Authored by: Suruchi Sharma

Existing laws on rape 

It is often seen that the laws in any country are formulated on the existing norms in the society and thus these laws are implemented to protect the existing social order. 
Laws provide a “sanction” in a society; therefore, it is decided by actors involved in law-making if the actions conform to the existing norms and policies. 
Sexual mores in India are not explicitly spoken, but they are widely accepted. To understand the sexual hierarchy in a society, it becomes important to understand how deeply patriarchy is rooted. 

In India, rape is legally defined in gender-specific terms as it includes penile penetration into a vagina. this makes that only men can be perpetrators and only women can be the victim of rape. the definition of rape was first introduced in the 1860s and then has been under constant scrutiny. 

Rape in India is criminalized. But what is rape? In Indian law, rape is defined as coercive non-consensual sexual intercourse with a woman. 
A man is said to commit rape who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

• First – Against her will.
• Secondly – Without her consent while she is insensible.
• Thirdly – With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.
• Fourthly – With her consent, when the man knows that her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.
• Fifthly – With or without her consent, when she is under nine years of age.
• Explanation -Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape. Exception – Sexual intercourse by a man with his wife is in no case rape.

In the post-independent era, there have been serious changes in the laws related to rape. a nuanced discussion has been taking place due to an increase in female activism, awareness about their rights. Contemporary feminists see laws in India regarding “rape” as an extension of patriarchal control.

Sexual Assault: Sexual assault means –

(a) penetrating the vagina (which term shall include the labia majora, the anus or urethra of any person with –
i) any part of the body of another person or
ii) an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person to cause penetration of the vagina (which term shall include the labia majora ), the anus or the urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilingus or fellatio; or
(e) continuing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:

• First- Against the other person’s will.
• Secondly – Without the other person’s consent.
• Thirdly – With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
• Fourthly – Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
• Fifthly- With the consent of the other person, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
• Sixthly – With or without the other person’s consent, when such other person is under sixteen years of age. 

Explanation: Penetration to any extent is penetration for this section. Exception: Sexual intercourse by a man with his wife, the wife not being under sixteen years of age, is not sexual assault.

Need of a Fresh Perspective

 The words like “Rape”, “Penetration” and “Sexual intercourse” need fresh as well as gender-neutral rape laws. It is seen that penetration is required not only for “sexual intercourse” but “rape as well” these words are the key phrases in rape law. 
‘Is ‘rape’ as defined in section 375, IPC, confined only to penile penetration of vagina? What about the penetration of a bodily orifice (vagina, anus, or mouth) by a penis or other part of the body, or by an object? Would it fall within the meaning of words ‘sexual intercourse’ and ‘penetration’ as used in section 375, IPC?
In 1997 Sakshi, through a PIL writ petition, approached the Supreme Court of India with a plea that existing sections 375 and 376 of the Penal Code and judicial interpretations thereof are not in tune with the current state of affairs. It urged the court, inter alia, to direct, through an appropriate writ, that ‘sexual intercourse’ as contained in section 375 include all forms of penetration such as penile/vaginal penetration, penile/ oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration. It also urged that the ambit of ‘penetration’ as contained in the Explanation of section 375 be broadened to include not only vaginal penetration but also anal and oral penetration as well as penetration by any part of the body or by any object.

A SIGNIFICANT OVERSIGHT 
 
Though it is seen that there have been changes made in the rape law which can be considered progressive as well as liberal. But there has been a huge oversight done by the lawmakers. the penal code does not interfere in the marital relationship and has not criminalized marital rape in India. The idea of exempting marital rape suffices to an idea of pre-assumed consent given by my wife for sexual intercourse with the husband. 
The assumption is originated from the following statement of Sir Matthew Hale. The statement, which is generally regarded as an accurate statement of the common law of England, runs as under:26 But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.

WAY AHEAD
India should have gender-neutral laws and section 375 should be no exemption to it. Gender cannot be considered to be binary when Transgender have already been given recognition. Though a lot of work still needs to be done by recognizing another gender as well. Once that is done, then changes in these laws can be made. 
The marital rape concept is a colonial hangover and portrays the mentality of deep-rooted patriarchy where the wife is seen to be a possession of a man. In no way marrying someone does give consent for sexual intercourse, but assuming that marriage is a way to have non-consensual intercourse is not an appropriate way to deal with the rights of an individual, and, in this case particularly women. 
It is important to build momentum against ‘pro male’, ‘male oriented’ and gender biased’ laws and take them towards the progressive direction.