“Standing behind predators makes a prey of us all.”
– Da Shane Stokes
INTRODUCTION
Non-consensual crimes such as rape[1] or sexual assault, crimes against children such as child sexual abuse, and crimes that exploit others for a sexual motive, whether in person or on the internet, are all considered sexual offences. Any unwanted sexual activity, whether on a physical or mental level that affects the victim’s well being by intervening in their privacy, where the victim feels pressurized, forced or manipulated, that causes a lot of pain to the victim is a sexual offence. It’s also a form of violence in which adults or children are persuaded against their will. The victim goes through a major downfall facing acute depression, suicide, sexually transmitted illnesses and many more.
WHAT ARE SEXUAL OFFENCES?
Sections 375 to 377 of the Indian Penal Code, 1860 deal with sexual offences. What do we understand when the term “Sexual offence” comes to our mind? Sexual assault occurs when someone purposefully sexually contacts another person without their consent, or when someone coerces or physically forces someone to engage in a sexual act against their choice.
Illustration: If X knowingly touches Y and the touching by X is improper & sexual and Y has not given consent to such touching, X thus, commits an offence. The reasonableness of a belief must be considered in all sorts of situations.
Thus, the definition of free consent is described in the IPC[2]. When a person is put in fear of danger or has a misunderstanding of facts, consent is not considered to be free. In the case of Prakash v. State of Maharashtra, a businessman and a police officer engaged in sexual intercourse with the wife and acquired her consent because they were beating her husband. The court found them guilty and stated that actual force is not required to obtain consent from the victim, a threat of using force is enough to get consent for intercourse.
CONDITION OF SEXUAL OFFENCES IN INDIA
Sexual offences pertain to our daily lives. The aforementioned sections talk about Rape, Gang Rape, punishment for the said crimes, sexual intercourse by husband upon his wife during separation etc. These offences are very vast in nature and have an in-depth definition of abuse. Marital rapes, sexual violence against children, sexual violence against men are some other aspects of sexual offences that are affecting the progression of the nation.
The definition of rape is defined in Section 375. The penalties for the crime are defined in further sections. This heinous act is thus described as a defilement of a woman against her will, without her consent, or with her consent obtained by force & intimidation. The corresponding sections emphasize what kind of behaviours of a male amount to rape. The said sections also talk about the circumstances under which any forced sexual act amounts to rape or falls under the ambit of sexual offences.
Section 377 of the Indian Penal Code, 1860 was struck down by the Apex court decriminalizing homosexuality[3] and consensual homosexual sex[4] between adults which was earlier considered as unconstitutional and irrational. However, Section 377, which covers sex with minors, non-consensual sexual activities, and bestiality, remains in effect. Yet, we come across lesser than fewer sexual violence cases against men that are reported with appropriate legalities.[5]
Sexual offences against children[6] have tremendously increased especially in the current lockdown. The Childline India Foundation reported a 50% increase in phone calls compared to normal days. Around 53% of Indian kids are subjected to various forms of abuse, including forced nudism, violence, inappropriate touching etc.[7] The Protection of Children from Sexual Offenses (POCSO) 2012 legislation was enacted by the Ministry of Women and Child Development. It is gender-neutral and recognizes boys as sexual abuse victims. It makes sexual assault, sexual harassment, and child pornography illegal. The POCSO Conduct also identifies a wide range of sexual assaults that do not involve any penetrative act and carry sentences of three to five years in prison.[8] With a broader definition, sexual harassment includes persistently following or spying on a youngster (child), as well as contacting the child physically, online, or by any other means with sexual purpose.[9]
IDENTIFYING THE SYSTEM’S LOOPHOLES
- We recently came across disheartening news of the Rape of a colleague by an Air Force officer at Coimbatore training college. Where the victim said no action was initially taken by the superiors and she was also subjected to a two-finger test.[10]
- Sexual intercourse with one’s spouse without their consent is referred to as marital rape. However, in Section 375 of the IPC, there is an exemption. “Sexual intercourse by a man with his own wife, even without her consent, will not amount to rape[11].” Under the Indian Penal Code, marital rape is not a crime. Victims of marital rape must file a complaint under the Protection of Women from Domestic Violence Act of 2005[12]. However, it only provides a civil remedy for the crime.
- A 15year old girl was gang-raped by 33 accused men who have been arrested and detained by the police.[13]
- Men can never be raped. The only provision in the Indian Penal Code that can shield males from being the victims of sexual offences is under Section 377, which allows either a man or a woman to be charged with forced carnal intercourse. Forced intercourse with a guy, on the other hand, does not constitute rape. Our laws’ discriminatory treatment of men and women is mostly attributable to our society, where men who are sexually abused are mocked.
- Rape is punishable under Section 376 of the Indian Penal Code, 1860. According to this clause, rape will result in a sentence of at least 10 years in prison, with the possibility of life imprisonment depending on the facts and circumstances of the case. In more serious cases, the penalty will be a minimum of twenty years in jail, with the possibility of life imprisonment. In addition to being sentenced to prison, the criminal may be required to pay a fine.
- A death sentence is awarded only in cases like the Nirbhaya Rape Case[14], where murder is done after the rape and the case is so heinous that it qualifies as one in a It is a landmark judgment in which (out of six) four of the convicts faced the death penalty and the juvenile after completing his sentence of three years[15] was released.
- There are many cases similar or worse than the Nirbhaya case that has been brought to our knowledge either reported or unreported have the same punishment as per The Indian Penal Code, 1860 even if the magnitude of the crime has crushed the soul of the victim and family[16].
- Although, The 2013 Criminal Law (Amendment) Act[17] broadened the concept of rape, changing the interpretation of Section 375 of the IPC, the necessity for Gender Neutral sexual violence laws is being resisted.
- There is no doubt that the administration is working to reduce assault/sexual offences; nevertheless, no strong safeguards are in place to prevent such crimes from occurring.
CONCLUSION
A country like India is known for worshipping women but right now where we stand has put the women of our nation in such a position that they are unsafe ever since the day they are born, sexual intercourse with one’s spouse without their consent is referred to as marital rape which is not a crime as per in the Indian Penal Code, 1860. Be it being recruited in the defence forces or choosing to stay at home, women are subjected to gruesome acts at least once in their lifetime.
Children are known for their innocence and our laws aim to reshape and reform them in all the ways possible when they go directionless. Subjecting a child to such crimes has long term distressing effects. Men too are the victims of sexual violence. Male rape is always viewed through the lens of masculinity. As a result, the majority of the victims are afraid to report the sexual assault they had suffered for which we need appropriate acceptance, awareness and unbiased laws against sexual violence.
Our statutes were drafted years ago, when India’s society was very different, and the lawmakers did everything they could to meet the need of the hour and demands of the society. Because the consequences are insufficient for such a horrible crime, the law and measures have been ineffective in preventing criminal activity. Rape incidents are increasing every day in India, with the bulk of them going undetected. It is critical to educate our society on their legal rights and responsibilities, as well as to raise awareness. The current rape laws in our country demand significant modifications and amendments. The law must evolve and adapt to the changing requirements of society.
Author(s) Name: Apurva Singh (Presidency University, Bengaluru)
References:
[1] Indian Penal Code, 1860, s. 375-377.
[2] Indian Penal Code, 1860 s. 90.
[3] Navtej Singh Johar & Ors. v. Union of India, AIR 2018 SC 4321
[4] Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277
[5] Rituparna Chatterjee, “The mindset is that boys are not raped”: India ends silence on male sex abuse, The Guardian, (May 23, 2018), https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala.
[6] Protection of Children from Sexual Offence (POSCO), 2012, s. 2(d).
[7] Shuvabrata Poddar, Urbi Mukherjee, (August 26, 2020) “Ascending Child Sexual Abuse Statistics in India During COVID-19 Lockdown: A Darker Reality and Alarming Mental Health Concerns” https://journals.sagepub.com/doi/full/10.1177/0253717620951391.
[8] Protection of Children from Sexual Offence (POSCO), 2012, s.7 & s. 8.
[9] Protection of Children from Sexual Offence (POSCO), 2012, s.11.
[10] Meenakshi Ray, “IAF officer alleges she was subjected to two-finger test. What does Supreme Court say?” (Oct 01, 2021), https://www.hindustantimes.com/india-news/iaf-officer-alleges-she-was-subjected-to-two-finger-test-what-does-sc-say-101633075988623.html.
[11] Indian Penal Code, 1860, s. 375 – Exceptions.
[12] The Protection of Women from Domestic Violence Act , 2005, s. 3.
[13] Gautam S Mengle, (Sep 27, 2021), “All 33 accused of gang-raping Dombivli minor arrested, say police”, https://www.hindustantimes.com/india-news/thaneall-33-accused-of-gang-raping-dombivli-minor-arrested-saypolice-101632766252124.html.
[14] Mukesh and Anrs. v. NCT Delhi (Nirbhaya Case), (2017) 6 SCC 1.
[15] “Profiles: Who were the Delhi gang rape convicts?”, (20 March 2020), https://www.bbc.com/news/world-asia-india-23434888.
[16] Satyama Dubey and Ors. v. Union of India (UOI), (27.10.2020 – SC) : MANU/SC/0791/2020.
[17] Nirbhaya Act Criminal Law (Amendment) Act, 2013.
