To Rape a Minor or not…, Her Choice!

I just came across this article titled, Woman booked for ‘raping’ son’s teen pal, wherein it is stated that she spiked the minor boy’ss drink and then raped him (oh! Sorry, rape is a wrong word here. She forced the minor boy to keep physical relationship, as definition of rape does not include forceful intercourse with a male). She also made a video recording of the incident and used to threaten the minor boy with the video recording who was just 16 years of age. It is stated that she also threatened the boy with filing of a false rape complaint against him.

Due to the ordeal, the boy lost interest in studies and was unable to mix up in the family, his health deteriorated and his behaviour changed. The news article states that the probe is currently on, no information of arrest of the accused woman is mentioned.

A few questions that come to mind are:

  1. Why is the identity of the woman not disclosed by the media? If it were a man, his identity including photo would be all over the media.
  2. Why is there no information of arrest of the woman till now? If this was a man he would have been immediately arrested and people would have been on the streets. He could even have been lynched as has happened in the recent past in other parts of India.

This brings us to 2 conclusions:

  1. We live in a society where male disposability is the norm. No one is concerned about the ordeal faced by this minor boy in his formative years. The incident is not even termed as rape. It is classified as forced physical relationship thereby undermining it.
  2. Why is the perpetrator, who is a woman in this case, treated with kid gloves and not being subjected to ‘EQUAL’ treatment. Does equality only means getting more benefits?

Let us analyse the Indian Law in this aspect. Forced sexual intercourse with a minor comes under 2 statutes, Indian Penal Code and Protection of Children from Sexual Offences Act (POCSO).

Section 375 of the Indian Penal Code which defines rape states:

A man is said to commit “rape” if he-—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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 do so with him or any other person; or

manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or

applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven 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 eighteen years of age.

Seventhly.—When she is unable to communicate consent

The starting of the definition is “A man is said to commit “rape” if he”, therefore only a man can commit a rape. A woman cannot commit such an act as per the IPC. Therefore the acts committed, such as above donot find a place here, hence the woman clearly cannot be tried for rape, which is precisely what she did. Therefore this brings us to a point of ‘Equality’; Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Does the minor boy have the same level of protection? Is it equality? Is the law gender neutral? You decide!

Now let us analyse the provisions of POCSO. The statute defines 2 types of sexual assaults on minors: a) Penetrative Sexual Assault, and b) Non Penetrative Sexual Assault. Penetrative Sexual Assault is defined under section 3 of the Act:

A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person

If we analyse the definition of penetrative sexual assault, it can “ONLY” be committed by a man, a woman cannot commit such an act (every sub-clause starts with a ‘He’). Therefore in this instant case where the minor boy was sexually assaulted by this woman, it is not defined under penetrative sexual assault. Why; again the definition is ‘NOT’ gender neutral and the minor is not ‘EQUALLY’ protected.

Then, what crime is said to be committed by this woman? It is ‘non-penetrative sexual assault’. Yes that is correct it is a minor offense. Let us read the definition of sexual assault as per section 7:

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

So in essence, such a gruesome act comes under the definition of non-penetrative sexual assault. Now what is the difference, would be the next question. The difference friends is the punishment.

The punishment for penetrative sexual assault is minimum 7 years extendable to imprisonment for life (Section 4). And the punishment for non-penetrative sexual assault is minimum 3 years extendable to 5 years.

So in simple terms we draft our laws in a gender biased manner so that criminal women are treated with kid gloves and let off without any repercussions. Further, crimes committed by them are not even defined as crimes (rape by women does not come under the IPC). No wonder serious crimes by women have increased exponentially (refer to my previous article titled ‘The Fairer Criminals’) over the past decade.

The 2000 American Association of University Women (AAUW) data indicate that 57.2 percent of all students report a male offender and 42.4 percent a female offender with the Cameron et al. study reporting nearly identical proportions as the 2000 AAUW data (57 percent male offenders vs. 43 percent female offenders).

Schwartz, Barbara K. and Cellini, Henry R have estimated as many as 63% of sex abusers may be female in their paper titled “Female sex offenders”. The sex offender: Corrections, treatment, and legal practice. Kingston, NJ: Civic Research Institute.

If the incidences of female sexual abusers are as high as 63% then why are the rape laws not gender neutral? Is “Equality” not a doctrine enshrined by our constitution?

Let us all Stand Up for a Cause…

——-

Source: Wikipedia

Note: Do feel free to comment on the article if you have any concerns with the same. Your concerns will be appropriately responded / updated

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12 Responses to To Rape a Minor or not…, Her Choice!

  1. Archana Kapoor says:

    Sad state of affairs! We have turned into a country on the path of self-ruin with a point of no return – and for an optimist like me to think this way is the pits! When will we learn is a question I keep asking myself and when will we as a nation stop looking at issues from a tinted glass?!
    Great post – thanks for sharing! And I hope the boy gets justice and the woman gets booked with her name exposed in media…

  2. iammissjayne says:

    Incredible post! I agree, equal rights should come with equal responsibilities under the law. Hope the poor boy finds healing. Women offenders should be treated the same way in media eyes as the men.

  3. sonalisnehs says:

    This is all because we don’t have objectivity in our society as well as in our law making body. We have become very biased in this whole process. This shows our diasporic discourse towards male. And we only believe in benefiting women on the basis of our wrong understanding towards their abilities and we call it “equality among MEN & WOMEN”. Either we live in patriarchal or matriarchal society, both shows our sick mentality. We need to get rid of it otherwise we won’t be able to come out of this pathetic aura.

    • Burt Phoenix says:

      Rightly said Sonalisnehs. The constitution provides equal opportunity and protection to all the citizens. Therefore we ought to have gender neutral laws for true equality to be perpetuated.

  4. Soumya Bhaumik (Lawyer0 says:

    The analysis is wrong with regard to POCSO Act to the example given in the write up. POCSO Act is gender neutral as both men and women can be offenders under the POCSO Act except for 2 exceptions which can only be committed by a man. The exceptions are:
    a. Penetration by penis (Section 3 (a) of POCSO Act)
    b. Makes the girl pregnant as a result of sexual assault (Section 5 (j) (ii) of POCSO Act)

    The expression “he” as you have pointed out has to be read together with Section 8 of Indian Penal Code, 1860. Section 8 defined Gender as “The pronoun “he” and its derivatives are used of any person, whether male or female”

    So I hope this makes clear to you and your various about Gender Neutrality of the POCSO Act vis a vis the given case illustration. Therefore I also hope you would correct the misconception on this point and make the society aware on this point.

    In my next post I would explain which provisions police should apply.

    With warm regards,

    Soumya Bhaumik
    Lawyer

    • Burt Phoenix says:

      Interesting take Bhaumik, but is’nt section 8 of the IPC only applicable to IPC. How do we propose to apply an IPC definition section to another act?

      Further, the lady in question had been arrested and booked under sexual assault sections (ie. section 7)… Link

  5. Soumya Bhaumik (Lawyer) says:

    Sec 42 A. of POCSO Act states that provisions of the Act shall be in addition to not in derogation of any other law.

    • Burt Phoenix says:

      The Section 42A is reproduced below: Act not in derogation of any other law: The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.

      The rule of interpretation states that the remedies under the Act are “in addition to and not in derogation of the provisions of any other law” in force. The provision provides an additional avenue. It gives an option to the aggrieved party. It does not substitute the new for the old.

      Therefore, the aggrieved party can prosecute a crime under IPC or POCSO. The interpretation of Section 42A does not state that definitions of any other act will apply to POCSO.

      I will be glad to discuss on this if you feel otherwise.

      • Soumya Bhaumik (Lawyer) says:

        Look at Clause 2 of Sec 2 also of POCSO. POCSO Act is Gender Neutral except for the 2 provisions which I shared earlier.

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