Rape: The Offence, and How Its Definition Changed

In one line

The offence is defined by four acts and seven circumstances, and the whole of the modern law is in the definition of consent that follows them.

In the wording a student can write in an exam: under section 63 of the Bharatiya Nyaya Sanhita 2023, a man commits rape if he does any of four acts, namely penetration by the penis to any extent into the vagina, mouth, urethra or anus of a woman; insertion of any object or part of the body other than the penis into the vagina, urethra or anus; manipulation of any part of her body so as to cause penetration; or application of his mouth to her vagina, anus or urethra, or makes her do any of those with him or another, under any of seven descriptions: against her will; without her consent; with consent obtained by putting her or a person she is interested in in fear of death or of hurt; with consent given because she believes he is her husband when he knows he is not; with consent given when by reason of unsoundness of mind or intoxication or a stupefying substance she cannot understand what she consents to; with or without her consent when she is under eighteen; and when she is unable to communicate consent.

The definition of consent, which is where the modern law is

Explanation 2 to section 63 is the provision to know by heart.

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.

And the proviso: a woman who does not physically resist the act of penetration shall not by reason only of that fact be regarded as consenting.

Three things follow, and they are what the definition was written to achieve.

Consent must be communicated. Silence is not consent, and the absence of a refusal is not consent.

Consent is act-specific. It is willingness to participate in the specific sexual act, so consent to one act is not consent to another.

And the absence of physical resistance proves nothing. That proviso is the legislative answer to the reasoning in Mathura, which the next chapter takes.

The four acts and the two Exceptions

The acts are set out above and are deliberately wide: the offence is no longer confined to penile-vaginal penetration, and it covers making the woman do the act with the man or with another person.

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

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