(Trigger Warning: Graphic description of sexual violence against a minor, including detailed description about penetration and non-penetrative assaults, restraint, and confinement)
A recent judgment of the Chhattisgarh High Court has reopened an uncomfortable debate within Indian criminal law: what exactly counts as rape, and how is sexual violence understood? On February 16, 2026, the court ruled that a man who dragged a fifteen-year-old girl to his house, stripped her, pressed himself against her, ejaculated on her private parts, tied her hands and feet, stuffed cloth into her mouth, and locked her inside a room for eight hours committed ‘an attempt to rape’. Not rape. The sentence was halved in the High Court ruling. The fine: ₹200.
What the Court Said and What It Didn’t
Justice Narendra Kumar Vyas set aside the rape conviction originating from the 2004 case that took place in Chattisgarh’s Dhamtari, relying on Section 375 of the Indian Penal Code, now mirrored in Section 63 of the Bharatiya Nyaya Sanhita, 2023, which requires penetration, even slight, as the sine qua non of rape. The medical report recorded redness in the vulva, pain, white discharge, and the possibility of partial penetration. The doctor did not rule penetration out; she said, “No definitive opinion could be given.” As for the survivor’s testimony, it contained inconsistencies: at one stage she said penetration had occurred; at another, she described that the accused kept his penis above her vagina for about ten minutes without penetrating. The court treated this as reasonable doubt, reducing the conviction from rape under Section 376(1) IPC to attempt under Sections 376 read with 511 IPC, and the sentence from seven years to three and a half.
In this case, the court accepted almost everything: that she was dragged, restrained, gagged, confined for hours, and assaulted. It accepted the intent. It accepted the violence. What it said it could not establish with sufficient certainty was ‘penetration’. And on that single point alone, the sentence was cut in half.
This is the central contradiction the judgment cannot escape. The court itself cited the Supreme Court in State of Uttar Pradesh v. Babul Nath that even slight penetration within the labia amounts to rape, and that neither hymen rupture nor ejaculation is necessary. The court recognised the correct legal standard. The medical evidence did not rule out that standard being met. And yet the decision was based on the survivor’s ‘fragmented’ testimony.
The Supreme Court in State of Punjab v. Gurmit Singh (1996) settled this thirty years ago: that minor inconsistencies in survivor testimony are natural; they are part of how traumatic memory works. It said that expecting a survivor to remember everything smoothly and perfectly while describing sexual assault only ends up hurting them more through the legal process itself. Yet a 15-year-old girl’s ‘fragmented’ recollection was still treated as sufficient reason to halve a sentence.
Where the Penetration Requirement Came From
To comprehend why the ‘penetration’ requirement is so fixated upon, we need to understand where the penetration requirement actually came from. The answer is uncomfortable.
As Clark and Lewis documented, penetration was incorporated into 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 treated as a violation of her husband’s property. There was also the concern about illegitimate pregnancy threatening patriarchal inheritance. So, rape was conceived as a crime against male property, not a violation of a woman’s bodily autonomy. As Nancy Goldsberry observed, the law did not “reflect the gravity of the crime to the victim” because it was organised around what the offender did, not how the survivor experienced the assault.
Clark & Lewis further argued that rape should be understood primarily as violence: a physical attack on bodily autonomy. Calling it a “sexual offence” risks softening the reality of the harm by framing it as an act driven by desire rather than “domination”. From this perspective, what should legally matter is force, coercion, and injury and not the precise sexual act that occurred. The Law Reform Commission of Canada supported this idea too; it argued that the law should focus less on the exact sexual act and more on the level of violence and harm the survivor actually went through when deciding how an offence is recognised.
Also, one of the cultural reasons behind this is often termed the ‘coital imperative’. It says that society tends to treat penile-vaginal penetration as the defining moment of “real” sex, while other forms of sexual violation are quietly ranked below it. Dr Nicholas Groth, a leading clinical expert on sexual 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 proved. The legal boundary between “attempt” and “rape” reflects a cultural idea about what counts as sex, not the reality of what violence does to a person.
Discussing this does not mean the penetration standard has no legal logic today. Instead, a graded system of offences does help to acknowledge the distinct gravity that certain violations carry in lived experience and social meaning. So, the real debate actually is, does anything short of penetration not count as grave harm? How severe does violence have to be before it is considered serious enough to deserve a punishment more stringent than a ₹200 fine and three-and-a-half years of imprisonment?
A Pattern the Law Refuses to Learn From
Indian courts have been here before. In 2021, the Bombay High Court held that pressing a child’s breasts without skin-to-skin contact did not amount to sexual assault under the POCSO Act. The Supreme Court overturned it in Attorney General for India v. Satish, calling it a narrow and pedantic reading. In 2025, the Allahabad High Court ruled that grabbing a minor’s breasts and loosening her pyjama string was preparation, not an attempt. The Supreme Court stayed it within days, describing it as “total insensitivity. ” The pattern keeps repeating.
To comprehend why the ‘penetration’ requirement is so fixated upon, we need to understand where the penetration requirement actually came from. The answer is uncomfortable.
In this case, the court accepted almost everything: that she was dragged, restrained, gagged, confined for hours, and assaulted. It accepted the intent. It accepted the violence. What it said it could not establish with sufficient certainty was ‘penetration’. And on that single point alone, the sentence was cut in half.
The question arises, is that the sexual harm against women that doesn’t include ‘penetration’ not damaging in itself? Does the penetration criterion need to be fulfilled for an offence to be considered grave? Secondly, even if ‘penetration’ gets to be the deciding factor, then why is a judgement based on the traumatised minor’s fragmented memory, and why is the medical evidence that did not rule out the very act that would have legally established rape ignored?
A girl waited 22 years. The fine was ₹200. Whatever one’s position on how criminal law should define rape, that outcome forces an uncomfortable question: how much violence must occur before the law is willing to recognise it fully?
