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Understanding sexual violence under criminal law

Sexual Offences encompasses a variety of crimes, but are not limited to, rape,
assault by penetration, sexual assault, causing a person to engage in sexual
activity without consent and sexual offences against children. They say that
sexual offences relating to rape constitute a different kind of crime and results
due to the perverse mind. Perversity leads to such crimes. There are many
provisions relating to these crimes in the statute, but the crime is no more
confined to man in England (according to sexual offences act ,2003). The law of
homosexuality (section 377 of ipc) has been abolished in the west and discussed
in the context of constitutional right to privacy guaranteed under arts 14 and 21
of the constitution. At present consenting males to homosexual practices above
18 years is not an offence in England and other western countries. many woman
organisations and communities demand death sentence for rapists is analyse in
the light of constitutional provisions under article 21 “right to life and liberty”.

RAPE AND THE LAW

The alarming increase in the crime against women has led to strong judgements
and string protests by social activists, jurists and scholars in general in the
failure of the antiquated law to protect victims of rape. This ultimately led the
parliament to extensively amend the Law of rape first in 1983 and Criminal
Law in 2013 vide Criminal Law (amendment) act 43 of 1983 and Criminal
Law (amendment) act 13 of 2013. The Criminal Law act 2013 also known as
the (Nirbhaya act), a legislation was passed by Lok Sabha on 21, March 2013
providing amendment for Indian Penal Code, Indian Evidence Act, Criminal
Procedure code on laws of sexual offences. A judicial (VERMA) committee
was appointed by the Central Government to suggest amendments with sexual
assault case, the committee included Leila Seth, and famous advocate Gopal
Subramaniam and the report was submitted on 29 days on Jan 2013 after
considering 80,000 suggestions and petitions received. The report indicated the
failures of the past Government.
 It amends sections 100, 228A, 354, 370, 370A, 375, 376, 376A, 376B,
376C, 376D and 509 of Indian Penal Code, 1860.
 It also inserts new sections 166A, 166B, 326A, 326B, 354A, 354B, 354C
and 354D in Indian Penal Code, 1860.
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 It also amends sections 26, 54A, 154, 160, 161, 164, 173, 197, 273, 309,
327 and First Schedule of Code of Criminal Procedure, 1973.
 It inserts new sections 357B and 357C of Code of Criminal Procedure,
1973. It also amends sections 114, 119 and 146 of Indian Evidence Act,
1872.
 new sections 53A in Indian Evidence Act, 1872. It also amends section
42 of Protection of Children from Sexual Offences Act, 2012.

Relationship of rape perpetrators

The crime of rape can be classified into two types:

Firstly, rape in which the victim and the rapist are unknown to each
other, i.e.., strangers.
Secondly there is what as come to be known as “date” or “acquittance
rape” which involves at least some degree of familiarity between the
victim and offender.
The highest percentage of 45% of committing rape is by the victim’s
partner, acquaintances with 16%, strangers with 8%, ex – partners
with 11%, dates with also 11%.

The situation is much worse in India The National Family of India

revealed that 1 to 5 women face domestic violence from their husband.
Global statistics estimate between 20 to 50%. The Deccan Herald
revealed that for every case of rape reported 68 (1:68) go unreported ad
that the ratio of respond and unreported cases of sexual harassment is
approximately 1 to 10,000.

Rape as defined in section 375 of the Indian Penal Code applies under
the following circumstances namely,
Firstly - if it happens against her will,
Secondly – if it happens without her consent,
Thirdly – with her consent but by putting the person she is interested, in
fear of death,
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Fourthly – with her consent, where the man knows that he’s not the
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married,
Fifthly – with her consent which was obtained through intoxication or
unsoundness of mind by the administration by him or through another of
any stupefying or unwholesome substance, to which she is not aware of
the consequence of the consent she’s giving,
Sixthly – with or without her consent under the age of 18,
Seventhly – if she’s unable to communicate the consent.

Punishment of rape
According to section 376 the punishment of rape is no less than 7 years
which may extend to imprisonment for life and fine.

Whoever,
 Being a police officer who commits rape –
I. Within the limits of the police station to which such police officer
is appointed to
II. In the premises of the police station
III. On a woman in such police officer’s custody or the subordinate’s
IV. Being a public servant, commits rape on a woman in such public
servants’ custody or its subordinate’s custody.
V. Member of armed forces deployed in an area by the central or state
government commits rape in such area.
VI. Being a management staff in a hospital commits rape on a woman
in the hospital.
VII. Being a relative, guardian, teacher, a person in position of trust or
authority towards woman, commits rape towards such woman.
VIII. Rape during communal or sectarian violence.
IX. Committing rape on a pregnant woman with knowledge
X. Rape committed on woman under the age of 16
XI. Commits rape on a woman who is not able to give her consent.
XII. Commits rape on a woman with physical disability or mental
disability.
XIII. Commits rape repeatedly on the same person.
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Punishment for causing death or resulting in vegetative form of the victim

Whoever commits the offence shall be punished with no less than 20 years and
also for imprisonment for life or fine.
Sexual offence by husband upon his wife during separation
Whoever has sexual intercourse with his own wife during separation without
her consent is liable for punishment for no less than 2 years which may extend
to 7 years and fine.
Sexual offence by a person in authority
Offence committed by a person who
 Is a public servant
 Superintendent or manager of a jail, remand home or any place of
custody
 Management of hospital or staff in hospital
 Position of authority or in a fiduciary relationship.

Ingredients of the offences of rape

I. Consent
To bring charges of rape, one must establish that the “sexual relationship” was
done by the man against the will or without the consent of the woman.
The distinction between the two was spelled under two expressions by the
supreme court on UTTAR PRADESH V CHHOLEY LAL:
Be that as it may , in our view clause sixthly of section 375 IPC is not attracted
since the prospect that has been found to be above 16 years (although below 18
years ) in the facts of the case what is crucial to be considered is whether the
class first or the class second of the 375IPC is attracted the expressions against
her will and without her constant consent may overlap and sometimes but surely
the two expressions in class first in the class second have different connotation
and dimension the expression against her will would ordinarily mean that the
intercourse was done by a man with a woman despite Her assistance and
opposition on the other hand the expression without our consent would
comprehend an act of reason accompanied by deliberation
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Burden of proof of innocence on the accused

In a criminal case the charge against the accused must be proved beyond
reasonable doubt the presumption is that the burden of proving everything
necessary to bring home the guilt of the accused is on the prosecution on the
most important elements of the offence of rape under section 375 of IPC is the
lack of consent of the victim it is of common knowledge that a large number of
cases can result in an acquittal for want of such proof.

To remove this infirmity and other procedural difficulties in prosecution of a

rape case section 114A was inserted in the evidence act 1872 with effect from
third February 2013 with a vide the criminal Law amendment act of 13 of 2013
that shifts the burden of proof on the accused to prove his innocence .Further
the case accused is considered innocent unless it is proved beyond .On the other
hand the latter 14 types of cases listed below when the woman states before the
court that she did not give our concern is and the proof is contrary is on the
accused such cases are:

I. Within the limits of the police station to which such police officer
is appointed to
II. In the premises of the police station
III. On a woman in such police officer’s custody or the subordinate’s
IV. Being a public servant, commits rape on a woman in such public
servants’ custody or its subordinate’s custody.
V. Member of armed forces deployed in an area by the central or state
government commits rape in such area.
VI. Being a management staff in a hospital commits rape on a woman
in the hospital.
VII. Being a relative, guardian, teacher, a person in position of trust or
authority towards woman, commits rape towards such woman.
VIII. Rape during communal or sectarian violence.
IX. Committing rape on a pregnant woman with knowledge
X. Rape committed on woman under the age of 16
XI. Commits rape on a woman who is not able to give her consent.
XII. Commits rape on a woman with physical disability or mental
disability.
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Presumption of absence of consent

Section 114 A of the evidence act states that in a prosecution for rape under
clause (a) ,clause(b),clause (c), clause (d), clause (e), clause (f) of the section
376 of the Indian penal code where sexual intercourse by the accused is
approved and the question is whether it was without the consent of the woman
alleged to have been raped and such women states in her evidence before the
court that she did not can’t give her consent and the court shall presume that she
did not give her consent

In Tukaram and another vs state of Maharashtra, the orphan Madhura lived with
her brother Gama , mathura worked as a labourer at the home nushi and
Mathura developed a sexual relationship with Ashok who is the brother of nushi
. Ashok decided to get married with Madhura , knowing this gama filed a report
on March 26, 1972 stating that Madhura had been kidnapped and all the
relatives of the Nushi as well as the brother were called to the station and we
were recording statements. At 10:30 PM everyone left but the first appellant
Ganpat asked Madura to wait at the police station and he closed the door and
turned off the lights and took Madhura to the washroom and raped her and
continuously after which the second appellant Tukaram fondled with her private
parts but couldn’t Rape madhura as has he was heavily intoxicated . When a
Mathura met her family she told about the incident and Mathura was around 14
to 16 years old and her hymen revealed old raptures and there was no injury on
the body and she was examined by the doctor Shastrakar March 27 so on June
1, 1974 the session Court held that madhura was habituated to sexual
intercourse and the consent was voluntary and the accused were acquitted and
the Nagpur bench of Bombay High Court set aside the judgement of the
sessions court and sentenced accused for five years of age and in 1979
September the Supreme Court consisting of Jaswant Singh Kailash and Kush
and again acquitted the accused person.
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Rape and sexual assault in other countries

Rape and sexual assault under English law

Rape and sexual assault rank among the most serious crimes causing enormous
emotional and physical harm that can last throughout the victims lifetime’s rate
reflects the imprint of evolving social values practises and understanding rape
was an offence at common law and for many centuries rape was defined as “the
carnal of knowledge of a woman forcibly and against her will “ although
placed on a statutory basis in the sexual offences act of 1956 section 1 there was
no statutory
definition of the offence.

Sexual offences act 2003

Since most of the provisions relating to sexual offence contained in the sexual
offences act of 1956 it had become obsolete and outdated in view of changing
values and concept of equality between the sexes. It as it was fragmented
,cumbersome and inadequate another important reason that led to a
comprehensive reform in law was that of too much emphasis particularly on
proof of mental element and the opportunity that an acquittal on the basis of a
mere belief is the complainant is concerned. Adequate and appropriate for
protection for the vulnerable, and to this end it includes several separate
offences against children and also are up against persons with mental disorder
appropriate penalties have been providing according to the seriousness of the
crime is committed

According to sexual offences act 2003 rape, sexual assault and other sexual
offences totally 62,084 number of cases from the year 2004 to 2005 and
62,081 which includes a rape sexual assault and other sexual offences from
the year 2005 to 2006 and 43,755, 7% less than 2005 and 2006 on the year
2006 to 2007 and 41,440 on the year 2007 to 2008 which is 7% less than
2006 and 40,748 in the year 2008 and 2009 which is 2% less than 2007 and
43,579 in the year 2009 to 2010 which is 7% increase over the year 2008

According to the act of 2003 section 1 totally 12,903 cases of rape of females
on the year 2004 to 2005 and 13,331 increased by 3% in the year 2005 to
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2006 and 12,633 on the year 2006 and 2007 and 11,648 cases by which fell to
8% in the year 2007 to 2008 and 12, 165 which increased to 5% in the year
2008 to 2009 and 13,991 which increased by 15% in the year 2009 to 2010

Act of 2003 section 3 of sexual assault so they were totally 24,633 cases in the
year 2004 to 2005 and all at 1118 in the year 2005 to 2006 which is decreased
by 2% and 1150 which rose to 3% in the year 2006 to 2007 ,1006 cases
which fell by 13% in the year 2007 to 2008 and 968 which fell by 12% in the
year 2008 and 2009 ,1174 which increased by 22% in the year 2008 and
2009

Act of 2003 section 3 sexual assault had 3551 in the year 2004 to 2005 and
3166 which was down by 10% in the year of 2005 to 2006, 2753 which fell
down by 13% in the year of 2006 and 2007, 2642 which fell by 4% in the
year 2007 in 2008 , 2323 which decrease by 12% in the year of 2018 2009
and 2270 which decreased by another 12% in the year 2009 2010 .So these
are the data of rape and sexual assault during the year 2004 to 2010 in England
and Wales

VOYEURISM
Section 67 of the sexual offences act 2003 makes voyeurism Punishable as
stated below:

 A person commits an offence of voyeurism when for the purpose of

obtaining sexual gratification
 he observes another person doing a private act, he knows that the other
person does not consent to being observed for a sexual gratification
 he operates equipment with the intention of enabling another person to
observe for the purpose of obtaining sexual gratification a third person
doing a private act

 he knows that b does not consent to his operating equipment with the
intention that got another person doing a private act he does so with the
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intention that he or a third person will for the purpose of obtaining sexual
gratification look at the image of be doing the act

 he knows that b does not consent to his recording the act with that
intention

Rape and sexual assault in the United States

In the United States as elsewhere as many as 84% of all attempted or completed

rapes go unreported to law enforcement agencies while experts offer various
causes for this under reporting of most agree that the trauma and the stigma that
often intend many victims on fear of being victimised by the justice system ,so
at present it is of most of western countries unlike the countries of Asian and
African countries the law does not require that a rape victim must be a woman
all the statically rare mix can be victims of rape

Rape in the Russian Federation

Rape and Russian federation has been defined in the article 131 of the Russian
criminal code of 1994 .It states that rape that is sexual intercourse with the
application or threat of the application of force against the victim or the person
or by taking advantage of the helpless states of the victim shall be punished by
(.deprivation of freedom) for a term of up to 6 years

Rape under Swedish law

In Swedish and Russian Federation unlike India, United Kingdom and United
States of America rape is not considered to be a offence in as much as the
maximum punishment provided for a varies 2 to 6 years.

Rape in People’s Republic of China

The offence of rape in China is punishable under article 236 of the criminal
code of People’s Republic of China 1997 and anyone who rapes are women by
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violence question or other means shall be sentenced a fixed term imprisonment

of not less than three years and two maximum of 10 years
I. Anyone who has sexual relations with a minor girl under the age of 14
shall be deemed to have committed rape and shall be given a heavier
punishment
II. Anyone who rapes a woman or has a sexual relationship with a minor
girl in any of the following listed ways they shall we shall sentence to a
fixed term imprisonment of not less than 10 years of the following are:
III. raping a woman or having sexual relationship with a minor girl in
disgusting with
IV. raping many women or having sexual relationship with many minor girls
V. raping a woman before many people in a public place
VI. raping a woman intern with another man or another man causing a severe
injury that or other serious consequence of the Victim.

Rape in Italy

Article 519 talks about the rape, whoever guilty of rape and shall be punished
with imprisonment of 3 to 10 years

CASE LAWS
:
R vs linkear

Was held guilty for procuring a woman, who was a prostitute intended have
sexual intercourse with him by promising to pay her US$25 never intending to
pay. The judge directed that her consent would be by fraud the accused went in
appeal against his conviction to the court of appeal which acquitted him of the
charge of rape the court said distinction that can be drawn between fraud which
is sufficient to consent and other types of frauds and a sensual ingredient of the
offence of rape is the proof that the woman did not consent to the actual act of
sexual intercourse with a particular man who penetrated her
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R v Jackson

“Of 12 judges decided by 8 to 4 that Carnal knowledge of a woman while she

was under the belief that a man is your husband was not rape

R v barrow

Giving judgement saying that it is not appear that the women upon whom the
offence was alleged to have been committed was asleep or unconscious at the
time when the act of connection commences it must be taken thereafter that the
act was done with the consent of the women do the consent was obtained by
fraud

In tulshidas vs state of Goa The case in hand is a classic example when the
basic instinct of the appellant overtook his moral values and human sensitivities
and he rapes the unsuspecting victim in capable of comprehending the
vicissitudes of the dastardly act not once but several times , so innocent was the
victim that she was not even aware of the dreadful consequences the mental
faculties of the victim at undeveloped and her intelligent quotient was not even
one third of what a normal person has tragedy struck on the victim sometime in
1999 when the parents of the victim notice that your legs with swollen and they
were signs of advanced stage of pregnancy we were shocked beyond limits.
Additional Session Judge Panaji holding the queue is liable for rape under
section 376 imposed a sentence of 10 years of rigorous imprisonment along
with a fine of Rs.10,000 however the High Court in April reduce the sentence to
7 years and stable and went in appeal to the Supreme Court against his
conviction dismissing the appeal in the Supreme Court held that was such a girl
that was ravaged by accused several times it could not be said that the victim
had support sexual intercourse is with consent for constituting concerned they
must be exercise of intelligence based on the knowledge of the significance of
the moral effect of act Consent is different from submission as every concerned
in walls the submission but that converses not follow in law an act of helpless
resignation in the face of inevitable compulsion not resistance or passive giving
in when the faculties either clouded by or fear or impaired due to mental
retardation or deficiency health cannot be considered to be concerned it has to
be a conscious and voluntary act criticising the High Court for reducing the
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sentence to 7 years the Supreme Court say that it would have not interfered in
the sentence and the “suggested to the government amendment of law and
provided a minimum of 10 years of sentence in case of rape of a mentally
challenged or deficient women as in the case of a women below 12 years.
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CONCLUSION

The crime rate of sexual offences held against women is constant. it something
that cannot be prevented or eradicated but imposing strict punishments against
these crimes might reduce the rate in the near future. I would like to emphasize
that sexual violence poses an obstacle to peace and security. It impedes women
from participating in peace and democratic processes and in post-conflict
reconstruction and reconciliation. As a tool of war, it can become a way of life:
once entrenched in the fabric of society, it lingers long after the guns have fallen
silent. Many women lose their health, livelihoods, husbands, families and
support networks as a result of rape. This, in turn, can shatter the structures that
anchor community values, and with that disrupt their transmission to future
generations. Children accustomed to acts of rape can grow into adults who
accept such acts as the norm. This vicious cycle must stop, as we cannot accept
a selective zero-tolerance policy. Today's adoption of resolution 1960 (2010),
on sexual violence, is an important step in that direction
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BIBLOGRAPHY

 CRIMINAL LAW, KD GAUR

WEBSITES

 Indiankanoon.org.
 Legalresearch.com