All You Need To Know
About Rape Law
In India

IMPORTANT POINTS ABOUT RAPE IN A SNAPSHOT!

  1. It is not your fault. It is never your fault. The fault lies with the accused. Please don’t ever blame yourself.
  2. Preserve all evidence. Do not take a bath or wash the clothes. Take them straight for a medical examination so that all evidence can be collected. Remember, if evidence is lost, it makes your case difficult.
  3. Do not delay in filing a Police Complaint. If you delay, evidence may be lost.
  4. Go to the hospital first for your medical examination and treatment. You can go to the police after the hospital.
  5. You do not need to go to the police station personally to file the Police Complaint. Anyone can file it on your behalf (see Police Complaint).
  6. Penetration of the penis into the vagina is not necessary for rape.
  7. All rapes are not always violent.
  8. Sometimes a person you personally know can commit rape.
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The act of rape is defined in Section 375 of the Indian Penal Code. The punishment for rape, and the acts of rape which have higher punishment, are given in Section 376 of the Indian Penal Code.

Rape means any of the following sexual acts without the woman’s consent (for understanding ‘consent’ see below):

  1. Sexual intercourse- inserting the penis in the vagina/anus/mouth/urethra
  2. Oral sex- applying the mouth to the vagina/anus/mouth/urethra
  3. Using any other body part (such as finger) to penetrate the vagina/anus/mouth/urethra
  4. Forcing the woman to have sexual intercourse or oral sex with any other person

Important to note:

The definition of ‘vagina’ includes labia majora. This means that complete penetration is not necessary to constitute rape. Any degree of penetration will amount to rape.

No, penetration is not necessary to constitute rape. Oral sex is also considered rape. Penetration up to the labia majora is also considered rape.

No, it will not be rape, but it will amount to sexual harassment ( molestation under Section 354, Indian Penal Code).

Yes, even if someone forces you to do a sexual act with another person, it is considered rape. Both, the person forcing the woman as well as the person committing the sexual act, will be considered guilty of rape.

CONSENT

What is consent?

Consent means a clear expression of willingness to participate in the sexual act, whether by words, gestures, or any other form of verbal or non-verbal communication.

What is not consent?

  1. If you agree to the sexual act out of fear for your safety or the safety of anyone else.
  2. If you are intoxicated or under any kind of influence, whether voluntarily or unknowingly(i.e. if someone drugs/intoxicates you without your knowledge). Date rape comes under this category.
  3. If you are under 18 years old, you cannot lawfully give consent. It will be considered statutory rape.
  4. If you are unable to communicate your consent.
  5. If the woman is of unsound mind (i.e. suffering through some psychological issue which will not allow her to fully understand the implications of the sexual act).

Important to Note: Just because you don’t physically resist the act of penetration, does not mean you have consented.

No, consent may be expressed through words, gestures, body language, or any form of verbal or non-verbal communication.

No, you can express your lack of consent in any manner- through words, gestures, body language, or any form of verbal or non-verbal communication.

No, just because you don’t physically resist or put up a fight, does not mean that you have given consent. The law understands that sometimes a woman is forced to submit to a situation, and is not in a position to physically fight.

You can withdraw your consent at anytime before or even during the sexual act.

FURTHER INFORMATION

Statutory Rape is any sexual intercourse with a girl below the age of 18, whether with or without her consent. Law does not consider her consent valid and assumes the sexual act to be rape.

Stricter punishment-


If the minor girl is below the age of 16 years, the punishment for statutory rape is even more stringent - a minimum of 20 years imprisonment and extendable to life imprisonment(Section 376, Indian Penal Code).

Date rape is used to refer to a specific type of rape- where the woman is intoxicated/drugged without her knowledge, such that she will have a temporary memory loss.

Date rape is punishable as rape in India, as it falls under the category of ‘lack of consent due to intoxication.’

Marital rape is when a woman’s husband commits the act of rape on her. Sadly, marital rape is not a punishable offence in India, unless the husband and wife are separated, or the wife is under 15 years of age.

Rape by husband, when husband and wife are separated (does not matter if separation is by court order or not), is punishable with 2-5 years of imprisonment.

Yes. It does not matter who the man committing the act of rape is- whether it is a family member, known person, stranger, boyfriend, etc. Only a husband is exempted from the charge of rape (see marital rape above).

Stricter punishment

Rape by a family member (relative) is punishment more stringently- minimum 10 years imprisonment and extendable to life imprisonment (Section 376, Indian Penal Code).

Yes. It does not matter who the man committing the act of rape is- whether it is a family member, known person, stranger, boyfriend, etc. What matters is whether or not you gave your consent.

Stricter punishment-
Rape by the boyfriend, as a person in a position of trust over you, is punishment more stringently- minimum 10 years imprisonment and extendable to life imprisonment (Section 376, Indian Penal Code).

Rape of a woman by two or more-persons or a group is called a gang rape. In such case, each one of them is charged with rape.

Stricter punishment-
The punishment for gang-rape is more stringent- minimum 20 years extendable to life imprisonment (Section 376D, Indian Penal Code).

PUNISHMENT FOR RAPE

The punishment for rape is jail for minimum 10 years and may extend to life imprisonment along with a fine. In extreme cases, the punishment can be death sentence also (Section 376, Indian Penal Code).

More Stringent Punishments:


Rape committed by the woman’s relative, guardian, teacher, or anyone else in a position of trust or authority over the woman is punished more stringently.

Death sentence can be granted when a person is convicted for second time under any charge of rape.

REPORTING A RAPE CASE:

  1. Inform a trustworthy person who can support you/the victim through the complaint process
  2. Take the victim for immediate medical help and examination. It is the duty of the doctor and hospital to examine a rape victim immediately. They can approach the police later, after attending to the victim (Supreme Court in State of Karnataka v. Manjanna).
  3. Report the crime to the police. The victim can have her lawyer present while answering the police’s questions and it is the police’s duty to inform her of this right (Supreme Court in Delhi Domestic Working Women’s Forum). For information on how to report a crime, look here( Police Complaint).
  4. Preserve all the evidence of the crime, including the clothes of the victim. Take photographs of everything with a date stamp if possible.
  5. Write down everything (all the details about the crime such as time, date, location, facts leading up to the crime, etc.) so that you don’t forget any detail and there is no room for confusion.

Rape being a sensitive issue, there is no problem if the case is reported late (even after a few years of the incident). However, the more the delay, the tougher it is to gather evidence and catch the accused.

Within 24 hrs after the case is reported, the woman is taken for a medical examination(if not done before). She is also asked to give her statement in front of the Magistrate so the accused can be arrested as soon as possible (Section 164, Criminal Procedure Code).

Yes, a woman police officer must take down your complaint, as far as possible (Section 161, Criminal Procedure Code).

The medical procedure constitutes questions, full body examination and taking DNA samples along with taking few other material details (Section 164, Criminal Procedure Code).

Remember- The ‘two-finger test’ (where two fingers would be inserted into the vagina to check if it is rape) has been declared illegal.

A medical examination is conducted only with the consent of the victim and is conducted by a female registered medical practitioner (Section 53A, Criminal Procedure Code).

Yes, it helps the police to gather more evidence and also provides help to the victim.

YOU SHOULD ALSO KNOW:

The identity of a rape victim always remains hidden. No one can disclose the name of the rape victim. If someone does, the person is punishable with jail of two years and more (Section 228A, Criminal Procedure Code).

No, the victim does not need to face her accused in court. A rape trial, being sensitive, is conducted in the judge’s chamber and not in open court. Also, the cross- examination(glossary) of the accused and the victim is done separately(Section 273, Criminal Procedure Code).

No, courts have time and again held that the sexual history of the victim does not negatively affect the rape trial.

If the rape victim's testimony seems genuine to the court, the court will not even need further evidence. They can take a decision based on her testimony itself.

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Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)

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