Rape – Defined… Again Defined ….. & Then Redefined?

Rape – Defined… Again Defined ….. & Then Redefined?

Rape, also termed as sexual assault, is an act of “stealing or robbing the virginity or chastity of a woman. Such act essentially involves sexual intercourse or other forms of sexual penetration carried out against the WILL OR FREE WILL of a woman."

 

So, in order to understand the term rape, let’s understand the meaning of each and every term used in this definition:

Let’s start with the RAPE:

Rape is derived from the Latin term i.e. ‘Rapere,’ which means - to snatch, to grab, to carry off.

However, from the 14th century, the term ‘rape’ is widely used for the meaning “to seize and take away by force.”

In Roman law, the carrying off of a woman by force, with or without intercourse, constituted “raptus".

In Medieval English law, the same term could refer to either kidnapping.

In modern era, rape means "sexual violation” or ‘sexual assault.’

What is the meaning of Sexual Assault?

Sexual assault is a comprehensive term that involves an intentional touching to a woman without her free consent, or coerces or physically forcing her to engage in a sexual act against her free will.

What is meaning of stealing?

Steal (stealing) is a verb and the meaning is - take (another person's property) without permission or legal right and without intending to return it.

What is the meaning of robbing?

Rob (robbing) is a verb and the meaning is - take property unlawfully from a person by force or under threat of force.

Another meaning of rob is - overcharge someone for something.

What is the meaning of virginity?

It is a noun and the meaning is - it is the state of never having had sexual intercourse.

What is the meaning of chastity?

It is a noun and the meaning is - it is the practice of refraining any form of extramarital sexual intercourse. Or in other words, a woman who has not having any sort of physical relationship with any person other than her husband; the moment she does it, she loses her chastity.

What is the meaning of Free Will?

The consent that has been taken by force or duress, or under the pretext of false promise; in such a case, though consent has been given but it is conditional, as given in certain condition and essentially not the FREE or unconditional.

Secondly, if a person, in order to have sexual favor, deceives a woman or somehow makes her believe that he is her husband; it also comes under the category of rape, as the consent given was of course not unconditional.

Now you know the meaning of all the terms; so, again come back to our definition (that mentioned above as) - 

“Rape, also used as sexual assault, is an act of stealing or robbing the virginity or chastity of a woman.”

It means, rape is a sexual assault that involves stealing, which means - 

the consent for sexual intercourse has been taken under the pretext of false promise or through other means of deception; 

robbing means - the sexual intercourse has been carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.

Here, virginity means - making such sexual intercourse with the girl who is sexually not active or not having sexual intercourse of any sort in her life.

Here, chastity means - making such sexual intercourse with a woman who is sexually active. 

Note: it is a comprehensive term and hence covers all the women including sex workers as well.

So in gist, you can say that, if someone has made sexual intercourse forcibly or even it is consented but the consent has been taken in certain adverse circumstances and essentially not unconditional or with free will, then whomever she is, irrespective of her social status, occupation, cast, color, creed, place of birth, age, etc. the offense of rape is committed.

Now, if we talk about the definition of “Rape” given in the Indian Penal Code before the 2013 amendment, then it had been read as -

Section 375 of the Indian Penal Code defines rape as:

"sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."  

 

Likewise, as per the given definition, the rape is committed when:

 

First -  Sexual intercourse has been taken place Against her will.

 

Secondly - Sexual intercourse has been taken place Without her consent.

 

Thirdly - Sexual intercourse has been taken place 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 - Sexual intercourse has been taken place 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 - Sexual intercourse has been taken place With her consent, when, at the time of giving such a 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 - Sexual intercourse has been taken place 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.

However, 2013 amendment redefined the definition of rape as:

Now, Section ‘375 states that

 A man is said to commit "rape" if he —

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

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

 (d) applies his mouth to the vagina, anus, urethra of a woman or makes

her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions: —

First — 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.

Seventhly — When she is unable to communicate consent.

Explanation 1 — For the purposes of this section, "vagina" shall also include labia majora (means - the larger outer folds of the vulva).

Explanation 2 — Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

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Exceptions:

1.  A medical procedure or intervention shall not constitute rape.

2.  Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

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Likewise, as we can see here that 2013 amendment redefined the act of rape comprehensively, the concept of “consent” is also emphasized exclusively. So, if we closely examine both the definitions (discussed above), then we can easily extract the following differences:

1. The definition not only widened, but also used the following terms to specify the act:

Forcible penetration by the man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person; manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person; and applying his mouth to the vagina, anus or urethra of a woman or making her to do so with him or any other person.

2. The age of consent also raised from sixteen to eighteen years.

3. By adding the explanation to Section 375, ‘Consent’ is defined as “unequivocal voluntary agreement ….“ and this specific explanation removes the confusion and clarifies that in such a condition, women’s silence or absence of ‘no’ cannot be construed as “yes.”

Moreover, the definition of rape is comprehensively defined and better to say explained and not only this, the quantum of punishment (will be discussed in Part II of this Article) is also increased the multiple times to cover even a small such incident under the definition of rape with the intention to punish the perpetrator actively and restrain the such heinous crime. However, this is story of theoretical aspect of ‘incident of rape,’ but the story of practical aspect (in reality) is upside down, which essentially needs something more serious inclusion especially in the implementation part. 

Your views on this, are valuable and may usher change in our society by curbing such incident; so, don’t hesitate to share your views in the comment box given below.