The problem with Section 375

This post started out as a comment by PT on IHM’s blog. However, as he only touched on the topic, I’ve decided to convert it into a full length post.

Right. So what is this Section 375 and what’s wrong with it?

In brief, Section 375 is the part of the Indian Penal Code which deals with the definition and classification of rape for legal purposes. The problem with it is that it’s an archaic piece of legislation which, in my opinion and that of many others, denies justice to a significant number of rape victims.  The full text of it is as follows:

Rape.– A man is said to commit” rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

If you didn’t quite get that, fear not. The Indian Penal Code is notorious for its complicated phrasing, which is awkward even by legal standards. Here’s what it means, in essence:

If a man has sexual intercourse with a woman either against her will, or without her consent, he is deemed to be a rapist. If either of these are proved, he goes straight to jail, no questions asked. Nothing else needs to be proven.

However, consent is not enough. If the guy used some kind of sneaky trick to gain that consent, he’ll still be in the dock. In particular, if the consent was gained by threatening hurt or death to someone the woman is interested in, or as a result of mental instability or some kind of intoxication which makes her unable to understand what’s going on, then the consent loses it’s meaning and the guy can’t use it as a valid defense anymore. Also, if the woman is under sixteen years of age, and the man is not, then having intercourse with the woman is rape regardless of whether or  not she agreed to it.

The law explains that penetration is the degree of sexual contact necessary to constitute rape.

Finally, it makes an exception in the case of marriage. According to the law, sexual intercourse by a man with his adult wife is not rape under any circumstances.

So what’s wrong with this? I have three major objections to it.

First, the law assumes that the perpetrator must be male, and the victim female.

A lot of people actually don’t see a problem here. I was surprised to see even a few feminist groups stating that rape laws should not be gender neutral.

Now, female-on-male rape may be much rarer than the other way round but it is neither impossible nor unheard of. Even if there is only one case in a million (which is, by the way, very far from the truth), the victims deserve every possible protection under law. Sexual assault of any kind is a traumatic, damaging event for a person and the psychological effect on male victims is no less than the effect on female victims. Moreover, discriminatory laws like these discourage people from reporting the crime and reduce awareness (and therefore, social sensitivity) towards it.

Second, the “exception” in the law  flies in the face of modern notions of morality and ethics.

It is monstrous to suggest that just because you are married to a woman, it’s alright to force her into intercourse. The concept smacks of Victorian-Era views of marriage and has no place in the modern world, where all woman, married and unmarried have full rights over their own bodies. Is sexual assault any less traumatic if the perpetrator is a husband? I sincerely doubt it!

Third, the law fails to recognize forms of rape other than penile/vaginal intercourse.

This is a glaring shortcoming, because the psychological trauma to the victim is NOT lesser if the intercourse is non-penile/vaginal. Then why the difference in punishment? There is no earthly reason for a law on rape to limit itself to a specific kind of assault.  

Happily, there is indeed quite a bit of hue and cry being made about it. The AIFWA has proposed these amendments to Section 375. The Law Commission has also laid down some excellent recommendations, although it still stops short of recognizing marital rape as rape.

Still, the process drags on.

I do hope, with all my heart that we soon get rid of archaic pieces of legislation like Section 375 and thereby move another step closer to a society where everyone is truly and equally protected under the law.

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9 thoughts on “The problem with Section 375

  1. Yup, agree with everything have been in the campaign for decade and half now. Don’t have much to add than to say male on male rape goes unreported due to stigma it won’t change much even after the decriminalization of Section 377. Isn’t it strange no where is the mention of abuse of power to obtain consent. The female on male rape is usually abuse of power and privilege (age and rank).
    Colonizer went home and changed his laws but desis are still proving their loyalty to Victorian morality. 🙂

    Peace,
    Desi Girl

    • True, but I think it’s a vicious cycle. Until female on male rape is treated as a crime, most people will not even realize that it is actually a problem, and awareness is bound to be abysmally low. Regardless of the social attitude towards a crime, some sort of legal remedy MUST be available for each and every action which results in bodily, psychological or other type of harm to a person.

      Totally agree with the last sentence.

  2. Came in via IHMs site. Informative article and site. Never knew of the third point, which is such a glaring omission! Agree with DesiGirl’s comment on the laws here and in Britain!

    • Welcome, Agnija!

      It’s not so much an omission as a very archaic and narrow view of things. Do you know that we have no laws against sexual assault? This means that women have NO legal remedy against, say a forced kiss or some other degrading activity which doesn’t involve intercourse.

      Rape is a small part of sexual assault. Most sexual assaults actually don’t culminate in outright rape which means we are leaving a huge number of victims out in the cold with no way to bring the abusers to justice.

  3. Wow! That is a mouthful to read the law, leave alone the understanding. Rape is less about gender and more about Power and not many see it. I cant believe we are an Independent nation but dont cover safety for all citizens. This was very informative. Thank you.

  4. Thanks for this elucidation.
    I am not a legal person and I sure welcome a blog devoted to legal issues and which can explain things in simple language for us common folks.

    I used to wonder how a female could ever rape a male.
    I was thinking purely from the biological angle.
    Once it became clear that rape is essentially wielding power, I could understand how a female can be an offender. If she has power to decide his welfare, health, or economic status and uses it to force cooperation from an unwilling male, it is definitely rape.

    Regards
    GV

  5. Thanks for the explanation. What strange things we have hung on to. I don’t know if I agree with number four because consent has been obtained, albeit under false pretenses. I feel charges of fraud or something would be more appropriate than rape charges…

    Another possible flaw – “the administration by him personally or through another of any stupefying or unwholesome substance”, does this mean if the victim personally imbibed alcohol or drugs he/she cannot file for rape?

    • Hi BBD.

      Number four is really a can of worms in India. It was always a bit contentious, and most jurisdictions around the world don’t allow a rape charge to be filed under that category. The rationale in India is that the sex is actually non-consensual, because the woman granted consent to a different activity than the one that happened. She consented to have sex with someone, who to the best of her knowledge, was her husband, and the man did not ask consent for himself to have sex with her.

      I agree with you that it is more fraud than rape, though.

      Regarding the second point, the law actually doesn’t mean that at all. It means that if consent was obtained in circumstances where, due to “unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance”, the woman was unable to understand the nature of the act she was consenting to, the consent doesn’t count.
      In simpler words, drunken/drugged consent is not valid, regardless of whether the alleged victim consumed the intoxicating substance of her own volition, or if she was fed the substance without her knowledge/consent.
      Of course, it is required to show that the complainant was drunk enough to not be in a position to grant legal consent.

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