Time and again we have heard statements such as “she was habituated to sexual intercourse” (Mathura rape case), “It is improbable to believe that a man who desired to have sex on payment would come to a reluctant woman.” or “The version of a woman of this disposition is not so sacrosanct as to be taken for granted” (Vithura rape case) being used in judgments on rape cases.

Then one would have heard of the cliché’ ‘absence of bodily injuries’ being used as proof against the victim. This is not just about the absence of injuries on the body of the victim but surprisingly enough it’s also about the rapist not being injured during the course of rape. For example, in the Mohammed Hamid v/s State case, a seven year old girl was raped at a bus stop, her hymen was ruptured, there were bite marks on her body, witnesses gave their account of the rape in court and yet the high court bench allowed the rapist to go scot-free because there was no injury to his penis! Apparently this was indication enough that there was no struggle put up by the victim.

And of course how can we have not heard of the one liner that has been done to death in cases of rape- the infamous ‘violating a woman’s modesty’.

So when a high-ranking government official was charged with sexually abusing his six-year-old daughter, which involved the act of finger penetration and oral sex, the police refused to charge the father with the offence of rape and instead registered the complaint under ‘Unnatural Offences’ (Section 377 of IPC).

A writ petition was filed by the mother before the Delhi High Court to bring the offence under the scope of Section 376, pertaining to rape. Her lawyer argued that when a male penetrates a female with any part of his body other than his penis, or shoves any foreign object such as a stick or a bottle into a woman/girl’s vagina without her consent, it would amount to rape within the meaning of Section 376. The court rejected his argument and held that insertion of a bottle into the vagina would amount only to ‘violation of modesty’, which stipulates a maximum sentence of two years and dismissed the petition.

Wondering where that came from? Well none other than from the very definition of what constitutes rape. According to law and ‘popular’ thought, rape is defined by penile-vaginal penetration. Thus, forcible penetration of any object/organ other than the penis into any other orifice, apart from the vagina, is not rape according to the Indian Penal Code (IPC). The location of ‘rape’ is inside the woman’s vagina, and must be penile. Oral sex only amounts to an archaic crime called ‘outraging of modesty of a woman’ (Section 354 IPC).

Given the fact that penile penetration continues to be the governing factor in the offence of rape, the law gets even more absurd. Sexual assault is categorised on the basis of ‘deep’ penetration. Thus, an unsuccessful attempt at penetration is categorised as attempt to rape, and warrants only half the punishment (Section 376 r/w Section 511 of IPC).

For instance, a high court judgment convicted a rapist for the offence of attempt to commit rape on the grounds that the perpetrator could not penetrate deep enough. All the acts of force, gagging, the violence involved, were wiped out by the failure to penetrate deep enough. Therefore it could only be termed to have risked the ‘modesty’ of the woman.

The question then as, asked by a noted women’s rights activist, is truly “How deep is deep enough?” (to be continued)