Can Women Be Charged For Rape In India?

Rape is the fourth most common crime against women in India. According to the National Crime Records Bureau's (NCRB) latest data for 2020, 77 rape cases were reported in India every day in the year 2020, totalling 28,046 such incidents during the year.

Overall, 3,71,503 cases of crime against women were reported across the country last year, down from 4,05,326 in 2019 and 3,78,236 in 2018, the NCRB stated.

Of the total cases of crimes against women in 2020, there were 28,046 incidents of rape involving 28,153 victims, for the year when the country was reeling under the COVID-19 outbreak and pandemic-induced lockdowns.

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."

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.

Can men be raped?

According to Indian laws, men cannot be raped at all -- they can only be ¡°sodomised¡±, which is covered under Article 377 of the Indian Penal Code.

Until 2018, Article 377 criminalised even consensual homosexual sex. While the Supreme Court struck down this aspect of the law in a historic verdict on September 6, more amendments are required in the legal definitions of rape.

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With the definition of rape is limited to ¡°the penetration of the vagina by a man¡±, women cannot be booked for rape. At the most, they can be booked for sexual assault, or forced unnatural sex under Section 377.

Similarly, men cannot be legally raped, and women cannot be charged for rape.

The curious case of Priya Patel

The Supreme Court of India was met with a similar situation where a woman had facilitated committing rape.

One Priya Patel was charged with the offence of gang rape along with her husband Bhanupratap Patel.

According to the charge sheet, when Bhanupratap was committing the crime, Priya went to the room and the victim asked her for help. However, she slapped the victim and bolted the room from outside and left the place.

The husband and wife were charged with the offence of gang rape under Section 376(2)(g) of the IPC. Priya Patel challenged the charge by the trial court.

The Madhya Pradesh High Court had dismissed her revision petition holding that though a woman could not commit rape, charges under Section 376(2) could apply if she facilitated the act of rape. Her appeal in the apex court was directed against this order.

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Allowing the appeal, the bench referred to the state's contention that the couple had a common intention.

"A woman cannot be said to have an intention to commit rape. The counsel for the appellant is right in her submission that she cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g)," the bench said and quashed the charges framed against the appellant.

The Supreme Court had ruled that a woman cannot be prosecuted for a gang rape offence even if she had facilitated the crime.

"A bare reading of Section 375 of the IPC (Indian Penal Code) makes the position clear that rape can be committed only by a man," a bench of judges Arijit Pasayat and S H Kapadia said while delivering the judgement.

Writing the judgement, Justice Pasayat noted that according to the explanation in Section 376 (2), "when a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each such person shall be deemed to have committed gang rape within this subsection. That cannot make a woman guilty of committing rape. This is conceptually inconceivable."

The issue, ¡®whether a woman can commit rape¡¯ is well settled by the non-ambiguous language of section 375 of IPC which expressly mentions that the act of rape can only be performed by a ¡®man¡¯ and not by ¡°any person¡±. Thus a woman cannot commit rape.

But there is perplexity regarding the commission of ¡°gang rape¡± by women under section 376(2)(g) IPC. Unlike section 375, section 376(2)(g) talks about ¡°Persons¡± rather than ¡°man¡±, which signify that the lawmakers intended to keep Sec. 376(2)(g) gender-neutral.

Making a case for gender-neutral laws

Many consider the judgement in the Priya Patel case as 'bad law' calling the laws to be made gender-neutral since victims and perpetrators belong to all genders.

India's rape laws, while having undergone some changes over the past few decades continue to be regressive and propagate patriarchal norms.

At a time when many countries around the world are moving towards gender-neutral rape laws to observe a person of any gender as a potential victim/survivor or perpetrator, India continues to follow a law that is based on the principle of vaginal penetration by a man.

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This dangerous stereotype denies justice, liberty, right to life and equality to a section of the society.

Section 375 of the Indian Penal Code unreasonably classifies only women as victims thus awarding them protection and completely ignoring other genders of our society.

The Supreme Court¡¯s judgement in Navtej Singh Johar v. Union of India Ministry of Law and Justice Secretary decriminalised consensual carnal intercourse, but failed to equate non-consensual carnal intercourse to sexual assault, but deemed it to be an unnatural offence.

Making rape laws gender-neutral is making a case for the life, equality and dignity of men, transgender and homosexual persons to be protected alongside the protection of women.

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