BNS Section 63 – Rape

Section in IPC – 375

Understanding the Legal Definition of Rape in India

Rape

A man is said to commit “rape” if he
(a) 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
(b) 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
(c) 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 to do so with him or any other person; or
(d) 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:
(i) against her will.
(ii) without her consent.
(iii) 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.
(iv) 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.
(v) with her consent when, at the time of giving such consent, by reason of mental illness 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.
(vi) with or without her consent, when she is under eighteen years of age. (vii) when she is unable to communicate consent.

Explanation 1
For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2
Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception
1A medical procedure or intervention shall not constitute rape.

Exception
2Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Key Points on Acts Constituting Rape

Rape is defined as a non-consensual sexual act, and it includes various forms of penetration and manipulation. Here are the key acts that constitute rape:

1. Penetration by the Penis

• Penetrating the vagina, mouth, urethra, or anus of a woman, or making her do so, either with the man or another person.

2. Insertion of Objects or Body Parts

• Inserting any object or body part (other than the penis) into the woman’s vagina, urethra, or anus, or making her do so.

3. Manipulation of the Woman’s Body

• Manipulating any part of her body to cause penetration into any part of her genitalia or making her do so.

4. Oral Acts

• Applying his mouth to the vagina, anus, or urethra of the woman or making her do the same.

Circumstances That Invalidate Consent

Consent is a crucial element in determining whether an act constitutes rape. The following circumstances invalidate consent:

1. Against Her Will

• The act occurs even when the woman does not wish to engage in it.

2. Without Consent

• The act occurs without the woman giving any form of consent, either verbally or non-verbally.

3. Coerced Consent Due to Fear

• If consent is obtained by threatening her or someone she cares about with death or harm.

4. False Identity

• When a man deceives the woman by pretending to be someone else (e.g., her lawful spouse), and she consents based on this false belief.

5. Incapacitated Consent

• If the woman is under the influence of substances, mentally ill, or otherwise incapable of understanding the act, and her consent is manipulated.

6. Underage Consent

• Sexual intercourse with or without the consent of a girl under 18 years of age is automatically considered rape.

7. Inability to Communicate Consent

• When the woman cannot physically or verbally communicate her consent.

Explanation of Consent

1. Definition of Consent

• Consent means a clear, voluntary agreement expressed through words, gestures, or other means indicating the woman’s willingness to participate.

2. Non-Resistance Doesn’t Imply Consent

• Simply because a woman does not physically resist penetration, it does not mean she has given consent.

Exceptions to the Definition of Rape

1. Medical Procedures

• Any medical procedure or intervention that involves the acts mentioned above is not considered rape if it is done in the proper context (e.g., medical necessity).

2. Marital Exception

• Sexual intercourse between a man and his wife is not considered rape, provided the wife is not below 18 years of age.

Important Definitions

• Consent: An unequivocal, voluntary agreement communicated through words, gestures, or other means. The absence of physical resistance does not imply consent.
• Against Her Will: Refers to situations where the act occurs despite the woman not wanting to engage in it.
• Without Consent: Implies that there was no voluntary agreement or communication indicating the woman’s willingness.
• Mental Incapacity or Intoxication: If the woman is unable to understand the nature and consequences of her consent due to mental illness, intoxication, or other substances, her consent is invalid.
• Underage Consent: Any sexual activity with a girl under 18 years of age is classified as rape, regardless of whether the girl agrees.

Summary

Rape includes any sexual act where consent is not given freely, and there are several acts that are considered rape, including penetration, object insertion, manipulation of the body, and oral acts. Consent can be invalidated by factors such as coercion, deceit, incapacity, or being underage. Rape laws are in place to protect individuals from non-consensual acts, and consent must be clear, voluntary, and communicated explicitly. Additionally, specific exceptions, such as medical procedures and the marital exception, are recognized under the law.