Kerala HC: Non-Penetrative Sexual Acts Without Consent Also Rape

Rape Law Judgement By Kerala HC: The Kerala High Court in a landmark judgement on Wednesday addressed the wide scope of Section 375 (rape) of the Indian Penal Code.

While hearing a case the court ruled that the act of the accused rubbing his penis on the thighs of the a survivor will constitute rape as per law. The court directed that if an act provides even simulation of penetrative sex or the sexual gratification of it to the accused, it will be termed as rape.

The judgement was given by a bench headed by Justices K Vinod Chandran and Ziyad Rahman AA while hearing an appeal filed by a convicted rapist. The man accused of raping a minor girl argued in front of the court whether his attempt of penetrating the gap between the girl's thighs can be called rape.

The High Court bench then observed that the rape law in India has been amended through the years and now it also includes penetration of any part of a woman's body. The court said the law needs wider interpretation to include acts to try and manipulate a woman's body to simulate penetration.

What was the case about?

In 2015, an 11-year-old girl visited a government medical camp with her mother. She was complaining of a stomach ache. During the examination, the minor told the doctor that a neighbour had sexually assaulted her. When the doctor asked the girl's mother to file a complaint against the accused she decided to stay silent as she feared society.

However, after receiving calls from the Childline officials, the woman finally filed a complaint against the accused man. He was then arrested. The accused was charged for rape, sexual harassment, committing sexual offences against a child (POCSO).

He was later convicted in the case and sentenced to life imprisonment for the remainder of his life.

As per the survivor's counsel, the convict had sexually assaulted the minor in multiple ways. By allegedly "making her hold the genitals of the appellant till he ejaculated, showing obscene pictures, attempt to put his penis into the mouth of the victim, the incident of sexual acts between her thighs followed by ejaculation (though the child called it the place of urination) etc"

The man was known to the girl's family so he coerced her to stay silent.

What the court ruled?

The court observed that the term rape mentioned under section 375 of the Indian Penal Code also takes into account sexual assaults beyond penetration into the vagina, urethra, anus and mouth. The law also includes penetration into "any part of the body of a woman" mentioned under 375 (c).

Since the gap between thighs does not count as an orifice, the court ruled that "any part" of a woman's body includes the thigh gap.

The court ruled, "When the amended definition of Section 375 is examined in the light of the gradual evolution of definition of rape and the expansion thereof, in our view, the expression “cause penetration into the vagina, urethra, anus or any part of body of such woman,” as used therein, requires a wider interpretation so as to include any orifices naturally present or any part of the body manipulated to simulate a penetration and have the effect/sensation of an orifice."

“...we have no doubt in our mind that, when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted,” the judgement added.

Since the prosecution had not mentioned the age of the survivor in the legal documents, the convict was not charged under the POCSO act. The High Court ruled the convict is still guilty of committing crimes under Section 375, Section 376 (1), Sections 354 (rape) and 354A(1)(i). 354A(1)(i).

The High Court in its judgement stated that any man who makes any physical contact and advances involving unwelcome and explicit sexual overtures shall be held guilty of the offence of sexual harassment.