Insight into the Psychological Horror Engendered with the Violation of ‘Consent’ in Light of Section 375 of the IPC

I. Introduction

“Rape” originates from the Latin term “rapio” or “raptus”, which means ‘to seize’ or to ‘snatch’ or ‘violent theft’ which can be applied to both men and property.² Rape is one of the frequent crimes against women in India, and it is so horrific and brutal in nature that it impacts the victim both physically and mentally. It can be considered the most brutish act of infringing and violating a women’s dignity and honour without her consent.

In India, Rape is defined under the legal provisions as an unlawful and intentional act of sexual intercourse with a woman despite the presence of her consent. Section 375 of the Indian Penal Code defines Rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”³

According to Section 375, the necessary conditions for the commission of Rape are:

1. Unlawful sexual intercourse with a woman by a man.

2. Sexual intercourse must come under the ambit of any of the seven clauses mentioned in Section 375.

‘Consent’ is present in the act when the woman clearly and voluntarily, without any forms of coercion, consents to the act of sexual intercourse. But the act of ‘Rape’ requires the violation of consent of the person. But marital Rape of women above the age of 18 years is an exception to the rule as it is excluded from the ambit of Rape under Section 375 of IPC. The consent of women above the age of 18 years is assumed to be impliedly present during sexual intercourse with their husbands. So, the forceful or coerced sexual intercourse of a husband with his wife is not considered sexual assault or Rape, provided that his wife is above the age of 18.

II. Amendment to section 375 of the Indian Penal Code

The Criminal Law Amendment Act, 2013 (13 of 2013).⁴

Section 375 of the IPC⁵ was amended by the passing of the legislation ‘The Criminal Law (Amendment) Act’ in 2013 that came into effect on 3^rd February 2013. This act was popularly known as the Nirbhaya Act or the Anti-rape Bill that amended the laws relating to sexual offences in India. The act came after the indignation of the entire country after the Nirbhaya Rape case (homicidal gang rape). The protest and outcry after the Delhi Rape case ignited the immediate need for the severity of an urgent overhaul of the Rape laws in India.

After the Criminal law Amendment Act, 3013, the scope of the legislation was extended to constitute the acts such as penetration of the penis to the anus, urethra or the mouth or any object or any part of the body into the aforementioned female body parts (or making any other person do so), constitutes the offence of sexual assault. This was done in lieu to eliminate any uncertainty and ambiguity in the previously existing law, thereby providing stringent penalties in the rarest cases of incidents of sexual abuse. Touching private parts or applying mouth were also included within the ambit of sexual assault.

III. Psychological impact of the offence of Rape on the victims

With the escalating number of rape cases in the country, the crime of ‘Rape’ needs an immediate stricto sensu interpretation. The reverberation of the offence is gruesome and barbaric, affecting the victim both physically and mentally, leaving her traumatised for life. Section 376 of the IPC⁶ prescribes punishment for Rape, stipulating the criminal to be imprisoned for not less than 7 years, and that may extend to life imprisonment along with a fine. But, in aggravated conditions, the punishment shall extend from 10 years to life imprisonment along with a fine. But this raises the question of if mere punishment is sufficient for such a vicious crime that leaves the victim distressed forever, or should it be dealt with more empathy and compassion and less legality?

Rape destroys not only the bodily integrity of a woman but also tears down the mental composure of the victim and buries them in a deep emotional crisis. Victims may suffer isolation, be disowned by friends and family, be prohibited from marrying, be divorced if already married, or even killed. This phenomenon is known as secondary victimisation.⁷ It is a crime against basic human rights one is entitled to⁸ and a clear violation of the Right to Life enshrined under Article 21 of our Constitution. In Anurag Soni v. the State of Chhattisgarh⁹, the Court held that "Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind, and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life."

Rape and other forms of sexual assault can result in both short-term and long-term harm, including psychopathology in later life.¹⁰ Psychological, emotional, physical, and social effects include depression¹¹, post-traumatic stress disorder, anxiety,¹² eating disorders, poor self-esteem, dissociative, and anxiety disorders; general psychological distress and disorders such as somatisation, neurosis, chronic pain, sexualised behaviour, school/learning problems; and behaviour problems including substance abuse,¹³ destructive behaviour, criminality, and suicide.¹⁴

Rape is less of a sexual offence than an act of aggression aimed at degrading and humiliating women.¹⁵ Rape laws need to address the psychological impact that it has on the victims. It not only violates her dignity and distorts her sexuality but also infringes her basic human rights. In the case of Maharashtra v Madhukar Narayan Mardikar¹⁶, the SC held that every woman was entitled to her privacy, even a woman with easy dignity, and no one had the right to violate her dignity whenever he liked. It is not open to the people to violate her. So, the Court held that her evidence could not be thrown overboard merely because she is a woman of easy virtue.

Justice Anand, AS, in State of Punjab v. Gurmit Singh¹⁷, has shed light on the indifferences towards the women in the society, emphasising the extremity of the horrifying impact of Rape in his decision, stating, “It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female.”¹⁸

The cases of Tuka Ram v. State of Maharashtra¹⁹ and Mohd. Habib v. State²⁰ reflects the insensitive court decisions where the absence of ‘physical marks’ on the body of the victim was considered the deciding factor in assuming that the intercourse was a ‘peaceful affair’ and there was no ‘resistance’.

Taking account of the gravity of psychological harm that the rape victim suffers, the laws should contemplate the issue of implementation of stricter laws or rather formulation of new laws to ensure that the criminal also is subjected to a greater degree of punishment. The decree of punishing the offenders in no way helps the victims to forget or go back from the physical and psychological trauma that happens as a consequence of the crime. It has a long-lasting impact on the victims who have been subjected to such a degree of harm, and no amount of compensation could ever recompense for the mental and physical harm that they suffered, and hence this issue needs to be addressed with more empathy. Furthermore, the mental agony that the victims suffer cannot be nullified by assigning punishments to the criminals. But this issue cannot be dealt with otherwise also. There should be severe and stricter laws for the crime that should create fear within the criminals for the commission of the crime. The law cannot help the hapless victims in any way but rather can work in furtherance of bringing stricter provisions to ensure that such crimes should no more be committed and anyone committing it should be met with desired punishments.

IV. Marital Rape as an exception under section 375 of the Indian penal code

Marital Rape in India exists de facto and is not recognised by law; hence, it does not exist de jure. The legislature nor the Judiciary has yet recognised marital Rape as an offence, and thus, it does not fall under the ambit of crime.

Exception clause 2 of Section 375 mentions that “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”²¹ The law exempts the marital Rape of women above the age of 15 years, assuming suo motto consent of the women. Even though Rape has been criminalised as a crime, marital Rape remains well-shielded within the curtains of marriage. Marital Rape can be considered the most prevalent and abhorrent form of masochism. Rape since time immemorial has always been associated with strangers, i.e., it has been considered as the forcible seizure of the dignity and integrity of a woman without her consent. But the concept of being raped by one’s husband sounds foreign, and it still remains unacceptable by the people and society in the contemporary world. It sometimes becomes difficult for the victim to accept herself as the victim and realise that she has been forced into having sex with her husband.

Even though the laws of the country have specialised provisions, acts, and laws for the protection of women and children, such as protection of children against sexual offences, protection of women against domestic violence, dowry, cruelty, women trafficking, Sati prevention, etc. But it does stay silent in matters of marital Rape hence, pushing the issue into ambiguity. The husband is not held guilty of having sexual intercourse with their wives without their consent, and this provides the male counterparts with an opportunity to rape their wives and take the exception of marital Rape as empowered by the law.

The husband in a marriage considers it as the duty of their wives to have sex whenever they ask for it, and her refusal is not taken into count. It is suo motto assumed that the wife consents to sexual intercourse upon agreeing for mutual matrimonial home. The absence of backing of the law for the husband in matters of raping their wife has led to an upsurge of cases in the country. But the cases of marital Rape remain under-reported as there are no laws against it. Several other social factors also prevent women from reporting any cases of marital Rape, such as the fear of being ostracised and withdrawal from society and the family. There also remains a persisting fear within the women regarding the curtailment of financial and economic help from their husbands as the women in the majority of cases are financially dependent on their male counterparts.

While in rape cases, the victims are provided with a legal remedy, marital Rape doesn’t provide so, and it is merely secluded on the basis that here the victim is in a marital bond with the offender. This obliquely makes the victims realise that ‘marital rape’ is not a crime, and thus, they cannot seek any legal remedy for the violation of human rights and their dignity. The act of ‘violation of the consent of married women is of no worthiness in the eyes of the law, which has ultimately led to the normalisation of such acts.

The Judiciary has been negligent towards the issue of Marital Rape in India, and the judicial pronouncements in no way have helped in the furtherance of helping the condition of the women or the position of law. The Judiciary, in the majority of the cases, has decided in favour of the husband. These decisions are a clear proclamation of the fact that there are no marital rape laws in our country, and it is not a crime according to the law. Marital Rape can also not be a ground for divorce. The Andhra High Court, in the case of T. Sareetha vs T. Venkata Subbaiah,²² held that “Rights and duties in a marriage, is like creation and dissolution and not the term of private contract between two individuals. The right to privacy is not lost by marital association. Hence, there is no punishment for marital Rape, and the remedy lies with the wife.” The Kerala High Court noted in the Sree Kumar v. Pearly Karun²³ case that if the wife and the husband do not live apart after the order of judicial separation, her husband's sexual contact with her does not amount to Rape. Even if the husband is de facto guilty, he cannot be held accountable for raping his wife by legislation. Although the Justice J.S. Verma Committee that was constituted during the Nirbhaya Gang rape case²⁴ recommended the exclusion of the marital rape exception provision from Section 375 of the IPC but no advancements were made in furtherance of it. The Judiciary has substantially put forth the idea that Rape is not possible within the institution of marriage.

With the rise in marital rape cases, the situation intensifies every time. There is an urgent need for strict laws for the heinous crime of Marital Rape. The legislation and the Judiciary of the country must realise the need for marital rape laws at the earliest. It is a matter of the fact that they should comprehend the emergency of the situation and rather recognise that the offence of marital Rape violates the dignity and honour of the wives, and it also interferes with their fundamental rights of right to life, right to good health, right to sexual privacy and right to bodily self-determination. The filing of cases against the husband for the offence of marital Rape indicates the intention of the women to end the marriage bond. But the law to protect the sanctity and the sacred institution of marriage does not want to criminalise the offence of marital Rape as it shall lead to the breaking of ties.

The patriarchal ideology prevailing in the society believes that a woman should not raise their voice against any injustice and rather should silently endure everything. The self-proclaimed heads of the families and societies, i.e., the males, believe or more or else have inherited that they have the powers of dominating the women, and the women cannot put any restrictions on their male counterparts. This culture or ideology is deeply engraved in the patriarchal societies, and they have been passed on from one generation to the other through the conduct of these people. The filing of cases against the husband for the offence of marital Rape indicates the intention of the women to end the marriage bond. But the law to protect the sanctity and the sacred institution of marriage does not want to criminalise the offence of marital Rape as it shall lead to the breaking of ties. Society, as well as the law, needs to understand and realise that consent should be not assumed. Rather it should be explicitly given by the women. The men should not force the women to have sex with them and assume it as their duty. The women are not bound, and the women are under no obligation to provide sex despite their interest or consent. The male counterparts and the society should normalise the fact that the women in the society do hold equal positions, and their consent and interests also hold weightage, and that should be prioritised.

V. Conclusion and current status

While the law is said to guarantee justice to the victim, in the case of victims of Rape, the same is unfortunately not true. As far as the offence of Rape is concerned, justice is oblivious, and there stands a different picture. Rape laws in India are antiquated, and there is an immediate need for reform in the same. While the laws explicitly describe the crime, the courts are packed with individuals who support the perpetrator and question the veracity of the claims of the victim. Rape is one of the most barbarous offences that a man can commit against a woman by violating her dignity forcefully. Marital Rape should also be considered as Rape in the same manner as in accordance with the law. Rape and Marital Rape both have severe and enduring repercussions. Physical consequences of Rape, as well as marital Rape, include bruising, bleeding noses, black eyes, broken bones, wounds, injuries to private parts, soreness, fatigue, lacerations, and vomiting. They also suffer from severe psychological effects such as depression, anxiety, shock, post-traumatic stress, or intentions of suicide.²⁵ Psychological effects in marital Rape are very long-lasting as in the majority of cases; they have no chances of escape. Marital rape effects can be long-lasting, taking into consideration the fact that the women in the majority of cases have no or mere chances of rescuing from the condition, and she is more or less confined and trapped with the preparator in the same house for her entire life. The crime of marital Rape is not an occasional crime. Rather it happens on a regular basis with the victims, and hence, the psychological impact that the victim suffers is grave and permanent.

Marital Rape should be no exception as it fulfils all the necessary conditions for Rape. The offence of marital Rape infringes on the fundamental rights of women under Art 14 of the constitution of India. The offence of Marital Rape is violative of the fundamental right of Article 21 of the Indian Constitution that enshrines the right to life and personal liberty. The Supreme Court has held in a catena of cases that the offence of Rape violates the right to life and the right to live with the human dignity of the victim of the crime of Rape.²⁶ Despite equality being guaranteed to every individual by our constitution, the IPC violates this right by exempting marital Rape from Section 375. Where it provides for redressal for the rape victims, it does not include marital Rape within its scope. This indicates that they are excluded only based on being married and owing to the fact that their consent is assumed to be implied during sexual intercourse. It is time that the concept of “rape is rape, irrespective of the relationship between the victim and the perpetrator” should be recognised by the law, and strict laws should be enforced against such crime.²⁷ So, there is an immediate need for amending the provision of Section 375 to make it stricter and more inclusive of all forms of sexual assault. The victims of marital Rape should be provided with legal remedies so that their rights and dignity are protected by the law and their male counterparts realise the necessity of respecting the consent of their wives in all circumstances. While the present-day world has recognised equal rights for women in all spheres, the law should recognise that the marriage of a woman cannot be used as an immunising object by their husbands to violate their rights.

Footnotes

1. Author is a student at Tamil Nadu National Law University, India.

2. Andrew Bretz, ‘Emergent Identity Masculinity and the Representation of Rape on the Early Modern Stage, 1590-1620’ (2012) University of Guelph 1, 54; See also Masiya v Director of Public Prosecutions Pretoria (The State) and Another (CCT54/06) [2007] ZACC 9. ↩

3. The Criminal Law Amendment Act, 2013 (Act 13 of 2013). ↩

4. ibid. ↩

5. The Criminal Law Amendment Act 2013, s 375. ↩

6. The Criminal Law Amendment Act 2013, s 376. ↩

7. R Campbell and S Raja, ‘Secondary victimization of rape victims: insights from mental health professionals who treat survivors of violence’, (1999) 14(3) Violence and Victims. 261. ↩

8. Gayle Binion, ‘Human Rights: A Feminist Perspective’, (1995) 17 HUM. RTS. Q. 509, 515. ↩

9. Anurag Soni v. State of Chhattisgarh, AIR 2019 SC 1857. ↩

10. Elliot C Nelson et al., ‘Association between self-reported childhood sexual abuse and adverse psychosocial outcomes: results from a twin study’, (2002) 59(2) Arch Gen Psychiatry 139-145. ↩

11. Cathy Spatz Widom et al., ‘A prospective investigation of major depressive disorder and comorbidity in abused and neglected children grown up’, (2007) 64(1) Arch Gen Psychiatry 49-56. ↩

12. Faller KC, Child Sexual Abuse: Intervention and Treatment Issues, (6^th edn Philadelphia: Diane Publishing 1993). ↩

13. Jennifer J Freyd et al., ‘The science of child sexual abuse’, (2005) 308(5721) SCIENCE 501. ↩

14. K A Kendall-Tackett et al., ‘Impact of sexual abuse on children: a review and synthesis of recent empirical studies’, (1993) 113(1) Psychol Bull 164-180. ↩

15. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922. ↩

16. Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207. ↩

17. State of Punjab v. Gurmit Singh, 1996 (2) SCC 384. ↩

18. ibid. ↩

19. Tuka Ram v. State of Maharashtra, AIR 1979 SC 185. ↩

20. Mohd. Habib v. State, 1989 CriLJ 137. ↩

21. The Indian Penal Code, 1860, s. 375(2). ↩

22. Sareetha v. T. Venkata Subbaiah, AIR 1983 A.P. 356. ↩

23. Sree Kumar v. Pearly Karun, 1999 (2) ALT Cri 77. ↩

24. Mukesh Kumar & ors. V. State of NCT of Delhi, Criminal Appeal Nos. 607-608 of 2017. ↩

25. L Rentoul and N Appleboom, ‘Understanding the psychological impact of rape and serious sexual assault of men: a literature review’, (1997) 4 J Psychiatr Ment Health Nurs. 267-74. ↩

26. The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988. ↩

27. Dr. Bhavish Gupta and Dr. Meenu Gupta, ‘Marital Rape: - Current Legal Framework in India and the Need for Change’, (2013) 1 GJLS 16. ↩