Authored By: Urishita Gadhok
Abstract
Rape remains one of the gravest violations of bodily autonomy and personal dignity. Across jurisdictions, legislatures have sought to define, prosecute, and prevent such offences, yet cultural, historical, and procedural differences continue to shape the law’s contours. This article undertakes a comparative analysis of the rape laws in India and the United States, examining statutory definitions, consent frameworks, marital rape provisions, evidentiary safeguards, and sentencing structures. In India, the advent of the Bharatiya Nyaya Sanhita, 2023 marks a significant codification shift, but longstanding exceptions, such as those related to marital rape, persist. The United States, with its federal–state duality, presents a mosaic of approaches, ranging from affirmative consent statutes to lingering force-based definitions. Through an exploration of legislative texts, judicial interpretation, and socio-legal debates, this article identifies strengths, shortcomings, and potential reforms necessary to harmonise survivor-centric justice with due process guarantees.
Research Methodology
This study adopts a comparative doctrinal methodology, focusing on primary sources such as the Bharatiya Nyaya Sanhita, 2023 [1](BNS), Bharatiya Nagarik Suraksha Sanhita, 2023 [2](BNSS), and Bharatiya Sakshya Adhiniyam, 2023 [3](BSA), as well as U.S. federal and state statutes. It analyses case law from the Supreme Court of India, High Courts, the U.S. Supreme Court, and various state courts. Secondary sources include peer-reviewed journal articles, Law Commission reports, United Nations recommendations, and credible media coverage. The approach is primarily analytical and comparative, highlighting both convergences and divergences in legal frameworks, judicial interpretation, and practical enforcement. The research also references international human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [4]and the International Covenant on Civil and Political Rights (ICCPR)[5] to contextualise domestic laws within global standards
Introduction
In December 2012, the streets of Delhi filled with candlelight as thousands protested the brutal gang rape of a young woman later dubbed ‘Nirbhaya’. Across the globe, in 2017, millions of women and men used the hashtag #MeToo to share their stories of sexual assault and harassment. These moments—one rooted in a single horrific crime, the other in a collective outpouring—transcended borders, reminding the world that sexual violence is both deeply personal and tragically universal. Yet, how nations define, prosecute, and punish rape can differ dramatically, shaping survivors’ experiences in ways that laws alone cannot capture.
This article compares the rape laws of India and the United States, not merely as a technical exercise in statutory interpretation, but as a reflection of how two democracies address one of humanity’s most enduring violations. By examining definitions, consent frameworks, marital rape provisions, and recent reforms, it seeks to understand where the law empowers survivors—and where it falls short.
The Legal Framework in India under the BNS
The Bharatiya Nyaya Sanhita, 2023, which replaces the colonial-era Indian Penal Code, retains a broad definition of rape under Section 63. It criminalises penetration—whether penile, digital, or with an object—into the vagina, mouth, urethra, or anus without consent. Consent itself is defined as an unequivocal voluntary agreement, communicated through words, gestures, or any form of verbal/non-verbal communication.
The age of consent is fixed at eighteen years, and sexual acts with a person below this age constitute rape regardless of purported consent. The most contentious element remains the statutory exception: sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.
Punishments under Section 64 of the BNS range from rigorous imprisonment of ten years to life, with the possibility of the death penalty for certain aggravated cases such as gang rape or offences against minors. Procedural aspects—such as recording the victim’s statement by a woman police officer and the provision for in-camera trials—are governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Bharatiya Sakshya Adhiniyam, 2023 (BSA) reinforces the principle that a survivor’s past sexual history cannot be used to discredit their testimony. [BNS, 2023, §63] [BNS, 2023, §64] [BNSS, 2023] [BSA, 2023, §140]
Unlike its colonial predecessor, the BNS modernizes certain provisions, expanding the scope of aggravated rape and codifying protections for persons with disabilities. The shift to BNS also symbolizes a broader legislative intent to reflect contemporary constitutional values, yet the retention of the marital rape exception continues to draw criticism from gender rights advocates and legal scholars alike.
The Legal Landscape in the United States
In the United States, rape laws operate within a federal–state framework. While there is a federal definition—articulated by the Federal Bureau of Investigation’s Uniform Crime Reporting (UCR) program as ‘penetration, no matter how slight… without the consent of the victim’—most prosecutions occur under state law. State statutes vary widely. Some, like California and New Jersey, have moved to an ‘affirmative consent’ model, requiring explicit agreement before sexual activity. Others still retain older ‘force or threat of force’ requirements, which critics argue undermine cases where victims are incapacitated or coerced without overt violence.
The age of consent ranges from sixteen to eighteen, depending on the state. Crucially, marital rape is criminalised across all fifty states, although in some jurisdictions, historical remnants allow for lighter sentences or procedural hurdles in spousal cases. Sentencing practices range from probation to life without parole, with plea bargaining significantly influencing outcomes.
Federal law under 18 U.S.C. §2241[6] also addresses aggravated sexual abuse, covering acts committed through force, threats, or when the victim is rendered unconscious or incapable of consent. Additionally, several states have adopted laws specifically addressing consent obtained through coercion or abuse of authority, recognizing the complex power dynamics in professional, educational, and custodial settings.
Judicial Interpretation and Case Law
Indian courts have played a pivotal role in shaping rape jurisprudence. In State of Punjab v. Gurmit Singh (1996), the Supreme Court emphasised that a survivor’s testimony alone can be sufficient for conviction if it is credible and trustworthy, rejecting archaic corroboration requirements. The Independent Thought v. Union of India (2017) ruling read down the marital rape exception for wives aged 15–18 years, a progressive step, though full removal of the exception remains elusive. The Mukesh & Anr. v. State (NCT of Delhi) (2017) judgment upheld the death penalty for the Nirbhaya convicts, reinforcing the gravity with which the court views aggravated sexual offences. Earlier, in Tukaram v. State of Maharashtra [7](1979), popularly known as the Mathura rape case, the Supreme Court’s acquittal of two policemen on the basis of “consent” sparked nationwide protests, eventually leading to the Criminal Law (Amendment) Act, 1983. In State of H.P. v. Raghubir Singh [8](1993), the Court stressed that minor contradictions in the victim’s testimony should not be viewed as grounds for acquittal, reinforcing a survivor-friendly evidentiary approach.
In the United States, People v. Liberta (New York, 1984) declared marital rape exemptions unconstitutional, setting a precedent for spousal equality before the law. State v. M.T.S. (New Jersey, 1992) pioneered the affirmative consent standard, holding that any penetration without freely given permission constitutes sexual assault, regardless of force. The controversial People v. Turner (California, 2016)—involving Brock Turner’s six-month sentence despite a jury conviction—sparked legislative reforms, including mandatory minimums for certain sexual assaults. [(1996) 2 SCC 384] [(2017) 10 SCC 800] [(2017) 6 SCC 1] [64 N.Y.2d 152 (1984)] [129 N.J. 422 (1992)] [No. H041563 (Cal. Ct. App. 2018)] [Mukesh & Anr. v. State (NCT of Delhi), (2017) 6 SCC 1] Another notable case, Commonwealth v. Berkowitz (1992)[9], clarified that the absence of consent alone—without proof of force—was sufficient for a conviction under Pennsylvania law, marking a shift away from resistance-based definitions. In People v. Iniguez (1994)[10], the California Supreme Court ruled that psychological coercion could negate consent even in the absence of physical force.
Critical Comparative Analysis
The most striking divergence between India and the US lies in the treatment of marital rape. While the US eliminated formal exemptions decades ago, India continues to shield non-consensual intercourse within marriage from prosecution, save for narrow exceptions. This legal stance conflicts with India’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Consent definitions also diverge. Indian law post-2013 aligns more closely with international standards but lacks the widespread adoption of affirmative consent seen in several US states. The affirmative consent model shifts the evidentiary burden away from proving resistance or force, thereby reducing opportunities for victim-blaming.
Evidentiary protections in both jurisdictions—rape shield provisions in the US and Section 140 of the BSA in India—are broadly similar, although application and enforcement vary. Sentencing in India tends toward statutory minimums with limited judicial discretion, whereas the US system’s variability can lead to both excessively lenient and disproportionately harsh outcomes. [CEDAW, 1979, Art. 16]
Enforcement challenges further complicate the picture. In India, National Crime Records Bureau[11] data shows conviction rates for rape hovering around 27%, reflecting delays in investigation, social stigma, and witness intimidation. In the U.S., the RAINN[12] organisation reports that out of every 1,000 sexual assaults, only 25 results in incarceration, largely due to underreporting, evidentiary challenges, and plea-bargaining practices. Both countries grapple with societal attitudes that often question the survivor’s credibility, despite legal reforms aimed at preventing such bias.
Recent Legislative and Policy Developments
India’s most recent legislative milestone—the Bharatiya Nyaya Sanhita, 2023—was an opportunity to reform the marital rape exception, but lawmakers chose to retain it. Civil society groups and survivor advocates continue to press for change, with the Supreme Court currently considering challenges to the provision.
In the US, the post-#MeToo era has brought renewed focus on statute of limitations reform, with states like New York and California abolishing time limits for prosecuting certain sexual offences. Affirmative consent laws have gained traction, particularly in the context of university sexual misconduct policies, though critics warn of uneven implementation. [Me Too Movement, 2017, www.metoomvmt.org]
Internationally, CEDAW’s General Recommendation No. 35[13] calls for the criminalisation of all forms of non-consensual sexual acts, including marital rape, and for the removal of any statutes of limitation on prosecuting sexual offences. The ICCPR [14]similarly enshrines the right to security of person and protection from degrading treatment, reinforcing the imperative for legal systems to adapt to evolving standards of human rights.
Suggestions for Reform
Harmonising legal protections with evolving societal values requires both jurisdictions to address persistent gaps. India must confront the marital rape exception, which undermines the very principle of bodily autonomy the BNS seeks to uphold. The US, for its part, should consider federal incentives to standardise affirmative consent laws across states, reducing the current patchwork of protections.
Both systems would benefit from enhanced survivor support—specialised prosecutors, trauma-informed investigative practices, and guaranteed access to counselling. Educational initiatives targeting law enforcement, judiciary, and the public can help shift cultural attitudes that often impede justice. Transparency in case outcomes and systemic data collection would also aid in identifying and addressing attrition points in prosecution.
Lessons can also be drawn from jurisdictions like the United Kingdom, which fully abolished the marital rape exemption in R v. R (1991)[15], and from Sweden[16], whose 2018 consent-based rape law has been credited with increasing convictions without compromising due process. India could benefit from specialized fast-track courts for sexual offences, while the U.S. might consider federal legislation setting minimum consent standards to ensure consistency across states.
Conclusion
The law’s promise to protect against sexual violence is measured not only by the words on the statute book but by the lived experience of survivors navigating the justice system. India and the United States illustrate how legal frameworks, cultural contexts, and institutional practices intersect to shape that journey. For India, the unfinished business of marital rape reform remains a glaring omission. For the US, inconsistency across jurisdictions undermines the ideal of equal protection. In both contexts, the path forward demands not just legislative precision but an unwavering commitment to dismantling the societal structures that enable sexual violence to persist. The lived realities of survivors—marked by courage, resilience, and often, frustration—demand that the law evolve not just in text but in spirit. True justice lies not only in conviction rates or sentencing charts, but in ensuring that every survivor, regardless of marital status, jurisdiction, or social standing, is heard, believed, and treated with dignity.
Reference(S):
- Bharatiya Nyaya Sanhita, 2023, §§63–64.
- Bharatiya Nagarik Suraksha Sanhita, 2023.
- Bharatiya Sakshya Adhiniyam, 2023, §140.
- Mukesh & Anr. v. State (NCT of Delhi), (2017) 6 SCC 1.
- Independent Thought v. Union of India, (2017) 10 SCC 800.
- State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
- Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
- State of H.P. v. Raghubir Singh, (1993) 2 SCC 622.
- People v. Liberta, 64 N.Y.2d 152 (1984).
- State v. M.T.S., 129 N.J. 422 (1992).
- People v. Turner, No. H041563 (Cal. Ct. App. 2018).
- Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994).
- People v. Iniguez, 7 Cal. 4th 847 (1994).
- CEDAW, General Recommendation No. 35 (2017).
- International Covenant on Civil and Political Rights, 1966.
- RAINN, “The Criminal Justice System: Statistics”, www.rainn.org.
- National Crime Records Bureau, Crime in India Report, latest edition.
[1] BNS, No. 45 of 2023, §§ 63–64.
[2] BNSS, No. 46 of 2023
[3] BSA, No. 47 of 2023, § 140
[4] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.
[5] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171
[6] 18 U.S.C. § 2241 (2023).
[7] Tukaram v. State of Maharashtra, (1979) 2 SCC 143 (India).
[8] State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 (India).
[9] 641 A.2d 1161 (Pa. 1994).
[10] 7 Cal. 4th 847 (Cal. 1994)
[11] National Crime Records Bureau, Crime in India: 2022 Statistics (Gov’t of India).
[12] RAINN, The Criminal Justice System: Statistics, https://www.rainn.org/statistics/criminal-justice-system
[13] Committee on the Elimination of Discrimination Against Women, General Recommendation No. 35, U.N. Doc. CEDAW/C/GC/35 (2017).
[14] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171
[15] 1 A.C. 599 (H.L.) (appeal taken from Eng.)
[16] Brottsbalken [BrB] [Penal Code] 6:1 (Swed.) (amended 2018)
