risk behaviors, including suicidal thoughts and attempts. 
Rape and other forms of sexual assault on a child can result in both short-term and long-term harm, including psychopathology in later life. , Psychological, emotional, physical, and social effects include depression, ,, posttraumatic stress disorder, , anxiety,  eating disorders, poor self-esteem, dissociative, and anxiety disorders; general psychological distress and disorders such as somatization, neurosis, chronic pain,  sexualized behavior,  school/learning problems; and behavior problems including substance abuse, , destructive behavior, criminality, and suicide. ,,,,,
The risk of lasting psychological harm is greater if the perpetrator of the sexual assault is a relative (i.e., incest), or if threats or force are used.  Incestual rape has been shown to be one of the most extreme forms of childhood trauma, a trauma that often does serious and long-term psychological damage, especially in the case of parental incest. 
Apart from judicial awakening; what is primarily required is generation of awareness. 'Educating people to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women's human rights'. Men have the economic, moral, political, religious, and social responsibility to combat all forms of gender discrimination.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
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R C Jiloha
Department of Psychiatry, Maulana Azad Medical College and Govind Ballabh Pant Hospital, New Delhi - 110 002
Source of Support: None, Conflict of Interest: None
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