Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

Contemporary Change in Definition of ~Rape in

Global Scenario
Being a Law student, I never conIer rape as vague topic to be discussed upon.It is quite similar to
other heinous crime existing in the society. It is similar to murder, theIt, honor killing in the
matter oI punishment. We have always noticed that deIinition oI every subject rejuvenate with
the change in the global scenario.
Rape is the most heinous oIIence committed on a woman. It is worse than a murder.Though, it is
objectionable to state rape as a crime against whole social environment. It is restricted only to the
crime against matriarchal social environment. Rape at present stage is the inIringement oI
women right and liberty. Rape is, Ior many Ieminist, the ultimate expression oI patriarchal order,
a crime that epitomizes women`s oppressed status by proclaiming in the loudest possible
voice,the most degrading truth about women that a hostile world has to oIIer
1
.
OI all crimes committed against a person, rape is the one that leaves a person Ieeling the most
violated. A rape victim is oIten leIt with the Ieeling that that a part oI them has been torn apart.
Because the Ieeling is still with them, the victim may have a sense that the crime is continuously
occurring. To use another person's body and ignore the soul the resides within is the most
egregious crime that one person can commit against another.
Necessary to change the definition
USA
United States Federal Law (Title 10, Subtitle A, Chapter 47X, Section 920, Article 120) deIines
rape as:Any person subject to this chapter who causes another person oI any age to engage in a
sexual act by
O using Iorce against that other person;
O causing grievous bodily harm to any person;
O threatening or placing that other person in Iear that any person will be subjected to death,
grievous bodily harm, or kidnapping;
O rendering another person unconscious; or
O administering to another person by Iorce or threat oI Iorce, or without the knowledge or
permission oI that person, a drug, intoxicant, or other similar substance and thereby
substantially impairs the ability oI that other person to appraise or control conduct;

1
8eLhlnklng 8ape" by Ann !Cahlll
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

Kennedy v. Louisiana
2
, there was a decision by the Supreme Court oI the United States that held
the Eighth Amendment's Cruel and Unusual Punishment Clause did not permit a state to punish
the crime oI rape with the death penalty iI the victim does not die and death was not intended ,
thereIore iI a person is convicted oI rape he or she is not eligible Ior the death penalty according
to the US supreme courts Ruling Kennedy v. Louisiana.
On October 19
th
,2011, law enIorcement oIIicials sent to the U.S. Congress a proposal to revise
what qualiIies as "RAPE" on the Iederal level. The deIinition oI rape hasn't changed since 1927.
"Theres a need to change the way rape is defined," said Marcus Owen, a D.C. resident and
returning citizen. "Too many cases have slipped through the cracks or have been dropped
because the old definition has meet the burden of proof with modern cases, but in my mind rape
is rape."
Paul Dyson, a returning citizen who lives in Calvert County agrees that the writing should be
changed. "I am the result of a rape. My late mother went to the police and reported it, but
nothing ever happened. Im 26 now, and for 26 years Ive had to live knowing this." Dyson said
his mother told him only aIter his repeated questions about who is Iather is.
F.B.I.
3
deIine Iorcible rape as ...Forcible rape, as defined in the FBIs Uniform Crime
Reporting (UCR) Program, is the carnal knowledge of a female forcibly and against her will.
Attempts or assaults to commit rape by force or threat of force are also included, however,
statutory rape (without force) and other sex offenses are excluded.

The deIinition, written more than 80 years ago, has been criticized as too narrow, resulting in
thousands oI rapes being excluded Irom the F.B.I.`s annual UniIorm Crime Report. The
subcommittee recommends a broader deIinition, to include anal and oral rape, as well as rapes
involving male victims. Currently, only sexual assaults that involved Iorce and vaginal
penetration are included.
The UniIorm Crime Report Sub-committee voted unanimously to change the deIinition oI rape,
which had not been changed Ior 80 years and rape will now be deIined as, 'penetration, no
matter how slight, of the vagina or anus with any body part or obfect, or oral penetration by a
sex organ of another person, without the consent o
5
f the victim.
6

UK
The Sexual OIIences Act 2003 came into Iorce on the 1 May 2004. It repealed almost all oI the
existing statute law in relation to sexual oIIences. The purpose oI the Act is to strengthen and

2
334 uS _ (2008)
3
Federal Bureau oI Investigations
4
hLLp//wwwexamlnercom/rapecaseslnwashlngLondc Accessed on 30Lh CcL2011

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hLLp//femlnlsLlngcom/2011/10/20/updaLefblchangesofflclaldeflnlLlonofrape/ accessed on 30
Lh
ocL2011
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

modernise the law on sexual oIIences, whilst improving preventative measures and the
protection oI individuals Irom sexual oIIenders.
By virtue oI S.142 oI the Criminal Justice and Public Order Act,1994, the deIinition oI rape
within the UK jurisdiction has been radically changed and a new version oI S.1 oI the Sexual
oIIence Act has been introduced and which is as Iollows:
Under section 1(1) SOA
7
2003 a deIendant, A, is guilty oI rape iI:
O A intentionally penetrates the vagina, anus or mouth oI B (the complainant) with his
penis;
O B does not consent to the penetration; and,
O A does not reasonably believe that B consents.
This represents two signiIicant changes:
1. Earlier, the term 'UnlawIul in the 1976 amnedment to the 1956 Act had created the
impression that the Parliament had intended to preserve the position that rape could only
be committed outside the bond oI marriage.But the decision in # v. # case removed the
archaic 'deIence oI the marriage to the a charge oI rape that had continued to exist in
English Law since the middle oI 17
th
century.
2. By virtue oI the 1994 amendment contained in the Act
8
, the deIinition oI 'rape has now
been extended to include non-consensual anal intercourse whether perpetrated on a man
or a woman.Thus, it is now possible Ior a male to be accused oI raping another male.This
has had eIIect on the levels oI the maximum sentencing that may be imposed as well as
including the changing oI the names oI the relevant oIences Irom the buggery to rape.It is
to be noted that this extension oI the deIinition oI 'Rape doesnot encompass either oral
rape or penetration with inmate objects.Yet, it may be that attacks oI this nature can be
equally traumatic Ior victims as rape in the way that it is usually understood.Such
conduct remains characterized as indecent assault`.Is some jurisdiction, the working
deIinition oI rape has been extended to include these acts.
The new oIIence oI rape in section 1(1) SOA
9
2003 includes oral and anal penetration with a
penis. This is a change Irom the previous law which was only concerned with vaginal penetration
and used other oIIences to criminalise these Iorms oI sexual violence . The person who commits
the oIIence oI rape must be a man . However, both women and men may experience rape. II the
penetration is with something other than a penis then the oIIence is assault by penetration.
For the oIIence oI rape to have been committed the deIendant must have penetrated you without
your consent, or continued to penetrate you aIter you withdrew your consent, and the deIendant
must not have reasonably believed that you were consenting.

7
Sexual Cffence AcL
8
Crlmlnal !usLlce ubllc Crder AcL
9
Supra 7
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

It is not relevant what relationship, iI any, a deIendant has or had with you. Nor is it relevant iI
the act complained oI occurred within a relationship. II the deIendant intentionally penetrates
with his penis the vagina, anus or mouth oI the complainant without her consent where he does
not reasonably believe in her consent the deIendant has committed rape.
10

The Sexual OIIences Act 2003 introduced the concept oI 'reasonable steps'. Deciding whether a
belieI is reasonable is done by considering any steps he has taken to ascertain whether she
consented (subsection (2) oI sections 1-4).
This is a major change in the law and the Act abolishes the Morgan deIence oI a genuine though
unreasonably mistaken belieI as to consent.
Since 1976, Iederal law has prohibited the use oI taxpayer dollars to pay Ior abortions except in
the cases oI rape, incest, and when the pregnancy endangers the liIe oI the woman. But since last
year, the anti-abortion side has become Iar more aggressive in challenging this compromise.
They have been pushing to outlaw tax deductions Ior insurance plans that cover abortion, even iI
the abortion coverage is never used. The Smith bill represents a Irontal attack on these long-
standing exceptions.
In !! v Morgan
11
,it appeared in the case that iI an accused man claims that he believed that the
victim consented, it was suIIicient that this was an honest belieI. It did not have to be
demonstrated that it was reasonable Ior the accused to have had that belieI. This was a
controversial decision that attracted a great deal oI criticism.
In $atnam and Kewel
12
,It was stated in relation to recklessness as to consent, that the appropriate
test Ior recklessness is the subjective test.
Canada
Until rape was codiIied in the Criminal Code, rape was still a common law oIIence. Rape itselI is
an oIIence with a long history. Canadian law derives Irom English common law, which can be
traced back to medieval times. Common-law rules Ior rape have had some very hard criticism
Irom women`s organizations.Historically, this crime was thought to be an oIIshoot oI abduction.
Canadian rape laws beIore 1983 incorporated deep-seated sexism. Such blatant distrust oI
women claiming rape was accompanied.
In 1983, Canada passed Bill C-127, which made changes to the laws oI rape, attempted rape, and
indecent assault. The purposes oI these reIorm statutes are as Iollows:
1. To encourage the victims oI sexual assault to report incidents to the police
13
. As mentioned,
low reporting, charge, and conviction rates as well as victim harassment were related to the old
rape laws.

10
hLLp//wwwrapecrlslsorguk/ueflnlLlonofrape2php Accessed on 30Lh CcL2011
11
1976 AC 182
12
(1983) 78 Cr App 8 149
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

2. To Iocus on the violence committed by the assailant rather than the sexual nature oI the
oIIence
14
. Feminists had lobbied hard Ior reIorm that would emphasize the violent nature oI rape
and minimize the sexual aspects oI the oIIence.
3. To limit judicial discretion and the legal link between unchastity and low credibility. Until
1983, Canadian law incorporated biased views that lowered the credibility oI sexually assaulted
women and presumed that sexually active women were more likely to consent to sex.
Rate of reported Sexual Offences 1983-1997

It is important to note however that sexual oIIences account Ior only a small portion oI all
reported crimes in Canada.
One small study in a rural community in Canada
15
indicates that the majority oI these date rapes
involve only unwanted touching, Iondling and kissing. Sexual intercourse was involved in 35
oI the reported cases in the survey. Although this is a small sample, due to the broad deIinition oI
sexual assault it would seem plausible that a large-scale study would yield similar results.
The biggest beneIit oI Bill C-125 is perhaps the change oI attitudes towards the victim by
society. This is evident because more prostitutes and spouses are reporting assaults, and physical
Iorce is not always present in those reported cases
16
. However, there are still problems Ior the
victims within the criminal justice system. It was suggested that "variables reIlecting the
character oI the victim still have a signiIicant impact on the laying oI charges and on the
likelihood oI conviction
17
".

13
8oberLs Crossman 1994
14
Cunn Mlnch 1988 SLuarL 1992
13
8hynard and krebs 1997
16
Cunn and Llnden 1997
17
lbld
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

With the changes to the legislation came the reporting oI a "new Iorm" oI rape. It is known as
date rape or acquaintance rape. This type oI rape rarely involves extreme Iorce, but rather, the
male attempts to IulIil his sexual expectations while Iailing to recognise the resistance by his
victim
18
.

India
India is the epicentre oI most versatile culture and spirituality. Here, women holds the high status
in the society and is considered to be 'Lakshmi. Particularly, in India Personal Laws always
conIlicts with the other codiIied laws and it is the personal laws which prevails but with
westernization and intuition among people .The status quo oI the legal system need to be
reIurbished and many liberals law have turning out their shape Ior this purpose.
RAPE, in India, is deIined as intentional and unlawIul sexual intercourse with a woman without
her consent. The essential elements oI this deIinition under Section 375 oI the Indian Penal Code
aresexual intercourse with a woman and the absence oI consent. The Section 375 made it clear
that intercourse would account to rape only during the absence oI the woman`s consent. But a
Delhi court verdict, which came in yesterday seems to modiIy the deIinition. This will come as a
sigh oI relieI to the women across the country. But its deIinition has taken a broader shape with
the commission oI the crime.
Section 375
19
has echoing very archaic sentiments, mentioned as its exception clause- 'Sexual
intercourse by man with his own wiIe, the wiIe not being under 15 years oI age, is not rape.
Section 376
20
provides punishment Ior rape. According to the section, the rapist should be
punished with imprisonment oI either description Ior a term which shall not be less than 7 years
but which may extend to liIe or Ior a term extending up to 10 years and shall also be liable to
Iine unless the woman raped is his own wiIe, and is not under 12 years oI age, in which case, he
shall be punished with imprisonment oI either description Ior a term which may extend to 2 years
with Iine or with both.
arlier Developments
In %uka#am v. $tate of Maharashtra
21
, In March 1972, a 16-year-old tribal girl was raped by
two policemen in the compound oI Desai Ganj police chowky in Chandrapur district oI
Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside
even as this heinous act was being perpetrated in the police station. When her relatives and the
crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and
Tukaram, reluctantly agreed to Iile a panchnama. At the Sessions Court, Mathura was accused oI
being a 'liar and that since she was 'habituated to sexual intercourse, her consent was given.

18
hLLp//webvluca/crlm/suLLonhLm accessed on 10Lh nov2011
19
lndlan enal Code
20
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21
Al8 1979 SC 183
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

The Nagpur bench oI the Bombay High Court set aside the judgment holding that that passive
submission due to Iear induced by serious threats could not be construed as willing sexual
intercourse. However, the decision oI the Supreme Court remains a blot on its record to this day.
The rationale Ior acquittal was that Mathura had not raised an alarm and there were no visible
marks oI injury on her body. The judgment did not distinguish between consent and Iorcible
submission.
In Mohd.Habib J. $tate
22
, the Delhi High Court allowed a rapist to go scot-Iree merely because
there were no marks oI injury on his penis- which the High Court presumed was a indication oI
no resistance. The most important Iacts such as the age oI the victim (being seven years) and that
she had suIIered a ruptured hymen and the bite marks on her body were not considered by the
High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High
Court`s judgment.
In $tate of !unjab J. Curmit $ingh
23
, the Supreme Court has advised the lower judiciary, that
even iI the victim girl is shown to be habituated to sex, the Court should not describe her to be oI
loose character.
In all three cases, Judges have tried to inpret the situation as to when such heinous crime took
place.It is necessary to analyse the situation because, we cannot set aside the Mensrea while
discussing any crime.I Iound that though Judges took their time in deciding the cases but it is on
the interpretation oI the Iact as to when commission took place and habitual to sexual intercourse
is no more an excuse to avoid one`s guilty.
Recent Development
In hairman, #ailway Board Js. handrima as
2
, a practicing Advocate oI the Calcutta High
Court Iiled a petition under Article.226 oI the Constitution oI India against the various railway
authorities oI the eastern railway claiming compensation Ior the victim (Smt. HanuIa Khatoon)-
a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The
High Court awarded Rs.10 lacs as compensation.
In $akshi v. Union of India
25
,the judges sought reIuge behind the strict interpretation oI penal
statutes and the doctrine oI state decisis - a view that any alteration |in this case, oI the deIinition
oI rape| would result in chaos and conIusion, it directed the Law Commission oI India to respond
to the issues raised in the petition. The Law Commission, under the chairmanship oI Justice P.
Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these
issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with
the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to
look into these issues aIresh.

22
1989 CrlL! 13
23
1996 SCC (2) 384
24
Al8 2000 SC 988
23
Al8 2004 SC 3366
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

AIter detailed consultations with the organisations, the Law Commission released its 172nd
Report on the Review oI Rape Laws, in 2000. The Law Commission recommended changing the
Iocus Irom rape to `sexual assault', the deIinition oI which goes beyond penile penetration to
include penetration by any part oI the body and objects, taking into account cunnilingus and
Iellatio.
The 172nd Law Commission report
26
had made the Iollowing recommendations Ior substantial
change in the law with regard to rape.
1. Rape` should be replaced by the term sexual assault`.
2. Sexual intercourse as contained in section 375 oI IPC should include all Iorms oI
penetration such as penile/vaginal, penile/oral, Iinger/vaginal, Iinger/anal and
object/vaginal.
3. In the light oI $akshi v. Union of India and Others
27
sexual assault on any part oI the
body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape oI young boys has been
neglected by law.
5. A new oIIence, namely section 376E with the title unlawIul sexual conduct` should be
created.
6. Section 509 oI the IPC was also sought to be amended, providing higher punishment
where the oIIence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) oI section 375 oI IPC should be deleted. Forced sexual
intercourse by a husband with his wiIe should be treated equally as an oIIence just as any
physical violence by a husband against the wiIe is treated as an oIIence. On the same
reasoning, section 376 A was to be deleted.
Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual
act and it is denied, the court shall presume it to be so

In recent case $tate of U.!. v. hhotey Lal

28
, Highlighting the diIIerence between will` and
consent`, the court said that a nod Ior sexual relations obtained by a man on the Ialse pretext
would not amount to a legal or valid` consent to save him Irom punishment Ior rape. Even iI
there were mutual consent, iI the consent is based on a Ialse pretext made by the man then the
consent would stand as null and void and the intercourse be termed as rape
29
.

26
hLLp//lawcommlsslonoflndlanlcln/rapelawshLm accessed on 30Lh CcL2011
27
2004 (3) SCC 318
28
(2011) 2 SCC 330
29
hLLp//wwwmerlnewscom/arLlcle/LhenewdeflnlLlonofrape/129323shLml accessed on 30Lh CcL2011
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

Another aspect Ior deIining the concept oI rape is compromise, it is always noticed in india that
Society has a Iaith on compromise even in crime. This sometimes adversely aIIect the judgement
oI the commission oI the crime. There have been a number oI past cases where the Supreme
Court has reversed High Court decisions reducing sentences under this provision Ior not giving
suitable reasons.
Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated
that it considers aggravated rape (including gang rape) deserving oI higher punishment. It is also
pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term
'adequate and special reasons
30
.
The change in rape laws in 1983 improved the situation to a great extent. Among other things,
the punishment Ior rape was made more severe.BeIore,the punishment prescribed under section
376 oI the IPC provided Ior a maximum sentence oI liIe imprisonment but there was no
minimum limit.Thus,in theory a rapist could get away with a sentence oI say, just one month.
In 1983 although the legislature Iailed to increase the maximum sentence to capital punishment
as was vehemently demanded by women`s organizations,it prescribed a minimum sentence oI
seven years imprisonment. Every rapist on being Iound guilty thereaIter bad to undergo a
minimum imprisonment oI seven years. Besides ,an important provision, section 376(2) was
added to the IPC which introduced the concept oI some special kinds oI rape and prescribed a
minimum oI ten years Ior these cases
31
.
These included:
Rape by a police oIIicer within the premises oI a police station;
Rape by a public servant oI his junior while taking advantage oI his oIIicial position;
Rape by an oIIicial in a jail or remand home oI an inmate;
Rape by someone on the staII oI a hospital oI a woman in the hospital;
Rape oI a pregnant women;
Rape oI a girl under 12 years oI age end gang rape
According to the new provision section 114A oI the Indian Evidence Act-in cases oI custodial
rape,gang rape and rape oI a pregnant women,iI the victim states in court that she did not
consent,then the court shall presume that she did not consent and the burden oI proving consent
shall shiIt to the accused.This was a major reIorm in the law
32
.
In continuation to amendment various special provision section-376A, 376B,376C and 376D
were added to the IPC.
In 2007, the Supreme Court struck down a decision oI the Karnataka High Court which had
reduced the sentence oI a convicted rapist to 3 and a halI years. The High Court had stated that
the sentence should be reduced since the accused was 'a young boy oI 18 years belonging to
Vaddara Community and Illiterate. The Supreme Court stated that there is a legislative

30
SLaLe of Andhra radesh v 8odem Sundara 8ao Al8 1996 SC 330)
31
hLLp//mynaLlonneL/rapelawhLm accessed on 30Lh ocL2011
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Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

mandate to impose a sentence Ior not less than 10 years. Only in exceptional cases, Ior
'adequate and special reasons can a sentence less than 10 years be imposed. It overturned the
Karnataka High Court decision saying that there was an 'absence oI any reason which could
have been treated as 'special and adequate reason
33
.
It was clearly noted in Baldev Singh`s case
34
, the Supreme Court said:
1. The Iact that the incident is an old one
35
is a circumstance which Iits into 'adequate and
special reasons Ior reducing a sentence.
2. The parties have entered into a compromise among themselves.
The issue is whether this judgement has gone beyond the legislative mandate, and whether it has
adhered to the principles laid down by earlier decisions oI the Supreme Court. In 2007, the
Supreme Court itselI stated that Ior a crime like rape, strong reasons have to be given to reduce
the sentence envisaged by the legislature. Moreover, the provision does not envisage the
settlement oI a crime by payment oI compensation to the victim oI a crime. A criminal act is
seen in law as a crime against the whole oI society (which is why the state`s prosecution agency,
and not the victim, goes to court against alleged criminals). ThereIore, criminal actions such as
rape (or murder, robbery, kidnapping etc.) cannot be 'settled by the payment oI compensation
under the Indian Penal Code. In this light, it should be interesting to see whether the State Iiles
an appeal against this judgement.
But can a 'compromise between the victim and the accused persons be considered a Iactor in
reduction oI sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable
oIIence and parties cannot withdraw or compromise the case, even with the permission oI the
court. Most crimes (including the present one) are considered as crimes against the entire society,
which is why the State prosecutes the crime on behalI oI the victim and society. II we let victims
compromise their cases, when the law does not permit, we end up undermining the entire
system
36
. It could also lead to situations where victims are coerced into agreeing to a
compromise. II we as a society want to change this position, it is Ior the Legislature to amend the
law.
In aharashtra v adhukar Narayan ardikar
37
, The supreme Court opined that ..even a
woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he
likes. So also, it is not open to any and every person to violate her person as and when he wishes.
Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown
overboard.`
This case highlighted the another aspect oI the commission oI rape.The court considered rape as
intruding into the privacy oI individual without consent.

33
hLLp//wwwprslndlaorg/Lheprsblog/2011/03/04/cancompensaLlonbepaldforcrlmesagalnsLLhesLaLe/
accessed on 30
Lh
CcLober2011
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8olJev 5loqb ooJ Ots v 5tote of loojob
33
Lhe lncldenL Look place ln 1997
36
hLLp//lawandoLherLhlngsblogspoLcom/2011/03/compromlseformulalnrapesenLenclnghLml accessed on
30Lh CcL2011
37
Al8 1991 SC 207
Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

A marriage is a bond oI trust and that oI aIIection. A husband exercising sexual superiority, by
getting it on demand and through any means possible, is not part oI the institution. Surprisingly,
this is not, as yet, in any law book in India
The very deIinition oI rape
38
demands change. The narrow deIinition has been criticized by
Indian and international women`s and children organizations, who insist that including oral sex,
sodomy and penetration by Ioreign objects within the meaning oI rape would not have been
inconsistent with nay constitutional provisions, natural justice or equity. Even international law
now says that rape may be accepted a s the 'sexual penetration, not just penal penetration, but
also threatening, IorceIul, coercive use oI Iorce against the victim, or the penetration by any
object, however slight. Article 2 oI the Declaration oI the Elimination oI Violence against
Women includes marital rape explicitly in the deIinition oI violence against women. Emphasis
on these provisions is not meant to tantalize, but to give the victim and not the criminal, the
beneIit oI doubt
39
.
Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel,
France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any
Iorm is an act oI utter humiliation, degradation and violation rather than an outdated concept oI
penile/vaginal penetration. Restricting an understanding oI rape reaIIirms the view that rapists
treat rape as sex and not violence and hence, condone such behaviour.
The importance oI consent Ior every individual decision cannot be over emphasized. A woman
can protect her right to liIe and liberty, but not her body, within her marriage, which is just
ironical. Women so Iar have had recourse only to section 498-A oI the IPC, dealing with cruelty,
to protect themselves against 'perverse sexual conduct by the husband. But, where is the
standard oI measure or interpretation Ior the courts, oI perversion` or unnatural`, the deIinitions
within intimate spousal relations? Is excessive demand Ior sex perverse? Isn`t consent a sine qua
non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature
have been silent
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.
Criminal Law Amendment Act,2005
The Bill was draIted by Ms Kirti Singh advocate and legal convener oI AIDWA, based on 172nd
report oI the Law Commission to amend the laws relating to sexual assault in Section 375, 376,
354 and 509 IPC and the relevant sections oI the Code oI Criminal Procedure 1973 and the
Indian Evidence Act 1872. The recommendations are based on the national consultation on the
issue organized by the national commission Ior women
The major changes sought to be brought about through this amendment are substitution oI
existing section 375 oI the IPC
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with the Iollowing:
'375.Sexual Assault: Sexual assault means

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Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun


(a) The introduction (to any extent) by a man oI his penis, into the vagina (which term shall
include the labia majora), the anus or urethra or mouth oI any woman or child
(b) the introduction to any extent by a man oI an object or a part oI the body (other than the
penis) into the vagina(which term shall include the labia majora) or anus or urethra oI a woman
(c) the introduction to any extent by a person oI an object or a part oI the body (other than the
penis) into the vagina(which term shall include the labia majora) or anus or urethra oI a child.
(d) manipulating any part oI the body oI a child so as to cause penetration oI the vagina (which
term shall include labia majora) anus or the urethra oI the oIIender by any part oI the child's
body;
Similarly, Amendment, 2005 brought Iorth many changes in rape laws, especially related to
detailed procedure oI examination oI victim and accused both by inserting new sections: 164-A,
174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it
also shall include the examination oI blood, blood stains, semen, swabs in case oI sexual
oIIences, sputum and sweat, hair samples and Iinger nail clippings by the use oI modern and
scientiIic techniques including DNA proIiling and such other tests which the RMP thinks
necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry
by the Judicial Magistrate in cases oI custodial rape and murder cases.
The Central government has also sought comments Irom the public, states and Union Territories
on proposed changes to rape laws the draIt bill oI which seeks to replace 'rape' with 'sexual
assault' while bringing other aspects like 'oral sex' under its ambit Ior the Iirst time
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.
The suggestions had been Iormulated into the Criminal Law (Amendment) Bill, 2010 which
seeks certain amendments in both the Indian Penal Code (IPC) as well as the Code oI Criminal
Procedure (CrPC). Besides seeking to replace 'rape' with 'sexual assault', the bill also provides
Ior substituting 'sexual intercourse' with 'sexual assault'
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accessed on 31sL CcL2011

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Nanjeet Kumai Sahu (nu Yeai)0niveisity of Petioleum anu Eneigy Stuuies,Behiauun

Conclusion
We campaign and create awareness about gross injustices and abuse that happen in Indian Legal
system. Almost all over the world, the rule of strict interpretation should be established so that
there would be no loophole and chances Ior unjust in the social environment. the recent in
change in deIinition oI rape is due to incessant growth oI such activity and liberal interpretation
oI the statute. The scenario is changing now even people talk about armless rape` but how
Iar is it justiIied is again a matter oI controversy. How can people discuss about 'armless
Rape`. According to my point oI view , the days are not Iar ahead , when people will start
discussing about 'armless Murder`. This sounds ridiculous but is really a grave concern to the
society. Statute and legislation are completely dependent on the people and complete Iramework
is done by them. But still, It was the requirement oI the society to scrutinize the deIinition oI
rape and was highly appreciated by the society.