(Trigger Warning: Graphic description of sexual violence against minors, including detailed description of penetrative and non-penetrative assaults, restraint, and confinement)
A recent ruling by the Chhattisgarh High Court has reignited an uncomfortable debate in Indian criminal law: what exactly counts as rape and how is sexual violence understood? On February 16, 2026, The court decided that a man who dragged an underage girl into his home, undressed her, pressed himself against her, ejaculated on her genitals, tied her hands and feet, stuffed her with cloth and locked her in a room for eight hours had committed “attempted rape.”. No rape. The sentence was halved in the Supreme Court ruling. The fine: ₹200.
What the court said and what it didn’t
Justice Narendra Kumar Vyas quashed the rape conviction in the 2004 case in Chattisgarh’s Dhamtari citing Section 375 of the Indian Penal Codenow mirrored Section 63 of the Bharatiya Nyaya Sanhita, 2023which requires penetration, albeit minor, as a sine qua non for rape. The medical report noted redness in the vulva, pain, white discharge and the possibility of partial penetration. The doctor didn’t rule out penetration; She said: “No final opinion could be given.” The survivor’s testimony contained inconsistencies: at one point she said penetration occurred; In another case, she described the defendant holding his penis over her vagina for about ten minutes without penetration. The court considered this a reasonable doubt and reduced the rape conviction Section 376(1) IPC to try under Section 376 read with 511 IPC, and the punishment from seven years to three and a half.
In this case, the court accepted almost everything: that she was dragged, bound, gagged, locked up for hours and abused. It accepted the intention. It accepted the violence. It said it could not be determined with sufficient certainty that it was a “penetration.” And on this point alone the punishment was halved.
This is the central contradiction from which the judgment cannot escape. The court itself quoted the Supreme Court in State of Uttar Pradesh vs. Babul Nath that even minor penetration of the labia amounts to rape and that neither rupture of the hymen nor ejaculation is required. The court recognized the correct legal standard. The medical evidence did not preclude compliance with this standard. And yet the decision was based on the survivor’s “fragmented” testimony.
The Supreme Court in the State of Punjab v. Gurmit Singh (1996) clarified this thirty years ago: that minor discrepancies in survivor testimony are natural; They are part of how traumatic memories work. It says that expecting a survivor to remember everything smoothly and perfectly when describing sexual assault only hurts them further through the trial itself. However, a 15-year-old girl’s “fragmented” memory was still considered sufficient reason to halve a sentence.
Where the penetration requirement came from
To understand why the requirement for “penetration” is so fixed, we need to understand where the requirement for penetration actually comes from. The answer is unpleasant.
As Clark and Lewis documented, penetration was included in rape law because of men’s proprietary interests in women. If an unmarried woman was raped, her exchange value as a future wife was reduced. If a married woman was raped, it was considered a violation of her husband’s property. There were also concerns that pregnancies out of wedlock could threaten the patriarchal legacy. Rape was thus viewed as a crime against male property rather than a violation of a woman’s bodily autonomy. As Nancy Goldsberry noted, the law did not “reflect the gravity of the crime to the victim” because it was focused on what the perpetrator did, not on how the survivor experienced the attack.
Clark & Lewis further argued that rape should be understood primarily as violence: a physical attack on bodily autonomy. Calling it a “sexual offence” risks diminishing the reality of the harm by portraying it as an act driven by desire rather than “control”. From this perspective, what should legally matter is violence, coercion and injury, not the exact sexual act that took place. The Law Reform Commission of Canada also supported this idea; It has been argued that when deciding how to recognize a crime, the law should focus less on the precise sexual act and more on the extent of violence and harm actually suffered by the survivor.
One of the cultural reasons for this is often referred to as the “coital imperative.” It says that society tends to view penile-vaginal penetration as the defining moment of “real” sex, while other forms of sexual violence are quietly classified below it. Dr. Nicholas Groth, a leading clinical expert on sex offenders, challenged this directly, arguing that different forms of forced sexual assault share similar patterns of control, humiliation and psychological harm, and that the impact on survivors does not depend on whether penetration can be conclusively proven. The legal line between “attempt” and “rape” reflects a cultural idea of what counts as sex, rather than the reality of what violence does to a person.
The discussion about this does not mean that the penetration standard no longer has any legal logic today. Instead, a tiered system of offenses helps to recognize the particular gravity that particular offenses carry in lived experience and social significance. So the real debate is: Doesn’t anything other than penetration count as serious harm? How severe must violence be before it is considered serious enough to warrant a punishment more severe than a fine of ₹200 and imprisonment for three and a half years?
A pattern that the law refuses to learn from
Indian dishes have been here before. In 2021, the Bombay High Court ruled that pressing a child’s breasts without skin-to-skin contact does not constitute sexual assault under the law POCSO Act. The Supreme Court overturned it Attorney General for India v. Satishit is a narrow-minded and pedantic reading. In 2025, the Allahabad High Court ruled that grabbing a minor’s breasts and untying her pajama string was preparation and not an attempt. The Supreme Court suspended the ruling within days, calling it “complete insensitivity.” The pattern repeats itself again and again.
To understand why the requirement for “penetration” is so fixed, we need to understand where the requirement for penetration actually comes from. The answer is unpleasant.
In this case, the court accepted almost everything: that she was dragged, bound, gagged, locked up for hours and abused. It accepted the intention. It accepted the violence. It said it could not be determined with sufficient certainty that it was a “penetration.” And on this point alone the punishment was halved.
The question arises as to whether sexual harm to women that does not involve “penetration” is not harmful in itself. Does the penetration criterion have to be met for a crime to be considered serious? Second, even if “penetration” is the deciding factor, why is a verdict based on the traumatized minor’s fragmented memory and why is the medical evidence that does not rule out the very act that would have legally constituted rape ignored?
One girl waited 22 years. The fine was ₹200. Whatever one’s position on how the criminal law should define rape, this result raises an uncomfortable question: How much violence must take place before the law is ready to fully recognize it?