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Resource id #4 Rapist of mentally challenged to face - Volume 1 Issue 5: Disability News and Information Service for India

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Volume 1 Issue 5 - November 01, 2003

Rapist of mentally challenged to face

DNIS News Network -- The Supreme Court of India has suggested that Parliament should amend the Indian Penal Code (IPC) to award "higher sentence" to people taking advantage and assaulting mentally disabled women.

In a ruling to plug a loophole in rape cases, the apex court held that a person accused of raping a mentally disabled woman cannot escape punishment on the plea that the victim had consented to the act.

The ruling was given by a bench comprising Justice Doraiswamy Raju and Justice Arijit Pasayat who, while dismissing the appeal of Tulsidas Kanolkar, sentenced him to 10 years' imprisonment. The accused was found guilty by the trial court for repeatedly raping a woman whose mental age was one-third of her actual age.

It is understood that in 1999, the parents of the victim discovered details of the incident on finding their daughter pregnant.

The bench is believed to have clarified that a mentally-disabled girl cannot legally give her consent to be party to a physical act. It also clarified the difference between consent and submission and said consent has to be a conscious and voluntary act.

"Every consent involves a submission but the converse does not follow, and the mere act of submission does not involve consent," the bench was reported as saying.

While writing the judgement for the bench, Justice Pasayat stressed on the need to enhance sentences for people accused of raping mentally-disabled women.

The Bench noted that the IPC provided for higher sentences for a minor. "But what happens when the mental age of the victim is not even 12 years of age?" the bench asked and said "such a woman is definitely at more vulnerable situation."

"A rapist in such a case, in addition to physical ravishment, exploits her mental non-development and helplessness. The legislature would do well in prescribing higher minimum sentence in a case of this nature. The gravity of the offence in such a case is more serious than the enumerated categories indicated in sub-section (2) of Section 376 of IPC," the bench reportedly added.

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