RAPE LAWS IN INDIA: A SOCIOLOGICAL STUDY

SOCIOLOGY

Submitted by:

DISHA MOHANTY

UID Number: SF0119021

Second Year (Third Semester)

FACULTY IN CHARGE:

Ms. Preeti Priyam Sharma

(Faculty of Sociology)

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, AMINGAON

GUWAHATI
 Table of Contents

1. Introduction ........................................................................................................................ 3
1.1. Overview ..................................................................................................................... 3
1.2. Research Questions ..................................................................................................... 5
1.3. Literature Review ........................................................................................................ 5
1.4. Aim and Objectives ..................................................................................................... 5
1.5. Research Methodology ................................................................................................ 5
2. Sociological Perspectives on Rape ..................................................................................... 6
2.1. Self-Control Theory .................................................................................................... 6
2.2. Control Theory ............................................................................................................ 6
2.3. Feminist Theory .......................................................................................................... 7
3. Development of Rape Laws in India .................................................................................. 8
3.1. 1860: Indian Penal Code ............................................................................................. 8
3.2. 1983: The Criminal Law (Second Amendment) ......................................................... 9
3.3. 2002: Amendment to Indian Evidence Act ............................................................... 10
3.4. 2012: Protection of Children from Sexual Offences (POSCO) Act.......................... 10
3.5. 2013: Criminal Law (Amendment) Act .................................................................... 11
3.6. 2018: Criminal Law (Amendment) Ordinance ......................................................... 12
4. Society’s treatment of rape victims .................................................................................. 13
5. News Media’s role in educating the society about rape ................................................... 15
6. Conclusion ........................................................................................................................ 16
7. Bibliography: .................................................................................................................... 17
 1. Introduction
1.1. Overview
Rape is one of the heinous crimes, which causes severe impairment to one’s bodily integrity
and sexual autonomy. In these days there has been a stark rise in instances of rape in India,
the National Crime Record Bureau (NCRB) in 2018 stated that there had been almost 34,000
rape cases reported across India.1 In adherence to sheer rise in instances of violence against
women over time, the state has promulgated various gender-specific legislation. It has
effected a significant change in substantive rape law by means of increasing the penalty and
widening the scope of rape. But paradoxically this staggering rate of violence against women
resultantly turned a blind eye on the sexual violence perpetrated against the gendered
minorities, Male. The substantive rape law in India over the years have gone through
significant changes but however, the hero-normative stigma of rape remains flagrant in the
statute.2

In Priya Patel v. State of M.P. & Anr.3 the supreme court observed that woman cannot
develop the intention to rape and further noted that it is “conceptually inconceivable”. Thus,
promoting the erroneous crime committed against gendered minorities, vulnerable and
institutionalized men by leaving the actual perpetrators scot-free just because of the fact that
they belong to a particular gender, denuding the entrenched principle of equality and equal
protection under the law guaranteed under Article 14 of the Indian constitution. Secondly,
rape is often associated with pleasure or satisfaction of sexual desire contradicting the
purpose of rape is not merely limited to attainment of sexual pleasure but instead in many
cases rape is used as a weapon to harass, degrade or to show social dominance over other.4
Susan Brown Miller in her book titled “Against Our Will” stated that

1
NCRB data 2018: 1 rape reported every 15 minutes in India, INDIA TODAY (Jan. 11, 2020)
https://www.indiatoday.in/india/story/ncrb-2018-woman-reports-rape-every-15-minutes-in-india-1635924-
2020-01-11.
2
The Evolution Of Anti-Rape Laws In India Since 1860, YOUTH KI AWAAZ (Aug. 9, 2018),
https://www.youthkiawaaz.com/2018/08/indias-anti-rape-laws-the-evolution/.
3
Priya Patel v. State of M.P. & Anr. Appeal (crl.) 754 of 2006
4
Gurvinder Kalra & Dinesh Bhugra, Sexual violence against women: Understanding cross-cultural
intersections, 55(3) INDIAN JOURNAL OF PSYCHIATRY 244 (2013).
 “Rape is not a crime of irrational, impulsive, uncontrollable lust, but is
a deliberate, hostile, violent act of degradation and possession on the
part of a would-be conqueror, designed to intimate and inspire fear.”5

Hence, currently in the changing state of affairs where women have also started to acquire
dominance in various spheres, it is obnoxious to still view rape as a gendered crime. In
furtherance rape is often viewed as a penile-vaginal crime though the laudable Criminal
Amendment Act, 2013 has expanded the definition of rape beyond penile-vaginal
penetration, thus including penetration of the mouth, anus, urethra, or any other part of a
woman's body by a penis, by manipulation, by ‘applying the mouth’, or by an object,6 but
however, the requisite of penetration and male on a female paradigm to constitute a statutory
rape remains unchanged. For example, an act of touching the vagina, penis, anus or breast 7of
a victim can also cause severe outrage to one’s modesty thus, in a high order crime like rape
any act with sexual intent which involves physical contact without penetration 8 can
equivalently affect a person’s dignity, autonomy and bodily integrating. Thus, reducing the
quantum of punishment for an act which can cause substantially equal damage just because of
the fact that there is an absence of penetration would denude the very object of the statute.

The Canadian Criminal Code9 and the UN Handbook for Legislation on violence against
Women10 has also urged the need to take away the focus on penetration. In the case of Sakshi
v. Union of India11 the Supreme court directed the Law Commission to effect changes is
substantive criminal law pertinent to rape and urged the need to incorporate the realistic
approach in penal laws dealing with a sexual offence. In pursuance to it, the Law
Commission in its 172nd recommended the need integrate gender neutrality in drafting by
redefining the offence of rape under the heading of “sexual assault”, but however
recommendations have not been still solidified into substantive law in the Criminal Law
(Amendment) Act, 2013.

5
Noam Shpancer, Rape is Not (Only) About Power; It’s (Also) About Sex, PSYCHOLOGY TODAY (Feb. 1,
2016), https://www.psychologytoday.com/gb/blog/insight-therapy/201602/rape-is-not-only-about-power-it-s-
alsoabout-sex?page=1
6
Shraddha Chaudhary, Reconceptualising Rape in Law Reform, 13 SOCIO-LEGAL REV. 156, 160 (2017).
7
Id.
8
Id.
9
Criminal Code, R.S.C. 1985, c. C-46 (Canada), § 265, § 271.
10
Handbook for Legislation on Violence Against Women, UNITED NATIONS (2009),
https://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20
against%20women.pdf
11
Sakshi v. Union of India (UOI) & Ors., (1999) CriLJ 5025.
 1.2. Research Questions

• What are the different sociological explanations for rape?

• How have the laws of rape evolved over the period of time?
• What is the role of society and media in helping to reduce/aggravate rapes?

1.3. Literature Review

• Sociology: Themes and Perspectives by Haralambos and Heald - This book

provides a brief overview of all the sociological theories that explain crime and
deviance. This played an instrumental role in guiding me through Chapter 2 of the
project.

• Rape Laws in India by Dipa Dube – Rape Laws in India is a bold attempt on the
part of the author to encourage a debate amongst the policy makers, judges and
academicians. It analyses core issues in rape laws in force in India. The subject has
been dealt with comprehensively, while unearthing the historical influences in the
laws, revealing the patriarchal overtones and criticizing the conventional and
conformist traditions of judicial decision making. The entire development of the law
has been traced, with emphasis on shifting concerns and focus. The numerous
legislative amendments redefining the offence, enhancing punishment and procedural
technicalities have been discussed, as also the judicial activism of the nineties, which
contributed significantly through rights assertion and protective decision making. This
book has guided me through Chapter 3 of the project.

1.4. Aim and Objectives

The main aim of this research is to find out the answers of the above-mentioned questions.
The objectives of this research include:

• To bring to light the developments of the Indian rape laws.

• To put forth the various sociological theories explaining why rapes happen.

1.5. Research Methodology

The researcher has relied on Doctrinal Research Methodology. In doctrinal method, the
research collets information from secondary sources such as book, journal, articles and other
online resources, which are available in different library databases.
 2. Sociological Perspectives on Rape

2.1. Self-Control Theory

Self-Control Theory is one theory that can lead to a man committing rape against a female is
based on the premise that the male sex drive is uncontrollable.12 Men with this belief say that
their sexual urges cannot be controlled and they are not responsible for their actions.
Proponents of this theory “[propose] both that men’s sexual energy is difficult to control and
that women have a key role in its loss of control,” since women deny sex to men who have to
relieve their sexual drive.13 This theory can be tied to Gottfredson and Hirschi’s low self-
control theory. Low self-control theorists posit that, since criminal acts provide immediate
gratification, criminals will engage in them because they are not able to defer gratification. In
addition, theorists claim that crime is easy, exciting, requires little skill, and may result in
pain to others. Since individuals with low self-control will be more impulsive, adventurous,
self-centered, and have fewer skills, they will be more likely to engage in crime because of its
perceived benefits.14 Studies show that lifestyle impulsivity may be a predictor of sexual
aggression. Having poor social and interpersonal skills can also be a predictor of sexual
aggression. Studies also show that rapists tend to have “lower empathy, lower adult
attachment… [and] stronger sexual dominance motives” compared to the average citizen15.
Thus, men, who have low self-control and are not able to control their sex drive, may obtain
“sex without courtship”. They are more likely to commit rape.

2.2. Control Theory

Another class of perpetrators view sexual assault as a form of expressing control, anger, or
sadism and act with the specific intent of causing the victim severe pain or suffering. 16 This
has been described as the power hypothesis of rape, where rape is identified not as a crime of
sexual passion but as a crime motivated by the desire of a man to exert dominance over a
woman. In Barnes, and Acker’s Confluence Model of sexual aggression, which aims to
predict men's conflict with women (1995), a hostile masculinity pathway is related to an
insecure sense of masculinity, as well as hostility towards, distrust of, and a desire to

12
Gary Lowell, A Review of Rape Statistics, Theories, and Policy, 6 UNDERGRADUATE REVIEW 158 (2010).
13
Id
14
Bradley Wright, Gottfredson and Hirschi's Low Self-Control Theory; or why kids feed lizards to crocodiles,
EVERYDAY SOCIOLOGY BLOG (Nov. 19, 2008), https://www.everydaysociologyblog.com/2008/11/gottfredson-
and.html.
15
Id
16
Zhi Ping Teo, Rape as Torture: The Psychology and Motivations of Perpetrators, Stanford Law School: Law
and Policy Lab (January 2016).
dominate women.17 Beliefs that expressions of power, forms of coercion, and sexual violence
generally are “arousing” for women increases men’s likelihood of sexual assault and self-
reported willingness to rape.18 Perpetrator’s likelihood of sexual assault proved that sexual
aggressors can be identified by two sets of characteristics, labeled hostile masculinity and
impersonal sex. Examining rape as an expression of control, not as a matter of sexuality, is
critical to understanding perpetrators’ specific intent to inflict severe pain or suffering on
their targets. Based on findings of these psychological studies, scholars have challenged
understandings of rape law to bring greater attention to the control issues involved (Baker,
1997).19 HRSP can utilize control theories to argue that to express control or sadism,
perpetrators specifically intend to inflict severe suffering.

2.3. Feminist Theory

Feminist theorists assert that rape is only one symptom of the larger problem of a male
dominated society.20 Feminist theorists see rape as more of a violent act than a sexual act, and
purport that rape is inspired by political motivations to dominate and degrade. Feminist
theorists also deny that rape has an individualistic nature, but claim that rape is “nothing more
or less than a conscious process of intimidation by which all men keep all women in a state of
fear”.21 Feminists see rape as serving the function of “ensuring the continued and necessary
protection of women by men”. Feminists argue that, as a result of women’s fears of being
raped, they become dependent on men to protect them. Feminists also argue that the
representation of women, the social construction of femininity, the socialization of men and
the social construction of masculinity can explain rape.22 For example, men who commit rape
against women may claim that women are “inherently different from men and that these
differences cannot be understood readily by men”. This “serves to inhibit development of a
realistic complex understanding of women’s beliefs and desires”. This also implies that these
men may feel sex is a “competitive game between two opponents with incompatible needs”.
Because these men think women are inherently different, it is easier for them to harm women.
Theorists who promote the theory of entitlement, which is also linked to gender and feminist

17
Gallagher KE and Parrott DJ, What Accounts for Men’s Hostile Attitudes Toward Women? The Influence of
Hegemonic Male Role Norms and Masculine Gender Role Stress, 17(5) VIOLENCE AGAINST WOMEN (2011)
18
Sarah Gill, Dismantling Gender and Race Stereotypes: Using Education to Prevent Date Rape, 7(1) UCLA
WOMEN'S LAW JOURNAL (1996), https://escholarship.org/uc/item/7w76s63k.
19
Teo, supra note 16.
20
Whisnant, Rebecca, "Feminist Perspectives on Rape", The Stanford Encyclopedia of Philosophy,
https://plato.stanford.edu/archives/fall2017/entries/feminism-rape/.
21
Boakye, K. E. (2009) ‘Attitudes Toward Rape and Victims of Rape: A Test of the Feminist Theory in
Ghana’, Journal of Interpersonal Violence, 24(10), pp. 1633–1651. doi: 10.1177/0886260509331493.
22
Mary Becker, Patriarchy and Inequality: Towards a Substantive Feminism, 1 UNIVERSITY OF CHICAGO
LEGAL FORUM (1999).
theories, postulate that men think they are entitled to having their sexual needs met on
demand by women.23 Studies suggest that the likelihood that men will engage in rape
depends on their “tendency to attribute to women certain beliefs, capacities, and desires”,
such as the belief that, “women are inherently duplicitous or constantly seek and desire sex
with men”. Some men believe that “women exist in a constant state of sexual reception. They
were created to meet the sexual needs of men, and women’s most significant needs and
desires center around the sexual domain”. Men with this belief think that women were put on
the earth only to please men, and that women want only what men want. As a result, these
men tend to perceive a woman’s actions as being sexual, even when they are not. They think
women are “unaware of the unconscious messages their bodies are emitting”. They often
conclude that “a woman can enjoy sex even when it is forced upon her” and “rape is
generally a misinterpretation of sexual cues”.24 This idea leads them to believe that it is
acceptable to forcibly rape a woman because, even if she claims she does not want it, she at
least subconsciously does. Men who hold these beliefs think that they are “entitled to control
women’s sexuality, and to determine what a woman really wants”. Therefore, women should
meet male needs on demand, men are entitled to force their desires onto women, and
therefore, men are entitled to rape women.25

3. Development of Rape Laws in India

3.1. 1860: Indian Penal Code

The first time ‘rape’ was mentioned in our legal structure was when the IPC was written in
1860. Section 375 to Section 376E of the Indian Penal Code refers to ‘sexual offences’.26 It
defined rape as sex without consent, with consent but under the fear of death or with consent
but under false pretenses. It also defined ‘statutory rape’ as sex with a woman under the age
of 16. It makes no mention of rape as a crime against a male, since Section 377 – the one that
makes gay sex illegal – covers that already.

However, Section 377 criminalizes both participants while including male victims in Section
375 would have criminalized only the rapist and not the victim. This loophole discourages

23
Mikkola, Mari, Feminist Perspectives on Sex and Gender, THE STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (Fall 2019 Edition), https://plato.stanford.edu/archives/fall2019/entries/feminism-gender/.
24
Id
25
Whisnant, Rebecca, Feminist Perspectives on Rape, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Fall
2017 Edition), https://plato.stanford.edu/archives/fall2017/entries/feminism-rape/.
26
Soibam Rocky Singh, Explained: The laws on rape and sexual crimes, THE HINDU (Dec. 8, 2019)
https://www.thehindu.com/news/national/what-are-the-laws-on-rape-and-sexual-crimes/article30233033.ece.
male rape victims from complaining against their rapists because it would mean opening
themselves up to prosecution too. The 1860 version of the IPC also ignored sex without
consent between a husband and wife (aka marital rape), a clause that is missing from our anti-
rape laws even today. The punishment for gang rape and repeat offenders was harsher. All in
all, the minimum punishment for rape was as lenient as two years in prison (the same as
perjury) and the worst-case scenario was a life sentence. The first change to this very
‘general’ outline of rape comes after the Mathura Rape Case in 1972.

3.2. 1983: The Criminal Law (Second Amendment)

On March 26, 1972, a young Adivasi girl named Mathura was raped by two policemen while
in custody.27 Her family lodged a complaint against the two policemen and the trial went all
the way to the Supreme Court. The policemen were acquitted because Mathura was
apparently ‘habituated to sexual intercourse’, they could prove that she was sexually active
but not that she had been raped.28 The Supreme Court Justices even said that Mathura had
raised no alarm, there were no visible marks of injury or struggle and because she was used to
sex, she might have incited the cops to have intercourse with her.29 This verdict resulted in
outrage across the country. Lawyers observed that instead of relying on hard evidence, the
Court has let the cultural taboo of pre-marital sex influence its decision. They said that
‘submission’ during the rape had been misunderstood for ‘consent’ just because of this taboo.

Women’s groups held protests and marches, demanding a change in the law. This change
came in 1983 to Section 114 (A) of the Indian Evidence Act. Until this point, rapes by public
servants had completely been ignored by our legal system. But with this case, a new category
of rape called ‘Custodial Rape’ was introduced to include rapes of women while in custody
of public servants. While so far, the woman had to prove that the sex was not consensual, this
amendment said that a court should presume a woman who says she did not consent is telling
the truth. This made the idea of ‘consent’ an integral part of rape. Also, it was this
amendment that banned the publication of victims’ identity and prohibited the ‘character
assassination’ of rape victims in court. It’s thanks to this amendment that rape victims now
have pseudonyms like ‘Nirbhaya’.30

27
Tukaram and Another v. State of Maharashtra 1979 SCR (1) 810.
28
Anti-rape laws in India, ACHIEVER IAS ACADEMY (Dec. 17, 2020),
https://www.achieveriasclasses.com/view.php?id=1052.
29
Rajeev Dhavan, Why the Supreme Court Has Found Itself in an Embarrassing Controversy, THE WIRE (Apr.
26, 2019), https://thewire.in/law/why-the-supreme-court-has-found-itself-in-an-embarrassing-controversy.
30
ACHIEVER IAS ACADEMY, supra note 28.
 3.3. 2002: Amendment to Indian Evidence Act
Even though the 1983 Amendment prohibited ‘character assassination’, it wasn’t defined to
include the cross-examination of a rape victim.31 This was pointed out in a PIL filed by an
NGO named Sakshi. They pointed out that women didn’t feel comfortable about reporting
rape because “the intention of the defense in rape trials had become to humiliate and degrade
the sexual integrity and personal space of the victim” rather than to treat them as someone
who had undergone mental and physical trauma and someone who needed to be protected.32

Taking note of this, the Supreme Court asked the Law Commission to review our rape laws
and recommend changes. They found that Section 155 (4) of the Indian Evidence Act 2002,
the defense lawyer could discredit a rape victim’s testimony by proving that she was of
‘immoral character’.33 This scenario included questioning her about past sexual acts. They
identified that it was this specific clause that deterred rape victims from filing a case.

So, this clause was amended in 2002. After this amendment, the cross-examination of a rape
victim was prohibited. Another reason why women refrained from reporting rape was the
dreaded 2-finger test, in which a medical examiner inserts ‘2 fingers’ into the vagina to check
its laxity.34 This test made women feel like objects in evidence, violating her privacy and
integrity, instead of treating her like a trauma victim. Since cross-examination was out,
medical examination became central to the case and therefore, this test couldn’t be
prohibited. However, practitioners examining the victim had to provide all the necessary
information to the victim and explain why the tests are essential, to not discourage anyone
from filing a rape case.

3.4. 2012: Protection of Children from Sexual Offences (POSCO) Act

Statistics indicated that India saw a 336% increase in child rape cases from 2001 to 2011. The
National Crime Record Bureau statistics state that 48,338 child rape cases were recorded
during this period.35 This alarming trend led to the need for a ‘special legal procedure’ for
child victims of sexual offences. So far, the only mention of sexual offences against children

31
Women and Law, LAW ESCORT (Sep. 1, 2019), https://lawescort.in/2019/09/women-and-law/.
32
Id.
33
Sanya Dhingra, Laws repealed, but rape victims continue to face humiliating questions, THE PRINT (Aug. 29,
2017), https://theprint.in/theprint-analysis/laws-repealed-rape-victims-continue-face-humiliating-
questions/8416/.
34
Vageshwari Deswal, Virginity Test: Why the two finger test is unscientific, illogical and illegal, TIMES OF
INDIA (May 9, 2019), https://timesofindia.indiatimes.com/blogs/legally-speaking/virginity-test-why-the-two-
finger-test-is-unscientific-illogical-and-illegal/.
35
Manash Pratim Gohain, 336% increase in child rape cases last decade; 48,338 child rape cases between
2001-11, TIMES OF INDIA (Apr. 30, 2013), https://timesofindia.indiatimes.com/india/336-increase-in-child-rape-
cases-last-decade-48338-child-rape-cases-between-2001-11/articleshow/19653218.cms.
was the ‘statutory rape’ clause mentioned in the IPC that criminalized sexual intercourse with
a girl below the age of 16, regardless of consent.

However, the process of trying such a case was no different from a case that involved
someone over 16. The resultant POSCO Act understood the special situations in which a
child could be assaulted. For example, recognizing that the perpetrator might be someone
close to the child or his/her guardian, the Act made the police in charge of protecting the
child during the investigative process.

Now the police would have to make sure the child received protection (by placing the child in
a shelter home) and providing emergency medical treatment. It also provided for special
courts that could conduct the trial in-camera and without revealing the identity of the child,
keeping it as child-friendly as possible. The Act said that cases of child sexual abuse should
be fast-tracked within a year and that reporting such cases should be mandatory. That way,
it’s the legal duty of anyone who knows of the offence to report it.36 Another big loophole
was that it did not specifically mention crimes against male-children. This loophole was
rectified in 2012 with POSCO or the Protection of Children from Sexual Offences Act. The
new Act was gender-neutral and recognized other forms of penetration apart from peno-
vaginal penetration. The Act also included the abetment of child sexual abuse as an offence
and included non-penetrative assault, sexual harassment and child pornography.37

3.5. 2013: Criminal Law (Amendment) Act

On December 16, 2012, a 23-year-old physiotherapy intern, Jyoti Singh was brutally gang-
raped in a moving bus. After struggling to survive in the hospital, she succumbed to her
injuries on December 28. The brutality and violence of the case led to widespread protests
around the country.38

The public wasn’t only demanding a change in the law, but also a change in how the crime of
rape was looked at. This was a turning point for anti-rape laws in India – now it wasn’t just a
violent crimes issue but it was also a women’s rights issue.39 This forced the legal system of
India to reconsider the existing laws and led to the realization that many other crimes that
were specifically against women like stalking, acid attacks, and voyeurism were missing from
our legal framework.

36
YOUTH KI AWAAZ, supra note 2.
37
Id
38
What is Nirbhaya Case?, TIMES OF INDIA (Dec. 18, 2019), https://timesofindia.indiatimes.com/india/what-is-
nirbhaya-case/articleshow/72868430.cms.
39
Soibam Rocky Singh, supra note 26.
To make sure something like the Nirbhaya case never happened again, the government
wanted to amend the existing laws to cover ALL crimes against women and make
punishments as harsh as possible.40 This led to the 2013 Criminal Law Amendment. Under
this change, new offences such as stalking, acid attacks, and voyeurism were added into the
definition of rape. Even the threat of rape is now a crime. The minimum sentence was
changed from seven years to 10 years. In cases that led to the death of the victim or the victim
being in a vegetative state, the minimum sentence was increased to 20 years. This was the
first time the vegetative state was included since the landmark Aruna Shanbaug case.41

While the Nirbhaya case was on trial, the character of the victim came into play even with the
1983 and 2002 amendments in force. Considering how public this case was, a lot of the
character assassination came from outside of court, from TV debates and Parliament
discussions. Since the victim was a young professional, her independence and ‘western’
lifestyle were treated as ‘invitations’ for rape.42 To avoid this in the future, this amendment
reiterated that the ‘character of the victim’ was totally irrelevant to rape cases.

Since one of the accused in this case was a juvenile and ended up being tried as such, another
flaw in the system was identified. So, the age for being tried as an adult for violent crimes
like rape and murder was changed from 18 to 16, that to the Juvenile Justice Act.43

3.6. 2018: Criminal Law (Amendment) Ordinance

In January 2018, an 8-year-old girl named Asifa Bano was raped and murdered in the district
of Kathua in Jammu and Kashmir.44 Seven people were named in the case charge sheet, four
of whom were police officers charged for attempting to cover up the case. The main accused,
Sanji Ram, is a priest at the temple where the rape evidently took place. His nephew and son,
both juveniles, were also accused.

This case led to national outrage, especially because it was against a child, but also because it
took place in a temple and was perpetrated by a priest. It quickly became politicized along the

40
Indira Sharma, Violence against women: Where are the solutions?, 57(2) INDIAN JOURNAL OF PSYCHIATRY
131 (2015).
41
Aruna Shanbaug: Brain-damaged India nurse dies 42 years after rape, BBC NEWS (May 18, 2015),
https://www.bbc.com/news/world-asia-india-32776897.
42
Maanvi, 4 Yrs Post Nirbhaya, Why Do Courts Still Humiliate Rape Survivors?, THE QUINT (Dec. 23, 2016),
https://www.thequint.com/voices/fighting-rape/your-honour-laws-do-not-allow-you-to-humiliate-rape-
survivors-character-assassination-trials-jisha-mathura-case.
43
Astha Mishra, Adult time for adult crime – The road to juvenile justice, The SCC Online Blog (Jan. 31, 2018),
https://www.scconline.com/blog/post/2018/01/31/adult-time-adult-crime-road-juvenile-justice/.
44
Asifa Bano: The child rape and murder that has Kashmir on edge, BBC NEWS (Apr. 11, 2018),
https://www.bbc.com/news/world-asia-india-43722714.
Hindu-Muslim lines. All this against the backdrop of a political upheaval as the PDP and BJP
alliance broke in Jammu & Kashmir, the state in which this crime took place.45

The pressure on the government to legally address this crime led to an almost immediate
policy change with this Ordinance only 3 months after the incident. This change was mainly
made to POSCO since it was against a child. It made rape of a child below age 16 punishable
by a minimum of 20 years imprisonment but provided for the death penalty for the rape of
anyone below age 12.46

While the death penalty for rape has long been demanded, this is the first time, where it has
actually been introduced. It also altered the fast-track clause from a year to 6 months, so that
such cases would find justice without being coloured by politics. Since this Amendment was
an Ordinance, it still needs to be discussed in the Parliament in order to become an Act.47
This discussion will most likely take place this year, and considering the political pressure
involved, it will probably be passed with little discussion. This can be problematic since even
this one (like all its predecessors) is not without its flaws.

4. Society’s treatment of rape victims

Central to attitudes about rape, its victims and perpetrators, are rape myths which operate to
blame the victim, disbelieve claims of rape, exonerate the perpetrators and suggest that only
certain types of women get raped.48 These widely held rape myths paint a distorted picture of
the antecedents and consequences of rape. Factors such as the behavior of the victim in the
lead-up to the incident, her physical appearance, the level and fact of her intoxication, the
style of her dress or the existence of any previous flirtation or intimacy with the offender
have all been shown to influence public attributions of responsibility for a sexual assault.49
Widely held rape myths affect the attitude of people towards rape victims and the overall
understanding of rape.50 The reality of sexual violence and its harmful effects on the
individual and on society are indisputable. Stereotypical attitudes about rape pose a major

45
Id
46
Jagriti Chandra, POCSO Act: Assault on boys punishable by death, THE HINDU (Dec. 28, 2018),
https://www.thehindu.com/news/national/govt-approves-amendments-to-pocso-act/article25850988.ece.
47
Jahnavi Sen, Seven Reasons Why We Shouldn't Demand the Death Penalty for Rape, THE WIRE (Jan. 31,
2020), https://thewire.in/women/rape-death-penalty.
48
Hetu, V. (2020), "Public Attitude Towards Rape Crime and the Treatment of Its Victims in Delhi
City", Walklate, S., Fitz-Gibbon, K., Maher, J. and McCulloch, J. (Ed.) The Emerald Handbook of Feminism,
Criminology and Social Change (Emerald Studies in Criminology, Feminism and Social Change), Emerald
Publishing Limited, pp. 137-155.
49
Johnson, B.E., Kuck, D.L. & Schander, P.R. Rape Myth Acceptance and Sociodemographic Characteristics:
A Multidimensional Analysis. Sex Roles 36, 693–707 (1997). https://doi.org/10.1023/A:1025671021697
50
Id
obstacle to unbiased and fair decisions.51 People take their actions with an eye to the ethical
and cultural views of the influential others above them in the (social) hierarchy. The families
of victims of rape react negatively to the rape incident so much so that they restrict the
women’s freedom and force them to withdraw from society fearing reprisals from neighbors.
Rape myths entail the common beliefs that create doubts about the facts of rape.

The lineage of social change and social development does not appear to have brought any
change in the attitude of public towards women particularly ‘female rape victims’.52 The
people have congenially adopted tolerance towards ‘feminization of workplace’ but exercise
unnecessary control over their female family members fearing rape. For them, rape has the
same meaning as in earlier times and bears the same repercussions of ‘shame’ which lead to
the removal of the victims away from the eyes of all around. They often condemn rape
victims by assigning to them victim blaming attitudes that marginalize them. Socio-cultural
expectations, reinforced by conservative patriarchal values, often cause women from these
communities to feel unable to challenge such norms: silencing their voices, and blaming them
for what happened to them and denying opportunities for justice. Rape myth acceptance
offers insights into how rape is perceived: these perceptions play a major role in both the
personal and social effects of rape on victims and their families.53 The families feel that the
rape victims felt more aggrieved by the way they were treated by the neighbors and more so,
their words added insult to their injuries.54

The people campaigned for the amendments in the rape laws and raised voices to support
concern for the security and dignity of the females but in reality, skipped the situation where
help was most sought by the victim. Legal provisions on sexual assault have had no effect on
the mindset of people as people tend to be driven by the patriarchal norms, which are
extremely insensitive towards such victims. Reported rape cases are on rise in spite of
stringent punishments for rape; it has not deterred potential rapist in indulging rape. It is
pertinent to educate and train agencies to ensure that they go into communities as diverse as
these in order to ‘gender’ sensitize them to help wipe out rape myths from the people’s
mindset and teach them to be sensitive towards the needs of rape victims. It can go a long
way in healing the victims as well as helping the people connect to them. More flexible and

51
Id
52
Id
53
Claire R. Gravelin, Blaming the Victim of Acquaintance Rape: Individual, Situational, and Sociocultural
Factors, 9 FRONT PSYCHOL 2422 (2018).
54
Id
more diverse support systems must be put in place to respond to the needs of victims and
facilitate the provision of aid to them.

5. News Media’s role in educating the society about rape-

News coverage of violence against women has often been sensational, exploitative, and
lacking in serious analysis of the prevalence. However, media coverage and depictions of
sexual assault and domestic violence have begun to change. Although problems remain.
Media also have a duty to report accurately on acts of violence against women.55 Although
some in the media are to be commended for their ongoing efforts to reflect sensitive, diverse,
and egalitarian images, others in the media still incorporate images that convey destructive
messages. Still women's bodies are used as objects to sell products.56 Media should highlight
injustices meted out to women by the male dominated society. Media's growing role in
highlighting violence against women and stressed the need for creating awareness among the
victim women about their rights, so that they could protect themselves.
A Multi-Country Study, is a comprehensive analysis of domestic violence in nine developing
countries based on data from Demographic and Health Surveys finds high rates of domestic
violence in all cases and specifies that over 40% of women in several countries report being
victims of spousal or intimate partner abuse.57 In summary, the number of ever-married
women reporting spousal physical or sexual abuse was highest in Zambia (48%), Colombia
(44%), and Peru (42%) and lowest in Cambodia (18%), India (19%), and the Dominican
Republic (22%). About one in three women in Egypt (34%), Nicaragua (30%) and Haiti
(29%) reported such abuse. Interestingly, in most countries, the highest rates of violence
occur in moderately wealthy households and not, as commonly assumed, among the poorest
households.58 Women are most at risk at home and from men they know, usually a family
member or spouse.
The role of media is crucial to the issue of violence against women, both in terms of how
media cover the issue, and how media may be used as a tool to help activists and

55
Kamala Swarup, Violence Against Women and Role of Media, SCOOP WORLD (Jan. 13, 2005),
https://www.scoop.co.nz/stories/WO0501/S00113/violence-against-women-and-role-of-media.htm.
56
Taran Deol, On International Day for Elimination of Violence against Women, a look at India’s rape crisis,
THE PRINT (Nov 25, 2020), https://theprint.in/features/on-international-day-for-elimination-of-violence-against-
women-a-look-at-indias-rape-crisis/550953/.
57
Swarup, supra note 55.
58
Id
governments raise awareness and implement programs on this issue. Media should also
project the means to combat violence.59
The mainstream media is very much politicized and it picks up women issues according to
the political interest of patron political parties. Due to the lack of resources and trained work
force, the media is not capable to produce widely impressive materials. Some of the women
issues like trafficking, prostitution and rape come in the media just to create sensation. The
media seems to be less concerned about women's issues and rights. the following
recommendations can be advanced for further action regarding media advocacy to combat
violence against women.60

6. Conclusion
The legal definition of rape (in India) continues to be deficient in its scope, despite
amendments, because of its focus on penetration. This focus stems from a male
understanding of sex, and therefore, does not account for the (socially female) victim’s bodily
integrity and sexual autonomy. The obsession with penetration also prevents a more gender-
just and inclusive conceptualization of rape. The ‘harm’ sought to be addressed in
criminalizing rape is no longer an unwanted pregnancy or “defilement”. It is the destruction
of the victim’s sexual autonomy and violation of her bodily integrity. This is evident from the
expansion of the definition of rape in the 2013 Amendment to include forms of penetration
other than penile-vaginal. Expanding the scope of the offence beyond non-consensual
penetrative acts serves a legitimate purpose, and would not amount to over-criminalization.
Furthermore, the perceived risks of such an expansion are more a reflection of entrenched,
patriarchal, heteronormative views of what really amounts to sex, combined with privileged
speculation, than tangible risks. In this paradigm, the culpability for rape could be determined
based not only on the unequal power dynamic between genders, but also on specific
circumstances which reverse the said dynamic. This reconceptualization of rape would place
the sexual autonomy and bodily integrity of the victim at the focus of the offence, rather than
an antiquated, male notion of sex and rape. And in so doing, it would give voice to the
thousands of victims of rape, both male and female, who have, thus far, found no redress in
the law.

59
Swarup, supra note 55.
60
Id
7. Bibliography:

• Books:
 M Haralambos, & R Heald, , Sociology (Unwin Hyman 1985).
 D Dube, , Rape Laws in India (Butterworths India 2008).
 A Giddens, & P Sutton, ,Sociology (Polity 2010).
• Online Articles:
 Taran Deol, On International Day for Elimination of Violence against
Women, a look at India’s rape crisis, THE PRINT (Nov 25, 2020),
https://theprint.in/features/on-international-day-for-elimination-of-
violence-against-women-a-look-at-indias-rape-crisis/550953/.
 Claire R. Gravelin, Blaming the Victim of Acquaintance Rape: Individual,
Situational, and Sociocultural Factors, 9 FRONT PSYCHOL 2422 (2018).
 Hetu, V. (2020), "Public Attitude Towards Rape Crime and the Treatment
of Its Victims in Delhi City", Walklate, S., Fitz-Gibbon, K., Maher,
J. and McCulloch, J. (Ed.) The Emerald Handbook of Feminism,
Criminology and Social Change (Emerald Studies in Criminology,
Feminism and Social Change), Emerald Publishing Limited, pp. 137-155.
 Johnson, B.E., Kuck, D.L. & Schander, P.R. Rape Myth Acceptance and
Sociodemographic Characteristics: A Multidimensional Analysis. Sex
Roles 36, 693–707 (1997). https://doi.org/10.1023/A:1025671021697
 Indira Sharma, Violence against women: Where are the solutions?, 57(2)
INDIAN JOURNAL OF PSYCHIATRY 131 (2015).