Rape
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Introduction
Rape is one of the serious, heinous and
sensitive crimes existing in every society..
It is stigmatic and traumatic crime and
traditionally considered as a crime
committed against women by man.
Presently, forceful sexual intercourse are
committed not only against women but
also against men and the third sex (crime
that may be committed by man against
human being.)
Thus it is now a neutral crime which may
be committed against any human being
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by man. 12/05/25
rape
Thus, the scope of rape has been expanded.
It is inhuman and stigmatic offence that affects
and harms the victim personal liberty and right
to self-determination, personal integrity and
chastity.
Traditionally, rape has been defined as an
unlawful sexual intercourse with a women's
vagina (vaginal) without her consent by any men
except her husband.
However, in the present connotation sexual
intercourse may be vaginal, oral and anal and
even any intervention by any means of any object
without consent in sex organ also considered as
unlawful activity and criminal behavior.
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Definition
Traditionally, the term rape meant having
sexual intercourse (vaginal) without
consent of the women by the man except
her husband.
This traditional meaning of rape has been
changed and in the present sense the
sexual intercourse and sexual activity is not
concentrated with vagina.
(sexual gratification may be achieved through
oral, and anal sex and by different modes and
methods.)
Rape can be committed by husband also.
Various countries have criminalized marital
rape.
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Meaning of Rape
The Sexual Offences Act 2003 defined rape.
Section 1 of this Act defines as:
“(1) A person (A) commits an offence if-
a) he intentionally penetrates the vagina, anus or
mouth of another person (B) with his penis,
b) B does not consent to the penetration and
c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined
having regard to all the circumstances, including any
steps A has taken to ascertain whether B consents.”
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Assault by penetration
The Sexual Offences Act 2003 defined rape.
Section 2 of this Act defines as:
“(1) A person (A) commits an offence if-
a) he intentionally penetrates the vagina, anus or
mouth of another person (B) with a part of his body
or anything else,
b) the penetration is sexual,
c) B does not consent to the penetration, and
d) A does not reasonably believe that B consents.”
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Classification of Crime of Rape
Several basis and criteria have been developed
to divide crime of rape.
[Link] the basis of consent
1. Statutory rape (with or without
consent of girl under 18 years of age
[Link] rape (without consent)
[Link] the basis of assailant who
commits
[Link] rape
[Link] rape
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3. On the basis of victim against whom rape is
committed
1. Male rape
2. Female rape
3. Boy child rape
4. Girl child rape
4. On the basis of kind of sexual intercourse
1. Vaginal
2. Oral
3. Anal
4. Any kind of intervention by any object
5. Date rape - by boy friend/known person
6. Violent rape - by stranger
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2.2. Essential Ingredients of Rape
There are two essential ingredients of
crime of rape:
1. The Physical Element of Rape: Actus Reus
1. The Mental Element of Rape: Mens Rea
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Physical element
The physical element of rape is
"the
penetration of penis into the anus or mouth,
penetration of penis, to any extent, into the
anus, mouth or vagina, insertion of any
object other than the penis into the vagina
shall also be considered to be rape." Section
219 (2) Explanation clause (c)
Without the consent ;however, if the victim
consents to penetration but withdraws consent
after penetration, the accused must in turn
withdraw his penis,
The slightest penetration suffices.
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Mental element
The mental element consists of intentional
penetration and the accused’s lack of a
reasonable belief that the victim is
consenting.
Committing sexual intercourse knowing
that the victim did not consent or being
careless in knowing that the victim had not
consented.
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Who can consent
‘a person consents if he agrees by choice, and
has freedom and capacity to make that
choice.’
Explanation of consent by Section 219 (2) of
MCC
a) consent obtained by way of coercion, undue
influence, intimidation, threat,
misrepresentation, or abduction or hostage-
taking shall not be considered to be consent,
(b) consent obtained at the time of being of
unsoundness of mind shall not be considered
to be consent,
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Rape under Muluki Criminal
Code
219. Prohibition of committing
rape: (1) No one shall commit rape.
(2) Where a man has sexual
intercourse with a woman without
her consent or with a girl child
below the age of eighteen years
even with her consent, the man
shall be considered to commit rape
on such woman or girl child.
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Who can consent
(a) consent obtained by way of coercion,
undue influence, intimidation, threat,
misrepresentation, or abduction or
hostage-taking shall not be considered to
be consent,
(b) consent obtained at the time of being
of unsoundness of mind shall not be
considered to be consent,
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Minor penetration is
sufficient
the penetration of penis into the anus or
mouth, penetration of penis, to any
extent, into the anus, mouth or vagina,
insertion of any object other than the penis
into the vagina shall also be considered to
be rape.
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Punishment
Punishment shall be imposed having regard to the
circumstances of such sexual intercourse and the age of
woman:
a) imprisonment for life if she is a girl child below ten
years of age,
(b) imprisonment for a term of Eighteen to Twenty years, if
she is a girl child who is ten years or above ten years of
age but below fourteen years of age,
c) imprisonment for a term of 12-14 years, if she is a girl is
fourteen years or above fourteen years of age but below
sixteen years of age,
(d) imprisonment for a term of 10-12 years, if the woman
is sixteen years or above sixteen years of age but below
eighteen years of age,
(e) imprisonment for a term of 7-10 years, if the woman
16
is
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eighteen years or above eighteen teen years of age.
punishment
Imprisonment for 5 years for rape committed
by husband against wife during the existence
of marital relationship between them
The following situation shall not be
considered as the existence of marital
relationship:
a case of partition has been instituted upon
making separation of board and bread,
the wife has lived separate upon taking her
partition share from the husband,
a case of divorce with the husband has been
17 instituted. 12/05/25
Additional punishment
(a) additional the sentence referred to in Section 105 ( up
to 10 years of imprisonment and fine of Hundred
Thousands Rupees) in the event of the commission of
rape in spite of knowing that he has human immuno
deficiency virus ( HIV positive),
(b) additional sentence of imprisonment for a term not
exceeding three years and a fine not exceeding thirty
thousand rupees in the event of the commission of rape
in spite of knowing that he has any other sexually
transmitted disease.
Additional 5 years of imprisonment for gang rape, agaisnt
a woman having pregnancy of more than six months or
on a woman who is disabled or handicapped or on a
woman who is suffering from physical or mental illness
18 or committing rape showing arms 12/05/25
Punishment
Sexual intercourse with a detainee: 3 years of
imprisonment and if such act is punishable under
la in force such punishment shall also be added.
(221)
Having sexual intercourse with any person in his or
her protection, security or custody, and no office-
bearer or employee of any organization providing
treatment or rehabilitation services to persons of
unsound mind or suffering from physical or mental
illness or have sexual intercourse with any person
held in such organization: 3 years of imprisonment
and if such act is punishable under la in force such
punishment shall also be added.(222)
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Punishment
Having sexual intercourse with a person serving
in one's own office or a person making contact or
being in contact for such service or work, while
performing functions of such office or providing
such service or at the place where such service is
provided.
For such offence the punishment of
imprisonment for up to 4 four years, and if such
sexual intercourse is an offence under this Act or
other law also, the sentence under this Section
shall be added to the sentence under such law.
Committing rape on a woman within the
prohibited relationship: both of the punishment
20 for rape and incest. 12/05/25
Child Sexual abuse 225
Section 225 prohibits child sexual abuse .
A person shall be considered to commit
child sexual abuse if the person takes to any
lonely place in an unusual manner, orholds
or touches any sexual organ of, gets his or
her sexual organ to be touched or held by,
or makes any form of unusual sexual
behavior with, a child, with the motive of
having sexual intercourse with the child.
Punishment: imprisonment up to 3 years
and a fine up to 3o Thousands Rupees.
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Unnatural sexual intercourse
(s. 226)
No person shall have, or cause to be had,
unnatural sexual intercourse with another
person without his or her consent.
Punishment: imprisonment up to 3 years
and a fine up to 3o Thousands Rupees.
Compensation : Reasonable compensation
shall be paid to the victim.
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25 12/05/25
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ePsf] gb]lvO{ ;f] sf] pBf]u ;Dd ePsf] b]lvg
cfpg] .
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Limitation
In case of incest: No limitation for filing a
case
In case of rape, sexual intercourse with a
person in custody, sexual intercourse with
a person in one's own protection, sexual
intercourse with person in office or
receiving professional service, sexual
harashment, child sexual abuse and
unnatural sex with child: One Year
In other cases: 3 months
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