SECTION 375 OF IPC
The need for a new law on sexual assault was felt as the present law does not define and reflect the various kinds of sexual assault that women are subjected to in our country. The Supreme Court in Sakshi vs. union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes. The law commission had examined the entire law relating to rape and sexual assault in IPC and suggested a complete overhauling of the law. Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women.
SECTION 375 OF IPC
Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."
It's rape if it falls under following categories:
1) Against her will.
2) Without her consent.
3) 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.
4) 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.
5) With her consent, when, at the time of giving such a 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.
6) 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.
Consent under Section 375
Consent is defined as clear, voluntary communication that the woman gives for a certain sexual act. Marital rape is an exception to giving consent as it is not a crime under the Indian Penal Code, as long as the woman is above 18 years of age.
Exceptions to Section 375
Sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault.
Amendment to Section 375 of IPC
The Criminal Law (Amendment) Act, 2013 or the Nirbhaya Act, was passed in Parliament to amend Section 375. To remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of sexual violence, the legislation was expanded to define acts like penetration of penis into vagina, urethra, anus or mouth, or any object or any part of body to any extent into the aforesaid woman body parts (or making another person do so), as constituting an offence of sexual assault. Applying mouth or touching private parts were also classified as offences of sexual assault.
The definition of rape in section 375 was widened to include acts other than forcible peno-vaginal penetration or sexual intercourse. The amended section 375 includes forcible penetration by the man of his penis, any part of his body or any object into the vagina, mouth, urethra or anus of a woman or making her do so with him or any other person; manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra or anus of a woman or making her do so with him or any other person; and applying his mouth to the vagina, anus or urethra of a woman or making her to do so with him or any other person.
Consent was defined by adding an explanation to section 375 as “unequivocal voluntary agreement” signifying willingness by the woman by “words, gestures or any form of verbal or non-verbal communications” to participate in the sexual act. This definition clarifies that women’s silence or absence of ‘no’ cannot be construed as a “yes”.