Sexual assault between thighs also rape, rules Kerala HC

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A division bench of the Kerala high court has expanded the definition of rape and said non-penetrative sexual act between the thighs of a victim to produce a sensation akin to penetration will also de defined as rape, news agency PTI reported.

“…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. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375,” a bench of Justices K Vinod Chandran and Ziyad Rahman has recently ruled in a landmark verdict.

The bench was hearing an appeal of a man against a trial court verdict involving a case where he repeatedly assaulted a minor girl in his neighbourhood sexually. He was sentenced to life by the trial court against which the man moved the high court. The sexual act which was alleged in this case was that of penetration between the thighs of the victim.

“In short, considering the intention of the legislature as revealed from the above proposals, followed by the enactment of Criminal Law Amendment Act, 2013 and gradual evolution of the concept of the offence of “rape” from time to time, the irresistible conclusion is that, the definition of rape as contained in section 375 would take in, all forms of penetrative sexual assault onto vagina, urethra, anus or any other parts of the body so manipulated to get the feeling or sensation of an orifice,” the court said.

“We have already found that Section 375 as amended by Act 13 of 2013, widened the definition of “rape” by expanding its ambit beyond the penile penetrative assault into vagina. One of the consequences of such amendment is that, several penetrative sexual assaults, which would otherwise be triable under Section 377, now come within the operative field of Section 375″, the court said.

As stated in the court order, the case dates back to 2015 when a medical camp was conducted in Thirumarady Government School. The victim appeared along with her mother with the complaint of stomach pain. During the medical examination, the victim was sexually assaulted by a neighbour. The doctor had informed the mother and asked her to make a police complaint. The case then went over which section of the IPC will be imposed and whether the assault will be considered rape.

“As the provision stands at present in 375(c) what constitutes rape reads as: (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or”. It includes penetration to other parts of the body of woman and it is not confined to vagina, urethra and anus,” the order said.

“The word penetration means: “a movement into or through something or some one” The word, ‘penetrate’, as per The Concise Oxford Dictionary, means ‘the act or process of making way into or through something’; ‘to enter or pass through or force a way into or through’. When the above provision is read with the said definitions in common parlance, 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,” it said.

“We are of the view that such an interpretation is in tune with the intention of the legislature which rose to the need of the hour; the society having been confronted with increasing number of such incidents of sexual assault on a routine basis. The time has come for more stringent provisions with increasing instances of acts of such depravity both as a measure of prevention and retribution,” it added.

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