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.