On Monday, Tehelka founder-editor Tarun Tejpal became the first high-profile person to be charged under India’s new rape law.
In an extensive charge sheet filed by the Goa police, Tejpal has been booked for sexual harassment, wrongful restraint and wrongful confinement. But most significantly, he has been booked under section 376 of the Indian Penal Code for rape.
Before April 2013, the attack Tejpal allegedly carried out on his female colleague in the elevator of a Goa hotel in November would not have been classified as rape. Tejpal’s colleague alleged that he penetrated her with his fingers. The old law restricted the definition of rape to non-consensual peno-vaginal penetration.
But in response to the outrage over the Delhi gang rape case of December 2012, the Criminal Law Amendment Act 2013 passed last March broadened the definition of rape to include any penetration of bodily orifices without consent. Thus penetration with fingers now falls squarely within the ambit of rape. If convicted, Tejpal could face more than seven years in prison.
Before the Tejpal case, this new rape law was largely welcomed. But when Tejpal was arrested, his supporters began to criticise its provisions. Tejpal's lawyer, Geeta Luthra, called the new law “draconian”, and others began to claim that the expanded definition of rape was excessively harsh.
However, India is not the first country in the world to broaden the meaning of rape. The Justice JS Verma Committee, which recommended this amendment to the law, based its argument on widely-accepted international definitions of rape, particularly in Canada and South Africa. Here is what rape laws look like in some other countries:
United Kingdom: In the UK’s Sexual Offences Act 2003, rape is defined as non-consensual penetration of a person’s vagina, anus or mouth with the penis, and is punishable by life imprisonment. Penetration with any other part of the body, or with an object, is termed as "assault by penetration" and is also punishable by life-term. The act clearly differentiates this from sexual assault, which refers to touching another person without consent, with sexual intent – the punishment for sexual assault is ten years.
South Africa: In 2007, South Africa amended its Sexual Offences Act to expand the definition of rape to include all forms of forced sexual penetration, irrespective of gender. It encompasses not just penile penetration, but also penetrating any part of the body, or an object, or any part of an animal’s body, into the genital organs, anus or mouth of a non-consenting woman or man. Punishment could range from 15 years to life imprisonment.
Canada: The Canadian Criminal Code took out the word "rape" in 1983 and replaced it with a broader term, "sexual assault". This term is defined as any kind of direct or indirect physical contact with a non-consenting person. The minimum punishment is one year of imprisonment and the maximum punishment is ten years.
The United Nations also defines rape to include any kind of penetration. The UN Handbook for Legislation on Violence against Women clearly recommends that any legislation for crimes against women should replace existing offences of rape and "indecent assault" with a broader offence of "sexual assault". It also recommends removing “any requirement that sexual assault be committed by force or violence, and any requirement of proof of penetration”.
While acknowledging this international trend of broadening the definition of rape, the Justice Verma Committee Report specifically stressed the importance of retaining the word "rape" in the Indian law. “In the current context, there is a risk that a move to a generic crime of ‘sexual assault’ might signal a dilution of the political and social commitment to respecting, protecting and promoting women’s right to integrity, agency and autonomy,” the report says.
Mumbai-based lawyer Vandana Shah believes India’s new, stringent rape law is a good step forward. “Rape is not about the sexual act: it is about power,” she said. “It’s better to have a law that plugs as many loopholes as possible, so that offenders don’t get away with lighter sentences based on mere technicalities about penetration.”
In an extensive charge sheet filed by the Goa police, Tejpal has been booked for sexual harassment, wrongful restraint and wrongful confinement. But most significantly, he has been booked under section 376 of the Indian Penal Code for rape.
Before April 2013, the attack Tejpal allegedly carried out on his female colleague in the elevator of a Goa hotel in November would not have been classified as rape. Tejpal’s colleague alleged that he penetrated her with his fingers. The old law restricted the definition of rape to non-consensual peno-vaginal penetration.
But in response to the outrage over the Delhi gang rape case of December 2012, the Criminal Law Amendment Act 2013 passed last March broadened the definition of rape to include any penetration of bodily orifices without consent. Thus penetration with fingers now falls squarely within the ambit of rape. If convicted, Tejpal could face more than seven years in prison.
Before the Tejpal case, this new rape law was largely welcomed. But when Tejpal was arrested, his supporters began to criticise its provisions. Tejpal's lawyer, Geeta Luthra, called the new law “draconian”, and others began to claim that the expanded definition of rape was excessively harsh.
However, India is not the first country in the world to broaden the meaning of rape. The Justice JS Verma Committee, which recommended this amendment to the law, based its argument on widely-accepted international definitions of rape, particularly in Canada and South Africa. Here is what rape laws look like in some other countries:
United Kingdom: In the UK’s Sexual Offences Act 2003, rape is defined as non-consensual penetration of a person’s vagina, anus or mouth with the penis, and is punishable by life imprisonment. Penetration with any other part of the body, or with an object, is termed as "assault by penetration" and is also punishable by life-term. The act clearly differentiates this from sexual assault, which refers to touching another person without consent, with sexual intent – the punishment for sexual assault is ten years.
South Africa: In 2007, South Africa amended its Sexual Offences Act to expand the definition of rape to include all forms of forced sexual penetration, irrespective of gender. It encompasses not just penile penetration, but also penetrating any part of the body, or an object, or any part of an animal’s body, into the genital organs, anus or mouth of a non-consenting woman or man. Punishment could range from 15 years to life imprisonment.
Canada: The Canadian Criminal Code took out the word "rape" in 1983 and replaced it with a broader term, "sexual assault". This term is defined as any kind of direct or indirect physical contact with a non-consenting person. The minimum punishment is one year of imprisonment and the maximum punishment is ten years.
The United Nations also defines rape to include any kind of penetration. The UN Handbook for Legislation on Violence against Women clearly recommends that any legislation for crimes against women should replace existing offences of rape and "indecent assault" with a broader offence of "sexual assault". It also recommends removing “any requirement that sexual assault be committed by force or violence, and any requirement of proof of penetration”.
While acknowledging this international trend of broadening the definition of rape, the Justice Verma Committee Report specifically stressed the importance of retaining the word "rape" in the Indian law. “In the current context, there is a risk that a move to a generic crime of ‘sexual assault’ might signal a dilution of the political and social commitment to respecting, protecting and promoting women’s right to integrity, agency and autonomy,” the report says.
Mumbai-based lawyer Vandana Shah believes India’s new, stringent rape law is a good step forward. “Rape is not about the sexual act: it is about power,” she said. “It’s better to have a law that plugs as many loopholes as possible, so that offenders don’t get away with lighter sentences based on mere technicalities about penetration.”
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