I’ve always wanted to write about rape, but I wasn’t sure if people were ready or willing to read about it. But all that doesn’t matter any more people will have to read and acknowledge this, its high time we all do.
I was born and still live in a country named India, officially the Republic of India, in South Asia. With over 1.2 billion people, it is the second most-populated country in the world. It is one of the seventh-largest countries by area, which also happens to have the most populous in the world. Despite all this, the tolerance for rape-related crimes is high.
What is rape?
Rape, a type of sexual assault, involves sexual intercourse or other forms of sexual penetration carried out against a person without that person’s consent. Also, can be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as being in a state of unconsciousness, has an intellectual disability or is below the legal age of consent (which varies depending on the country, or states in some places). Rape is sometimes mistaken or used interchangeably with the term sexual assault.
Reporting, prosecuting, and convicting of rape, varies between jurisdictions. Rape is primarily committed by males worldwide. Rape by strangers is usually less common than rapes by people the victim knows. Male-on-male and female-on-female prison rapes are common, and maybe the least reported forms of rape. Widespread and systematic rape, eg. War Rape and sexual slavery can occur during international conflict. Rape can be recognized as an element of the crime of genocide when committed with the intent to destroy, in whole or in part, a targeted ethnic group. These practices are crimes against humanity and war crimes.
Rape has been a major cause of the victims developing post-traumatic stress disorder. Some other issues can be the risk of pregnancy and sexually transmitted diseases. Victims often may face violence or threats from the rapist, and in some cases, their own family and relatives. It is partially why many victims refrain from coming forward and talking it.
The definition of rape is inconsistent between government health organizations, law enforcement, health providers, and legal professionals. It varies historically and culturally. There was no sexual connotation and rape is still used in other contexts in English. In the US, you couldn’t charge a husband with raping his wife until 1979. In the 1950s, in some states in the US, a white woman having consensual sex with a black man was considered rape. Rape was a crime solely committed by men against women according to the Federal Bureau of Investigation (FBI) until 2012. They changed their definition to ‘The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.’ The definition they changed it from had remained unchanged since 1927 and was considered outdated and narrow.
Unlike people, rape or sexual assault does not discriminate. The victims can be of any gender, age, sexual orientation, ethnicity, geographical location, culture, and disability. Rape is classified into different categories, each describing the relationship of the perpetrator to the victim. Date rape, marital rape, incestual rape, child sexual abuse etc are all different variations of rape or sexual assault. Forced sexual activity is committed over a long period of time with little to no physical injury.
Consent is affirmative ‘informed approval, indicating a freely given agreement’ to sexual activity. Consent, at times, is expressed verbally or overtly implied from actions. The absence of an objection never constitutes consent, exactly what the act of rape lacks. Lack of consent may result from either forcible compulsion by the perpetrator or an inability to consent on the part of the victim (asleep, intoxicated, or mentally compromised). Sexual intercourse with a person below the age of consent is statutory rape. Language, law, context, culture, and sexual orientation can complicate consent. People don’t get consent, or they don’t want to. They consistently perceive a woman’s actions as sexual, even when they aren’t. A ‘no’ to them is ‘keep trying’, or ‘yes’. Victim blaming is a serious issue, and a common one too. If there are no injuries, then she must have given consent. Or worse, lied.
Rape laws in India
According to the Indian Penal Code, before February 3rd, 2013 section 375 defined rape as:
‘A man is said to commit “rape” who, except case hereinafter excepted, has sexual intercourse with a woman in circumstances falling under any of the six following descriptions:
Firstly. –– Against her will.
Secondly. –– Without her consent.
Thirdly. –– 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.
Fourthly. –– 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.
Fifthly. –– 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.
Sixthly. –– With or without her consent when she is under sixteen years of age.
Explanation. –– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. –– Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’
This law excluded marital rape, same-sex crimes and considered all sex with a minor below the age of sixteen as rape. The definition changed after February 3rd, 2013 through the Criminal Law Act 2013, also raising the legal age of minor from sixteen to eighteen.
Before the Nirbhaya incident in 2013, the Indian law only considered acts of penile-vaginal intercourse rape, while forcible acts like penetration of vagina, mouth, urethra, or anus using the penis or an inanimate object didn’t. Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused, and section 164A of the Code of Criminal Procedure deals with the medical examination of the victim.
In the revised statutes of 2013 Indian law, section 376A mandates minimum punishment in certain cases. Cases where if the sexual assault inflicts an injury which causes death or leaves the victim in a vegetative state, then the convicted must be sentenced to rigorous imprisonment of at least twenty years until he dies a natural or gets the death penalty. The same is mandatory for gang rape. According to Section 357 B, the convicted is asked to pay compensation to the victim, reasonable to meet the medical expenses and rehabilitation to meet the medical expenses and rehabilitation of the victim. The age of consent also increased from 16 years to 18 years, and any sexual act with anyone below the age of 18, irrespective of consent, would be considered statutory rape. This new law has made it mandatory for all government and privately-run hospitals in India to give free first aid and medical treatment to victims of rape.
Marital rape is not a crime in India unless they were separated or living separately. The punishment for this is a 2-year sentence. However, forced sex by the man on his wife is considered a prosecutable domestic violence, under the other sections of Indian Penal code, such as Section 498(A) as well as the Protection of Women from Domestic Violence Act 2005. Sexual assault on a child, someone who is below the age of eighteen, is further outlined and mandatory punishments described in The Protection of Children from Sexual Offences Act 2012.
Sexual acts between the members of the same sex, however, consensual or otherwise, is a crime under Section 377 of the Indian penal code, after the 2013 Criminal reform. The punishment is the same as that of rape.
The rape culture, not just in India but everywhere, is the same. ‘Victim shaming’ exists, and it may seem okay, but it only does harm. Not only does it discourage the victim and push her into this vortex of shame and doubt. But it further brings confidence to men and boys to have their way without the fear of getting caught. Because sex is a taboo in India, talking about rape is hard. But talking about it will help, and if you’re scared then follow these links below and get the help you need. Bringing awareness to rape is the only way it might stop.
India’s chaotic relationship with rape is part one of my new series. Stay tuned for part two. It’s going to be an emotional one!