lawyers in India

Rape law in India and World

Written by: Swagato Paul - Advocate
Constitutional Lawyers in India
Legal Service
  • 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.

    More Articles on rape laws:
    Rape Laws in India
    Change in definition of Rape in India
    A Woman Can't Rape Woman
    Marital Rape versus Conjugal Right
    Sexual Harassment and Rape Laws in India
    Crime Against Women & its Impact on Them
    Rape laws, arrest, evidence, criminal procedure in India
    A case study need on capital punishment in context of Rape
    Capital Punishment for Rape. What justice are we taking about?
    Redefining the Rape Laws in India: A Constructive and Comparative Approach
    Rape Law In India: Problems In Prosecution Due To Loopholes In The Law

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