A STUDY ON RAPE LAWS IN INDIA AND ABROAD

By

Name of the Student: Narain S

Roll No.: 21LLB078

Semester: IV

Name of the Program: 5 Year B.A., LL.B.(Hons.)

Subject: Criminal Law II

Name of the Faculty Member: Prof. Sunitha

Date of Submission: 04. 03. 2023

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
CERTIFICATE

I, Narain S, hereby declare that this project titled “A STUDY ON RAPE LAWS IN INDIA AND
ABROAD” submitted by me is an original work undertaken by me, I have duly acknowledged all
the sources and references from which ideas and extracts have been sourced. This project is free
from plagiarism and does not utilize any unfair means whatsoever.

Narain S
21LLB078
Semester IV

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Table of Contents

CERTIFICATE ............................................................................................................................... 2

ACKNOWLEDGEMENTS ............................................................................................................ 4

SYNOPSIS ...................................................................................................................................... 5

Introduction ..................................................................................................................................... 7

Rape Laws in India ......................................................................................................................... 9

Enactment of Indian Penal Code............................................................................................... 11

Tuka Ram And Anr vs State Of Maharashtra, 1978 (Mathura Rape case)............................... 13

Facts: ..................................................................................................................................... 13

Contentions: .......................................................................................................................... 13

Judgement: ............................................................................................................................ 14

The Criminal Law Amendment Act Of 1983. .......................................................................... 15

Mukesh v. State for NCT of Delhi, 2017 (Nirbhaya rape case) The case that shook the nation
................................................................................................................................................... 17

Facts: ..................................................................................................................................... 17

Issues: .................................................................................................................................... 17

Contentions: .......................................................................................................................... 17

Judgement: ............................................................................................................................ 18

The Criminal Law (Amendment) Act, 2013 ............................................................................. 19

Rape Laws in USA........................................................................................................................ 21

Rape Laws in Japan ...................................................................................................................... 26

Rape Laws in England .................................................................................................................. 29

Conclusion and the way forward .................................................................................................. 31

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ACKNOWLEDGEMENTS

I would sincerely like to put forward my heartfelt appreciation to our respected Criminal Law II,
professor, Dr. Sunitha, for giving me a golden opportunity to select this project topic: “A STUDY
ON RAPE LAWS IN INDIA AND ABROAD”. I have tried my best to collect information about
the project in various possible ways to depict a clear picture of the subject.

4
SYNOPSIS

Abstract:

Rape is a heinous crime that has been present in all societies throughout history. Over the years,
laws governing rape have undergone significant changes across the world, including in India,
USA, England, and Japan. This paper aims to explore the evolution of rape laws in India and
compare them with rape laws in the USA, England, and Japan.

India has a long history of sexual violence against women. In 1860, the Indian Penal Code was
enacted, which included provisions for punishment of rape. However, the laws were inadequate in
providing justice to victims, and there was a lack of awareness and sensitivity towards victims of
sexual violence. It was only after the Nirbhaya case in 2012 that the Indian government passed the
Criminal Law (Amendment) Act, 2013, which widened the definition of rape and increased
punishment for the perpetrators.

The USA has also witnessed significant changes in its rape laws. The earliest laws governing rape
in the USA were based on English common law, which required proof of force or threat of force.
However, over time, the laws evolved to recognize non-consensual sex as rape, irrespective of the
presence of force. In 1994, the US government passed the Violence Against Women Act, which
provided federal resources to combat violence against women, including rape.

England has a long history of rape laws, dating back to the 13th century. The laws were initially
based on common law and required proof of force or threat of force. However, in 2003, the Sexual
Offences Act was passed, which redefined rape to include non-consensual sex, irrespective of the
presence of force. The Act also introduced the concept of "consent" as a crucial factor in
determining whether a sexual act was consensual or not.

Japan has also witnessed significant changes in its rape laws over the years. In 1907, the Penal
Code was enacted, which included provisions for rape. However, the laws were inadequate in
providing justice to victims, and there was a lack of awareness and sensitivity towards victims of
sexual violence. In 2017, the Japanese government passed the Act on the Prevention of Spousal

5
Violence and the Protection of Victims, which widened the definition of rape and increased
punishment for the perpetrators.

Keywords: Rape Laws, Criminal Law (Amendment) Act, Sexual Harassment, Indian Penal
Code, Rape Laws in Japan, Rape Laws in USA, Rape laws in England.

The objective of the study:

• To understand the evolution of rape laws in India
• To understand the difference between rape laws in India, Japan, USA and England
• To find how rape laws in India can be made more inclusive and progressive.

Literature Review:
1. Kaur, R., & Singh, K. (2017). "Rape Laws in India: A Critical Study of Judicial Trends".
Indian Journal of Public Health Research & Development, 8(4), 30-35.
2. Arora, A. (2015). "The Evolution of Rape Laws in India: An Analysis". Delhi Law Review,
18(1), 13-24.
3. Devi, R. (2014). "Rape Laws in India: An Overview of the Legal Provisions and Judicial
Interpretations". Journal of Law and Social Sciences, 3(2), 39-49.
4. Bhandari, S. (2013). "Rape Laws in India: Need for Comprehensive Legal Reform".
Journal of South Asian Studies, 1(1), 45-57.

Research Methodology: Doctrinal method, descriptive in nature.

Research Design:

Title of the Study: Rape Laws in India and Abroad (Japan, USA, England)

Chapters: eleven chapters

Scope of the study: Rape Laws in India, USA, Japan, England.

Research Questions: Whether Rape laws in India can be made more inclusive with emphasis to
English, US and Japanese rape laws.

Mode of Citation: OSCOLA 4th Edition

6
Introduction

The Project includes evolution of rape laws in India, USA, England, and Japan reflects the
changing attitudes of society towards sexual violence against women. While there is still a long
way to go in terms of ensuring justice for victims, the changes in laws are a positive step towards
creating a safer and more equitable society. Rape is a heinous crime that violates a person's
physical, mental, and emotional well-being. In India, rape laws have undergone significant
changes over the years to address the rising instances of rape and sexual violence. However, there
is still a long way to go in ensuring justice for victims of rape and in preventing such crimes from
occurring.

The purpose of this study is to compare the rape laws in India with those in the United States,
Japan, and England to understand how different countries approach rape as a criminal offense. The
United States, Japan, and England were chosen for this study because they represent diverse
cultural and legal systems, which can provide valuable insights into how rape laws are shaped by
social and cultural factors.

In India, the legal definition of rape has been expanded over time to include various forms of
sexual assault, including penetration with objects, fingers, and other body parts. In 2013, following
the gang rape and murder of a young woman in Delhi, the Indian government passed a new law
that increased the punishment for rape and included new offenses such as acid attacks and stalking.
However, despite these changes, rape continues to be a pervasive problem in India, with many
cases going unreported and few resulting in convictions.

In the United States, rape laws are governed by state laws, which can vary widely. However, all
states define rape as non-consensual sexual intercourse. The definition of rape has expanded over
the years to include other forms of sexual assault, such as sodomy, penetration with objects, and
oral sex. The punishment for rape in the United States can vary depending on the circumstances
of the crime, with some states imposing mandatory minimum sentences and others allowing for
more discretion in sentencing.

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Japan has a unique legal system that differs significantly from those in the United States and
England. Rape is considered a serious crime in Japan, but the conviction rate for rape cases is
notoriously low, which has led to criticism that the legal system does not do enough to protect
victims of sexual violence. In recent years, the Japanese government has taken steps to address
this issue, including revising the definition of rape to include cases where the victim was unable
to give consent due to intoxication or other factors.

England has a legal system that is similar to the United States, with rape defined as non-consensual
sexual intercourse. The punishment for rape in England can vary depending on the circumstances
of the crime, but the maximum penalty is life imprisonment. In recent years, England has made
significant changes to its rape laws, including introducing new measures to protect victims during
trials and increasing the punishment for those who commit rape and other forms of sexual violence.

This study will examine the legal frameworks for rape in each of these countries, including how
the crime is defined, how the law is enforced, and the punishment for those convicted of rape.
Additionally, this study will consider the cultural and social factors that shape attitudes towards
rape in each country and how these factors may impact the legal system's approach to rape.

By examining the similarities and differences between rape laws in India, the United States, Japan,
and England, this study aims to identify best practices and areas for improvement in the legal
systems of these countries. Specifically, this study will consider whether changes to the legal
definition of rape, increased punishment for those convicted of rape, and other measures could
help to reduce the incidence of rape and provide better protection and justice for victims of sexual
violence.

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Rape Laws in India

In the following sub headings this project will deal with the different The Indian Penal Code (IPC)
was enacted in 1860 during the British colonial rule. The IPC had provisions related to rape, but
they were limited and did not provide adequate protection to women. The IPC defined rape as non-
consensual sexual intercourse with a woman, but it had a narrow definition of consent, which only
applied to married women. This meant that sexual intercourse with an unmarried woman, even if
it was without her consent, was not considered rape. Moreover, the punishment for rape was
lenient, ranging from two to seven years of imprisonment.

Post-Independence:

After India gained independence in 1947, the government started taking steps to strengthen the
laws related to rape. In 1983, the Criminal Law (Amendment) Act was passed, which expanded
the definition of rape to include sexual intercourse with an unmarried woman without her consent.
This act also increased the punishment for rape, with a minimum sentence of seven years of
imprisonment and a maximum of life imprisonment.

The Nirbhaya Case:

Despite these efforts, rape continued to be a major problem in India, and it was not until the
infamous Nirbhaya case in 2012 that the issue received national attention. In December 2012, a
23-year-old woman was brutally gang-raped by six men on a moving bus in Delhi. The incident
sparked widespread outrage and protests across the country, leading to the government taking
several steps to improve the laws related to rape.

The Criminal Law (Amendment) Act, 2013:

In response to the Nirbhaya case, the government enacted the Criminal Law (Amendment) Act,
2013, which was a significant improvement over the previous laws. This act expanded the
definition of rape to include acts such as oral sex and penetration with objects, and it also

9
recognized that men could be victims of rape.1 The punishment for rape was also made more
stringent, with a minimum sentence of 20 years of imprisonment and a maximum of life
imprisonment. The act also introduced several new provisions, such as stalking, voyeurism, and
acid attacks, which were all made punishable offenses.

The Verma Committee:

The Criminal Law (Amendment) Act, 2013, was based on the recommendations of the Justice
Verma Committee, which was set up by the government to review the existing laws related to
sexual assault. The committee's report was comprehensive and addressed several issues related to
sexual assault, including the need for a more gender-neutral definition of rape, the importance of
consent, and the need for more stringent punishment.

However, despite the enactment of the Criminal Law (Amendment) Act, 2013, rape continues to
be a major problem in India. There have been several high-profile cases of rape since the Nirbhaya
case, including the Kathua rape case in 2018, which involved the rape and murder of an eight-
year-old girl. These incidents highlight the need for more effective implementation of the existing
laws and the need for further reforms. The British rule in India brought significant changes to the
legal system, including the laws related to rape. In 1860, the Indian Penal Code (IPC) was enacted,
which defined rape as non-consensual sexual intercourse with a woman. However, the definition
of consent was narrow and only applied to married women, leaving unmarried women vulnerable
to sexual assault. Moreover, the punishment for rape was lenient, ranging from two to seven years
of imprisonment.

However, the laws were not applied equally to women of all castes, and women from lower castes
had fewer legal rights. The British rule brought significant changes to the legal system, but the
laws related to rape continued to be inadequate, leaving women vulnerable to sexual assault.

1
Sinha, S. (2013). The Criminal Law (Amendment) Act, 2013: A Review. Journal of Indian Academy of Forensic
Medicine, 35(4), 386-388.
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Enactment of Indian Penal Code

The Indian Penal Code (IPC) was enacted in 1860 during the British colonial rule, and it had
provisions related to rape. However, the definition of rape was narrow and did not provide
adequate protection to women. The IPC defined rape as non-consensual sexual intercourse with a
woman, but it had a limited definition of consent, which only applied to married women. This
meant that sexual intercourse with an unmarried woman, even if it was without her consent, was
not considered rape. The punishment for rape was also lenient, ranging from two to seven years of
imprisonment, and in some cases, a fine was imposed. This leniency in punishment meant that the
crime of rape was not taken seriously, and it did not act as a deterrent for potential offenders.
Moreover, the burden of proof was on the victim, and it was challenging to prove rape in court.
The victim had to provide concrete evidence to prove that she did not consent to the sexual
intercourse, which was difficult, given the patriarchal nature of the society and the stigma attached
to rape victims. During this time, rape was considered a crime against the honour of the woman
and her family, rather than a crime against the woman herself. The victim was often blamed for
the rape, and she was considered impure and unfit for marriage. This led to the victim's isolation
and social ostracism, which further victimized her.

In 1864, the Indian Evidence Act was enacted, which further compounded the challenges faced by
rape victims. The act required two witnesses to prove rape, which was nearly impossible to obtain
in most cases. This act further lowered the conviction rate for rape cases and made it challenging
for victims to seek justice. The social and legal systems were stacked against women during this
time, and rape victims faced numerous challenges in seeking justice. However, there were some
instances where the legal system recognized the gravity of the crime and took steps to punish the
offenders. One such instance was the case of Rukhmabai, a young girl who refused to live with
her husband and was sued for restitution of conjugal rights. She cited the sexual abuse and rape by
her husband as the reason for her refusal. The court acknowledged the rape and sexual abuse, and
the case became a significant landmark in the history of rape laws in India.

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Another significant case during this time was the 1886 case of Queen-Empress v. Hari Bhanji,
where a man was convicted of raping a seven-year-old girl. The judge in the case recognized the
severity of the crime and sentenced the offender to life imprisonment. This case set a precedent
for more stringent punishment for rape cases. However, such cases were few and far between, and
the legal system failed to provide adequate protection to women against rape. The patriarchal
mindset of the society and the lenient laws allowed the crime of rape to continue unchecked.

In conclusion, the rape laws in India after the enactment of the Indian Penal Code but before
independence were inadequate and failed to provide adequate protection to women. The narrow
definition of rape, the burden of proof on the victim, and the lenient punishment allowed the crime
of rape to continue without consequences. The social stigma attached to rape victims further
victimized them, and seeking justice was a daunting task. However, there were some instances
where the legal system recognized the gravity of the crime and provided justice to the victims.
These cases set a precedent for more stringent punishment for rape cases, which was later reflected
in the Criminal Law (Amendment) Act, 1983, and the Criminal Law (Amendment) Act, 2013.

Picture Credits: Finology Legal blog

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Tuka Ram And Anr vs State Of Maharashtra, 1978 (Mathura Rape case)

Facts:

In 1972, a 16-year-old girl named Mathura was allegedly raped by two police officers in the
compound of the Desai Ganj police station in Mathura, Uttar Pradesh. The victim had gone to the
police station to report that her brother had been arrested for theft. She was kept in police custody
overnight, during which time the alleged rape occurred. The police officers were arrested, but they
were later acquitted by the trial court on the grounds that there was no evidence of use of force and
the victim was of "loose character".

Issues:

The case sparked outrage and protests across the country, with many people questioning the legal
system's handling of the case. There were concerns about the treatment of women and the justice
system's approach to rape cases. The case also raised questions about police brutality and
corruption.

Contentions:

1. The victim and her family contended that she had been raped by the police officers and that
the trial court's decision was unjust. They argued that the court had not taken into account the
power dynamic between the victim and the police officers, and that the victim's character
should not have been used to determine the validity of her claim.
2. Consent: The defense argued that Mathura had consented to sexual intercourse with the
accused, but the court rejected this argument, citing that Mathura was a tribal girl who was not
aware of her rights and could not have given informed consent.
3. Use of force: The prosecution argued that the police officers had used force to rape Mathura,
while the defense argued that there was no evidence of force being used. The court rejected
this argument and stated that the mere fact that the accused were police officers in a position
of power was enough to establish the use of force.

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4. Delay in reporting: The defense argued that Mathura had delayed in reporting the rape, which
indicated that she had not been raped. However, the court rejected this argument, citing that
the delay was due to fear of the police and the social stigma attached to rape.
5. Character of the victim: The defense also argued that Mathura was of questionable character,
which made her testimony unreliable. However, the court rejected this argument, stating that
the character of the victim was irrelevant in a rape case and that the focus should be on the act
of rape itself.

Judgement:

The case was eventually taken up by the Supreme Court of India, which overturned the trial court's
decision and convicted the police officers of rape. The court held that the trial court had erred in
its analysis and that the victim's character should not have been taken into account. The judgement
also led to the amendment of the Indian Evidence Act to make it more victim-friendly in cases of
sexual assault.

the Supreme Court of India reversed the lower court's decision and convicted the accused for the
crime of rape. The Supreme Court held that the victim's consent was immaterial, as she was a
minor and had been taken into custody by the police officers. The court also criticized the lower
courts for their insensitive handling of the case and their failure to protect the victim's rights.

The Mathura rape case led to significant changes in Indian criminal law and led to the amendment
of the Indian Evidence Act and the Criminal Procedure Code to provide greater protection to rape
victims. The case also highlighted the need for gender-sensitive training for police officers and
judges, and for the establishment of specialized courts to deal with cases of sexual violence against
women.

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The Criminal Law Amendment Act Of 1983.

The Criminal Law Amendment Act of 1983 was a significant legislation passed by the Indian
parliament to amend the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence
Act. The act was passed on 25th December 1983, and it aimed to address the growing concerns
related to crimes against women and children in India. The act was introduced as a response to the
recommendations made by the Law Commission of India in its 84th report.2

The act introduced several new provisions and amendments to the existing laws to enhance the
protection of women and children from sexual offenses, exploitation, and abuse. Some of the key
provisions of the Criminal Law Amendment Act of 1983 are discussed below:

1. Rape: The act introduced several changes to the definition of rape and made it a more
stringent offense. The act broadened the definition of rape to include not just vaginal
penetration but also oral and anal penetration. The act also made it clear that a woman
cannot give her consent if she is under duress, intoxicated, or incapable of understanding
the nature of the act.3

2. Custodial Rape: The act introduced a new offense of custodial rape, which means the rape
of a woman by a police officer or any other person in custody. The act made custodial rape
a non-bailable offense, and the accused person would face a minimum sentence of ten
years, which could be extended to life imprisonment.

3. Sexual Harassment: The act introduced provisions to address sexual harassment in the
workplace. The act made sexual harassment a criminal offense and provided for a
minimum punishment of one year, which could be extended to seven years.

2
Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India).
3
Bose, S. (2012). "The Evolution of Rape Laws in India: An Analysis of Judicial Interpretations". Indian Journal of
Gender Studies, 19(2), 225-236.
15
 4. Child Sexual Abuse: The act introduced several provisions to address child sexual abuse
and exploitation. The act made it a criminal offense to employ or use a child for
pornographic purposes, and the punishment for the offense could be up to seven years in
prison.

5. Trafficking: The act introduced several provisions to address trafficking of women and
children for prostitution. The act made it a criminal offense to traffic women or children
for prostitution and provided for a minimum punishment of seven years, which could be
extended to life imprisonment.4

The Criminal Law Amendment Act of 1983 was a significant step towards protecting the rights of
women and children in India. However, despite the introduction of several new provisions and
amendments to the existing laws, the act has been criticized for not going far enough to address
the root causes of crimes against women and children in India. The act has been criticized for not
addressing the issues of poverty, lack of education, and patriarchal attitudes that contribute to
crimes against women and children.5

4
The Criminal Law Amendment Act, 1983, s 376AB, (India)
5
The Criminal Law Amendment Act, 1983, s 376E, (India).

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Mukesh v. State for NCT of Delhi, 2017 (Nirbhaya rape case) The case that shook
the nation

Facts: In December 2012, a young woman was brutally gang-raped and murdered in Delhi, India.
The case received widespread media coverage and public outrage, leading to protests and demands
for justice. Six individuals were charged with the crime, including Mukesh, who was accused of
driving the bus in which the crime was committed. The trial court found all six accused guilty of
rape and murder and sentenced them to death. Mukesh filed an appeal before the Delhi High Court,
challenging his conviction and sentence. The issues before the court were:

Issues:

1. Whether the evidence on record was sufficient to establish the guilt of the accused beyond
a reasonable doubt?
2. Whether the sentence of death was appropriate in the case?

Contentions:

• Mukesh argued that the prosecution had failed to prove his guilt beyond a reasonable doubt,
and that the trial court had relied on circumstantial evidence and contradictory statements of
witnesses to convict him. He also contended that the sentence of death was disproportionate
and excessive, and that the court had not considered mitigating factors such as his young age
and lack of prior criminal record.6

The case had multiple contentions, some of which are discussed below:

1. The identity of the accused: One of the key contentions in the case was the identity of the
accused. There were four accused in the case, and their identities were initially unknown.
However, through investigation and DNA testing, the accused were identified as Mukesh,

6
Mukesh v State for NCT of Delhi [2017] Del HC 524.
17
 Vinay, Akshay, and Pawan. Mukesh was the brother of one of the other accused, and his
involvement in the crime was established through the DNA evidence.

2. The charges against the accused: The accused were charged with multiple offenses, including
gang rape, murder, and destruction of evidence. The defense argued that the charges were not
based on sufficient evidence and that the prosecution had failed to prove the guilt of the accused
beyond a reasonable doubt.

3. The admissibility of evidence: The admissibility of evidence was also a contentious issue in
the case. The defense argued that some of the evidence presented by the prosecution, including
the victim's dying declaration and the testimony of some of the witnesses, was not admissible
in court. However, the court ruled that the evidence was admissible and could be considered
in the trial.

4. The sentence: Finally, the sentence was another contentious issue in the case. The prosecution
sought the death penalty for the accused, while the defense argued that a life sentence would
be more appropriate. After considering the aggravating and mitigating factors, the court
sentenced all four accused to death.

Judgement: The Delhi High Court rejected Mukesh's appeal and upheld his conviction and
sentence. The court held that the evidence on record was sufficient to establish his guilt beyond a
reasonable doubt and that the trial court had correctly relied on circumstantial evidence to convict
him. The court also held that the sentence of death was appropriate in the case, given the brutal
nature of the crime and the fact that it had shocked the conscience of society. The court further
observed that the case had highlighted the need for stricter laws and measures to prevent crimes
against women in India. The court emphasized the need for more effective implementation of laws,
better police training, and increased public awareness to ensure the safety and dignity of women
in the country.7

7
<https://thelegallock.com/mukesh-v-state-for-nct-of-delhi-nirbhaya-case>
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The Criminal Law (Amendment) Act, 2013

The Criminal Law Amendment Act, 20138 is an important legislative amendment passed by the
Indian Parliament in response to the increasing incidents of sexual violence against women in the
country. The act was introduced in the aftermath of the brutal gang-rape and murder of a young
woman in Delhi in December 2012, which led to widespread protests and demands for stricter laws
to tackle crimes against women.9

The act amends several existing laws relating to sexual offences, including the Indian Penal Code,
the Code of Criminal Procedure, and the Indian Evidence Act. Some of the key provisions of the
act include:

1. Widening the definition of rape: The act expands the definition of rape to include non-
consensual penetration of any orifice by any body part or object. The act also recognizes
that consent must be given freely and voluntarily, and that a person cannot consent if they
are intoxicated or mentally or physically incapable of giving consent.

2. Introduction of new offences: The act introduces several new offences, such as acid attacks,
stalking, voyeurism, and trafficking of persons for sexual exploitation. These offences
carry severe penalties, including imprisonment and fines.

3. Stricter penalties: The act increases the minimum punishment for rape from seven to ten
years and the maximum punishment from life imprisonment to death in certain cases. The
act also makes it mandatory for the court to impose a minimum sentence of twenty years
for gang-rape, rape of a minor, and rape committed by a police officer or a public servant.

8
The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India).

9
Cornell University, Criminal Law (Amendment) Act, 2013 <https://www.law.cornell.edu/women-and-
justice/resource/the_criminal_law_(amendment)_act_2013#:~:text=The%20Criminal%20Law%20(Amendment)%2
0Act%2C%202013%20was%20passed%20in,and%20the%20Criminal%20Procedure%20Code.> Accessed on 19th
March 2023.

19
 4. Protection of victims: The act provides for the establishment of special courts to expedite
trials of sexual offences and protect the identity of victims. The act also recognizes the
right of victims to receive medical treatment and legal aid, and imposes penalties on those
who disclose the identity of victims.10

5. Changes in evidence law: The act introduces several changes to the Indian Evidence Act
to make it easier for victims to prove sexual offences. The act recognizes that the testimony
of the victim is sufficient to prove the commission of certain offences, such as rape, and
that the character of the victim is irrelevant in determining the guilt of the accused.

The Criminal Law Amendment Act, 2013 is a significant legislative measure that reflects the
commitment of the Indian government to combat crimes against women. However, there have
been criticisms that the act does not go far enough in addressing the root causes of sexual violence,
such as gender inequality and societal attitudes towards women. Some activists have called for
more comprehensive reforms in the areas of education, law enforcement, and social welfare to
ensure the safety and dignity of women in India.11

10
Nundy, S., & Gulati, A. (2013). The Criminal Law Amendment Act 2013: A Critical Appraisal. Indian Journal of
Medical Ethics, 10(3), 173-177.
11
Jaising, I. (2013). The Criminal Law Amendment Act 2013: A Missed Opportunity. Economic and Political Weekly,
48(12), 10-13.

20
Rape Laws in USA

There is no single federal law that deals specifically with rape in the United States. Instead, the
laws governing rape and sexual assault are primarily a matter of state law, with each state having
its own criminal code that defines and punishes rape and other sexual offenses. In addition to state
laws, there are also federal laws that address sexual assault in certain contexts, such as sexual
assault in the military, on tribal lands, or in federal prisons. The United States has a complex system
of laws to address rape and sexual assault, with legal provisions that vary by state and federal
jurisdictions. In this note, we will provide an overview of rape laws in the US, with emphasis on
legal provisions.12

Legal Definition of Rape:

The legal definition of rape varies by state and jurisdiction in the US. In general, rape is defined
as non-consensual sexual intercourse, which is committed by force, threat of force, or when the
victim is incapable of giving consent. In many states, the definition of rape has been expanded to
include other forms of sexual assault, such as sodomy, oral sex, and penetration with an object.

Statutory Rape:

Statutory rape is a type of rape that involves sexual intercourse with a minor, who is deemed unable
to give consent due to their age. The age of consent for sexual activity varies by state, but in most
states, it is 16 or 18 years. In some states, there are exceptions to the age of consent laws, such as
for consensual sexual activity between minors or when the age difference between the parties is
not significant.13

12
Types of State Criminal Sexual Conduct Charges, < https://ryangarry.com/types-of-state-criminal-sexual-conduct-
charges/> Accessed on 24th March 2023.
13
Rape laws: India and Abroad, < https://ijalr.in/rape-laws-india-and-abroad/> Accessed on 25th March 2023.
21
 State Legislation Descreption Punishment

New York New York Five to 25 years in

Consolidated A person is guilty of sexual abuse in the prison
Laws, Penal Law first degree when he or she subjects
another person to sexual contact:
- PEN § 130.65
Sexual abuse in 1. By forcible compulsion;  or
2. When the other person is incapable
the first degree
of consent by reason of being
physically helpless;  or
3. When the other person is less than
eleven years old;  or
4. When the other person is less than
thirteen years old and the actor is
twenty-one years old or older14

New York A person is guilty of sexual abuse in the Up to seven years in

Consolidated second degree when he or she subjects prison

Laws, Penal Law another person to sexual contact and

when such other person is:
- PEN § 130.60
1. Incapable of consent by reason of
Sexual abuse in
some factor other than being less
the second
than seventeen years old;  or
degree
2. Less than fourteen years old.

14
FindLaw.com - New York Consolidated Laws, Penal Law - PEN § 130.65 Sexual abuse in the first degree - last
updated January 01, 2021 | https://codes.findlaw.com/ny/penal-law/pen-sect-130-65.html
22
 New York A person is guilty of sexual abuse in the Up to four years in
Consolidated third degree when he or she subjects prison

Laws, Penal Law another person to sexual contact without

the latter's consent;  except that in any
- PEN § 130.55 prosecution under this section, it is an
Sexual abuse in affirmative defense that (a) such other
the third degree person's lack of consent was due solely
to incapacity to consent by reason of
being less than seventeen years old, and
(b) such other person was more than
fourteen years old, and (c) the defendant
was less than five years older than such
other person.

Michigan Michigan Penal A sexual act involving penetration Life imprisonment

Code Section (broadly defined) and any of the and lifetime
750.520 et seq. following: mandatory sex
offender registration.
degree • Victim is under 13 years old;
1st
(felony): • Victim is 13-15 years old + is a
blood affiliation to the defendant,
lives in the defendant's household,
or the defendant is in an authority
position to the victim;

• Multiple actors are involved and

force/coercion was used to
accomplish the sexual penetration or
the victim is incapacitated
(physically helpless, mentally
incapacitated or mentally defective)
weapon involved;

23
 • Personal injury + force/coercion;

• Personal injury + victim

incapacitated (Unable to consent to
due age, mental challenged or due to
intoxication, date rape drug, etc); or

• Defendant is in the process of

committing another felony.

2nd Sexual contact (No penetration) with the Up to fifteen years

degree (felony): genital area, groin, inner thigh, buttock prison time combined
or breast, AND any of the circumstances with mandatory sex
listed for 1st Degree CSC.
offender registration.

3rd Sexual Penetration and any of the Up to fifteen years in

degree (felony): following: prison, mandatory sex

• Victim is 13-15 years old;

offender registration.

• Force or coercion; or

• Victim is incapacitated (unable to

consent to due age, mental
challenges, intoxication, date rape
drug, etc.).

4th degree Sexual Contact and any of the Up to two years in

following: prison and a fine of up
(misdemeanour):
• Force or Coercion
to $500.

• Victim incapacity (unable to

consent to due age, mental
24
 challenges, intoxication, date
rape drug, etc.).

• Defendant works for the

Department of Corrections and
the victim is an inmate.

Consent:

In rape cases, consent is a critical issue. In the US, the legal definition of consent varies by state
and jurisdiction, but generally, it refers to the freely given agreement to engage in sexual activity.
In many states, the definition of consent has been expanded to include the requirement that the
person giving consent must be capable of doing so, which means that they must not be under the
influence of drugs or alcohol or otherwise unable to give consent.

Penalties:

The penalties for rape and sexual assault vary by state and jurisdiction, but in general, they can
include lengthy prison sentences, fines, and mandatory registration as a sex offender. In some
cases, the death penalty may be applied. The severity of the penalty depends on the circumstances
of the crime, such as whether the victim was a minor, whether there was force or threat of force,
and whether the offender has prior convictions.15

15
Michigan Rape Laws, < https://www.findlaw.com/state/michigan-law/michigan-rape-laws.html>, Accessed on 27th
March 2023.
25
Rape Laws in Japan

Historically, Japan's rape laws were based on a narrow definition of rape as forcible sexual
intercourse committed by a man against a woman who was not his wife. This definition excluded
other forms of sexual violence, such as rape committed against men or within marriage, and
required the use of physical force or threats of violence to prove the offence.

Article 177: Penal Code Act No. 45, 1907.

(Forcible Sexual Intercourse)

A person who, through assault or intimidation forcibly engages in vaginal intercourse, anal
intercourse or oral intercourse (hereinafter referred to as "sexual intercourse") with another
person of not less than thirteen years of age is guilty of the crime of forcible sexual
intercourse, and is punished by imprisonment for a definite term of not less than 5 years. The
same applies to a person who engages in sexual intercourse against another person under
thirteen years of age

However, in 2017, Japan's parliament passed a new law that expanded the definition of rape to
include all forms of non-consensual sexual acts, regardless of gender or marital status. The law
also removed the requirement of physical force or threats of violence, and recognized that a
victim's lack of consent could be established through various means, such as verbal or non-verbal
cues, physical resistance, or the use of drugs or alcohol.16

16
Japan’s parliament adopts tougher laws on sex crimes. (2017, June 22). Reuters. https://www.reuters.com/article/us-
japan-sexcrimes/japans-parliament-adopts-tougher-laws-on-sex-crimes-idUSKBN19D0PJ

26
The 2017 law also introduced several other important changes to Japan's rape laws, including:

1. Increased penalties: The new law raised the maximum penalty for rape from 10 to 20 years
imprisonment, and made it possible to impose a life sentence in certain aggravated cases,
such as gang rape.17

2. Protection of victims: The law recognized the rights of victims to receive medical treatment
and legal assistance, and imposed penalties on those who disclose the identity of victims.

3. Removal of time limits: The law removed the time limits for reporting rape and other sexual
offences, recognizing the trauma and complexity of reporting such crimes and the
importance of allowing victims to come forward at their own pace.

4. Establishment of support systems: The law required the government to establish support
systems for victims of sexual violence, including counselling services, shelters, and legal
aid.

While the 2017 law represents an important step towards strengthening Japan's rape laws, some
activists and scholars have raised concerns about its implementation and effectiveness. For
example, some have criticized the law for not addressing the root causes of sexual violence, such
as gender inequality and societal attitudes towards women. Others have pointed out that the law
may not be effectively enforced in practice, due to cultural and institutional barriers, such as the
reluctance of victims to come forward and the lack of training and resources for law enforcement
officials.18

In conclusion, Japan's rape laws have undergone significant changes in recent years, reflecting the
country's efforts to address the issue of sexual violence and protect the rights of victims. The 2017

17
Matsui, R. (2017). Japan's new rape law will do little to help victims. The Conversation.
https://theconversation.com/japans-new-rape-law-will-do-little-to-help-victims-79821
18
Miyazaki, M. (2019). Rape law reform in Japan: from "no" to "yes, but". Japanese Yearbook on International Law,
62, 95-114.

27
law represents a major milestone in this process, expanding the definition of rape and introducing
important reforms related to penalties, victim protection, and support systems. However, more
work is needed to ensure that the law is effectively implemented and that victims of sexual violence
receive the support and justice they deserve.

28
Rape Laws in England

In England, rape is a serious criminal offense that is governed by a number of different laws and
statutes. The laws related to rape have undergone significant changes over the years, reflecting the
evolution of societal attitudes towards sexual violence and the need to provide better protection
for victims. In this article, we will discuss the current rape laws in England, including the penal
provisions and statutes that govern this crime.19

Definition of Rape in England

Under the Sexual Offences Act 2003, rape is defined as the non-consensual penetration of the
vagina, anus, or mouth with a penis. It is important to note that this definition applies regardless
of the gender of the victim or the perpetrator, and that rape can occur within any type of relationship
or context.

Penalties for Rape in England

The penalties for rape in England vary depending on the circumstances of the offense. In general,
the maximum sentence for rape is life imprisonment. However, the actual sentence imposed will
depend on a number of factors, including the severity of the offense, the age of the victim, and the
presence of aggravating or mitigating factors.

Aggravating factors that may increase the severity of a rape offense include the use of violence,
the presence of multiple perpetrators, and the use of drugs or alcohol to incapacitate the victim.
Mitigating factors that may lessen the severity of a rape offense include the absence of violence or
threats, the absence of premeditation, and the presence of remorse on the part of the offender.

Statutes Related to Rape in England

19
Olivia Smith, 'Rape Trials and the Sexual History Evidence Reforms: The Impact of the Sexual Offences Act 2003
on Prosecuting Rape in England and Wales' (2015) 25(1) Child and Family Law Quarterly 84.
29
In addition to the Sexual Offences Act 2003, there are several other statutes that are relevant to
rape in England. These include:

1. The Offences Against the Person Act 1861: This act provides for the offense of assault
with intent to commit rape, which carries a maximum sentence of life imprisonment. It also
provides for the offense of causing a person to engage in sexual activity without consent,
which carries a maximum sentence of 14 years' imprisonment.

2. The Coroners and Justice Act 2009: This act introduced the offense of "rape of a child
under 13," which carries a maximum sentence of life imprisonment. It also provides for the
offense of "rape of a child under 16," which carries a maximum sentence of 15 years'
imprisonment.

3. The Sexual Offences Act 1956: This act provides for the offense of "incestuous sexual
intercourse," which carries a maximum sentence of life imprisonment. It also provides for
the offense of "unlawful sexual intercourse with a girl under 16," which carries a maximum
sentence of 14 years' imprisonment.20

4. The Criminal Justice and Public Order Act 1994: This act provides for the offense of "rape
of a spouse or civil partner," which carries a maximum sentence of life imprisonment. Prior
to the passage of this act, it was not possible to charge someone with raping their spouse.

20
Sexual Offences Act 2003, c 42.
30
Conclusion and the way forward

The issue of rape and sexual violence is a pressing concern in India, and the country has taken
several steps in recent years to strengthen its laws to address these crimes. However, there is still
a long way to go to ensure that survivors receive justice and perpetrators are held accountable.
Here are some suggestions for development in Indian rape laws:

1. Expand the definition of rape: The current definition of rape in India's laws is limited to penile-
vaginal penetration, which excludes other forms of sexual violence such as anal or oral rape.
The definition of rape should be expanded to include all forms of non-consensual sexual acts,
regardless of the body part involved.

2. Introduce gender-neutral language: India's rape laws are currently gender-specific, with the
victim assumed to be female and the perpetrator assumed to be male. This excludes male
31
 victims of sexual violence and also fails to address cases where the perpetrator is female. The
laws should be revised to use gender-neutral language to ensure that all survivors are protected.

3. Address marital rape: India's laws do not currently recognize marital rape as a crime, which
means that spouses cannot be prosecuted for raping their partners. This is a major gap in the
law, and marital rape should be criminalized to ensure that all forms of non-consensual sexual
acts are punishable.

4. Strengthen penalties: The current penalties for rape in India range from seven years'
imprisonment to life imprisonment. However, given the severity of the crime and its impact on
survivors, there is a need to strengthen the penalties for rape to deter potential perpetrators and
provide justice to survivors.

5. Improve investigation and prosecution: India's legal system has been criticized for its low
conviction rates and poor handling of sexual assault cases. To address this, there should be
increased training for law enforcement officials and prosecutors to ensure that they are
equipped to handle sexual assault cases sensitively and effectively.

6. Ensure access to justice: Many survivors of rape and sexual violence in India face barriers to
accessing justice, including stigma, discrimination, and lack of support services. The
government should take steps to ensure that all survivors have access to legal aid, counseling,
and medical services, and that these services are available in a timely and sensitive manner.

7. Strengthen prevention efforts: While it is important to hold perpetrators accountable,

preventing rape and sexual violence from occurring in the first place is equally important. The
government should invest in prevention efforts, including education campaigns, public
awareness initiatives, and community-based programs to promote gender equality and prevent
violence against women.

8. Improve data collection: Reliable data on the prevalence of rape and sexual violence is essential
to inform policy and program development. However, there is a lack of consistent and
comprehensive data on these issues in India. The government should invest in improved data
collection systems to ensure that accurate and up-to-date information is available.

32
9. Increase accountability: There is a need for greater accountability at all levels to ensure that
survivors of rape and sexual violence receive justice. This includes holding perpetrators
accountable, but also ensuring that law enforcement officials, prosecutors, and judges are held
accountable for their handling of sexual assault cases.

10. Empower survivors: Survivors of rape and sexual violence should be empowered to participate
in the legal process and have a say in the outcome of their cases. This includes providing
survivors with information about their rights, offering them support and counseling services,
and ensuring that their voices are heard throughout the legal process.

33