ORIENTALUNIVERSITY,INDORE

FACULTYOFLAW

An Assignment Report

On

“Comparative Public Law”

By

Aditya Narang

Semester- 1st

Enrolment No. : 2324LLMCRI6713

Submitted To
 Dr. Shyam Singh

Compare the provisions related to Rape between India and USA.

There is a distinct heading for Sexual Offences, which incorporates sections 375, 376, 376A,
376B, 376C, 376D, 376R of the I.P.C added vide Criminal law (Amendment) Act 13 of 2013.
Sexual Offences create an altogether different kind of crime which is the result of irrational
mind. This irrationality may result in rape or in homosexuality.

Section 375 as substituted by the Criminal Law (Amendment) Act, 2013(13 of 2013),

A man is said to commit rape if he-

Penetrates his penis, to any extent, into vagina, mouth, urethra or anus of a woman or makes her
to do so with him or any other person; or

Inserts, to any extent, any object or a part of the body, not being penis, into vagina, the urethra or
anus of a woman or makes her to do so with hum or any other person; or

Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra,
anus or any part of the such woman or makes her to do so with hum or any other person; or

Applies his mouth in the vagina, urethra of a woman or makes het to do so with him or any other
person, under the circumstances falling under any of the following 7 descriptions:

 against her will

 without her consent
 with her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
 with her consent, when the man knows that he is not her 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.
  with her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
 with or without her consent, when she is under 18 years of age.
 when she is unable to communicate consent.

Explanation 1 of this section purports that Labia Majora is included under the ambit of Vagina.

Explanation 2 provide us a sense of what consent means pertaining to this particular section i.e. it
should be an unambiguous voluntary agreement where the woman by any form of
communication be it VERBOS or NON-VERBOS, communicates voluntariness to partake in an
explicit sexual act with a proviso that a woman who does not substantially repel to that act of
penetration shall not by the reason only of that fact, be observed as acceptance to the sexual
activity.

The proviso further had two explanations in which explanation 1 purports that a medical
procedure or intervention shall not constitute rape, and the explanation 2 says that sexual
intercourse by a man with his own wife where the wife is not being under fifteen years of age is
not rape.

The section 375 now provides a broader domain and a detailed explanation of this particular
offence. After the amendment act of 2013, a person can be held liable of this offence not only
when he himself contributes or participates in this offence, but also by triggering a woman to do
any of the above mentioned acts with another person.
Due to a thorough and descriptive nature of the definition of rape now given in the amended
provision, the words vagina and consent have been explained and given a definite meaning with
the support of the newly added Explanation 1 and 2.

The punishment for rape/sexual assault has been categorized depending upon the severity of
offence. However, the option is left with the court under sub-section (1) of 376 I.P.C. to mention
adequate and special reasons for imposing a sentence of imprisonment of less than seven years
for the offence of rape has been omitted by the amendment.

Further, for the offenders who fall within any of the clauses (a) to (n) of sub-section (2) if I.P.C. ,
because of their special position by virtue advantage of which they can exert influence upon the
victim, the punishment prescribed is of rigorous imprisonment for not be less than ten years
which may extend to imprisonment for life.

Sections 376A, 376B, 376C, 376D and 376E substituted by the Criminal Law (Amendment) Act,
2013. Section 376 A prescribes punishment for causing death or resulting in persistent vegetative
state of the victim. Section 376B deals with Sexual intercourse done by the husband upon his
wife during judicial separation.

Section 376C prescribes the punishment for sexual intercourse by a person in authority. Section
376D deals with the punishment for gang rape and section 376E deals with punishment for
repeat offenders.

Section 377 of The Indian Penal code,1860 deals with Unnatural offence. It runs as, whoever
voluntarily has carnal intercourse against the order of nature with any man, woman or animal,
shall be penalized with imprisonment for a term, which may extend to 10 years, and shall also be
liable to fine.
In 2018, S.C. ruled a part of this section as unconstitutional which held that treating consensual
homosexual sex between adults as a crime is a violation of fundamental rights protected by
Indian Constitution. Thus, the verdict in the case of Navtej singh Johar v. Union of India[8] a 5
Judge bench lead to decriminalization of consensual Homosexual acts.

Rape is sexual intercourse that is forced on another without the person's consent or against the
person's will. This act is criminalized throughout the United States, but the legal term for it varies
from state to state. Some states label this crime as rape, while others refer to it as sexual assault,
sexual battery, or criminal sexual penetration. Regardless of what a state calls this offense,
however, most agree on the definition as sexual penetration or sodomy without consent.

Consent

Lack of consent is the crucial component of sex crimes. Sexual conduct becomes criminal when
sexual touch is not consented to, either because the offender forces another person to be sexual
against his or her will, or because the other person is considered incapable of consent or to have
a diminished mental capacity to give consent. Those who are deemed incapable of consent
include minors under the age of fourteen or fifteen, regardless of their mental abilities to
understand the nature of the act and their ability to refuse (but see "Sexual Conduct with a
Minor," below). In addition, sex with the following people is criminal if they do not have the
capacity to knowingly consent:

a developmentally disabled person

someone who is mentally ill, and

a person who is incapacitated – drugged, drunk, or unconscious – or otherwise physically

helpless.

Sexual Conduct with a Minor

In some states, sex with a minor above a certain age is criminalized only if the offender is older
than the victim by a certain number of years – more than three years, for instance. This allows
for a 14 year old to have sex with her 16 year old boyfriend without the boyfriend's actions being

criminal. If a 21 year old had sex with a 15 year old in the same state, however, the act would be
criminal.

Sexual Conduct by a Person in Authority or a Mental Health Care Provider

Many states also criminalize sex between a person in authority, such as a teacher, police officer
or prison guard, and someone over whom that person has authority, like a student, a person in
police custody, or a prisoner. The rationale for criminalizing this conduct is that the capacity to
consent is diminished by the authority that the teacher or other authority figure has over the
student or other person.

Many states also criminalize sex between a psychotherapist or other mental health care provider
and a client or patient, on the grounds that the nature of the relationship and the client's
vulnerable position makes the client or patient incapable of knowing, voluntary consent.

Defenses

Defendants charged with rape have the usual defenses available to all criminal defendants,
starting with "Someone else committed this crime." A defendant can also claim that the sexual
activity was consensual. In a rape case, there can be significant questions about what constitutes
consent or what constitutes refusal. This has led to the infamous question of when does "No"
mean "No?" Does the word constitute a lack of consent as soon as it is spoken, or must the
victim object more vigorously?
Another possible defense is an insanity plea, in which the defense argues that the accused is
mentally ill and did not have the capacity to control his behavior, to form criminal intent, or to
understand what he was doing or that his actions were unlawful.

Penalties: Imprisonment

Sexual assault laws regarding rape and criminal sexual penetration usually define this conduct as
a felony with serious penalties. Many states have degrees of the crime, such as a rape in the first
and second degree, depending on the vulnerability of the victim, the type of force used, whether
the rape resulted in serious bodily injury, and whether it was committed with a deadly weapon,
such as a rape at gun point.

Sentences for rape can range from one year to even life in prison, depending on the provisions of
each state's sentencing statute or sentencing guidelines, the victim's age or status, and the
circumstances of the crime. Some states require a minimum prison sentence or require the court
to impose a prison sentence without probation or early parole. In other states, the judge may have
some discretion on the length of the sentence and whether to allow the defendant to serve any
portion of the sentence on probation rather than in prison.

Penalties: Treatment

A person convicted of a sex crime also will face penalties other than jail or prison. Sex offenders
normally are required to undergo treatment either in jail or prison or as a condition of probation.

Penalties: Sexual Offender Registration

Every state in the U.S. has a sex offender registration and notification program. Sex offender
registry statutes require that a person convicted of a sex offense register with the sex offender
registry in the state where he resides. A sex offense requiring registration is any crime that
includes sexual penetration or sexual contact as an element.

Registration as a sex offender requires a person to have his name, address, and information about
his crime on file with the registry. Some or all of that information is available to the public,

Federal law applies in federal areas and in cases of displacement between states.

Offense Article Mandatory sentencing

18 U.S. Code §
Sexual abuse Life without parole or any other term
2242

Aggravated sexual abuse 18 U.S. Code §

Life without parole or any other term
by force or threat 2241(a)

Aggravated sexual abuse 18 U.S. Code §

Life without parole or any other term
by other means 2241(b)

Aggravated sexual abuse 18 U.S. Code § Life imprisonment without parole or any
with children 2241(c) term not less than 30 years

1. Plea Bargaining between India and USA.

Plea Bargaining is the practice of the prosecution and the defense negotiating a deal in which the
defendant pleads to a lesser offense or (in the case of multiple offenses) to one or more of the
charges in exchange for a lenient sentencing, recommendation, a specific sentence, or the
dismissal of other charges.

Plea Bargaining in India

Section 265A to 265L (Chapter XXI A) of the Criminal Procedure Code, 1973 (hereinafter
referred to as “CrPC”) contain provisions concerning ‘Plea Bargaining’.

Section 265A of CrPC provides who is eligible to take benefit of Plea Bargaining. According to
the provisions of Section 265A, any accused may take the course of Plea Bargaining except the
accused charged with offences that are punishable with death or life imprisonment or
imprisonment for a term more than seven years. Also, an accused charged with an offence
against a woman or a child below fourteen years of age or affecting the socio-economic
conditions of the country, is also not allowed to take the course of Plea Bargaining.

Section 265B provides for the procedure to file an application for Plea Bargaining. The
application must contain all details of the case accompanied by a sworn affidavit. Afterwards, the
Court may examine the accused to satisfy itself of the fact that the accused has filed such
application voluntarily. If the accused satisfies the Court of the voluntariness, the Court provides
some time for the mutual satisfactory disposition of the case. If in case, the accused fails to
satisfy the Court that he has filed the application voluntarily or that he has been convicted with
the same offence previously, the Court may proceed from the stage the application has been filed
before it.

Section 265C contains guidelines for mutually satisfactory disposition of the case. It states that
the Court shall issue notice to the public prosecutor, if the case instituted on a police report, the
accused, and the victim to participate in a meeting to reach at a satisfactory disposition of the
case. However, the Court must ensure that the process be completed voluntarily and the accused
may participate with his pleader, if he desires so.
Section 265D to Section 265I contain provisions concerning the report of mutually satisfactory
disposition, disposal of the case, judgment of the Court, finality of the judgment, power of the
Court in plea bargaining, and period of detention already undergone by the accused be set off
against the sentence of imprisonment.

Plea Bargaining In The USA

The term ‘Plea Bargaining’ was initially used in the United States during the 19 th century, and it
has since developed into a key component of the country’s criminal justice system. Even though
the US Constitution’s sixth amendment did not recognize plea bargaining, the US judicial system
fulfilled the requirements. The US Supreme Court, in Brady vs the United States, supported the
constitutional validity of plea bargaining and that “a plea of guilty is not invalid merely because
entered to avoid the possibility of a death penalty.” The Santobello vs. New York case of 1971
established the legitimacy of plea bargaining in the USA.

The plea-bargaining option is called ‘the plea of nolo contendere’ which means when the person
does not wish to contest his case. In a significant sense, it can be claimed that this plea is
conditional. This plea is said to be an implied confession of guilt. This formal declaration that an
accused would not contest is predicted on an understanding between the accused and the
government that the latter will only evaluate the accused’s guilt in that specific case and not in
other cases. It is in the court’s discretion to accept such a plea or not and if the court does then it
must do it without partiality. But in special circumstances, the court shall be bound to accept
such a plea.

Plea Bargaining in the U.S. is exponentially wide in scope. The plea bargain is permitted for all
federal crimes in the U.S. with little regulation to govern the process. The power to conduct the
negotiation process remains in the prosecutor’s hands. In other words, he acts as the principal
negotiator for the agreement. The judge’s position is still very restricted as he can only allow the
negotiation after assuring that it is voluntary.

Therefore, we can say are two reasons that make Plea Bargaining popular in the U.S:

The prosecutor works under a heavy workload and tight budget which makes them take a lot of
cases at one go. This time-saving method of Plea Bargaining plays an effective role in clearing
their caseload. We know that prosecutors being the central authority have the power to control
the negotiation and the judges have very limited. As they are permitted to do so, the prosecutors
can threaten the defendant with tougher charges throughout the trial to induce plea bargains.

The U.S. system of justice Is more tilted towards a retributive form of Justice (a form of Justice
that is committed to giving the offenders punishment that is equal to the crimes they committed)
therefore the chances of going to trial in this system are high. For example, an offense of assault
(first degree) under the Alabama Criminal Code provides for a maximum punishment of 20 years
and a minimum punishment of 2 years plus a $30,000 fine. Moreover, the legal aid system was
insufficient and private defense attorneys were very expensive. This imbalance of power makes
the accused surrender to whatever deals the prosecutor put forward.

Therefore, we can say that this method gained its popularity in the U.S. criminal justice system
not because it offers the best solution but rather because it benefits the people in positions of
authority.

2. Concept of Public Law

Public law is the area of law that regulates interactions between those who have a significant
influence on society and the State (i.e., the government and its agencies). Public law, in the
words of Loughlin, “may be a sort of political jurisprudence which incorporates no
transcendental or metaphysical conception of justice and goodness; it’s concerned solely with all
of these precepts of conduct which have evolved through political practice to ensure the
maintenance of the public sphere as an independent entity.”
Ulpian, a Roman jurist, was the first to draw a distinction between public and private law, saying
in his Institutes that “Public law is that which respects the establishment of the Roman
commonwealth, and private that which respects individuals’ interests, some matters being of
public and others of private interest.” In addition, he describes public law as the legislation
governing clerical functions, government offices, and religious matters.

It includes:

Constitutional law: Constitutional law is the branch of law that governs the structure and
operation of government. It includes the Constitution of the United States and the constitutions
of individual states. The Constitution of the United States establishes the basic rights and
responsibilities of citizens. The Constitution is a binding legal document that must be followed
by all branches of government.

Administrative law: the laws that govern the administrative process, including rulemaking,
adjudication, and enforcement.

Criminal law: the laws that govern criminal offences, including murder, robbery, and
kidnapping. Criminal law is important because it ensures that individuals who commit crimes are
held accountable for their actions.