Feb 15, 2022

Demystifying India’s Rape Laws

Shonottra Kumar

Image Source: AlJazeera


With the peculiar set of events surrounding the Hathras rape incident, the Uttar Pradesh police have claimed that the 20 year old victim was not raped. Their forensic report states that there was no sperm found on the victim and that she in fact died of neck injuries. While this has stirred up much outrage considering the dubious nature in which the police cremated the victim’s body, many questions have emerged on how exactly is the crime of rape looked at by the law. 


What is Rape?

Indian law considers rape to be sexual intercourse or any other sexual penetration by a man on a woman that is done without her consent. Section 375 of the Indian Penal Code defines what instances amount to rape and what penetration in such cases is.  The law sees rape as having occurred when a man:

  • penetrates his penis or any object into the vagina, mouth, urethra, or anus of a woman or forces her to do this with him or another person,
  • manipulates any part of the body of a woman in order to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do with him or any other person,
  • applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.

The extent of penetration does not matter and any slight penetration could also lead to rape.


What is the punishment for rape?

Rape is a non bailable offence and the punishment for it is imprisonment anywhere between 10 years to life, along with a fine.


What is consent?

Consent is a clear, voluntary communication that the woman agrees to the specific sex act, leaving no room for debate. For example, if a woman says that she is uncomfortable and that she does not want to have sex, yet the man has sex with her, it is after disregarding her consent and can be considered as a crime of rape. It is important to note that just because a woman does not have any physical injuries on her while reporting a crime of rape or sexual assault, it cannot mean that she consented to the sexual activity. Absence of physical injuries is immaterial for deciding consent.


What if consent was given under coercion?

There are cases where consent from a woman could be obtained out of coercion, deceit or fear of persecution. It may also happen that the woman was unable to give consent at all. Such cases can be considered as rape.  The law lays down following circumstances that will be considered as rape: 

  • A woman consents to a sexual activity only because she or someone she knows is in danger. 
  • A woman consents but only because she thinks the accused person is her husband. 
  • A woman consents, but she is drugged, drunk or mentally ill. 
  • The woman is in no position to indicate whether she consents to the sexual activity or not – for example if she is unconscious.
  • A person abuses his position or authority to obtain consent from the woman. 


Are the crimes of rape and gang rape different in law?

Yes. Rape is when one man has forceful sexual intercourse with a woman and gang rape is where a woman is raped at the same time by a group of people. Section 36D deals with cases of gang rape where each of the perpetrators can be punished under it.  The punishment for gang rape is rigourous imprisonment anywhere between 20 years and life, along with a fine.


What if the woman dies as a result of the rape?

If as a result of the rape, a woman gets so severely injured that it either causes her death or leaves her in a persistent vegitate state, the accused person can be punished with either the death penalty or imprisonment anywhere between 20 years to life. 


Is sex with a minor girl a crime, even if she consented to it?

Yes, sex with a minor girl, i.e. a girl under the age of 18 years, will be considered as rape, even if she consented to it. This is also commonly referred to as statutory rape.  However, the only exception to this rule on statutory rape is when a man has sexual intercourse with his wife who is a minor, but above 15 years of age. Such cases will not be considered as rape.  The punishment for rape (penetrative sexual assault) of a minor girl below the age of 16 years is anywhere between 20 years and life imprisonment. For cases of aggravated penetrative sexual assault by a person of authority, the death penalty can also be given. 


Can the name of a rape victim be publicised in the media?

It is illegal to print or publish the name or any matter which may make known the identity of the rape victim. The punishment for doing so is imprisonment for 2 years and fine.


Are there any special/sensitive rules or procedures for the police to follow while taking down a complaint of rape?

Yes, there are. First thing you need to know is that anyone can file a complaint of an incident of rape. It isn’t just the victim who is required to complain. It is also important to remember that recording the victim’s statement is an imperative step in the process, however she cannot be forced to go to the police station to give her statement. The police must record the statement either at her house or any such place that she chooses.  While the statement is being recorded the police must ensure that a woman police officer is present and recording the statement, along with a family member or social worker being present. All necessary steps must be taken to ensure that the victim is able to give her statement without any further intimidation.  For more information on how to report a crime of rape, please read this If you have any more questions on the law on rape, please refer to our explainer here or drop us a question at Ask Nyaaya. ___________________ Shonottra Kumar is a Research Fellow at Nyaaya. Views are personal.

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