Why a Chhattisgarh High Court acquittal in a two-decade-old rape case has sparked outrage

Section 375 of the Indian Penal Code, till 2013, had a narrow definition of rape. It criminalised only peno-vaginal penetration. That is, the offence occurred only if a penis forcefully entered a vagina. The statutory explanation to the provision stated: “Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

The pre-2013 definition in many ways seemed to suggest that sexual assault was a legal technicality to be deciphered by the court. For so-called “lesser offences”, the yardstick of attempt to rape or preparation to rape is applied.

What constitutes the offence of attempt to rape?

A sexual assault trial is often portrayed in popular imagination as a “she said” version of events, but it involves a complex and close examination of a chain of events.

A landmark 2004 ruling, Koppula Venkatrao v. State of Andhra Pradesh, fused the line “penetration, not ejaculation, is the sine qua non of rape” with rape jurisprudence. The case involved a teenage complainant who was walking with her friends to a neighbourhood locality to watch a movie. As per court records, the accused Venkatrao offered them bicycle rides and lured them into an abandoned area. However, before penetrating, the accused ejaculated and fled the scene of the crime. The sessions court convicted him of rape and sentenced him to rape. The HC confirmed the conviction and reduced the sentence. However, the SC on appeal convicted him of attempt to rape and not rape.

Essentially, when penetration is absent but intent to rape and overt acts proximate to penetration are committed, the courts would consider it an attempt to rape.

This is the reason why the Chhattisgarh HC’s 13-page ruling dissects phrases such as “partial penetration”, and “keeping penis against vagina without penetration”. This understanding stemmed from Victorian-era views prioritising procreation and “natural” heterosexual intercourse. These are ideas rooted in notions of “honour”, where virginity and marital prospects were given precedence. Rape was viewed as an offence against a woman’s chastity rather than her bodily autonomy.

Simply put, only non-consensual intercourse that could result in procreation was liable to be penalised, and everything else that fell short of that definition was excluded. This definition formed the basis of the legal rule or the necessary condition to establish a rape charge: that penetration alone, not ejaculation or any other activity, including the rubbing of private parts, constitutes rape.

What did the HC rule?

The HC, in its acquittal, relies on two aspects of the complainant’s testimony. The court deems her reference to a “partial penetration” and another reference that the accused “kept his private part above her vagina for about 10 minutes but did not penetrate”, as an absence of penetration.

This reliance on partial penetration as the absence of penetration could be grounds for appeal. However, the other overt acts, such as undressing and rubbing of private parts, are constituted as an attempt to rape, according to the law as it stood at the time when the offence was committed.

What is the law now?

One of the key demands from the protests over the 2012 Delhi gang rape was recognising and penalising a wide range of non-penetrative sexual offences against women. The Criminal Law (Amendment) Act, 2013, was brought in to strengthen laws against sexual offences. The new law expanded the definition of rape and introduced a mandatory minimum punishment of seven years for rape.

In the expanded definition, the law recognises penetration of a penis, any object or a part of the body, to any extent, into the vagina, mouth, urethra or anus of a woman. The explanation of the provision also states that the vagina would include the labia majora. If examined under the new definition, the offence could be considered rape since penetration to any extent is included in the penal law.