THE LEGISLATIVE FRAMEWORK FOR PREVENTION OF DIGITAL RAPE IN INDIA: A CRITICAL STUDY

Manojkumar J. Naik,

Abstract

Rape is a very loathsome criminal offence. This legal term is coined in order to protect women from imposition of simple words causing more odious and shameful feeling of victimization. Digital rape is the term used to classify offence of rape to differentiate it from other acts of rape causing sexual violence by insertion of any physical object. Before 2013, there was no law to punish offenders of digital rape in India. Different forms of sexual violence injuring mind, body and sexual parts of victim were not defined and therefore not covered by the prevailing criminal laws in India requires to reconsider the law as well as the penal provisions for causing deterrence and thereby prevention and control of such newly emerged actions of accused.

These lacunae in the existing criminal laws causes failure of convicting the accused for their barbaric acts committed against any person irrespective of their age and gender. Other notable thing in offence of rape is only in 1% of cases offence is committed by the strangers. Digital rape is an outcome of today’s digital era where information is shared and available on the click with fingertip. In this present scenario author tries to critically analyse the present criminal legislative framework and attempts to suggest effective changes to overcome these emerged and further emerging crimes of sexual violence.

Keywords: Digital rape, Sexual violence, physical object, penalization

Introduction:

Gender-based crime, especially against women, is not a new and emerging socio-legal issue. Rape is a very heinous crime. This legal term was created to protect women from the imposition of simple words that lead to more horrible and shameful feelings of victimization. According to the NCRB’s 2021 report, crimes against women fell from 56.5% to 64.5%. In India, 428,278 crimes against women were recorded, of which a total of 31,677 rapes were recorded, with an average of 86 complaints per day and 49 crimes recorded per hour in 2021. Rajasthan (6,337) tops list, followed by Madhya Pradesh (2,947), Maharashtra (2,496), Uttar Pradesh (2,845) and Delhi with 1,250

recorded rapes in 2021. Digital rape is the term used to classify the crime of rape in order to distinguish it from other rapes. This results in sexual violence through the penetration of any physicalobject. “Digital Rape” became a national sensation. We can therefore assume that the word “digital”is related to the word “rape” in the digital world. However, digital rape has nothing to do with gadgetssuch as computers, phones, laptops, or platforms owned by Meta.

The word is derived from the English word “digit”, which literally means number and whole number. Also, the word means a finger or a toe. The term digital rape is neutral and applies to all types of victims and perpetrators. Rape victims are further divided into two categories: primary and minor. There are two types of rapists who commit crimes: small digital rapists and large digital rapists. A person who commits such an offense is liable to a fine of Rs 50,000 under Sections 5 and 6 of the POCSO Act.

Under the terms of article 3 of the POCSO law, “Any person who undertakes to insert an object or a part of the body (other than a penis) into the vagina, urethra or anus of a child, or of a child doing so with him or any other person is considered penetrating sexual assault. The laws regarding digital rape came into effect after 2012. Until now, there was no mention of digital rape in the Indian Penal Code (IPC). Previously, this fell under the classification of harassment rather than rape.

It has been reported that in 70% of cases, the person who violated the dignity of a woman or a child was an acquaintance. The crimes were committed by close relatives of the victims. In 29% of cases,the aggressor came from the victim’s social circle, and in only 1% of cases, the aggressor was a complete stranger.

Meaning of the term Rape in criminal law?

Article 375 of the ICC defines rape as “without a woman’s consent, by duress, misrepresentation or fraud, or while she is intoxicated, 18 years of age.” This heinous crime breaks down into several types; let’s take a look at them.

Types of Rape

Date Rape – The term ‘acquaintance rape’ is widely known as ‘acquaintance rape’, i.e. non-domestic rape perpetrated by a known person of the victim. It is a drug-induced sexual assault in which the rapist intentionally drugs the victim with date rape drugs to incapacitate her. The most common example is adding water to the victim’s drink.

Gang Rape – This is when a group of people participate in the rape of a single victim. Rape involving two or more perpetrators is widely reported in many parts of the world. Section 376(2)(g) sets out the penalties for gang rape. It stipulates that offenders will be punished with a harsh prison sentence of at least ten years, up to life imprisonment, and a fine or both. Gang rape cases that have angered

the public include the Nirbhaya rape case and the Bilkis Bano gang rape case.

Marital rape – This type of rape is also called marital rape and is rape between married or common- law partners without the consent of either spouse. Marital rape is considered a form of domestic violence and sexual abuse. Exception 2 of Section 375 prevents the passage or recognition of this marital rape law because it states that “a man who has sexual intercourse or a sexual act with his own wife, while the wife has under 15, does not violate is not”, in some cases the courts have set it at 18 instead of 15.

Child rape – This is a form of child sexual abuse. When another child (usually older or stronger) or a teenager commits a sexual assault, it is called child-to-child sexual abuse. POCSO is the law that regulates child sexual abuse.

Custodial Rape- Section 376A states that rape is custodial rape when committed by a male while the female is in custody. These people can call any policeman, constable, etc., Detain the woman. It would be a very heinous crime if they abused their power to sexually exploit women. However, in 1983 the concept took on new meaning and the meaning of the word “conservation” was broadened. A popular example is the rape of Mathura.

Digital rape- In this offence of rape, accused is using the forced insertion of fingers and toes without the consent of the victim and is not related to cybercrime. Let us understand this form of rape in detail. Digital rape is the term used to classify the crime of rape to distinguish it from other rapes. This results in sexual violence through the penetration of any physical object.

What does digital rape mean?

In digital rape, the perpetrator uses one or more of his fingers or any other tangible object to rape and force a sexual act on the victim. In a nutshell, a person is accused of digital rape when the abuser uses one or more of his fingers or any other physical object to penetrate the victim’s vagina without the victim’s consent. Some Reported Incidents of Digital Rape in India –

Incident 1 – In a very outrageous incident, a bleeding 2-year-old girl in Mumbai was taken to hospital where doctors discovered that her vagina had ruptured. However, there was no evidence of sexual abuse or rape. However, it was later discovered that her father fingered the girl. He was arrested but punished under article 376 of the CPI.

Incident 2 – Then, in another incident, a 60-year-old woman was sexually assaulted by a tricycle driver who penetrated her body with an iron rod while attending a relative’s wedding. The driver was again arrested but not convicted under Article 376 of the CPI, pointing out several shortcomings of Article 376 of the CPI.

Incident 3- The Nirbhaya case cannot be ignored when talking about digital rape, in this case the victim was again gang raped and one of the underage defendants inserted an iron rod into the vagina of the victim and the doctor reported that she had nothing left of her intestines 5% abdomen.

As he points out several shortcomings in article 376 of the ICC, which deals with the punishment of the crime of rape, because digital rape involves the violation of a woman’s dignity using a finger, foreign object or any other part of the shredded cheese. But after the Criminal Amendment Act of 2013, the Supreme Court had to make some changes to its definition of rape in the IPC. With all these heinous cases and crimes in mind, the definition of rape was expanded in 2013. With this new definition, rape is now defined as “the insertion of a penis, any foreign object or any other part of the body in a woman’s vagina, mouth, anus or urethra”.

What are the penalties for cyber rape?

IPC Law and POCSO state the penalties for various rape offenses. Under the POCSO law, offenders will be sentenced to five years in prison, which can be extended from 10 years to life imprisonment if it falls under Article 376 of the IPC. The provisions dealing with penalties under the POCSO are as follows:

Section 3 of the POCSO Act Although changes were made to the definition of rape under Section 376 of the ICC in 2013, penetration of any object other than the penis to “any extent” is subject to Section 3 of the POCSO Act. or any part of the body in the vagina, urethra or anus of a child, or a child provokes such an act on himself or any other person was considered penetrative sexual assault. digital rape, not only these two clauses are considered POCSO Act

Section 5 (m) and Section 6. While Section 3 defines penetrative sexual assault, Section 5 of the POCSO Act defines seriousness Penetration aggravated penetrative sexual assault ranges from 20 years criminal imprisonment to life imprisonment (including any natural life sentence) or even death, with an additional sentence.

Section 6 (1) Anyone who commits sexual assault with aggravated penetration shall be punished with a term of imprisonment of at least 20 years, which may go as far as life imprisonment, i.e. imprisonment for life. conduct of the person and will be punished with a fine or the death penalty. A fine imposed under subsection (1) must be just and reasonable and payable to the victim to cover his medical and rehabilitation expenses. The term “woman” in Article 375 of the IPC has been replaced with a person, and the article is now amended to be gender neutral to include sexual offenses committed against any person, regardless of gender.

Section 375A- Sexual Assault and Penalties for Sexual Assault– “(1) The following constitutes

sexual assault if a person: – (a) intentionally touches the person’s genitals, anus, or breasts, or the person touches the person’s genitals, Anal touching the vagina, penis, anus, or breasts of that person or any other person without that person’s consent, unless such contact is for appropriate health or medical purposes; (b) Use of another person’s words, gestures, or gestures that make an unwelcome actionable sexual threat or induce unwelcome advances; and shall be punished with imprisonment for up to three years, or a fine, or both. Explanations 1. “ For the purposes of this section, the term genital refers to the penis and the vagina; “vagina” also includes the labia majora. Explanation 2. “Consent is an express voluntary agreement when an individual expresses, by words, gestures or any form of non-verbal communication, his or her willingness to engage in a particular act. Explanation

3. For the purposes of this article, the term touching means sexual contact without the consent of the victim and without reasonable grounds to believe that the victim has consented.

Rape Laws in India

Apart from the POCSO and IPC laws, the following provisions can be generalized to deal with the crime of rape in India. IPC U/s 228A[2], No one shall give the name of a victim of rape, and if anyone does, he will be punished by any description, the sentence may be extended to two years, and it will be liable to a fine. U/s 114-A [3] Indian Evidence Act, non-consent may be presumed in some rape prosecutions. U/s 53(1)(4), where a person is arrested for committing an offense of this nature which is alleged to have been committed in circumstances where there were reasonable grounds to believe that the questioning against him produce evidence of a crime, a licensed physician acting at the request of a police officer not below the rank of sub-inspector and any person acting in good faith with the aid of him and under his direction to make reasonable claims against the arrested person in order to determine the facts that such evidence may provide and to prevent the use of violence reasonably necessary for this purpose. U/s 164A[5] of the CPR sets out rules for the medical examination of rape victims. U/s 327(2)(6) of the CRPC, all rape victims must be tried in secret.

Conclusion

There is an urgent need to change India’s rape laws following the Nirbhaya rape. Prior to 2013, digital rape was not included in the definition of rape. But after several heinous rapes, as mentioned above, the legislator and the judiciary felt the need to make many changes to the definition of rape, knowing that there are other ways a man can use to violate the dignity of a woman or a child. So, keeping all these cases and heinous crimes, the definition of rape was expanded in 2013 and rape is now defined as “the insertion of a penis, any foreign object or any other part of the vagina, a woman’s mouth, anus or urethra”, and severe punishment for such a heinous crime.

References

Laws-in-India-Appropriate-or-Not?.html on 01/22/2023

2. Retrieved from https://www.livelaw.in/pdf_upload/pdf_upload-362124.pdf on 2023-02-10 3.Retrievedfromhttps://www.mha.gov.in/sites/default/files/2022- 08/CSdivTheCriminalLawAct_14082018%5B1%5D.pdf 2023-02-10
3. See Ratanlal and Dhirajlal, Indian Penal Code, 1860, 10th Edition, Eastern Publication House, 2004
4. See Indian Evidence Act, 1872
5. See Criminal Procedure Code, 1973