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Simplifying the Criminal Law (Amendment) Act, 2013 – IPC (Part II)

July 8, 2013

In the previous piece, Gray.Line had attempted to simplify the Amendments to the Indian Penal Code, 1860. In this piece, Gray.Line will continue to cover the changes made to the IPC.

Trafficking

‘Trafficking’ is the movement of a person from one place to another, with or without his consent, and against the law. Usually trafficking is done for various purposes including prostitution, forced labour, sexual slavery, and beggary. The offence of trafficking is covered explicitly by the Immoral Traffic (Prevention) Act, but the IPC has been amended to include some special provisions.

Under section 370, a person commits the offence of trafficking if that person recruits, harbours, transfers, transports or receives another person for the purpose of sexual exploitation, slavery, servitude, forced organ harvesting or any other form of exploitation. The offence may be committed through six modes: threatening, using force/coercion, kidnapping/abduction, fraud/deception, abuse of power, and through giving or receiving money to induce consent. The minimum punishment for trafficking is seven years, but can extend up to ten years or even life for trafficking multiple people and children.

Section 370A punishes offenders specifically for the sexual exploitation of children who have been trafficked. The sexual exploitation of children is also penalised under the new legislation called “Protection of Children from Sexual Offences Act, 2012”. POCSO even penalises people who know of occasions of sexual exploitation of children, and do not report the same to the authorities; so if you are aware of instances of trafficking, especially for the purpose of sexual exploitation, you are bound by law to report this to the law authorities.

Trafficking is a common experience for many people in India, especially children. They are transported from within the country, most commonly from Bihar, Jharkhand, West Bengal and Uttar Pradesh, and from our neighbouring countries, most commonly Nepal, and Bangladesh. This is despite the fact that India is a signatory to various international laws by the United Nations and the International Labour Organisation.

Rape

There have been several significant changes made to section 375, which is the section on rape. The old section recognised rape only as the insertion of the penis into the vagina. The new section is seen by many as an improvement in many ways of the rape law, and was heralded as a welcome change defining progress in thought of the nation’s lawmakers.

Under the new section, a man is said to commit rape if he penetrates his own penis, or makes another man penetrate his penis, into the vagina, mouth, urethra or anus of a woman, or penetrates any other object, manipulates her body to cause penetration, or applies his own mouth, or makes another man apply his mouth to the vagina, anus or urethra of a woman. Such actions have to be committed in one of seven modes: against her will, without her consent, with her consent which has been obtained through threats, by posing as her husband, with her consent which was taken when she was intoxicated by alcohol or other substances, with/without consent when she is under the age of 18 years, or when she is unable to give her consent. Here are a few examples:

  1. If Ramu penetrates his penis into the vagina of Ramya without her consent, it is rape. If Ramu forces Ramya to give him a blowjob, it is rape. If Ramu forcefully has anal sex with Ramya, it is rape.
  2. If Ramu inserts a dildo into the vagina, anus, urethra or mouth of Ramya without her consent, it is rape.
  3. Ramya is drunk after consuming copious amounts of whiskey. Ramu, her friend, takes her home and has sex with her while she is intoxicated. This is rape.
  4. Ramu is a 21 year old college student; Ramya, 17, is his sister’s classmate. They are dating, and Ramu proposes to have sex with her, to which she consents. It is rape, even though Ramya has consented to have sex with Ramu. This kind of rape is usually called statutory rape with a minor.

One of the most contentious questions about rape has been about the sexual pleasure experienced by a woman. Scientifically it has been proven that the pleasure a woman experiences during intercourse is due to the excitation of the clitoris, touted to be the only human body part meant for sexual pleasure. It cannot be denied that the clitoris is excited even during rape, and in many cases in the past, this has been taken as a sign of consent from the rape-victim. However, experts have proved that rape and pleasure can occur simultaneously, and pleasure cannot be taken as a sign of consent from the victim.

Marital rape, a contentious issue among feminist groups in India, is an exception to section 375, provided that the wife is not under 15 years of age. However, this has given rise to concern, regarding the age difference of 15 and 18 years. For example, when Ramu is married to Ramya, where Ramya is 16 years of age, and Ramu forces her to have sex with him, it is not rape. However, in this example, Ramu can be penalised for child marriage (the legal age of a woman to marry is 18 years in India), and Ramya may also seek civil relief under the Protection of Women from Domestic Violence Act, 2005; the PWDVA has defined “sexual abuse” as a category of “domestic violence” under section 4.

An exception also has been provided for the purpose of medical examination. In April, 2013, the Supreme Court criticised present medical tests for rape survivals, and has castigated the standard two-finger test in the case of Lillu @ Rajesh v. State of Haryana. Justices BS Chauhan and Kalifulla have directed the centre to provide better medical tests that do not violate the dignity of rape-survivors, thus preventing a “second rape”.

The punishment for rape is seven years at the least, and may extend up to life imprisonment. Any man who is a police officer, medical officer, army personnel, jail officer, public officer or public servant commits rape may be imprisoned for at least ten years. This applies to rape cases that occur during communal riots, against pregnant women, girls under the age of 16 years.

A punishment of life imprisonment, extending to death has been prescribed for situations where the rape concludes with the death of the victim, or the victim entering into a coma. For example, while committing rape upon Ramya, Ramu strangles her to death, Ramu will be punished with life imprisonment, or even with death. Gang rape has been prescribed a punishment of at least 20 years. For example, in the recent case of the Manipal gang rape, where a medical student of Manipal University was gang raped in an auto rickshaw, if found guilty, the three accused will receive a minimum punishment of twenty years imprisonment for the offence of rape.

 

 

-By Balaji Harish

Blog post

Hi. You have written about "against her will" and "without consent" in the article. Isn't it one and the same thing? If not, what is the difference?

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Hi Satyan. Your question has been answered at:
bit.ly/13HBhEw

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