'Rape' (Un) classified

“As long as there is one person suffering injustice;

As long as one person is forced to bear an unnecessary sorrow;

As long as one person is subject to an undeserved pain,

the worship of God is demoralizing humiliation”.

---Joseph Lewis

The semantic meaning of crime against women is direct or indirect physical or mental cruelty to women. Various kinds of violence against women are eve-teasing, molestation, bigamy, fraudulent marriage, adultery and enticement of married women abduction and kidnapping, rape, harassment to women at working place, wife-beating, dowry death, female child abuse and abuse of elderly female, etc.

Almost every woman has experienced the feeling of being mistreated, trivialized, kept out, put down, ignored, assaulted, laughed at, or discriminated against because of her gender. (1) The alarming rate in the crimes against women can to a large extent be attributed to the lack of infrastructures for single working women who have to leave their families at an early age to work away from home. The most effective strategies are likely to be those that support women to organize peer groups and mobilize community resources and public services, including women‘s health services. Such approaches enable women to overcome resignation to the legitimacy of the established order are an important factor in the perpetuation of imbalances of power between women and men. If women are to implement their reproductive preferences, then it is essential that their empowerment occurs not only within their personal spheres but also in the broader spheres of the community and the state. (2)

Crime against women is rising at an alarming rate. The authorities failed to curb high levels of sexual and other violence against women and girls, even as reports of such incidents increased(3). In the modern world where we talk of civilized society, women's liberty, and empowerment, every day the pace of crime against women is rapidly increasing. The crimes against women and their causes can be categorized under the following heads.

SEXUAL CRIMES AGAINST WOMEN IN INDIA

In an age so often characterized as empowering for women-and with so much rhetoric devoted to women‘s supposed choices about their bodies and sexualities- the occurrence of rape and sexual coercion of women serves as a sobering reminder of patriarchy‘s widespread influence(4).

Rape is a social disease. Women belonging to lower strata of society and tribal communities seem to be more at risk. What seems to be sad about rape in India is the lack of seriousness with which the crime is often treated. Statistics of the National Crime Records Bureau (NCRB) for the year 2013 shows, 93 women are being raped in India every day. According to NCRB data, there is a gradual increase in the number of rapes reported in India - from 24,923 in 2012 to 33,707 in 2013(5). Women‘s groups attest that the strict and conservative attitudes about sex and family privacy contribute to the ineffectiveness of India‘s rape laws. Victims are often reluctant to report rape.

In an open court, victims must prove that the rapist sexually penetrated them in order to get a conviction. This can be especially damaging. After proving that she has been raped, a victim is often ostracized by her family and community. This problem is exacerbated by the fact that rape laws are inadequate and definitions so narrow that prosecution is made difficult.

RAPE:

MEANING AND TYPES

Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. (6) The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. (7)

"Rape is a crime not only against the person of a woman it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. Rape is, therefore, the most hated crime(8). It is a crime against basic human rights and is violative of the victim‘s most cherished right, namely, right to life which includes the right to live with human dignity contained in Article 21." (9)

Rape is one of the most heinous crimes, impacting the victim for life. Given its enormity, it should be considered next only to murder. Sadly, it has not been given the attention it needs by social scientists, lawmakers, and justice dispensers. The deep chauvinism that runs through India‘s public institutions is apparent from the level of local councils (khap panchayats) to the highest levels of the judiciary. So to save themselves from rape second time during the process of so-called getting the justice they prefer to keep mum. Another reason is the pressure to seek proof, the fear of fighting a superior, the likely impact on career, and adverse publicity prevent women from reporting sexual harassment. (10)

Sexual crime by minors are on a rise, when two Class IX boys attempt to rape a Class I girl, as in a Bathinda school recently, it is a time of introspection for society. What kind of signals are we sending out to our youth? (11) More than 50% of India‘s population is below the age of 25 and over 65% below the age of 35. This way we have a big human resource that can take our country to great heights, but if this asset is not channelized in the right direction, it can prove to be the biggest source of destruction.

Since the people of this age group are most venerable and prone to vices. Recently we have received very disturbing data showing that Over 33,000 juveniles, mostly between the age group of 16 to 18, have been arrested for crimes like rape and murder across the country in 2011, the highest in the last decade. (12)

Rape is one of the most common and frequent crimes against women in India. It has many forms: "landlord rape;" rape by those in the authority of women employees or juniors within the workplace; "marital rape;" "caste rape," in which caste hierarchy is exercised to rape lower-caste or tribal women; "class rape;" "police rape;" and "army rape." For working-class, tribal and Dalit women, rape can occur both in their homes and on their land. The scale and frequency of police rape are quite startling in India: police records show the number of rapes by "government servants" in rural and tribal areas exceeds one a day in Delhi.(13)

CUSTODIAL RAPE

Custodial rape is a form of rape which takes place while the victim is "in custody" and constrained from leaving, and the rapist or rapists are an agent of the power that is keeping the victim in custody. When it happens in prison, it is known as prison rape. While some definitions of custodial rape define it as taking place in a state-owned institution and perpetrated by a state agency, the term more generally refers to any situation where the power of a state agent is used to enable rape; thus, when prisoner-on-prisoner rape happens as a result of neglect by the prison authorities, it may be considered custodial rape.

Custodial rape is an endemic problem in certain nations; some police forces who have been charged with numerous instances of custodial rape have responded by instituting mandatory "virginity tests" for all female prisoners to "prove" that sexual assault has not happened during custody, despite the objection of gynecologists that virginity is not medically verifiable, and protests from human rights organizations that such tests are so invasive as to constitute sexual assault in themselves.

The rape of persons in custody as part of a broader pattern of custodial abuse. NGOs asserted that rape by police, including custodial rape, was more common than NHRC figures indicated. A higher incidence of abuse appeared credible, given other evidence of abusive behavior by police, and the likelihood that many rapes went unreported due to the victims' shame and fear of retribution. However, legal limits placed on the arrest, search, and police custody of women appeared to reduce the frequency of rape in custody. There were no recent NHRC data on the extent of custodial rape. (14)

GANG RAPE

Gang rape occurs when a group of people participates in the rape of a single victim. Rape involving at least two or more violators is widely reported to occur in many parts of the world. However systematic information on the extent of the problem is scant. One study showed that offenders and victims in gang rape incidents were younger with a higher possibility of being unemployed. Gang rapes involved more alcohol and other drug use, night attacks and severe sexual assault outcomes, and less victim resistance and fewer weapons than individual rapes. (15)

Another study found that group sexual assaults were more violent and had greater resistance from the victim than individual sexual assaults and that victims of group sexual assaults were more likely to seek crisis and police services, contemplate suicide, and seek therapy than those involved in individual assaults. The two groups were about the same in the amount of drinking and other drug use during the assault.

UNREPORTED INSTANCES OF RAPE:

Crimes against women, in particular, are under-reported throughout India as a largely conservative society often blames the victim. Only 6 percent of cases of rape and molestation involved strangers, the accused being known to the victims in the rest. 60% of sexual assaults are not reported to the police. 15 of 16 rapists will never spend a day in jail.

The National Crime Records Bureau had termed rape ―India‘s fastest growing crime. Rape has increased by 1255.3% (from 2,487 cases in 1971 to 33,707 cases in 2013). (16) According to a report, there are reported cases of one rape every 54 minutes, a molestation every 26 minutes; and an act of cruelty every 33 minutes. National Crime Records Bureau (NCRB) statistic says – every 20 minutes, a woman is raped somewhere in India, not to mention the countless number of cases of molestations or rapes going unreported. Child rape cases have increased by 336% in the last 10 years. Government data shows crimes by juveniles – especially rape and abduction of women – has seen an exponential rise in the past decade – from 48.7% in 2002 to 66.5 in 2012. There is dire need to address the issue of rape in a more powerful manner. The number of dowry-deaths is quite alarming in the country a dowry death every one hour forty-two minutes.

[The author, Srishti Sharma is a second-year law student at IIMT School of Law, Karkardooma, affiliated to the Guru Gobind Singh Indraprastha University, Delhi.]

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1. Rebecca Walker, ―Becoming the Third Wave, ‖from Ms. Magazine, in Leslie L. Heywood (ed.), The Women’s Movement Today- An Encyclopedia of Third –Wave Feminism 6 (Greenwood Press, U.S.A., 2006)
2. http://aicps.org/social-programs/crime-against-woman-children(Visited on June 15, 2011)
3. Amnesty International Annual Report, 2013 p.120
4. Breanne Fahs, ― ‗Freedom to‘ and ‗Freedom from‘: A new vision for sex-positive politics‖ 269 Sexualities 17(3), March 2014. (SAGE, New Delhi, 2014)
5. http://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-India-every-day-NCRB data show/ articleshow/37566815.cms (Visited on May 23, 2013). Also, see Annexure attached.
6. Available at: "Rape".legal-dictionary.thefreedictionary.com.( Visited on April 15, 2012).
7. http://en.wikipedia.org/wiki/Rape (Visited on 9th Nov. 2013)
8. Bodhisatwa v. Ms. SubdhraChakroborty (1996) 1 SCC 490
9. The Chairman, Railway Board, and Ors v. Mrs. Chandrima Das and Ors AIR 2000 SC 988: 2000. (1) SCR 480
10. Mythili Sunder, Why Women Remain Silent, The Hindu, Nov. 26, 2013
11. Shree Venkatram , The Tribune,Sept.18, 2011
12. Juvenile delinquency on the rise, 33,887 minors arrested in 2011,PTI: New Delhi, Sun Jan 13, 2013, 14:57 hrs available at http://archive.indianexpress.com/news/juvenile-delinquency-on-rise-33887-minorsarrested-in-2011/1058760/ (Visited on Aug. 12, 2014).
13. Meeta Rani Jha, "Chappal Sticks and Bags," available at SikhNet, (Visited on Sept. 19, 2011).
14. "India," DOS Report 2005.available at: http://en.wikipedia.org/wiki/Types_of_rape (Visited on April 23, 2014)
15. Ullman, S.E., "A Comparison of Gang and Individual Rape Incidents". Violence and Victims 14 (2): 123–133 (1999).
16. http://ncrb.gov.in/ (visited on Feb. 12, 2014)