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The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of 16 as rape.
The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of 16 as rape.


After 3 February 2013, with the passing of the [[Criminal Law (Amendment) Act, 2013]], the definition was expanded to include same sex crimes and raised the age of consent to age 18. Rape is now included as a crime of sexual assault, which is currently defined for the purposes of Indian penal code as:<ref name=pib13>Press Information Bureau, [http://www.pib.nic.in/newsite/erelease.aspx?relid=91979 Criminal Law (Amendment) Ordinance, 2013] Government of India (2013)</ref>
After 3 February 2013, with the passing of the [[Criminal Law (Amendment) Act, 2013]], the definition was expanded to include crimes against children and raised the age of consent to age 18. Rape is now included as a crime of sexual assault, which is currently defined for the purposes of Indian penal code as:<ref name="gazette">{{cite web | url=http://indiacode.nic.in/acts-in-pdf/132013.pdf | title=Criminal Law (Amendment) Act, 2013 | publisher=The Gazette of India | date=2 April 2013 | accessdate=7 May 2015}}</ref>


<blockquote>§375. A person is said to commit "sexual assault" if that person – (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of another person or makes the person to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or (c) manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him or any other person; or (d) applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person; (e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––
<blockquote>§375. A person is said to commit "sexual assault" if – (a) A man penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or child; or (b) A man inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman; or (c) Introduction of any part of the body or penis by any person into the vagina, urethra or anus of a child; or (d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body. The exception would be where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––


Firstly.–– Against the other person's will.
Firstly.–– Against the other person's will.

Revision as of 16:27, 7 May 2015

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Rape is the fourth most common crime against women in India.[1][2] According to the National Crime Records Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012.[3] Out of these, 24,470 were committed by someone known to the victim (98% of the cases).[4]

India has been characterized as one of the "countries with the lowest per capita rates of rape".[5] The National Crime Records Bureau of India suggests a reported rape rate of 2 per 100,000 people, much lower than reported rape incidence rate statistics for many nations tracked by the United Nations.[3][6] A majority of rape cases in India, as elsewhere in the world, are never reported.[7][8][9]

According to 2012 statistics, New Delhi has the highest raw number of rape reports among Indian cities, while Jabalpur has the highest per capita rate of rape reports.[10][11] Several rape cases in India received widespread media attention and triggered protests since 2012.[12][13] This led the Government of India to reform its penal code for crimes of rape and sexual assault.[14]

Definition of rape in Indian Penal Code

Annual rape and all forms of sexual assaults per 100,000 people, for India compared to select nations[15][16]

Before 3 February 2013, Section 375 of the Indian Penal Code defined rape as:[17]

§375. Rape. A person is said to commit "rape" who, except case hereinafter excepted, has sexual intercourse with another person in circumstances falling under any of the six following descriptions:-

Firstly. –– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she is interested in the under in fear of death or of hurt.

Fourthly. –– With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. –– With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. –– With or without her consent, when she is under sixteen years of age.

Explanation. –– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. –– Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of 16 as rape.

After 3 February 2013, with the passing of the Criminal Law (Amendment) Act, 2013, the definition was expanded to include crimes against children and raised the age of consent to age 18. Rape is now included as a crime of sexual assault, which is currently defined for the purposes of Indian penal code as:[18]

§375. A person is said to commit "sexual assault" if – (a) A man penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or child; or (b) A man inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman; or (c) Introduction of any part of the body or penis by any person into the vagina, urethra or anus of a child; or (d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body. The exception would be where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:––

Firstly.–– Against the other person's will.

Secondly. –– Without the other person's consent.

Thirdly. –– With the other person's consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt.

Fourthly. –– When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.–– With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.

Sixthly. –– With or without the other person's consent, when such other person is under eighteen years of age.

Seventhly. –– When the person is unable to communicate consent.

Explanation 1.–– Penetration to any extent is "penetration" for the purposes of this section.

Explanation 2.–– For the purposes of this section, "vagina" shall also include labia majora.

Explanation 3.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act: provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception.–– Sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.

Even after the 2013 reform, marital rape continued not to be a crime in India. However, it may be considered a prosecutable domestic violence under other sections of Indian penal code, such as Section 498(A) as well as the Protection of Women from Domestic Violence Act 2005.[19]

Rape statistics

See also: Rape statistics
Trend from 2001 to 2012, total rapes and rape rates per 100,000 people for India[3][20]

According to National Crime Records Bureau of India, 24,923 rape cases were reported across India in 2012, while the 5 year average over 2007-2011 was 22,000 rapes a year.[3] Adjusted for population growth over time, the annual rape rate in India has increased from 1.9 to 2.0 per 100,000 people over 2008-2012 period. This compares to a reported rape rate of 1.2 per 100,000 in Japan, 3.6 per 100,000 in Morocco, 4.6 rapes per 100,000 in Bahrain, 12.3 per 100,000 in Mexico, 24.1 per 100,000 in United Kingdom, 28.6 per 100,000 in United States, 66.5 per 100,000 in Sweden, and world's highest rate of 114.9 rapes per 100,000 in South Africa.[6][21]

Total reported number of rape crimes in 2012 were highest in Madhya Pradesh, followed by Uttar Pradesh and West Bengal.[3] Among major cities, Delhi reported the highest number of rapes in 2012, followed by Mumbai.

Adjusted for population, the rape rate per 100,000 people was highest in Mizoram (10.4), followed by Tripura, Meghalaya, Sikkim and Assam. Among major cities, Delhi's rape rate of 4.1 per 100,000 people was highest in India.[3] The rape rate per 100,000 people was lowest in Gujarat (0.98), followed by Bihar, Karnataka, Uttar Pradesh and Tamil Nadu.

The highest number of victims, and majority of victims, were in the 18-30 year age group.[3] Overall 96% of the rape cases led to charges and the offender being prosecuted.[22] In 2012, out of 1,01,041 cases before Courts, 3563 convictions took place in comparison to 11,154 acquittals and 292 cases withdrawn. This means that there is around 23% conviction rate only in 2012 The high acquittal rate (77%) may be due to cases being filed falsely (for property disputes/ money extortion) or due to poor probe by the police.[23] Indian courts completed the trial process of an estimated of 14,717 rape cases in 2012, while many cases remained pending in its trial process.

Rape of minors

Rape of minor, that is someone below the age of consent, is a form of statutory rape. Nearly 1 in 3 rape victims are below 18 years in India. Of all rapes, 12.5% of total or 3,125 rape victims in India were a minor.[2][24] For a comparative perspective, 17.4% of total or 15,700 rape victims were a minor in the United States.[25][26]

Using a small sample survey, Human Rights Watch projects more than 7,200 minors – 1.6 in 100,000 minors – are raped each year in India. Among these, victims who do report the assaults are alleged to suffer mistreatment and humiliation from the police.[27] Minor girls are trafficked into prostitution in India, thus rape of minors conflates into lifetime of suffering.[28] Of the countries studied by Maplecroft on sex trafficking and crime against minors, India was ranked 7th worst, between China (1st), Russia (11th) and Indonesia (14th).[28]

Estimates of unreported rapes

Most rapes go unreported because the rape victims fear retaliation and humiliation - in India and elsewhere in the world.[29] Indian parliamentarians have stated that the rape problem in India is being underestimated because large number of cases are not reported, even though more victims are increasingly coming out and reporting rape and sexual assaults.[8]

Few states in India have tried to estimate or survey unreported cases sexual assault. The estimates for unreported rapes in India vary widely. Madiha Kark estimates 54% of rape crimes are unreported.[30] The Government of Odisha estimates 60% of sexual assaults go unreported in its state.[31] A UN study of 57 countries estimates just 11% of rape and sexual assault cases worldwide are ever reported.[9]

Notable incidents

The Brahma Kumaris were founded in the 1930s and supported by a female leadership who believes those who are celibate and meditate will enjoy the fruits of paradise following the imminent destruction of the world.[32][33]

People silently marching to protest with candlelight at Salt Lake City in Kolkata after the female victim's death on 29 December 2012
Bangalore Protest against increasing instances of rape in India
Woman at Church Street, Bangalore protesting against rape
People in Bangalore protesting outside Bangalore Town Hall on 30 December 2012 demanding justice for the 23-year old student who was gang-raped in Delhi on 16 December 2012

Software engineer Nayana Pujari was raped and murdered by her escort driver in Pune in 2009.[34][35]

The gang rape of a 23-year old student on a public bus, on 16 December 2012, sparked large protests across the capital Delhi.[12] She was with a male friend who was severely beaten with an iron rod during the incident.[36] This same rod was used to penetrate her so severely that the victim's intestines had to be surgically removed, before her death thirteen days after the attack.[37]

The following day, there was an uproar in the Indian parliament over the incident. MPs in both houses had set aside their regular business to discuss the gruesome rape case and demanded strict punishment for those who carried out the attack. Leader of the opposition in the Lok Sabha, Sushma Swaraj, demanded that "the rapists should be hanged".[38] Thousands of people, mostly young, participated in a massive demonstration in 22 December in protest.[39] Police announced that six men suspected of rape had been arrested.[40]

In 2012 Bikram Singh Brahma was accused of raping a woman in the Chirang district of Assam. He was caught by villagers who heard the woman's screams. He was stripped of his shirt and beaten by locals and was suspended from the ruling Congress party.[41]

In August 2013, a 22-year-old photojournalist, who was interning with an English-language magazine in Mumbai, was gang-raped by five persons, including a juvenile, when she had gone to the deserted Shakti Mills compound, near Mahalaxmi in South Mumbai, with a male colleague on an assignment. This caused protests throughout the country since Mumbai with its very active night-life was previously considered a safe haven for women. Justice was delivered quickly with a city sessions court handing out the death penalty to the three repeat offenders in the Shakti Mills gang rape case, making them the first in the country to get the maximum punishment stipulated under the newly enacted Section 376E of the Indian Penal Code.[42]

In May 2014 two girls aged 14 and 16 were allegedly gang raped in the northern state of Uttar Pradesh and girls were then hanged from a tree. Two police officers were suspected of involvement in the crimes.[13] The alleged gang rape was widely reported in the press both in India and globally.[43] After an extensive investigation, the CBI concluded that the rape and murder allegations were false.[44]

On 14 March 2015, a 71-year-old nun was allegedly gang-raped in Ranaghat, West Bengal by intruders at Convent of Jesus and Mary.[45] The six intruders were recorded on CCTV during their crime of ransacking the chapel, destroying religious items, looting cash and the gang rape. Six men were arrested and charged with the crime by 1 April 2015, and identified to be Bangladeshi Muslims.[46][47][48]

Jammu and Kashmir

There have been allegations of rape and mass rape in Jammu and Kashmir. Reports have shown that rape has been carried out by both Indian armed forces and Islamist militant groups.[49][50] In 1991, the 4 Rajputana Rifles unit are alleged to have entered the village of Kunan Poshpora and raped between 30 and 100 women aged between 13 and 70.[51][52] The Indian government carried out three inquiries into the allegations and concluded that it had been a hoax.[53]

The rapes by Islamic militants have been reported since the Indo-Pakistani War of 1947. On 22 October 1947, Pashtun militants invaded Baramulla in a Pakistan army truck, and raped women including European nuns.[54] In March 1990, Mrs. M. N. Paul, the wife of a BSF inspector was kidnapped, tortured and gang-raped for many days. Then her body with broken limbs was abandoned on a road.[55]

The International Commission of Jurists have stated that though the attacks had not been proven beyond a doubt, there was credible evidence that it had happened.[56] In 2011, the State Human Rights Commission (SHRC) asked for the reopening of the case.[57]

Extremist and Terrorist organisations such as Hizb-ul-Mujahideen, Jamiat-ul-Mujahideen and Harkat ul-Ansar have been accused of carrying out rapes.[49] The Jammu Kashmir Liberation Front have been accused of ethnic cleansing by using murder, arson and rape as a weapon of war to drive out hundreds of thousands of Hindu Kashmiri Pandits from the region.[58][59] Following the rise of rapes by the terrorist organizations, HRW has submitted that the victims of raper suffer ostracism and there is a "code of silence and fear" that prevents people from reporting such abuse. According to the HRW, the investigation of case of rape by militants is difficult because many Kashmiris are reluctant to discuss it for the fear of violent reprisals.[60]

Northeast India

Human rights groups allege that the Indian armed forces under the protection of the Armed Forces (Special Powers) Act, 1958 have carried out a large amount of rapes in the Nagaland, Assam and Manipur provinces.[61] In August 2013, a School Teacher in Arunachal Pradesh was arrested for raping fourteen underage girls in a hostel where he was warden. The sexual exploitation allegedly continued for over 3 years, until one of the girls filed a police complaint.[62]

Uttar Pradesh

There is wide discrepancy among reports of rape and sexual assault. For example, according to the People's Union for Civil Liberties (PUCL), the majority of those assaulted in 2007 were poor women from remote areas and Dalits. SR Darapuri of the PUCL alleged, "I analysed the rape figures for 2007 and I found that 90% of victims were Dalits and 85% of Dalit rape victims were underage girls."[63] Darapuri allegations do not match with the data compiled by National Crime Records Bureau of India, which found 6.7% of rape and sexual assault victims were Dalits in 2007, where nearly 16% of Indian population is classified as Dalit.[64]

During Riots

In recent years, variety of rapes have taken places during the communal riots. During the post 2002 Godhra train burning, in the certain parts of Gujarat, rape was carried out by rioters.[65] Thirteen rape and assault cases were reported during the 2013 Muzaffarnagar riots.[4]

The partition of India

Main article: Rape during the partition of India

During the partition of India, some 100,000 women claimed to have been kidnapped and raped.[66][67]

Lifetime prevalence – 2006 NFHS survey report

The National Family Health Survey of India in 2006 estimated the lifetime prevalence of sexual violence among women aged 15–49, including instances of marital rape in India. The study included in its definition of "sexual violence" all instances of a woman experiencing her husband "physically forcing her to have sexual intercourse with him even when she did not want to; and, forcing her to perform any sexual acts she did not want to".[68] The study sampled 83,703 women nationwide, and determined that 8.5% of women in the 15-49 age group had experienced sexual violence in their lifetime.[69] This figure includes all forms of forced sexual activity by husband on wife, during their married life, but not recognized as marital rape by Indian law.

The 2006 NFHS study reported sexual violence to be lowest against women in the 15-19 age group, and urban women reporting 6% lifetime prevalence rate of sexual violence, while 10% of rural women reported experiencing sexual violence in their lifetime.[70] Women with ten years of education experienced sharply less sexual violence, compared to women with less education.[70]

By religion, Buddhist and Jain women reported the lowest prevalence of sexual violence in their lifetime (3 and 4 percent), while 5% of Sikh women, 6% of Christian women and 8% of Hindu women reported experiencing sexual violence. The highest prevalence rate (11%) of lifetime sexual violence was reported by Muslim women.[69]

A 2014 study in The Lancet states, "Whereas an 8·5% prevalence of sexual violence in the country [India] is among the lowest in the world, it is estimated to affect 27·5 million women in India [given India's large population]".[71] Further, the 2006 survey found that 85% of women who suffered sexual violence, in or outside of marriage, never sought help, and only 1% report it to the police.[71][72]

Tourist advisories

Rape cases against internationals have led several countries to issue travel advisories that "women travellers should exercise caution when travelling in India even if they are travelling in a group; avoid hailing taxis from streets or using public transport at night, and to respect local dress codes and customs and avoid isolated areas".[73][74][75]

In March 2013, a Swiss couple who were cycling from Orchha to Agra, decided to camp for a night in a village in Datia District. There they were physically assaulted by eight locals, robbed, the man was overpowered and tied up, while the 39-year-old woman was gang-raped in front of her husband at the village.[76][77] The Swiss government issued a travel advisory in 2013 about the "increasing numbers of rapes and other sexual offences" happening in India.[78]

The news coverage of the rapes and updated travel advisories have worried Indian tourism industry.[79][80] Some media reports stated that high profile rape cases had led to tourist numbers to drop 20 to 30 per cent compared to previous year.[81] However, tourist arrivals in India increased from 6.5 million arrivals in 2012 to 6.8 million arrivals in 2013.[82] Tourist arrivals in 2014 observed another 10% increase over 2013 levels.[83]

In January 2015, the Tourism Ministry of India introduced emergency helplines for female tourists.[81][84] The Indian government announced in April 2015, that tourists are now being given a "welcome card" by the immigration officer on arrival with resources to ensure their safety, that GPS-embedded tracking system are being introduced in all taxis and for tourists who want it, and tourist helplines in 12 foreign languages have been instituted.[85]

In a non-tourism related case, Russia issued travel advisory to its citizens after a Russian national was raped in December 2009.[86] The case was widely covered after a member of Indian parliament Shantaram Laxman Naik blamed the victim and the media for overemphasizing the Russian rape case after, "she was raped by a state politician in his car after they had dinner together".[87] Naik was criticized by leaders of Indian political parties such as CPI-M, BJP and SP for blaming the rape victim and media.[87]

Indian law was expanded in 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or any person or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.[88]

The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.[88]

Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused. Section 164A of the Code of Criminal Procedure deals with the medical examination of the victim.[89]

The revised statutes of 2013 Indian law, in section 376A, mandates minimum punishment in certain cases. For instance, if the sexual assault inflicts an injury which causes death or causes the victim to be in a persistent vegetative state, then the convicted rapist must be sentenced with rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty."[88][90] In the case of "gang rape", the same mandatory sentencing is now required by law.[90] The convicted is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and per Section 357 B in the Code of Criminal Procedure. Death penalty for the most extreme rape cases is specified.[90]

The 2013 law also increased the age of consent from 16 years to 18 years, and any sexual activity with anyone less than age of 18, irrespective of consent, now constitutes statutory rape.[90]

The new law has made it mandatory for all government and privately run hospitals in India to give free first aid and medical treatment to victims of rape.[91]

Fast track courts

As a result of the 2012 Delhi gang rape case, the Indian government implemented a fast-track court system to rapidly prosecute rape cases.[92] The fast-track court system has been welcomed by some, but their fairness questioned by legal experts and scholars.[92] The legal scholars state that the fast-track courts may not be fair in an impoverished country where millions of cases are backlogged, and there are an average of just 14 judges per million people - among the lowest in a United Nations study of 65 nations.[93] Fast track courts divert limited judicial resources and add delays to prosecution of other crimes.[92][93] They noted that Delhi state had instituted five fast-track courts in 2013 to handle rape cases, but there are no fast-track courts for murder.[92] Mrinal Satish, of New Delhi's National Law University said, "there is a risk that in this emotional response and clamor for immediate justice, we could end up putting innocent people in prison".[92]

Convictions

The conviction rates for Rape cases in India were 44.3 percent in 1973, 37.7 percent in 1983, 26.9 percent in 2009, 26.6 percent in 2010 and 26.4 percent in 2011.[94]

Marital Rape

Marital rape is not a criminal offense within Indian legal framework,[95] except during the period of judicial separation of the partners. In the 1980s, women's rights groups lobbied for marital rape to be declared unlawful, as until 1983, the criminal law (amendment) act stated that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape".[41][96] The government officials argued that the contract of marriage presumes consent to sex and that criminalising marital rape in turn would weaken family values in India.[95]

The Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below 15. Thus, marital rape is not a criminal offense under IPC.[97] The marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA).[98] The PWDVA, which came into force in 2006, outlaws marital rape.[99] However, it offers only a civil remedy for the offence.[100]

The Protection of Women from Domestic Violence Act 2005 (PWDVA) which came into force in 2006, provides protection against marital rape or other forms of sexual perversions and domestic violence.[101] However, it offers only a civil remedy for the offence.[100]

Potential abuse concerns

In April 2013, Judge Virender Bhat has suggested that the legal proposition of relying upon the sole attestation of the victim became "an easy weapon" to incriminate anyone in rape case.[102] Justice Kailash Ghambhir of the Delhi High Court stated that penal provisions for rape are often being misused by women as a "weapon for vengeance and vendetta" to harass and blackmail their male friends by filing false cases to extort money and to force them get married.[103] Saamna, mouthpiece of Shiv Sena in an editorial noted while supporting the Deputy Inspector General Of Police in Mumbai in an alleged rape complaint that it has become "a fashion to create sensation by charging someone for rape and molestation"[104] while Shonee Kapoor, founder of Sahodar Men's Right Group, demanded that the name of the accused should not be made public till conviction.[105]

See also

Regional:

References

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