Rape Crime, Law and Victim's Right an Analysis from Indian Penal System

• Author: Senior Lecturer Sindhu Vijaya Kumar
• Position: Research scholar in law, SDM, University of Mysore, India

Introduction

¹According to professor Meacham Amir's study of 646 rape cases in Philadelphia he reveals that men who rape are not abnormal Amir's writes "studies indicates that sex offenders do not constitutes a unique or psycho pathological type, nor are they as a group in variable more disturbed then the controlled group to which they are compared".² Allen Taylor a parole officer who worked with rapist also points that they are the men of normal state of mind. Amir's study reveals that in case of group rape 90% of rapes were planned in, pair rape 83% of the rapes were planned and in single rape 58% were planned. Rape is not only a crime of aggression against the body it is a transgression against chastity.³ When a woman is forced into sexual relationship she, according to the male ethos is violated. One should not however assume that women can avoid the possibility of rape simply by behaving. The myth that the "bad girls" are raped this theory cannot be always correct. In a study of rape conducted by the NGO'S it was found that 82% of the rape victims had good reputation. Like indiscriminate terrorism, rape can happen to any women and few women are even without this knowledge. But unfortunately both court and police continue to suspect the rape victim, sui generis, of provoking or asking for her own assault.⁴ The victim is usually submitted to countless questions about her own sexual mores and behaviors by the investigators. A refusal to accompany a man to some isolated places to allow him to touch her does not in the eye of the court constitute rape she must have said "no" at the crucial moment and the rape victim to qualify as such must also have put up a physical struggle unless she can prove that to do so she would have been to endanger her life. ⁵

Concept and Definition

Since the olden time, Indian criminal system has been enriched by the great jurist like Manu⁶ his penology formula is still found worthy and suitable to the society even after 2500 years. Many westerns theories seem to have developed on it. The basic idea behind the ancient and modern theory of criminal justice is to control the crime and provide reasonable justice to the victim of crime.

The term victim of the crime is neither defined under any law nor has the judiciary made any attempt to define the term. The etymological meaning of phrase suggests that it would mean to include [a] anyone suffering physical emotional of financial harm as a direct result of the crime [b]spouses and the children of the person who has suffered [c] parents, foster parents, siblings, guardian or other custodian of minor victim of homicide. In this regard reliance can be placed upon United Nation General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of power adopted in November 1985, which through Article 1&2 gives definition of the phrase:⁷

Article1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economical loss or substantial impairment of their fundamental rights, through acts or omission that are in violation of criminal laws operative within the member states, including those laws prohibiting criminal abuse of power.

Article2. "A person may be considered victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the family relationship between the perpetrator and the victim. The "victim" also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victim in distress or to prevent victimization. As per the above definition the term victim would include any person with no gender bias.

The Indian penal code has no demarcating line to differentiate gender for crime. The term he under IPC denotes any person male or female a few section in the court defines crime against women and provides only punishment for dominating male member of the society.⁸ The court still seems to quiet sensitive to the crime against women. Among the crime against women include the crime of sexual abuse or emotional blackguard etc, sexual abuse is quite wide to include rape also. Rape is the worst form of victimization a women is subjected to. It totally distracts affecting the very soul of the victim of the crime.⁹ This crime has drawn the attention of both the national and international law to define its nature. The Indian penal code has categorized sexual offence falling under section 375, 376A, 376B 376C, 376D and 377. According to section 375 of IPC rape is an offensive act were in a man is said to have committed the rape who has sexual intercourse with a women falling under six following circumstance.

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 that her consent is given because she believes he is another man to whom she is lawfully wedded

Fifthly, if she gives consent in the state of intoxication or if the women is unsound mind or the intoxication is administered by him personally or through another or any stupefying or unwholesome substance, she is unable to understand the nature or the consequence to which she has given consent.

Sixthly, with or without her consent when she is less than sixteen years of age.

Section 375 is followed by section 376 which specifies punishment for the rape with an imprisonment of either for the period of seven years or which may be extended to 10yrs taking into consideration the nature of the crime.

Consent under Indian Penal Code

As per the above definition one can draw out the basic elements that constitute the offence as such in most of the crime either the consent is absent or the victim is under some kind of pressure no matter whether physical or emotional pressure. Consent is a defense under this section. But the consent as defense to an allegation of rape requires voluntary participation not only after the exercise of intelligence based on the knowledge of the act but after having freely exercised the choice between the resistance and assent. It is no defense that the woman consented after the act.¹⁰ Any helpless resignation in the face of inevitable compulsion or passive giving is not consent. In state of Orissa v/s khudiram sahu the court held that the consent given by the victim must be voluntary¹¹ and not the mere act of helpless resignation. In Sushil Kumar patil v/s state of West Bengal it was held that in case of rape if the victim is minor then the question of consent does not arise¹². In 1980 the Supreme Court held "the court must bear in mind human psychology and behavioral probability when assigning credibility of the victim's version. In Dhananjoy Chaterjee and Dhanna v/s state of west Bengal the court in its effort to reform the deteriorating sexual behavior of civilized society observed in this case that most heinous type of barbaric rape and murder was committed on a helpless and defenseless school going girl of 18 years. The offence was not only inhuman and barbaric but it was totally ruthless crime of rape followed by cold blooded murder. The savage nature of the crime has shocked our judicial conscious.¹³

Classification of the Rapist and the Degree of Offence

Attempt has been made by the law maker and the criminologist to classify the rapist or the sexual offender. According to the criminologist sexual assault do not represent all categories of sexual crime. There are crime of simple sexual assault and crime of grave and motivated nature as such the classification of rapist is believed to represent all types of rapist found in society according Geybhard rapist were of five categories.¹⁴

1. Sadist, who have a past history of violence a stronger hostility toward female, and who obtain satisfaction only when it is accompanied by physical violence

2. Amoral delinquents, who are not hostile to females, use force to get what they want and commit rape to satisfy sexual desire without taking interest in the victim.

3. Drunken variety, who after drinking delude themselves into thinking that a female is trying to seduce them.

4. Explosive, who are normally "upright" citizens? A disturbed family background usually underlies the behavior of these offenders.

5. Double standard, who divide females into good and bad. They rationalize the use of force, if necessary on bad girls.

Typology of rapist is also given on the basis of their sexual and social normalcy, criminologist have divided rapist into following 4 types:¹⁵

1. Sexually and socially normal: He is a rapist who led a normal sexual life and does not usually transgress the accepted rule of sexual behavior. He breaks out of his conformist pattern only under special circumstances, say under the affect of alcohol when he loses his reasoning and attack a known that unexpectedly or expectedly refuses him.

2. Sexually deviated and socially normal: He is a rapist who obtains sadistic pleasure from the sexual act under duress and in painful condition.

3. Socially deviated and sexually normal: he is a rapist who would not behave in a sexually deviant fashion but for some social abnormality. Socially he is unskilled...