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Non‑Penetrative Sexual Acts Without Consent Also Count as Rape, Kerala HC Rules

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Aug 5, 2021

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Image Credit: Wikipedia

In a landmark judgment, the Kerala High Court this week ruled that even non-penetrative acts that provide sexual gratification are considered rape under Indian laws.

In 2015, an 11-year-old girl told the doctor attending to her at a government medical camp that her neighbor had sexually assaulted her on several occasions by placing his penis between her thighs. Following this, an FIR was registered against him, and he was arrested under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Indian Penal Code, 1850 (IPC) for rape. He was subsequently found guilty by a lower court in Kerala and sentenced to life imprisonment.

But, subsequently, the accused filed an appeal against the judgment, stating he cannot be charged with rape under the IPC since the “sexual act alleged against [him] is that of inserting [his] penis between the thighs of the victim,” and there’s no allegation of him having “penetrated any orifice.”

So, in essence, the question before the court was whether the expression “cause penetration into the vagina, urethra, anus or any part of [the] body of such woman” also includes technically non-penetrable body parts of a person that can be “manipulated to simulate a penetration and have the effect/sensation of an orifice.”


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The bench, comprising Justice K. Vinod Chandran and Justice Ziyad Rahman A.A., held that it does indeed amount to rape. “The appellant had committed the offence of rape as he had penetrative sexual act between the thighs of the victim held together; an act of manipulation of the body of the victim to obtain sexual gratification, which culminated in ejaculation,” the court held.

In the past, rubbing — but not penetrating — one’s penis even against a woman’s vagina was considered an attempt to rape but not rape itself by the Bombay High Court in 2014.

The bench went on to state that it was in favor of a wider definition “to the maximum extent possible” so that even “[acts] not contemplated ordinarily” would be included — since that has been the intention of the lawmakers and the judiciary all along.

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Written By Devrupa Rakshit

Devrupa Rakshit is an associate editor with The Swaddle. She is a lawyer by education, a poet by accident, and a painter by shaukh. She has her own podcast called #DateNightsWithD on Spotify. You can find her on Instagram @devruparakshit.

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