Rape

Rape is defined in Section 63 of the BNS, 2023 (formerly Section 375 IPC). 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 do so with him or any other person, or inserts any object or a part of the body (not the penis) into the vagina, the urethra, or anus of a woman or makes her 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 part of body of such woman or makes her do so with him or any other person, or applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person — under seven specified circumstances.

The seven circumstances constituting rape (absence of consent): (1) Against her will; (2) Without her consent; (3) With her consent obtained by putting her in fear of death or hurt; (4) With her consent when she believes the man to be her husband; (5) With her consent when she is unsound of mind, intoxicated, or unable to understand the nature and consequences of consent; (6) With or without her consent when she is under 18 years of age; and (7) When she is unable to communicate consent. Age of consent for sexual intercourse is 18 years — intercourse with a girl below 18 is statutory rape regardless of apparent consent.

Consent and rape: the BNS 2023 amendment from the IPC has made the consent framework clearer — a woman's 'no' means no, and passive submission due to fear is not consent. The Supreme Court in Aparna Bhat v. State of Madhya Pradesh (2021) 7 SCC 333 cautioned courts against imposing conditions for bail in rape cases that could compromise the victim's dignity or that create inappropriate compromises between the accused and the victim (such as tying bail to the victim's consent). In State of Punjab v. Gurmit Singh (1996), the Court held that the sole testimony of a rape survivor is sufficient for conviction if it inspires confidence — no corroboration is mandatory.

For advocates, rape cases require: (1) understanding the two-finger test prohibition — the Delhi High Court and Supreme Court have deprecated the 'two-finger test' (vaginal examination to determine prior sexual activity) as unscientific and invasive; (2) victim's testimony — it is reliable and can alone convict; (3) DNA evidence — increasingly used to establish the identity of the perpetrator; (4) bail in rape cases — courts apply stringent standards; and (5) POCSO — where the victim is below 18, the POCSO Act, 2012 applies with its presumptions, Special Courts, and mandatory reporting.