WHY THIS TOPIC? We are living in such an era where all unexpected things are happening and remaining are going to happen, they may be reali...
WHY THIS TOPIC?
We are living in such an era where all unexpected things are happening and remaining are going to happen, they may be realistic or unrealistic, factual or fictional, ecstatic or extremely gruesome. If we restrict ourselves to the range and types of offences which are going around us and were never expected by a civilised human society, then we may see that in today's date various crimes such as:- Incest(sexual intercourse with a near relative), Rape of a dead body, Parents surrendering their infant child, a gruesome level indignity to the human corpse, all such acts have not just remained in fictional stories, but have become a sad reality of our society.
But, there are still some areas of law or some grey acts of our society which are still not considered as an offence till date. Such acts exist in our society and are not acceptable morally, but due to some loopholes or may be due to misinterpretation of laws by the Judiciary, they are still not listed in the category of an Offence.
One such act is "a woman raping or aiding to be get raped another woman".
Before discussing how such act can be criminalised, let's look at what our rape laws say.
RAPE LAWS
At present time our criminal jurisprudence defines "Rape" as per SECTION 375 INDIAN PENAL CODE,1860 (IPC), Which states that: "A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, urethra, anus or mouth of a woman
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to so with him or any other person.
both these acts to be done without the consent of the woman or against her will.
Now, if we have a look at the definition of "Gang Rape", then as per SECTION 376D OF IPC, it says that: "Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of such person shall be deemed to commit rape".
ANALYSIS
If we have a look at the definition of "rape" U/S 375 IPC, then it clearly says that rape can be committed by a man, which means a woman is categorically excluded from the ambit of committing rape on another woman.
Now, if we have a look at the definition of "Gang Rape" U/S 376D IPC, it uses the term "one or more Persons" and not "by man or group of man".
Under THE IPC definition of "Man" is U/S 10: "The word "man" denotes a male human being of any age.
The definition of "Person" is U/S11: "The word "person" includes any company or association or body of persons, whether incorporated or not".
This means that the term "persons" does not mean only "man" but includes "woman", and also "body of persons".
THEN HOW CAN A WOMAN BE HELD GUILTY FOR "RAPE"?
We are times where the "Right to Choose a partner for sex" is one of the fundamental rights and by this rights of LGBTQs are protected. In this "L" stands for Lesbians, who are such woman who are sexually attracted towards another woman and may have a sexual activity between them, with each other consents.
So, if a woman can be sexually attracted towards another woman then why can't they be held guilty for the offence of "Rape"?
FOLLOWING ARE THE WAYS IN OUR LEGAL SYSTEM ACCORDING TO WHICH A WOMAN CAN BE HELD GUILTY TO COMMIT RAPE.
- In clause (b) of Section 375 as mentioned above, it uses the term that "if any object is inserted in the vagina, urethra, anus of a woman". An object means any tangible thing, and it is not that this can only be done by a man with a woman, a woman can also pick up any object and insert it into the vagina or anus of a woman. FOR EXAMPLE: A woman uses a Sex toy shaped in the form of a male sex organ and inserts it into the vagina of the other woman without her consent or against her will, this clearly gets covered under clause (b) of Section 375, but only because of the term "MAN" used under Section 375, if a woman commits this act, it will not amount to rape. To bring this act under the category of rape, an amendment is needed and the term "Man" is to be replaced by the term "Any Person".
- To analyse the other way out, first take a look at this example: Two men are committing an offence of rape and a third man is standing outside the house to see that no one goes inside, being a law student you must have clicked the answer that how this man who is standing outside may also be held guilty of rape. Yes, the answer is according to SECTION 34 IPC, which says that: "Where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". With the Aid of this section the person standing outside can also be held guilty of committing rape, though he had not committed any overt act in the offence, but in our Criminal system there is a legal principle, that is, "They also serve who only stand and wait"........ Held in the case of Barendra Kumar Ghosh V. Emperor. Now, in the same example above, assume that the person standing outside is a woman who is keeping an eye that no one comes inside, What will be your answer now? (you may comment your answer). My answer to this is, Section 34 uses the term "PERSONS" which means "Man" or "woman", so according to this section Read with Section 376D (Gang rape), which also uses the term "PERSONS", a woman can be held guilty of "Rape".
- To analyse the Third way in our legal system which may held a woman guilty of "rape", have a look at this example: A boy wants to have sexual intercourse with a girl, but she refuses. He talks to his female friend and she instigates her and shows him a way that, she will somehow take that girl at an isolated place and there you may come and forcefully try to have sexual intercourse with her and then she will give consent to you. Now, let's assume that the boy did not agree with her to commit such act, what do you think, whether she has committed any offence? The girl has committed an offence of ABETTING of offence punishable with imprisonment- if the offence not committed (SECTION 116 IPC), according to which whoever instigates or aid any person to commit an offence punishable with imprisonment, and the person abetted does not commit the offence, then to the abettor will be held guilty for 1/4th part of the longest term provided for that offence. Now, the punishment to commit rape is up to 10 years, so according to SECTION 116, the girl may be held guilty up to the punishment of 30 Months.
JUDICIAL INTERPRETATION
In the case of PRIYA PATEL vs. STATE OF M.P. (click to read the whole judgment)
FACTS: A woman was raped by a man, and suddenly, the wife of the man who is raping the woman appears there. The victim asked for help from the wife of that man, but she instead slapped her and locked the door from outside so that no one comes into the house from outside.
HIGH COURT's view: MP high court, in this case, held the woman who was standing outside to be guilty according to the definition of "gang rape", and held that, though a woman cannot commit rape, but she may assist or Aid another man to commit rape of a woman, which according to the principle of vicarious liability is also an offence, and according to the definition of "Gang Rape", such woman can be held guilty of "Rape".
APEX COURT's view: But, the decision of the High court was reversed by the apex court, stating that, having a look at the definition of "Rape", it can only be committed by a man and no woman can commit rape according to Section 375 IPC.
DECISION: The woman was acquitted by the apex court.
MY OPINION
Having a look at all the mentioned legal provisions, logic made, the example given and also considering the High Court's view in the case of Priya Patel, I strongly believe that the offence of "Rape" can be committed by a woman also. In our present era, sexual orientation for same-sex is also considered and sexual act between two same-sex persons is also legalised, then why not a woman who is sexually attracted towards another woman can commit rape of a woman.
Secondly, as per the definition of "Rape" U/S 375 IPC, it is not only penis that is required to commit an offence of rape, but any object if inserted in the vagina or anus or urethra of a woman will be an offence of "Rape" and which can also be done by a woman.
As a reader of this blog, I comment your opinion and reasoning.
To read my other blogs, you may visit Lawionsoflaw.blogspot.com
THANK YOU
Nikhil Tak (campus Law Centre, Delhi University)
Thanks for sharing such Informative blog. If you need Criminal Defence Solicitor Derby
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