EXPANSION OF THE DEFINITION OF RAPE
Author: - B. Vydurya Selvi
On Wednesday, the 4th of August 2021, a Division Bench of the Kerala High Court in an appeal under the Prevention of Children from Sexual Offences (POSCO) Act expanded the definition of rape. The Bench led by Justice K Vinod Chandran and Justice A A Ziyad Rahman observed that an act using any part of women as an orifice to get sexual pleasure amounts to rape and convicted the accused.
About the Case:
The case dates back to 2015. A medical camp was conducted in Thirumarady Government School. The victim, a minor girl attended the camp with her mother complaining of stomach pain. It was found that a neighbor, a 40-year-old man has sexually assaulted the minor multiple times repeatedly at various degrees. The doctor on examination found that the girl is assaulted and asked the mother to file a police complaint. A case was filed in the lower courts and the trial court convicted him of rape. He was sentenced to imprisonment for life by the lower court. An appeal was filed by a 40-year-old man in the High Court. The sexual act mentioned in the case was the penetration in between the thighs of the minor girl.
On hearing the appeal, the Division Bench of the Kerala High Court held the conviction and expanded the scope of the definition of rape. The Court observed that a non-penetrative sexual act between the thighs of women to create a sensual feeling for penetration will also come under the definition of rape. The Judges partly allowed the appeal and stated that the prosecution has failed to prove the age of the victim, hence the case will not be dealt with under POCSO Act or under Section 376(2)(i) of the Indian Penal Code, but only under Section 375 read with Section 376(1) of the IPC. Life imprisonment with the meaning of imprisonment of the remainder of natural life under Sections 376(2)(i) and 377 given by the Sessions Court was changed to life imprisonment by the High Court. The accused will also face a concurrent sentence passed by the Sessions Court under Section 354 and 354A(1)(i).
Sexual intercourse by penetration:
Section 375 of the Indian Penal Code defines rape to be sexual intercourse by a man with a woman who has no will or consent to the act. An act of penetration of the penis, insertion of objects or any other parts of the male’s body into the female to create a sexual stimulus, manipulation of any part of the female’s body are considered to be rape.
The Indian Penal Code in Sections 375, 376, 376-A, 376-B, 376-C, 376-D deals with sexual offenses. All of them against women and unlawful to the society. According to the explanation to Section 375, mere or slightest, or partial penetration of the male organ within the labia majora or the vulva or the pudenda of the female is sufficient to constitute an act of rape. Therefore, the depth of the penetration is immaterial. Ejaculation also is not necessary, the slightest of penetration is enough to prove the act. Hence, the judgment given by the Division Bench is absolutely correct and the interpretation stating manipulation of a woman’s body to create sexual stimulation will also come under the explanation to the crime. An act without penetration in between the thighs of a woman will also amount to rape as the accused will gain sexual satisfaction by tampering with the body of the victim.
In the landmark judgment, the judges enlarged the scope of rape and have paved the way for the betterment of society by stating that any act which amounts to dishonor the body of a woman will amount to rape and can be held convictive. The intention of the legislature in making laws related to rape is to eradicate such crimes against women and society and to promote them into a safe environment to live on, thus the interpretation of laws should be as such. This landmark judgment is a notification to the entire society that the judiciary will always have an eye over its people and will safeguard the rights of individuals as a guardian.
Edited by Shuruthi.J, Associate editor, Lawgic Stratum.