What is Digital Rape? Laws & Punishment

5 Sep 2022  Read 2680 Views

“Digital rape,” does this has anything to do with crime committed online? Is the body of the victim actually involved in digital rape? Many of you might have believed that digital rape means cyber crime or sexual offense committed online with no actual involvement of a body. But this is not true! In English, the word ‘digit’ means toe, finger, and thumb, and penetrating the same against someone's consent, is known as digital rape; it has nothing to do with cybercrime. Most of you are unaware of this term, is because, in the past, it was considered molestation and not rape. In this article, let’s discuss rape laws in India, the meaning of digital rape, the inclusion of digital rape in our country’s criminal code, and many more.

What do you mean by rape in India?

Section 375 of IPC 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." This heinous crime has been categorized into many types; let’s look at them.

Types of Rape in India

  1. Date Rape- The term "date rape" is widely known as ‘acquaintance rape,’ which is a non-domestic rape committed by someone who knows the victim. It is a drug-facilitated sexual assault where the rapist intentionally drugs the victim with a date rape drug to get them incapacitated. The most common example is spiking the drink of the victim.

  2. Gang rape-  It refers to a group of people who participates in the rape of a single victim. Rape involving two or more perpetrators is widely reported in many parts of the world. Section 376(2)(g) gives the punishment for gang rape. It states that the perpetrators shall be punished with rigorous imprisonment of at least ten years, which may even extend to life imprisonment for the offenders, along with a fine or both. The gang rape cases that outraged the public are the Nirbhaya Rape case, the Bilkis Bano Gang Rape case, etc.

  3. Marital rape- This rape is also referred to as spousal rape, which is rape between a married or de facto couple without one spouse's consent. Spousal rape is considered a form of domestic violence and sexual abuse. Exception 2 of section 375 is a barrier to the passing or recognition of this marital rape law as it states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, in certain cases, Courts stated it as 18 years instead of 15 years. 

  4. Child Rape- It is a form of child sexual abuse. When committed by another child (usually older or stronger) or adolescent, it is called child-on-child sexual abuse. POCSO is the law governing sexual assault on children.

  5. Custodial rape- Section 376A states that custodial rape occurs when the rape is done by a man in whose custody the woman is. The men can be any police officers, constables, etc., who keep the woman in custody. If they misuse their position to sexually exploit women, it is a very heinous crime. However, in 1983 this concept was given significance, and the meaning of the term ‘custody’ was broadened. One popular example can be the Mathura Rape case.

  6. Digital rape is the forceful penetration of fingers and toes without the victim's consent and has nothing to do with online crimes. Let’s understand this form of rape in detail.

What do you mean by Digital Rape?

In digital rape, the perpetrator uses his finger or fingers to infringe and compel the sexual act upon the victim. In simple terms, a person is accused of digital rape when the perpetrator uses his finger or fingers to penetrate the vagina of the victim without her consent.

Incident 1- In a very outrageous incident, a 2-year-old was brought to the hospital bleeding in Mumbai, where doctors discovered that her vagina was ruptured. Still, there was no evidence of sexual abuse or rape. Her father, however, was later found to be penetrating the girl with his fingers. He was taken into custody but punished under Section 376 of the IPC.

Incident 2- Then, in another incident, a 60- years old woman was sexually assaulted by an auto-rickshaw driver, who used an iron rod to penetrate her while she was visiting her relative's wedding. The driver was arrested again but wasn't convicted under Section 376 of the IPC, highlighting various loopholes in Section 376 of the IPC.

As this pointed out several loopholes in Section 376 of the IPC, that deals with the punishment of rape crimes because digital rape, which involves a violation of a female's dignity using fingers, foreign objects, or any other part of the human body, was not considered as a crime under any of the section under IPC. But after the criminal Amendment Act of 2013, the Supreme Court had to make a few changes to its definition of rape in the Indian Penal Code. keeping all these cases and heinous instances of crime, the definition of rape was extended in 2013. By this new definition, rape is now defined as “forcefully penetrating a woman's vagina, mouth, anus, or urethra by a penis, any foreign object, or any other part of the body.”

What is the punishment for Digital Rape?

The punishment is prescribed under IPC and POCSO Act. According to the POCSO Act, the offender will be punished with a jail term of five years, and if it comes under Section 376 of the IPC, the jail term can be extended from 10 years to life imprisonment. The provisions dealing with the punishments under POCSO are:

Section 3 of the POCSO Act

Although changes in the definition of rape were made in 2013 under Section 376 of IPC, under Section 3 of the POCSO Act, insertion to any extent “of any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or making the child do so with him or any other person” was already considered as a penetrative sexual assault. In cases of digital rape, not only these two provisions are considered for inflicting punishments, but it can extend to a few other provisions as well. They are:

Section 5(m) and 6 of the POCSO Act

  • While Section 3 defines penetrative sexual assault, Section 5 of the POCSO Act defines aggravated penetrative sexual assault, which states that “committing penetrative sexual assault on a child below twelve years” is said to have committed aggravated penetrative sexual assault.

Under this section, punishment for aggravated penetrative sexual assault can range from rigorous imprisonment for a term of 20 years to life imprisonment (which includes the whole of the natural life) or even death. Also, there is an additional fine.

  • Section 6: (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of the victim.

Rape laws in India

  • U/s 228A[2] of the IPC, no person can disclose the name of the rape victim, and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for a fine.
  • U/s 114-A[3] of the Indian Evidence Act, the presumption can be made as to the absence of consent in certain prosecutions for rape.
  • U/s 53(1)[4] of the CrPC, when a person is arrested on a charge of committing an offense of such a nature and alleged to have been committed under such situations that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offense, it shall be lawful for a registered medical practitioner, acting at the request of a police officer, not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably mandatory to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
  • U/s 164A[5] of the CrPC states that the provisions for medical examination of the rape victim are given.
  • U/s 327(2)[6] of the CrPC, there should be an in-camera trial for all rape victims.

Conclusion

After the Nirbhaya rape case, an immediate need was felt to amend the rape laws in India. Before 2013, digital rape wasn’t incorporated under the definition of rape. But after several heinous rape offenses, as discussed above, the Supreme Court had to make a few changes to its definition of rape, knowing that there are other ways that a man can use to violate a woman or child's dignity. Hence, keeping all these cases and heinous instances of crime, the definition of rape was extended in 2013, and rape is now defined as “forcefully penetrating a woman's vagina, mouth, anus, or urethra by a penis, any foreign object, or any other part of the body.”

About the Author: Kakoli Nath | 82 Post(s)

Kakoli Nath is a legal Content Curator at Finology Legal who pursued BBA.LL.B (5 years integrated course) & she is a patent analyst. She has pursued advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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