By Yogiraj Sadaphal
Rape is an egregious crime that inflicts severe and lasting harm on both the victim and society. It is a violent transgression that violates an individual’s bodily autonomy, dignity, and fundamental human rights. The repercussions of rape extend beyond the immediate physical and psychological trauma experienced by the victim, permeating the survivor’s life and the broader community. This heinous act engenders fear, mistrust, and a pervasive sense of insecurity. The basic personal rights of individuals, including the right to life, liberty and security, have been blatantly violated. Survivors of rape endure profound physical and psychological suffering, and often suffer from lasting emotional scars including post-traumatic stress disorder (PTSD), grief, anxiety along with their decrease. The impact of rape reverberates through the victim’s relatives and social networks, compounding the trauma. It is imperative that we recognize and address the deep and far-reaching consequences of this heinous crime, and work together to prevent sexual violence and support survivors.
KEYWORDS
Rape, Digital Rape, Physical and Psychological Trauma, Heinous Crime, Compel, Penetration.
The term “digital rape” is often misunderstood to refer to a form of sexual assault that occurs through social media platforms, such as WhatsApp, Facebook, or Instagram[1]. In reality, though, the term refers to a specific form of sexual violence involving the perpetrator’s unauthorized penetration of the victim’s body with his fingers or toes. The word “digital” in this context is derived from the English word “digit,” which can refer to a finger, thumb, or toe.
In India, The term "digital rape" was introduced after the 2012 Nirbhaya gang rape incident and was categorized as a sexual offense. Before this, the distinction was a problem, but after the case, it came under the definition of rape in Indian law. The concept of digital rape was formally introduced in the Criminal Law Amendment Act of 2013[2], which expanded the definition of rape to include non-consensual penetration of objects or body parts other than the penis.
The explicit recognition of digital rape as sexual violence is a significant development in the Indian legal system. However, there is still a need for greater public awareness of these crimes, as well as improved law enforcement and support for survivors. It is imperative that government and law enforcement agencies work to raise awareness of digital assault and ensure that perpetrators are held accountable for their actions.
The legal recognition of digital rape is an important step towards addressing sexual violence and supporting survivors. But more needs to be done to ensure that all forms of sexual violence are properly addressed and that survivors receive appropriate support and justice. In the case of Rafiq v. State of UP[3], it was held by the hon’ble Justice Krishna Iyer that, “A murderer destroyed the body, but a rapist kills the spirit”
DEFINATION OF DIGITAL RAPE
According to the Indian Penal Code (IPC) Section 375[4] and the Protection of Children from Sexual Offences (POCSO) Act[5], digital rape is defined as the non-consensual penetration of a victim’s body using the perpetrator’s fingers or toes. The perpetrator may insert any part of the body into the vagina and anus of a woman or child except the penis, or the victim may do it with herself or someone else. The term “digital” in digital rape refers to fingers, thumbs, or toes, and the crime is not related to digital or virtual technology[6]. The legal recognition of digital rape as a specific form of sexual violence is a significant development in the Indian legal system, and represents an important step towards addressing sexual crimes in the digital realm.. The recognition and understanding of digital rape represent a critical development in the Indian legal system, and with effective legislation and enforcement, coupled with increased awareness and education, substantial strides can be made in combating digital rape and ensuring justice.
CONSENT
According to the Indian Penal Code (IPC) Section 375 and the Protection of Children from Sexual Offences (POCSO) Act, consent is defined as an unequivocal voluntary agreement when the woman communicates a willingness to engage in the specific sexual act through words, gestures, or any other means of verbal or nonverbal communication. Explanation 2 to Section 375[7] of the IPC describes consent as “an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act.” The absence of resistance does not imply consent, and the burden of proving consent lies with the accused. The concept of consent is critical in rape laws in India, and the law recognizes that sexual activity without consent is a violation of an individual’s bodily autonomy and fundamental human rights. The legal paradigm in India recognizes the patient’s right to autonomy and self-determination, enshrined within Article 21[8] of the Indian Constitution, and the law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information.
According to the Justice Verma Committee Report[9], the age of consent under the Protection of Children from Sexual Offences (POCSO) Act should be reduced to sixteen years. Understanding Article 34 of the United Nations Convention on the Rights of the Child, the report suggested this modification, noting that the POCSO Act “was aimed inter alia to protect children from sexual assault and abuse and not to criminalize consensual sex between two individuals even if they are below eighteen years of age.” Conclusively, the notion of consent holds significant importance in Indian law, and it is imperative to acknowledge and honour a person’s entitlement to bodily autonomy and self-determination.
In Sohan Singh vs. State of Rajasthan[10] it was held that if the girl claims that she did not consent to the rape while in custody, the court will presume that she did not consent for it.
In the case of Yedla Srinivasa Rao v. State of A.P[11], the Supreme Court explained the concept that an act done by a man against the will or despite after the resistance will be termed as Rape.
LEGAL PRESPECTIVE
The Indian Penal Code (IPC) Section 375(b)[12] defines specific conduct that constitutes rape. According to the law, if a person enters anything inside a woman’s intimate area other than his private part, he is considered to have committed rape. This provision seeks to ensure that a range of non-consensual sexual acts are protected by the law and to expand the definition of rape. It recognizes that rape includes any penetration of a woman’s intimate areas, regardless of the item or body part used, and is not limited to penile-vaginal penetration. The purpose of this clause is to safeguard women’s physical freedom, sense of dignity, and sexual purity. By clearly identifying that the conduct may involve “any object,” Section 375(b) acknowledges that offenders might use a variety of things, such as fingers, tools, or other foreign objects, to commit sexual assault. This clause recognizes that such activities can seriously damage the victim’s bodily and mental health and holds the offender responsible for their actions.
A significant advancement In the legal framework for combating sexual violence and guaranteeing that a variety of non-consensual sexual activities are acknowledged and penalized by the law is represented by this clause. It emphasizes the necessity of shielding people from sexual assault in all of its manifestations and makes offenders responsible for their deeds, regardless of the particular methods employed to carry out the crime. The recognition and understanding of digital rape in legal terms represent a critical development in the Indian legal system, and with effective legislation and enforcement, coupled with increased awareness and education, substantial strides can be made in combating digital rape and ensuring justice[13].
LEGAL PROVISION FOR RAPE IN INDIA
1. Section 375 and its clause
Under Section 375[14], a man is said to commit rape if he;
1. Penetrates his penis into a woman’s vagina, mouth, urethra, or anus to any amount, or forces her to do so with him or anybody else; or
2. Inserts any object or portion of the body, other than the penis, into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or (commonly known as digital rape)
3. Manipulates any part of a woman’s body to produce penetration into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or anybody else; or
4. Applying his tongue to a woman’s vagina, anus, or urethra, or forcing her to do so with him or another person, or
5. Any of the seven clauses laid down under Section 375 of the Indian Penal Code, 1860. The provision embraced with seven clauses that majorly lays down circumstances that if takes place, can be quoted to be amounting to the offence of rape. The same has been discussed hereunder.
First clause: against her will
Second clause: without consent
Third and fourth clause: passive non-resistance or consent obtained by fraud
Fifth clause: sexual intercourse with insane or drunken person
Sixth and seventh clause: sexual intercourse with a minor and when the women is unable to communicate consent[15].
2. Section 376[16] – Punishment for rape
Whoever, except sub - section 2, commit rape shall be liable for imprisonment not less than seven years but which may extend for life, and must also be liable for a fine.
Sub – section 2 state that whoever being a police officer, public servant, being on management or on the staff of jail, remand home or other place established by or under the law, being manager or staff of hospital, or commit rape of a pregnant woman, commit rape of a woman under twelve year of age, or commit gang rape shall be punish with rigorous imprisonment of a term which shall not be less than ten year but which may extend for life and shall also be liable for fine.
Further a woman is raped by one or more in a group acting in furtherance of their common intention, each of the person shall be liable to commit gang rape within the meaning of this section.
3. Section 228A – Disclosure of identity of the victim.
The disclosure of a victim’s name, address, picture, or any other information pertaining to a particular crime, including sexual assault, is covered in this provision. This sec. makes it illegal to reveal the victim’s identity in cases of rape, sexual assault, or offences cover under Sec. 376, Sec. 376A, Sec. 376B, Sec. 376C and Sec. 376D.
Exception: The disclosure under this section has few exception. They are
(a) When the victim himself expressly granted permission to reveal the identity.
(b) If disclosure is made by the family member of the relative in order to support the victim’s legal defence.
(c) If the disclosure is made by the public servant acting under public interest.
Penalty: Whoever found guilty of such a crime, the sentence could be up to two years in prison in addition to a fine.
4. Section 114A of Indian Evidence Act – Presumption in absent of consent.
Where the sexual intercourse by the accused is proved and the question arose whether it was done with or without the consent of the woman alleged to have been raped and if in that case the alleged woman state that she didn’t consented for it. Then the court will presume that she didn’t consent.
CASE LAWS
1. MUKESH & ANR. v. STATE OF NCT OF DELHI & ORS[17]
This case was formally known as Nirbhaya case. In this case a 23 year old medical student was gang raped by six people and was brutally assaulted in a moving bus.
In this, Six suspects were involved in the case; four were given death sentences by the Supreme Court, and one was found guilty and sent to a juvenile detention centre by the Juvenile Justice Board. The other committed suicide before the verdict was read. Following this case, it was felt that some parts of Section 375 needed to be amended, hence the Criminal Law (Amendment) Act, 2013 went into force. Under the recently amended clause, rape now carries a minimum sentence of seven years in prison and a maximum sentence of life imprisonment. A public servant, police officer, medical officer, or other officer who commits rape faces a minimum of ten years in prison.
2. HARPAL SINGH & OTH. v. STATE OF HIMACHAL PRADESH[18].
In this case, a 16-year-old girl was sent by her mother to visit her ailing aunt in the village where the rape occurred, and the accused claimed that she consented to sexual intercourse.
The Supreme Court determined that she was under the age of 15 at the time of the sexual encounter, and thus her consent was invalid. The accused was charged with rape under Section 376 of the Indian Penal Code.
3. TULSIDAS KANOLKAR v. STATE OF GOA[19]
The victim, mentally impaired, was sexually intercourse with an accused who took advantage of her mental state. The accused, who claimed consent, was found to have taken advantage of her mental retardation and helplessness. The judge determined that in such cases, consent does not exist, and the accused was sentenced to a fine and ten years in prison.
The author of this article is Yogiraj Sadaphal, a fourth-year BALLB student at Bharati Vidyapeeth (Deemed to be University) New Law College, Pune
[1] Digital Rape in India: Decoding Its Intricacies, Century Law Firm, 4th Dec. 2023. https://www.centurylawfirm.in/blog/digital-rape-in-india-decoding-its-intricacies/
[2] Indian.gov.in, https://www.india.gov.in/criminal-law-amendment-act-2013, 4th Dec. 2023
[3] Rafiq v. State of Uttar Pradesh 1981 AIR 559.
[4] Bare Act, Indian penal code, sec 375, No.45, Act of Parliament 1860.
[5] Bare Act, protection of children from sexual offences act, sec 3, No.32, Act of Parliament 2012.
[6] Adv. Siddhi Gokuldas Naik, Know Everything about Digital Rape, Brain Booster Article. https://www.brainboosterarticles.com/post/everything-you-need-to-know-about-digital-rape
[7] Bare act, Indian penal code, explanation 2 sec 375, No.45, Act of Parliament 1860.
[8] India const. art 21.
[9] Justice Verma Committee Report, https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary
[10] Sohan Singh v. State of Rajasthan, 1998 CriLJ 2618.
[11] Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615, 624
[12] Bare act, Indian penal code, clause b sec 375, No.45, Act of the Parliament 1860.
[13] Supra, note 1
[14] Bare act, Indian penal code, sec 375, No.45, Act of the Parliament 1860.
[15] Darshit Vora and Oishika Banerji, Amity law School, blogipleader Section 375 IPC : rape - iPleaders
[16] Bare act, Indian penal code, sec 376, No.45, Act of the Parliament 1860.
[17] Mukesh & Anr. v. State of NCT of Delhi & Ors (2017) 3 SCC 717.
[18] Harpal Singh & Anr. v. State of Himachal Pradesh, AIR 1981 SC 361, (1981) 1 SCC 560.
[19] Tulsidas Kanolkar vs. The State Of Goa, AIR 2003 SC
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