This article is written by KOMAL PRABHAKAR, intern at Legal Vidhiy
“There’s an opening in perceptions among women and men. Women feel much freer than they did, however still, whilst alcohol is involved, particularly, there’s a number of sexual attack, and quiet a few confusion about that. So, we need to focus loads greater on what consent is and on the significance of affirmative consent.”
— Martha C. Nussbaum
CRIME –
The phrase crime is derived from the Greek Expression “krimos” which go hand in hand with the Sanskrit word “krama” that means social order. Blackstone defined crime in his Commentaries on the Laws of England as “an act committed or omitted against a public law forbidding or commanding it.”
CRIME VERSUS OFFENCE
Section 40 of IPC defines offence for the purpose of IPC only, and it states any act punishable underneath IPC. Hence, this is basis of the offence in IPC. As in step with para 3rd of section-40, it additionally says in case of local laws or special laws, if punishment furnished is above 6 months or more than that will also be consider as offence. But definition of crime is wide, it includes IPC and also other penal laws. Offence has narrow scope as compared to crime. So yes, it can be said that act that is punishable under IPC is offence.
SEXUAL OFFENCES – In layman’s language it could be interpreted as any act to satisfy one’s own lust. In legal terms, it could be defined as any crime associated to physical or sexual action with no involvement of consent obtained by force or false promises. In Indian Penal Code, 1860 sexual offences are dealt under a separate head engulfing detailed provisions. Thus, broadly sexual offences could be discussed under the following sub heads: –
- SEXUAL ASSAULT
- UNNATURAL OFFENCES
Let us discuss these sexual offences one by one.
SEXUAL ASSAULT
SECTION 375 – RAPE
Rape – The 21st century has seen growth in rate of crime against women. This has ranged from molestation to rape. The most terrifying and dreadful of all of them is rape. The sexual aggression of one individual may make life of a female more like a living hell. It is a direct attack on dignity and feminine divinity of a woman. Invariably it shatters the foundation of the lives of the rape victims. “Raping a woman,” according to Mr. L.K. Advani, the union home minister, “is a much more heinous crime than murder because rape reduces a woman to a state of living corpse.” Thus, rape involves coercive non-consensual as well as consensual (in a set of specified circumstances) sexual intercourse which may be studied as: –
- Against will of a woman
- Without consent of a woman
- Consent obtained by putting any other person with utmost importance to her or the woman herself in fear of hurting or causing death
- Consent obtained by a man whom she thinks is his lawful husband but is not – This subsection is not easy to understand. Thus, it could be explained with the help of an illustration.
A came in contact with B through matrimonial site. A was already married but he lied about it to B stating that he had a divorce and thus they both got married. Thus, A was not legal husband of B. She may charge him on grounds of rape.
- When the girl was in not in reasonable state of mind or may be intoxicated, the consent obtained thereafter amounts to rape. Additionally, if the person makes her numb or give any substance which may make her numb personally or by some other person also constitute the rape.
ILLUSTRATION – X spiked the drink of Y thus making her drowsy. The consent which might be obtained here shall be the result of spiked drink which was added by X in order to have sexual relationship with her.
- With or without consent when the girl is a minor (below 18 years of age)
- When she is unable to express his consent
ILLUSTRATION – X is a disabled woman. Y enters her premises in the midnight and performed sexual act with her. At that time, X is not in a state to express her consent which amounts to rape.
SCOPE OF RAPE – Earlier, rape was limited to mere penetration in private parts but with time and increasing rate of sexual offences the ingredients of term ‘rape’ has widened. Thus, it includes the following:
- PENETRATION -If there is penetration of penis (any extent) in vagina (including labia majora), mouth, urethra or anus of a woman it amounts to rape.
- INSERTION- If any object or any body part (except penis) is inserted in vagina, urethra and anus to any extent amounts to rape.
- MANIPULATION- If any body part is manipulated to cause penetration amounts to rape.
- APPLICATION OF MOUTH- If mouth is touched with vagina, anus and urethra of woman it amounts to rape.
EXCEPTIONS – Following conditions do not amount to rape:
- MEDICAL PROCEDURE – Any act done in view of medical examination does not amount to rape.
- MARITAL RAPE – If a man has sexual intercourse with his own wife who is not a minor. This is the harsh reality of India that still marital rape is not recognised under criminal grounds offering no protection to women who face sexual harassment in the realm of marriage.
SECTION 376 – PUNISHMENT FOR RAPE
Any person shall be punished with 10 years of imprisonment which may extend up to life imprisonment along with fine. Persons covered under sub section (2) shall face the same punishment.
Sub section (2) lays down the punishment for such persons who are in authority and higher order of government which are: –
- If police officer commits rape
- If public servant commits rape
- If member of armed forces (army, navy, air force) commit rape
- If jail staff commit rape
- If hospital staff commit rape
- If relative, guardian or teacher commit rape
- If someone commits rape during communal violence
- If someone commits rape on pregnant woman
- If someone dominant over woman commits rape
- Commit rape on a woman who is unable to give consent
- If rape on mentally or physically disable woman is committed
- If while committing rape causes grievous hurt or puts the life of a woman in danger
- Repeatedly rapes a woman
SECTION 376A – PUNISHMENT IN CASE OF DEATH OR RESULTING IN PERSISTENT VEGETATIVE STATE OF VICTIM
While committing rape if a person gravely injures the woman such that which may cause her death or makes her condition just like that of a living corpse shall be punished with 20 years of imprisonment which may extend to life imprisonment or death. Here, the word living corpse shall imply state in which she might be alive on medication only or she is unable to respond externally to any process.
SECTION 376 B – SEXUAL INTERCOURSE BY HUSBAND UPON HIS WIFE DURING SEPARATION
When a husband commits rape upon wife who is leaving separately under the decree or varied reasons shall be imprisoned for 2 years extending up to 7 years and fine.
SECTION 376 C – SEXUAL INTERCOURSE BY PERSON IN AUTHORITY
If a person tries to seduce woman in his course of authority may not amount to rape and booked under this subhead. Following persons shall be imprisoned with 5 years extending to 10 years along with fine on committing crime under this sub section: –
- Person of authority of in a fiduciary relationship (based on trust)
- Public servant
- Superintendent or manager of jail
- Management staff of hospital
SECTION 376D – GANGRAPE
If group of one or more persons rape a woman, they shall be punished with 20 years of imprisonment along with fine.
SECTION 376DA – GANGRAPE OF WOMAN UNDER 16 YEARS OF AGE
When a woman under 16 years of age is raped by group of people shall be punished with life imprisonment along with fine.
SECTION 376DB – GANGRAPE OF WOMAN UNDER 12 YEARS OF AGE
When a woman under 12 years of age is raped by group of people shall be punished with life imprisonment along with fine.
SECTION 376E – REPEATED OFFENDERS
If a person commits any of the above crime more than once he shall be imprisoned for life or death.
SECTION 377 – UNNATURAL OFFENCE
If any person has carnal intercourse against the law of nature with any man, woman and animal shall be punished with 10 years of imprisonment along with fine.
SECTION 354 – ASSAULT OF CRIMINAL FORCE TO WOMAN WITH INTEND TO OUTRAGE HER MODESTY
If any person makes any attempt to outrage the modesty of woman shall be punished with 1 year imprisonment extending to 5 years along with fine. However, the section does not define the term modesty. It is implied sense of knowledge that modesty may amount to feminine dignity and respect additionally, Mens rea play an important role.
ILLUSTRATION – Mr. X dragged the woman in his house, disrobed her and did some acts but no proof of rape was found then he will be guilty under this section.
SECTION 354A – SEXUAL HARASSMENT AND PUNISHMENT
Sexual harassment amounts to the following: –
- Uncomfortable physical contact
- Sexual favours
- Showing pornography against will of a woman
- Making remarks of sexual nature
A person guilty under a to c shall be punished with 3 years’ imprisonment or fine or both. A person guilty under d shall be punished with one year imprisonment or fine or both.
SECTION 354B – ASSAULT WITH INTEND TO DISROBE
If a person takes off her clothes or force her to be naked shall be punished with 3 years’ imprisonment extending to 7 years along with fine.
SECTION 354C – VOYEURISM
Voyeurism means watching, capturing and spreading image of a woman involved in a private act at the moment when she believes no person was watching her. If a person does any of these acts, he shall be punished with one year imprisonment extending up to 3 years along with fine. If a person does the same act twice he shall be imprisoned for 3 years extending to 7 years along with fine. It implies the following conditions: –
- Private area
- Victim covered in underwear
- Washroom or bathroom
- Involved in sexual act
- When victim gave consent for the capture but it was circulated without permission
SECTION 354D – STALKING
Stalking means any of the following acts: –
- Following a woman
- Contact or attempt to contact to initiate interaction
- Clear evidence of her disapproval
- Check her internet, e-mail or other forms of electronic communication
EXCEPTIONS – Stalking is not an offence under following circumstances: –
- If the person was involved in preventing or investigating of any crime
- If the person is following the law
- If it was reasonable.
PUNISHMENT – If a person is found to be guilty under stalking, he shall be imprisoned which may extend up to 3 years along with fine. If a person does the same act again, he shall be punished with imprisonment which may extend to 5 years along with fine.
SECTION 509 – WORD, GESTURE OR ACT INTENDED TO INSULT MODESTY OF WOMAN
In order to insult modesty of woman following conditions are evident: –
- Utter derogatory words
- Makes any sound or gesture
- Exhibit any object to make sure that woman sees it
- Encroach upon privacy of woman
In all these cases, personal shall be held guilty for imprisonment extending up to 3 years along with fine.
BHANWARI DEVI CASE: BACKDROP OF #ME TOO MOVEMENT
FACTS – In this case, Bhanwari Devi who was a social worker from Bhateri, Rajasthan was gang raped while she was in service of Rajasthan Government’s Women Development Programme. She was against the child marriage of 9 months old girl whose father along with 5 other people raped her in front of her husband.
JUDGEMENT- She filed criminal complaint but all the accused were acquitted by a trial court on no conclusive evidence
AFTERMATH – There were many protests in lieu of it demanding justice and framework for conviction under sexual harassment at the workplace. Finally, an NGO filed a petition in the Supreme Court seeking justice for Bhawani Devi. This resulted in forming of the Vishakha guidelines.
VISHAKHA GUIDELINES – As per Vishakha Guidelines, sexual harassment can be defined as under: –
- Physical contact or steps to make physical contact
- Sexual favours
- Sexual remarks
- Displaying porn
- Any unwelcomed act
DUTY OF EMPLOYER – In lieu of employment, the employer need to ensure better and safe working conditions for all the employees specially females. Disciplinary action should be incorporated if someone is found guilty of sexual offence. A complaint needs to be filed by the employer in aforementioned case and complaint redressal committee needed to be set up. Full assistance must be provided by the employer in this case.
PROTECTION OF WOMEN FROM SEXUAL HARASSMENT AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
This act is popularly known as POSH act which has been life saviour of females facing wrath of sexual harassment at workplace. It provides for setting up for Internal Complaints Committee within organisation to safeguard rights of women as laid in Vishakha judgment.
ME TOO MOVEMENT – ORDINARY MOVEMENT WITH NON-ORDINARY IMPLICATION
Tarana Burke, a social activist, which is a household name now emerged on the global plane in 2006. This action movement was struggle against sexual harassment. The thrive of campaign can date back to the time when a young girl disclosed about her nightmare and Burke responded by saying ‘Me too.’ The hashtag went viral only after American actress Alyssa Milano used the term in opposition to film producer Harvey Weinstein revealing her story on social media. In no time, women from all over the world came in support and responded by sharing their worst encounters with sexual harassment or coerced sexual desires induces by person whether known or unknown. It may have started with the entertainment industry but it can now see its roots in diverse fields.
ME TOO MOVEMENT IN INDIA
The movement so widespread impact when Tanushree Dutta revealed the dark side of the Bollywood. According to her, Nana Patekar misbehaved with her on the sets of Horn OK Please in 2008. The social media was split in two groups one in favour and one in opposition.
LEGAL IMPLICATION OF ME-TOO MOVEMENT
- Soon after the movement spread like fire, zero tolerance policy was initiated by government of all the countries. Many legal experts felt the need to reform the existing laws to substitute them with more appropriate stringent laws to curb the wave of sexual offences.
- Mandatory provisions like non-disclosure of statements as mentioned in non-disclosure agreement were removed from various states and various state legislations.
- In countries like New York and Massachusetts, a contract making policy has been initiated wherein laws related to sexual harassment at workplace are mentioned.
- In India, provisions like section 509 have been incorporated which lay foundation of punishment in case of sexual harassment ranging from molestation to rape.
- Due to the involvement of false allegation in such cases defamation laws are further amended to serve the best purpose.
CONCLUSION
No doubt there has been many key changes in the field of laws concerning woman protection but still awareness about the same. For instance, the Bhanwari Devi case which has set a great milestone didn’t receive justice on its part. Bhanwari devi still awaits justice while we are talking of women and her protection on the global stage. We need to not only draft the law on the paper itself but provide for its necessary implication as well.
