Digital Rape

The recent spate of rape incidents in the capital and the NCR region have brought to the fore glaring  deficiencies,  in our legal system to deal with such incidents as well as in our social system, which still largely continues to deny women their rightful place in society.

Section 375 in the Indian Penal Code (hereinafter, the ‘IPC’), which deals with the offence of rape, now seems to be running out of its feasibility to adequately address the offence of rape. The section lays down, inter alia, that to constitute the offence of rape; firstly, the victim must be a woman, and secondly, ‘penile penetration’ is necessary to constitute the offence of rape.

Following the first condition, it automatically rules out boys who are raped. They do not get relief under Section 375. Rather, their offence comes under the ambit of Section 377 of the IPC.

The second condition, that of ‘penile penetration’ being a necessary element of rape, is also now starting to bring several impediments in the process of administration of justice to women whose bodies are violated by sexual offenders.

In a case of an 80-year old destitute woman who had a 19-year old boy put a stick into her private parts, finally dumping her in a park, bleeding. The woman was rushed to the hospital for treatment, after which in her trial, the judges were left helpless, being bound by the wording of the legislation. They could not frame charges of Rape under Section 375 of the IPC as no penile penetration had taken place. Instead, a case of Abduction and Grievous Hurt was made out.

Offences of ‘Digital Rape’ , such as the one elicited above, point to the growing inability of our laws in dealing with such offences and the subsequent helplessness of the judiciary in serving justice to the victims. Digital Rape in India is defined as the penetration of any external object into the private parts of a woman with the intent to rape her. Along with the narrow definition of ‘rape’ in our legal system, there are also insensate practices followed, such as the ‘two-finger test’. In the ‘two-finger test’, once a woman has complained of being raped, in the medical examination she is subjected to a finger test. If her vagina allows the entry of two fingers, an inference is drawn that she is ‘habituated’ to sex. As if there is any relation between being habituated to sex and being raped! One act of forced sexual intercourse is in and by itself enough to constitute rape. It is immaterial if the woman has had sexual intercourse on previous occasions. There is currently a high-level government committee working on abolishing the two-finger test.

Then there is the labelling of the woman as being ‘unchaste/promiscuous’ etc. The way the rape case in Bengal has been treated, with Mamata Banerjee terming it an ‘attempt to malign’ her government to a Minister in her government questioning the character of the woman raped, goes to show the insensitivities with regard to rape victims that is being harboured by the law-enforcing agencies. The West Bengal case was only seriously taken up on the initiative of an IPS officer(who has now been transferred, following some arrests that have been made in connection with the incident). There have been numerous other incidents, where the police has not filed an FIR, or where the rape victim has been meted out step-motherly treatment at the hands of the authorities. This is happening despite a Supreme Court verdict holding that a woman’s complaint of rape should not be doubted, as no woman would lie about her being raped, seeing the stigma attached in our society to women who are raped.

Recently, the US amended the definition of Rape in their laws, making it “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Such a definition is broad not only because it takes into account victims of rape, regardless of their gender but is also adequate to deal with offences of digital rape.

It is true that the source, as well as the solution of this inhuman crime, lie in the social matrix of our country. However, change must be initiated from the legal system, and a comprehensive definition of the offence to begin with is indispensable.

It is high time we press for amendments to our rape laws to keep them in sync with the changing ground-realities, as well as to empower the judiciary to justly frame charges and hand out convictions, if we are to see a reduction in the occurrence of this heinous crime.