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Kerala HC: Redefining Rape By Moving Beyond Actual Penetration

By Sunil Garodia
First publised on 2021-08-06 14:38:09

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

In a landmark judgment, the Kerala High Court broadened the definition of rape to include non-penetrative acts that are designed to use any part of a female's body to simulate an orifice and provide sexual gratification to the perpetrator. This takes rape beyond the restrictive meaning of the sexual act where actual penetration was the main indicator.

The case related to a complaint by an 11-year old girl in 2015 that her neighbour repeatedly assaulted her sexually by placing his penis between her tightly pressed thighs and simulated the sexual act for personal gratification. The man was arrested and charges for rape and other offences were slapped against him under the POCSO Act and the IPC.

He appealed before the court that since he had not had penetrative sex with the girl, it could not be termed rape and he was not guilty as charged. But the court was of the view that the definition of rape would take in "all forms of penetrative sexual assault onto vagina, urethra, anus or any part of the body so manipulated to get the feeling or sensation of an orifice".

The bench said that the intention of the legislature when drafting the rape laws, the amendments in 2013 and the gradual evolution of the concept of the offence of rape, when taken together lead it to irresistibly conclude that when the body of the victim is manipulated to hold the legs together (in the instant case, but it could be any other part or parts in a different case) for the purpose of simulating a sensation akin to penetration of an orifice, the offence of rape is attracted.

This broad definition will now bring to book cunning offenders who are aware of the provisions of the rape law and escape punishment by doing all repulsive things except penetrating. In fact, the Bombay High Court had ruled in 2014 that rubbing the penis against any part of a female's body, even on the vagina, would not amount to rape but would be an attempt to rape. The current ruling changes that and brings any simulated act using any part of the female body that brings sexual gratification to the perpetrator within the ambit of rape. 

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