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According to the Ministry of Women and Child Welfare[1], 53.22 percent of children have experienced sexual harassment, with 21.90 percent reporting serious forms. Sexual abuse of children refers to sexual contact between a child and an adult or between two children when one of the children is marginally older or manipulates the other. More than 70% of abusers are family members or close friends. It’s possible that the perpetrator and the victim are of different genders. Sexual abuse includes acts of touching the breast, buttocks, and groin, whether or not the subject is clothed; exhibitionism; fellatio; cunnilingus; and penetration of the vaginal or anus with sexual organs or items. Sexual assault may take place over time or in a single instance. In addition to improper physical contact, sexual abuse also applies to child sexual harassment, such as actions or behaviour linked to pornography involving children encouraging or dealing in minors’ prostitution.
What is Sexual Offence ?
A sexual offence[2] occurs when someone interferes with your physical body in an inappropriate manner, that is, when someone touches any part of your body, including your private parts, in a sexual manner or way and/or by sexual intercourse, all without your permission or consent.
A sexual offence can also occur when an adult contacts a minor under the age of 16 through phone calls, notes, or communications of some kind, such as texting or emails, in order to connect with the child in order to engage in sexual behaviour. This is also known as sexual hygiene.
Laws
The Law Commissioners agreed to divide the country’s criminal law into two different codes. The Indian Penal Code, which established substantive criminal law, was the first to be enacted into law. This was passed in October 1860, but it didn’t take effect until January 1, 1862, 15 months later. In 1861, the first Code of Criminal Procedure was passed, which codified the rules regulating the creation of criminal courts and the procedure to be practiced in the prosecution and conviction of crimes.
IPC
Section 375 of the Indian Penal Code found it illegal for a man to have sex with a woman if he did so against her will or without her permission. Rape often involved sex where a woman’s consent was gained by placing her or any other male she is interested in in danger of death or harm.
Rape is a form of sexual abuse and is often described as sex with or without her permission while she is under the age of 18. Sexual relations or sexual acts between a man and his wife, whether the wife is not under the age of 15, are not called rape. Those who attempt rape face a sentence ranging from seven years to life in prison under Section 376.
Why was the Criminal Law Act amended?
The contentious decision triggered nationwide demonstrations calling for changes to current rape regulations. The Criminal Law (Second Amendment) Act of 1983 was the result of this[3]. In the Indian Evidence Act of 1872, a new Section 114A was included, which presumed the absence of consent in such rape prosecutions if the claimant said so. This was true in incidents of incarcerated rape.
Section 228A of the IPC was introduced, making it illegal to reveal the name of the victim of such crimes, including rape.
The Justice Verma Committee
On December 23, 2012, a three-member committee headed by former Supreme Court Chief Justice Justice J.S. Verma was created to propose reforms to the Criminal Code that will enable criminals accused of sexual abuse against women to be prosecuted more easily and face tougher penalties.
The committee invited the public in general, as well as eminent jurists, legal practitioners, NGOs, women’s organisations, and civil society in particular, to express their opinions, expertise, and experience in recommending proposed changes to the criminal and other applicable laws to allow for faster investigation, conviction, and trial, as well as increased penalties for criminals convicted of sexually transmitted diseases.
Objective of the Committee
The Commission’s main goal was to examine the criminal code for potential amendments and to propose legislation to speed up prosecutions and increase sentences for violent crimes against women. On January 23, 2013, the commission submitted its suggestions, describing “lack of good governance” as the core cause of violence against women, in light of the ferocious storm of popular demonstrations in general and a tribute to Nirbhaya in particular.
Recommendations of the Committee
Rapists do not face the death penalty, according to the jury. It implies that rape can be punishable by seven years or life in jail or a restraining orderThose that cause death or a “persistent vegetative state” are proposed to be sentenced to RI for not less than 20 years, but up to life, which ensures the remainder of the person’s life. It is proposed that gang-rape be punished by at least 20 years in prison, with the chance of life imprisonment, and that gang-rape that results in death be punished with life imprisonment.
The panel agreed that all types of sexual offences should be prosecuted, and proposed that voyeurism be punished with up to seven years in prison, and harassment or persistent attempts to harass a victim by some means be punished with up to three years in prison. Acid assaults could result in a sentence of up to seven years in jail, while drug dealing could result in a sentence of seven to ten years in prison.
Any rape allegation must be submitted to the police, and civil society should do their best to investigate any rape reports that come to their notice. According to the report, “any officer who fails to record a case of rape submitted to him, or tries to abort the investigation, commits an offence that shall be prosecuted as prescribed.” Medical assessment guidelines for sexual harassment victims have since been proposed. “Such protocol-based, competent medical assessment is essential for uniform procedure and implementation,” the panel said.
A women’s Bill of Rights that guarantees a woman’s right to a life of equality and independence, as well as absolute sexual liberty, including in her relationships.
Amendment of the Provisions of the Indian Penal Code, 1860
The Criminal Law (Amendment) Act of 2013, which went into effect on February 3, 2013, updated and added to the Indian Penal Code (IPC) regarding various sexual offences. Certain acts that were formerly dealt with by related laws were now expressly known as offences under the new Act. New offences such as acid assault, sexual harassment, voyeurism, and stalking have been added to the Indian Penal Code.
Provisions
There were clauses in the IPC that dealt with sexual abuse prior to the Act’s passage, but no other clause that explicitly set out the penalty for sexually assaulting anyone. The rules is as follows:
Section 209
1. To the annoyance of some, lewd acts and music, such as:
2. If someone performs some obscene act in some public place or
3. In or near any public space, sings, recites, or utters any lewd poem, ballad, or words.
Punishment: Imprisonment for a term up to 3 months or fine, or both.
Section 354A
Previously, a man who makes unwanted sexual advances, forcibly exposes pornography, or demands/requests sexual favours from a woman committed the crime of sexual assault simpliciter under section 354A, which is punishable by up to three years in jail. Making sexually tinged comments is often considered sexual assault, which is punishable by up to a year in jail.
Punishment: 2 years imprisonment or fine, or both.
Section 354B
Assault or Use of Criminal Force to woman with intent to disrobe`
Punishment: 2 years imprisonment or fine, or both.
Section 354C
The act of watching others engaging in private activities is known as voyeurism. When a man observes a woman engaging in private acts when she is unaware that she is being observed, he has committed the crime of voyeurism.
Punishment: A first conviction carries a sentence of imprisonment of not less than one year, but not more than three years, and a fine, while a second or subsequent conviction carries a sentence of imprisonment of any type for a period of not less than three years, but not more than seven years, and a fine.
Section 354D
Stalking
It entails trailing someone and having or trying to make contact for personal interaction despite the other person’s obvious lack of interest. Stalking may be done in person or by the use of social devices.
Section 375 and 376
Rape. The 2013 Act broadens the scope of rape to encompass oral sex and the penetration of an organ or other body part into a woman’s vagina, urethra, or anus.
Punishment: Rape has a minimum sentence of seven years in jail and a maximum sentence of life in prison. If a police officer, medical officer, army officers, corrections officer, public officer, or public servant commits rape, he faces a minimum sentence of ten years in prison. If the victim dies or enters into a vegetative state as a result of the attack, the victim is sentenced to life in jail, with the probability of death. Under the recently revised sections, gang rape now carries a minimum sentence of 20 years in prison.
Criticism of the Act
Several human rights and women’s rights organisations have criticised the Criminal Law (Amendment) Act, 2013 for failing to include such recommendations made by the Verma Committee Report, such as marital rape, lowering the age of consent, and amending the Armed Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force personnel accused of a crime against a woman. The Indian government responded that it had not completely dismissed the recommendations, but that amendments could be made after further debate.
The 2013 Act’s critics come from a wide range of political and ideological backgrounds. One of the Act’s most conspicuous omissions is its refusal to criminalise marital rape, as proposed by the Verma Committee, putting India in the company of China, Pakistan, and Saudi Arabia, among others. Opponents claimed that criminalising marital rape would undermine the institution of marriage and encourage women to fabricate rape charges because rape inside marriage was “difficult to prove” during the heated discussion that followed the 2013 Act. The self-proclaimed saviours of marriage advocate divorce or criminal punishment for cruelty, but not for rape.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“the Act”)
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (“the Act”)[4] was passed with the aim of providing protection from sexual harassment of women at work as well as the prevention and redress of sexual harassment allegations, as well as matters related to or incidental to the Act.
Sexual harassment is described as unwanted physical, verbal, or nonverbal conduct of a sexual nature, including physical touch and advances, a demand or order for sexual favours, making sexually flavoured comments, exhibiting pornography, and any other unwelcome physical, verbal, or nonverbal conduct of a sexual nature. Sexual harassment is described as any act that is unwanted and sexual in nature. “Undoubtedly, physical touch or advances would constitute sexual assault if such physical contact is a part of the sexually determined conduct,” the Delhi High Court said. Physical contact that has no overt sexual overtones and is not caused by the complainant’s gender may not be considered sexual harassment.
The Act further defines what constitutes sexual assault. There are:
- implied or explicit promise of preferential treatment in her workplace; or
(ii) implied or explicit threat of adverse treatment in her workplace; or
(iii) implied or explicit threat about her current or future employment status; or
(iv) interference with her work or creation of an intimidating, offensive, or hostile work environment for her; or
(v) humiliating treatment likely to occur in her workplace.
The Act’s most notable provision is that it calls for the establishment of an Internal Complaints Committee at any workplace of a company or institution with more than 10 staff to hear and resolve sexual harassment complaints. If there are less than ten workers, the Act mandates the District Officer to form a Municipal Committee in each district. When investigating the complaint, the commission would have the same authority as a federal court. “The ICC should be established in full accordance with the conditions under the constitution,” the Delhi High Court said in its ruling.
An aggrieved woman has three months from the date of the incident to file a formal complaint with the ICC/LC, and three months from the last such incident if the incident is part of a sequence. The committee may, however, justify any delay in filing the case for up to three months. If the aggrieved woman is physically or psychologically unable to file a complaint, her legal heirs or any other person included in Rule 6 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“the Rules”) which do so.
Before conducting an investigation, the committee can take action to resolve the matter between her and the respondent by conciliation, and if a resolution is reached, no further investigation is undertaken. If the conciliation fails or the respondent fails to comply with the condition of the resolution reached, the committee will continue its investigation.
If a prima facie case exists in the case of a domestic worker, the Local Committee must forward the complaint to the police within seven days for registration under Section 509 of the Indian Penal Code or any other relevant provisions of the same Code.
In the event of the filing of a false or malicious report or false proof, the committee may request to the employer or District Officer that action be taken in compliance with service rules, or in the absence of service rules, in the manner specified in Rule 10 of the Rules.
Within 90 days of the committee’s recommendations, an appeal can be lodged with the court or tribunal, in compliance with service laws, or to the Appellate Authority in the absence of service rules, under Section 2 of the Industrial Employment (Standing Orders) Act, 1946.
With the exception of information about the justice obtained by any survivor of sexual harassment, the identity of the aggrieved woman, respondent, witnesses, contents of the complaint, investigation hearings, or committee reports are all forbidden from being made public. A person who breaches Section 16 of the Act is subject to a punishment in compliance with service rules, or in the absence of service rules, to Rule 12.
The Act establishes such responsibilities for the supervisor and the District Officer under Sections 19 and 20, respectively, such as raising awareness of sexual abuse at work, sensitising workers, assisting the complaints committee in conducting the investigation, acting on the committee’s findings, monitoring timely submissions of the committee’s papers, and so on.
Failure to comply with the Act’s provisions will result in a fine of up to 50,000 rupees, as well as the suspension, non-renewal, admission, or cancellation of the employer’s licence, depending on the situation.
Despite the fact that the Act has been in place since 2013, there remains a lack of understanding about the implications of sexual assault and how to cope with it. The successful enforcement of the POSH Act necessitates not only the development of an atmosphere in which women can speak out about their complaints without fear of retribution and obtain justice, but also the sensitization of men against the treatment of women at work.
Protection of Children from Sexual Offences Act, 2012
Child sexual abuse (CSA) refers to all forms of sexual victimisation of minors, including penetrative and non-penetrative sexual contact, pornography, sexual coercion, recreational sexual exploitation, sex trafficking, and online exploitation [1]. The Protection of Children from Sexual Offenses (POCSO) Act, 2012 (which makes any sexual contact with a child under the age of 18 a crime) defines a variety of sexual offences in India.
Significance of the POCSO Act
The POCSO Act, which was passed in 2012, is gender-neutral, recognising that boys can also be victims of sexual assault. It considers someone under the age of 18 to be a child. The Indian Penal Code does not recognise that boys may be sexually assaulted.
The Act has broadened the definition of what constitutes a sexual assault against a minor. It broadened the scope of sexual harassment to cover both non-penetrative and aggravated penetrative sexual assault (sections 3–10), as well as retaliation for those in places of confidence, such as civil officials, school employees, and police officers.
Notably, this legislation acknowledges both touch-based and non-touch-based sexual abuse of children (sections 11 and 12), such as grooming, pressuring a child to reveal themselves or revealing themselves to a child, and so on.
Under sections 13, 14, and 15, the POCSO Act imposes severe penalties for exposing children to, or exploiting them to produce, child sexual exploitation content (CSAM, also known as child pornography).
While the POCSO does not specifically recognise grooming, experts believe that section 11 of the Act can be read to recognise and criminalise it. Grooming is described as the act of developing and maintaining a relationship with a child, whether in person or online, in order to encourage either online or offline sexual interaction with the child. It is prohibited under section 67(b) of the Information Technology Act.
The process for disclosing sexual abuse against children is outlined in the legislation. It is required to investigate sexual offences against children under section 19 of the Act, even where there is a suspicion that an offence under the Act has been committed.
This child protection law is also unique because it places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC.
Child-friendly procedures
The POCSO Act has established procedures to make the criminal justice system more child-friendly and to discourage re-traumatization. Anything from how the child’s declaration can be reported to the psychiatric test to the classification of special child-friendly courts is covered.Under provisions of the POCSO Act, a child is entitled to the following:
– Having their declaration registered at their home or a location of their convenience, preferably by a women police officer or a police officer not below the rank of sub-inspector, in civilian clothing.
– During the trial, the police officer should make sure that the child does not come into touch with the perpetrator.
– The infant cannot be arrested at a police station late at night, and his or her identity should be kept hidden from the public and media until a Special Court orders otherwise.
– If the survivor is a woman, the medical evaluation should be done by a woman doctor and only in the presence of a parent or someone who knows the child. If neither of these women are present, the examination should be performed in the presence of a woman nominated by the head of the medical institution.
When is POCSO used?
When a sexual assault against a child is committed, the police may apply parts of the POCSO Act [5] to the First Information Report (FIR). Although special laws bypass the IPC, the FIR sometimes mentions parts of both. An FIR, for example, will charge anyone with rape under section 376 of the IPC as well as applicable parts of the POCSO Act.
The sanctions under POCSO are more serious than those under the IPC. It’s important to note that POCSO doesn’t only apply to physical sexual offences; it also applies to crimes committed over the internet. Offenses such as possessing CSAM, exploiting children to create CSAM, or exposing children to pornography or CSAM fall within this category. In other instances, POCSO can be used in compliance with the Information Technology Act’s provisions.
The CSA is an especially heinous illegal act. Pediatricians and other health care providers are often the first point of contact with CSA victims, and as a result, they must have the necessary skills for proper psychiatric diagnosis and recovery, as well as legal information. The Government of India’s POCSO Act of 2012 establishes practitioner duties as well as management protocols and legal procedures. To deter CSA, parents, school teachers, and the general public must transcend common hostile practises of secrecy and humiliation and implement effective educational interventions.
Conclusion
We have several laws with several advantages and ways in which they can be improved, but the duty also lies with the citizens and the first response to counter the sexual abuse of victims.
References:
[1] Outlook web bureau, More Than 53% Children Face One Or More Forms Of Sexual Abuse: Centre, 27th December 2017, https://www.outlookindia.com/website/story/more-than-53-children-face-one-or-more-forms-of-sexual-abuse-centre/306059.
[2] A guide to sexual offences Act, 2010, UNICEF.
[3] Yamini, Criminal Law (Amendment) Act, 2013: Sexual Offences, 8 April, 2015, https://www.lawctopus.com/academike/criminal-law-amendment/.
[4] Shah Usman, Sexual Harassment Of Women At Workplace: A Brief Analysis Of The POSH Act, 2013, 1 December, 2019, https://www.mondaq.com/india/employee-rights-labour-relations/876830/sexual-harassment-of-women-at-workplace-a-brief-analysis-of-the-posh-act-2013.
[5] Geetika Mantri, What is the POCSO Act and how is it used: A guide, 12 February 2021.
