Definition And Scope Of The Offense Of Rape Comparative Analysis Between India And Germany by - Jahnavi Daga

Definition And Scope Of The Offense Of Rape

Comparative Analysis Between India And Germany

Authored by - Jahnavi Daga

Introduction

            Rape is an offense and an unlawful sexual activity that occurs against the will of the person and without the person’s consent through violence, force or threat of force or with an individual who is incapable of giving legal consent due to various reasons such as mental illness, minor status, intoxication, unconsciousness or deception. Rape laws all around the world have undergone reforms, amendments and various judicial interpretations. From rape solely being defined as forceful sexual intercourse through penetration without the consent of the victim and requiring the victim to resist in a “proper manner” which is acceptable by courts, to recently, shifting the focus on the non-consensual aspect of the crime. A comparative analysis of the legal definition and scope of the offence of rape in India and Germany will be made to determine the differences in the laws of the two jurisdictions.

Legal Position in India

            In India, rape is defined under Section 375 of The Indian Penal Code, 1860. Initially, the definition of rape stated that a man commits rape when he penetrates or has sexual intercourse with a woman against her will and without her consent or has obtained consent by putting her in fear of death or hurt. It is also considered rape when consent is only given by the woman under the mistake of fact, believing that another man is her husband provided that man has full knowledge that he is not her husband. Sexual intercourse with or without consent, when she is under sixteen years of age is also considered rape as she does not have the legal capacity to give consent. Penetration here has a narrow meaning of peno-vaginal intercouse. Initially, penetration in this context was the only factor to constitute to rape. Sexual intercourse by a man with his wife who is not under fifteen years of age is an exception to this section. 

            The trigger of the first wave of reform in India was the Mathura rape case of 1979.  This case involved, an instance of custodial rape, where a young girl was raped by two policemen when she was asked to stay in the police station due to a complaint filed by her brother. The sessions court in their judgement claimed that the event was a “consensual sexual intercourse” by judging the character of the victim due to old ruptures revealed in her hymen and the policemen were held not liable. In the High Court appeal, the policemen were held liable for rape as both the victim and accused were strangers and it was unlikely that Mathura would have sexual intercourse with the constables. The punishment given was for one to five years of imprisonment. The Supreme Court overturned the judgement by the High Court as there were “no marks of physical injury” and “no cry for help” by Mathura but the failed to interpret the trauma of a young girl sexually assaulted in custody by authority. “The Mathura judgment highlighted the fact that in a rape trial it is extremely difficult for a woman to prove that she did not consent beyond all reasonable doubt as was required under the criminal law.” A lot of criticism was received by this judgement through campaigns and letters to CJI which led to reforms in rape laws that are sensitive to the victims. The amendments brought under IPC were addition of Section 376A to 376D which recognised various provisions as a punishable offence including custodial rape. Fifthly clause was added to Section 365 protecting women who are intoxicated and of unsound mind. The burden of proof of consent is also shifted from the victim to the accused.

            The second reform in India was due to the Nirbhaya case in 2013. Six men raped and brutally assaulted 23-year-old Nirbhaya in a bus. She was declared dead after a few days due to multiple organ failures. There was an outrage from men and women from all over the country. The outrage and protests led to the formation of committees to propose legal reforms. “Justice J. S. Verma, Gopal Subramaniam, and Ex-Justice Leila Seth comprised the Justice Verma Committee which was formed to gather public opinion and make recommendations for reforms in rape laws.”. Following the reports submitted, the Criminal Amendment Act, 2013 was passed. This reform gave a much wider definition to rape which includes all types of non-consensual penetration in any body part of a woman. The application of mouth on any personal parts of a woman’s body is also identified under rape. Section 375 of IPC all sexual activity which violated the dignity of a woman.

            Major changes were made in the IPC. A seventhly clause was added to protect the women who are unable to communicate resist. Explanation 2 was also added which defined consent to be a voluntary agreement and willingness to participate expressed by words or actions. Failure to resist shall not be considered as consenting to sexual activity.  Section 376 states that the punishment of rape is imprisonment for minimum of 10 years to life imprisonment. Punishment of gang rape is rigorous imprisonment for 20 years to life imprisonment. Section 376A states that if rape leads to death or women being left in ‘vegetative state’ the punishment is imprisonment of minimum 20 years, life imprisonment or death. Section 376E states that repeated offenders who were convicted under 376A and 376D will be punished with life imprisonment or death. Section 376(1) and 376(2) of the IPC are deleted which provided reduced sentence “for adequate and special reasons to be mentioned”. After the 2013 amendment, the age bracket in Exception 2 to Section 375 had been extended to 18 years.

Legal Position in Germany

            In Germany, rape is defined under Section 177 of the German Criminal Code, 1871. The traditional version of Section 177(1) was only applicable if the victim was coerced by the offender with fear, threats, force or exploitation. This version was modified and amended in many parts, but the foundation of the Code remained the same until 2016. “Some features were modernized in 1997, by describing offenders and victims in a gender-neutral way and excluding the former marital rape exception.” This model expected the victims to resist physically and try to escape the scene or call a third person for help, “a victim’s subjective perception to be unprotected was irrelevant.” Section 179 of the German Criminal Code protects the rights of people who are incapable of resistance due to mental illness, disability which includes addiction, profound consciousness disorder or are just physically incapable. This was abolished and parts of it were integrated in the new version of Section 177. Section 180 of the German Criminal Code remained the same which protects minors under the age of sixteen from engaging in sexual activity. It also protects a person under eighteen years of age who is induced to suffer sexual acts for financial reward or by a person who abuses the dependence associated with upbringing, educational care, employment or work relationship to engage in a sexual activity.

            In 2016, the “no-means-no” model was adopted to overcome the traditional version of Section 177(1) of sexual coercion as a necessary feature for rape. Previously, the Section only covered the cases of bodily contact between the victim and the offender, in the new model it is also prohibited to make the victim act sexually even if there was no bodily contact. The coercion model placed an obligation on the victim to resist physically whereas the 2016 reform, only required to communicate unwanted sexual proposals and touching by communication in words or gestures. The new model also included instances when the victim is caught off-guard as opposed to the old model which only talked about modus operandi coercion. The reform was also inclusive of instances where physical resistance and ability to form or express will is impossible if they were physically handicapped, severe mental handicaps, or due to drugs and alcohol. Especially serious cases include sexual intercourse or sexual acts which degrade the victim and if they entail penetration with another human being, an object or animal.  It also includes when offense is committed jointly by more than one person.

            Punishments under less serious cases under Section 177 subsections (1) and (2) of the German Penal Code is imprisonment from three months to three years. In less serious cases under subsections (4) and (5) the minimum punishment is for six months and the maximum is ten years. In less serious cases under subsections (7) and (8) the minimum imprisonment is one year, and the maximum is ten years. Under the same sub sections if offenders endanger the life and health of the victim, they are given a minimum sentence of three to five years. In especially serious cases the minimum imprisonment is two years. 

COMPARITIVE ANALYSIS

            The rape laws of India and Germany have many similarities between them. Both the countries initially had a narrow understanding of the offence of rape. Indian law strictly understood rape as peno-vaginal intercourse and German law considered a sexual activity to be rape only when there was coercion involved. However, after their respective reforms took place, the countries incorporated a wider meaning of this offence. The meaning of consent with respect to rape laws were broadened in both the countries. Any verbal or physical non-consent is now sufficient. The burden of the victim to show resistance was removed and would no longer be considered a factor to determine rape. Coercion is not mandatory to determine rape after the reforms however, it has always been a part of the law in both the countries. In India, the burden of proof of consent was also shifted from the victim to the accused. The countries also included all types of non-consensual penetration in any part of the body in the definition of rape. Both the countries added clauses which protected women who are unable to give consent due to intoxication and unsoundness of mind. New subsections and clauses were introduced to protect people who were unable to communicate their consent as they were caught off-guard or due to the fear of authority. Both the countries have laws in relation to sexual offence by authority where in India it was mentioned under Section 356C and in Germany it was mentioned under Section 180. 

            The most important difference between rape laws in India and rape laws in Germany is the legality of marital rape and the gender-neutral aspect of this offence. Section 376B of the IPC deals with the punishment of an exception to marital rape whereas Germany does not have a distinct law for marital rape. In the 1997 reform in the rape laws of Germany, a broader definition of rape was adopted. The rape laws in Germany were made gender neutral. The marital exemption in the rape laws of the German Penal Code of 1871 was abolished. There is also a difference in the age bracket of the protection of minors. In India, consensual sex is legal from the age of 18 whereas in Germany the legal age for the same is from 16. However certain German laws protect minors under 18 from sexual intercourse due to dependency and authority. In comparison to India the punishments provided by Germany is very minimal where in India the sentence may exceed to death penalty but in Germany the maximum sentence only extends up to 10 years. Indian rape laws do not have a provision for attempt to rape but German rape laws do have provisions for this. Indian laws provide a specific punishment for repeat offenders whereas Germany does not. The Indian Laws are very specific and have distinct difference whereas the German laws are broader.

CONCLUSION

            Although there have been multiple advancements in rape laws in India, there is no viability and efficacy of these laws as they do not benefit all the citizens of India. The rape laws leave out major problems that is marital rape, rape laws only applying to woman and statutory rape. The idea that marriage leads to consent for sex at any point of time is completely unjustified.  “The most disappointing aspect of legal definition of rape in India is the exception carved out in Section 375 which exempts marital rape of minors.” The exception in Section 375 persists even though statutory rape is considered illegal in India though some positive changes are made recently, this is not enough. In today’s world, the rape laws in India are still not gender-neutral and do not provide justice to the men who may face such offences. No matter how progressive the laws are if it does not benefit the entire country then they simply do not server their purpose. There is scope for reforms in the rape laws of India in the future as there are still some loopholes in the laws with respect to rape.