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Sexual offences

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Sexual Violence

Sexual Violence LAW INSIDER IN

Nisman Parpia

Man- the “numero uno” result of evolution, competent of controlling his destiny has five sense organs including sentiments and intelligence with the help of which he demonstrates himself and becomes familiar with other human beings around him.

Sometimes in communal relationships among two sexual categories, the attributes of humans can be misused in several ways leading to heinous offences and crimes.

Sexual offences mean any form of unwanted sexual activity on physical, intellect or mental degree of consciousness leading to invasion of private space, suppression of will, infliction of pain, making the victim feel harassed.

The victim can go through numerous injuries including damage to reproductive health, Sexually Transmitted Diseases (STD’s), mental illness like depression, suicide, and Post-Traumatic Stress Disorders (PTSD’s).

The repercussion of these offences can entirely disrupt the social wellbeing, status, and quality of life of the victims because of stigmatisation and the consequential loss of reputation among their families, neighborhood, and society in general. Sexual violence can include any sexual act which uses coercion regardless of their relationship to the victim, in any setting, not limited to home and work.

In sexual violence, coercion constitutes an important component, covering a whole spectrum of degrees of force, it may also involve psychological intimidation, blackmail, manipulation, or other threats. In India, atrocities against women and girls are manifested mostly in the form of rape, molestation, sexual harassment, kidnapping and abduction for sexual purposes and trafficking of girls for the purpose of sexual exploitation.

According to the NCRB report, 2019 saw over 4 lakh reported cases of crimes committed against women up from 3.78 lakh in 2018 and 3.59 lakh cases in 2017. NCRB reported 32, 033 rape cases translating to shocking 88 rape cases a day which is just 10% of all the crimes against women[1]. Buying and selling of girls for sexual purposes as well as procurement of minor girls for inducement in sexual trade have shown an alarming increasing trend.

The following are the sexual offences under the Indian Penal Code, 1860 (hereinafter as the IPC):

Rape (Section 375)

Out of all the crimes in the world, rape is the worst and obnoxiously gravest form of human rights violation. The word rape has originated from the latin word ‘rapio’ which means “to seize”, rape means forceful seizure. Justice Krishna Iyer in the case of Rafiq v. State of Uttar Pradesh[2] remarked, ‘A murderer kills the body, but a rapist kills the soul’.

As stated in the section 375 of the IPC, a man is said to commit rape in the following instances:

  • When he penetrates his penis through any extent into the vagina, mouth, urethra, or anus of a female.
  • When he puts any object or any part of his body into the vagina, urethra, or anus of a woman.
  • When he puts his mouth into the vagina, urethra or anus of a woman or forcibly makes her do so with him or any other person.

The section further says that penetration and insertion of objects can be “to any extent” including even slight and partial. The physical injuries to private parts of the woman are not an essential for rape.

The mere fact of penetration is sufficient to hold a man guilty. Due to increase in cases of rape of a minor, revisions and amendments were made to the rape laws to include sections 376AB, 376DA, and 376DB.

Essentials

  • It is Against the will of the woman.
  • It takes place without her consent.
  • It is done with her consent, acquired by putting her or any other person related to her under the danger or fright of death or hurt.
  • The consent has been obtained under the misconception of the fact that the man who raped her was the person she was lawfully married to.
  • With her consent, when consent is given by unsoundness or unconsciousness of mind due to intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, due to which she is unable to understand the nature and consequences of giving consent.
  • When the girl is minor, whether the consent is given or not. Here, the Penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape.
  • When she is not able to give her consent. For example: in cases where the girl is deaf or mute.

Exceptions

  • Sexual intercourse by a man with his own wife, who is under the age of fifteen doesnot constitute rape.

Sexual intercourse with a promise to marry (Section 417)

Sexual intercourse on the false promise of marriage is an offence under Section 417 of IPC which provides punishment for cheating. Hence, such consent does not excuse the accused from being guilty and charged for rape under Section 375 of IPC.

In Anurag Soni v. State of Chattisgarh[3], the Supreme Court opined that if an accused from the very beginning has no intention to marry the victim but gives false promise of marriage to and in lieu of such promise that the accused will marry her, she gives her consent for sexual intercourse with the accused, then such consent would not amount to valid consent.

Marital rape

Section 375’s definition of ‘rape’ sets aside unwilling sexual intercourse between a husband and a wife (who is over fifteen years of age), as a wife is presumed to always give perpetual consent to have sex with her husband after setting foot into marital relations.

While unwilling sexual contact between a husband and a wife is deemed as a punishable criminal offense in almost every country of the world, India is one of the thirty-six countries that still has not criminalized marital rape. Marital Rape is an inhuman practice of suppressing women and infringes article 14 and 21 of the Constitution, thus should be struck down.

Gang rape (Section 375D)

Section 376D. States that when a woman is raped by one or more persons forming a group , acting in furtherance of a common intention and motive, each of those persons shall be punished for the offence of rape with rigorous imprisonment for a term of twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable with fine:

Provided that the amount of fine shall be just, sufficient and reasonable to meet the medical expenses and cost of rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim of rape.

Nirbhaya rape case[4]

The Case which took place in 2012, was the heinous and traumatizing incident after which various amendments were introduced in rape laws. The accused of this case was punished with death penalty by the trial court, also upheld by the High Court.

The Supreme Court relying on the dying declaration of victim had affirmed the death penalty and stated that where a crime is committed with extreme brutality and inhuman nature, where circumstances lead to collective conscience of the dismal of society, courts must avoid capital punishment.

Punishment for Rape (Section 376)

The punishment for the offence of rape is stated in Section 376. A person, committing rape, shall be punished with rigorous incarceration of either description for a term not less than ten years, which may extend to incarceration for life, and shall also be liable to fine.

Specific entities in Section 376 are mentioned individually, which include public servants, member of armed forces, police officers, member of jail staff management, hospital management staff, relative or guardian, they are also subjected to rigorous imprisonment for not less than ten years which can be extended up to life imprisonment and will be liable for fine.

Rape cases many a times lead to death or permanent vegetative state of the victim which becomes a more serious crime in nature. The offender in such an instance shall be punished for rigorous imprisonment for a term, not less than twenty years, which may extend to life imprisonment.

A person who has sexual intercourse with his spouse, who lives separately, without her consent, shall be punished with imprisonment of either for a term of two years which may extend to seven years, and shall also be accountable to fine.

Sexual Harassment (Section 354A)

Sexual harassment has been defined under S. 354 A of the Indian Penal Code as a man who commits any of the following acts:

  • physical contact and advances which involve unwelcome and explicit sexual prelude; or
  • a demand, obligation, or request for sexual favours; or
  • showing pornography forcibly or against the will of a woman; or
  • giving sexually coloured remarks,

The punishment includes rigorous imprisonment for a term extending to three years, or fine, or both.

Assault (Section 354)

This Section 354 of the Indian Penal Code provides that whoever uses assault or force, criminal in nature intending to outrage the modesty of a woman shall be punished with jail of at least one year which may extend to five years along with fine.

In the case of Aman Kumar v. State of Haryana[5], the Court stated that acts like pulling out a woman’s clothes, removing her clothes for the purpose of sexual intercourse would amount to outraging the modesty of that woman.

In Baldeo Prasad Singh v. State[6] the victim was cooking food in the kitchen of her house when suddenly the accused entered the house and held her breasts. On investigating, the accused was unable to defend himself and under this section, he was punished.

Disrobing (Section 354)

A man who assaults or uses criminal force to any woman or abets such act intending to disrobe or compel her to be naked, shall be imprisoned under Section 354 for either description for a period which shall not be less than three years which may extend to seven years, and shall also be liable to fine.

Trafficking of person (Section 370)

Any person for the purpose of exploitation recruits, transports, harbors, departs, transfers or receives a person by using threats or force, by abduction or practicing fraud or deception by use of power without the consent of the victim is said to commit the crime of sex trafficking under Section 370. The exploitation can include an act of physical exploitation of any form including sexual exploitation, slavery, servitude etc.

Section – 370A – Exploitation of a trafficked person

A person knowingly or having reason to believe that a person has been trafficked, engages sexual exploitation with the minor in any manner shall be punished with rigorous imprisonment for a term not less than three years extending to five years or even seven years in case of a minor and shall also be liable to fine.

Prostitution is also a kind of exploitation. In Bhagubhai Patel V. State of Gujarat[7], the question arose whether a customer at a brothel is covered under Section 370 of Indian Penal Code. The learned judge stated that a customer is also included in section 370. It was further stated that section 370, deals with the offence of Trafficking of Persons, and the term “exploitation” includes “prostitution” itself.

The concern raised is that by introducing prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation as there is no aspect of consent. legislative framework that criminalizes prostitution as exploitation, drives the practice underground and renders the already vulnerable sex worker more exposed to violence, exposure to HIV and deepens the lack of legal remedy to redress violence.

Child sexual abuse laws in India

Child sexual abuse laws have been in acted as a part of children’s protection policy in India. The Parliament passed the protection of children against sexual offences Bill in 2011 in accordance with child sexual abuse on 22 May 2012 into an act but there have been many calls for more stringent laws.

The framing of the POCSO act aims to put children first by making it simple to use mechanisms for Child friendly reporting, evidence recording, speedy trial and investigation of offences through special courts. Offences which come under the act are sexual assault, sexual harassment, child pornography, aggravated penetrative sexual assault.

Section 7 of the POCSO Act reads, “Whoever with sexual intent touches the vagina, penis, anus, or breast of the child or any other act with sexual intent which involves physical contact is said to commit sexual assault.”

Recently The Supreme Court on Wednesday stayed one of the most controversial judgement delivered by the Nagpur bench of Bombay High Court which ruled that gropping 12 year old minors breast without removal of clothes is not counted as a sexual assault under section 354 of protection of children from sexual offences (POCSO) as there is no skin to skin contact between the persons.

In her verdict, Justice Pushpa Ganediwala held that there must be a skin to skin contact with sexual intent for it to be counted as a sexual assault, stricter proof and serious allegations are also required.[8]

Sexual offences against men

Lara Stemple, Director of UCLA’s Health and Human Rights Law Project came upon a statistic that surprised her: In incidents of sexual violence reported to the National Crime Victimization Survey, 38 percent of victims were men[9]. Section 375 of the Indian penal code stands “rape is something that only a man can do to a woman.”

There is no room for adult male victims although child survivors of both genders have been neutrally covered in POCSO act 2012, current rape laws leave out male victims who do not come forward for fear of stigma and lack of legal recourse. Cases of rape of men are charged under sodomy in India. Perpetrators can be any gender identity, sexual orientation, or age, and they can have any relationship to the victim.

A 17-year-old boy in Kolkata, 2019 was allegedly sodomised in a moving car by six men known to him after forcibly picking him up. He had several bruise marks and deep cuts on different parts of his body. The accused were charged under both pocso act and section 377 IPC.[10]

Unnatural offences (Section 377)

If any person by choice engages in carnal intercourse, that is; an act which opposes the law and order of nature; with any man, woman or animal shall be imprisoned for life or with imprisonment of either description for a term up to tell me yours and can also be accountable to fine. This offence came into existence during the rule of British where expression against nature comprised of homosexual activities, sodomy, sterilisation, and bestiality.

Delhi High Court in 2009 ruled that Section 377 cannot be used to punish consensual sex between two consenting adults as it would violate the right to privacy and personal liberty under Article 21 of the Constitution.[11]

In Suresh Koushal Judgement from Suresh Kumar Koushal & Anr vs Naz Foundation & Ors.[12] Supreme Court of India reversed this verdict of Delhi High Court. Many Curative petitions were filed challenging this Supreme Court Judgement.

Navtej Singh Johar & ors vs Union of India[13]

This landmark case had challenged the constitutional validity of section 377. In September 2018, A five bench, unanimously struck down Section 377 Of the Indian Penal Code. The Judgement decriminalizes consensual sexual activities among the LGBTQ individuals. The court kept hold of bestiality, intercourse with minors and non-consensual sexual activity within the bounds of section 377.

Conclusion

Sexual crimes reflect the mindset of a patriarchal dominance. To avoid these crimes, the reformatory attitude of society towards victims is necessary and this milestone can only be achieved when it is shared with all the wings of our criminal justice system. The need of the hour is to raise awareness among people so that the crimes do not proliferate, sex education needs to be a compulsion.

Sexual offences competently take the shape of sexual violence causing a drastic irreparable deep damage to the physical and mental health and well-being of the victim. Humanity may have attained development materially and professionally but there has been no pause to the deterioration of the integrity and temperament.

Several policies and legal reforms are needed today to address pervasive and damaging stereotypes around the periphery of rape. The punishment given to the guilty offenders is not sufficient. The maximum punishment that is given under sections 354 and 355 is of two years along with fine.

In the case of Girdhar Gopal v. State[14], a Pujari molested a nine-year-old girl and was sentenced to one-year imprisonment. Here the offender molested a minor which is a severe crime deserving more heinous punishment. The Justice Verma Commission which was set up following the murder of ‘Nirbhaya’ created recommendations concerning how India might fight against the violence against women and strengthen rape laws.

In its 630-page report of 23 January 2013, the Commission suggested amendments to the law, to provide quicker trials in rape cases to avoid delay and enhanced punishments for sexual offences. the judiciary must take it upon itself to see that no sexual perpetrator goes unpunished.

The general attitude of the society needs to be reformed in favor of dignity of women, victim blaming needs to come to an end. sex-offender treatment programmes and restorative justice approaches may partially provide a true and legacy of change.

Marital rape should be criminalized, and rehabilitation of victims should be normalized for their physical, psychological, and social recovery. Section 377 has been struck down, but no provision has been made in accordance with the rape cases. With the change in the scenario, law should also be revised and appointed from time to time to avoid any injustice.

References

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