Define rape. Describe the legal provisions relating to sexual offences against women in India.

Definition

• The acts constituting rape — the definition was greatly widened by the Criminal Law (Amendment) Act 2013, and is no longer confined to penile-vaginal penetration:
• (a) penetration of the penis into the vagina, mouth, urethra or anus of a woman, or making her do so with him or with another person
• (b) insertion of any object, or any part of the body other than the penis, into the vagina, urethra or anus
• (c) manipulation of any part of the body of a woman so as to cause penetration
• (d) application of the mouth to the vagina, anus or urethra, or making her do so
• Explanation 1 — "vagina" includes the labia majora. The medicolegal consequence is critical: penetration between the labia is sufficient, so rupture of the hymen is not necessary, nor is emission, nor complete penetration. The slightest penetration completes the offence

Punishments and Related Offences

• Exception 2 to BNS 63 — the marital rape exception: sexual intercourse by a man with his own wife, the wife not being under 18 years, is not rape. The age was raised from 15 to 18 by the Supreme Court in Independent Thought v Union of India (2017). The exception itself remains highly contested and has been the subject of litigation; the current position should be verified
• The law developed through two amendments — the Criminal Law (Amendment) Act 2013, following the Justice VERMA Committee after the 2012 Delhi case, which widened the definition and created the offences of acid attack, stalking, voyeurism and sexual harassment; and the Criminal Law (Amendment) Act 2018, which introduced the death penalty for the rape of a child under 12

Evidential Provisions Protecting the Complainant

• Presumption as to absence of consent — BSA 120 (formerly IEA 114A): in a prosecution for rape in certain aggravated circumstances, where intercourse is proved and the woman states in her evidence that she did not consent, the court shall presume that she did not consent. The burden then lies on the accused
• Character and previous sexual experience are irrelevant — BSA 48 (formerly IEA 53A) provides that evidence of the complainant's general immoral character or previous sexual experience shall not be relevant on the issue of consent or of the quality of consent. The doctor should correspondingly never comment on whether a woman is "habituated to sexual intercourse", a phrase that has no legal meaning and is prejudicial
• The victim's identity may not be disclosed, and trials are held in camera
• The statement of the survivor may be recorded at her residence or a place of her choosing, by a woman police officer, and where she is disabled with the assistance of an interpreter, and videographed
• The sole testimony of the survivor is sufficient for conviction if it inspires confidence; corroboration is not essential, and Indian courts have said so repeatedly. Medical evidence is corroborative, and its absence does not disprove the offence

Applied Aspects

• Never write that the hymen is intact and imply nothing happened; penetration between the labia is sufficient in law, and the hymen may remain intact after full penetration
• Never use the phrase "habituated to sexual intercourse"; it is legally irrelevant, prejudicial, and its use has been criticised repeatedly by the courts
• The absence of injury does not indicate consent, and this should be stated positively in the report; fear, threat, intoxication and submission all produce an unresisted assault
• Treatment is free and cannot be refused by any hospital, public or private; refusal is a criminal offence under BNS 200
• Consent is required to examine the survivor and is not required to examine the accused; this distinction is statutory and absolute
• Do not disclose the identity in the report, in conversation or in teaching; disclosure is an offence, and the case is referred to by number
• Penetration between the labia is rape and rupture of the hymen is not required; a report concluding otherwise applies a criterion the law does not use
• Consent below 18 is irrelevant, and a pregnancy in a girl under 18 therefore implies an offence and triggers mandatory POCSO reporting
• Absence of physical resistance is not consent, and the statute says so expressly; freezing is a recognised response to assault
• The marital rape exception remains in force and is under constitutional challenge; check the position before relying on it
• Know the enhanced provisions for victims under 16 and under 12, for gang rape, and where death or a vegetative state results
• The 2013 amendment followed the Justice Verma Committee and widened the definition well beyond penile-vaginal penetration
• A woman unable to communicate consent is protected by the seventh circumstance, which covers unconsciousness and severe disability
• Deceitful means and a false promise of marriage are now a separate offence under BNS 69 rather than being forced into the rape provision
• Free treatment is mandatory and refusal is an offence; no hospital, public or private, may turn a survivor away
• Report to the police is required, but the survivor wishes about pursuing the complaint are respected and recorded
• Voyeurism and stalking are separate offences under BNS 77 and 78, and may be the only charge where there was no contact
• The doctor states findings, not conclusions of law; whether rape occurred is for the court and never for the report