“You’re not a victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth, and raging courage.”
The Government’s review of the laws relating with sexual offences provides an opportunity to revise the current lawful provision that deals with rapes and brutality, especially assault and obscene attack. As a mainly consolidating statute, the Sexual Offenses Act 1956 simply reproduced a number of existing provisions from the earlier offences Against the Person Act 1861 and Criminal Law Amendment Act 1885. The 1861 Act, though promoted as a measure to protect the person, failed to address the issue of sexual violence effectively. The driving force behind the 1885 Act was the perceived need to protect men from immoral girls and women, rather than any primary desire to protect vulnerable females from male sexual violence. It is contended here that the law relating to sexual violations has never been informed by any considered approach drawing upon both feminine and sexual discourses. Women, being disenfranchised, were unable to participate in the law-making process and were denied a say in the very crimes most likely to jeopardize their sexual security. The cumulative effect of these earlier statutes has had far-reaching implications, which it is hoped will be addressed within the current debates about legislative reform.
Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial.
Sexual assault is an act in which a person intentionally sexually touches another person without that person’s consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence, which includes child sexual abuse, groping, rape (forced vaginal, anal, or oral penetration or a drug facilitated sexual assault), or the torture of the person in a sexual manner.
Sexual Offenses encompasses a variety of crimes that include, however are not limited to, rape, assault by penetration, sexual assault, making an individual participate in sexual activity without consent and sexual offenses against children.
Most of sexual offenses are now enclosed within the Sexual Offenses Act 2003, which was expected to be a huge scope amendment of the law of sexual offenses, most prominently, with regards to consent. The act also redefined and explained a few terms as well as introducing new kinds of sexual offenses. Besides, the act offers greater protection to individual from offenders.
Sexual offending is regularly considered as by one way or another inalienably not quite the same as different types of offending. Sexual offenders involve an special place in contemporary society’s mainstream demonology. Sexual crime is a pillar of the tabloid and broadsheet news papers, where offenders become ‘beasts’, ‘monsters’ and ‘sex monsters.’ Concern about sexual crimes has become a panic. The present chapter therefore tries to find out firstly, the offenses against women which are in essence sexual offenses against women and furthermore the applicable law which covers such offenses. Since the present chapter deals with sexual offenses against women, an endeavor has been made to see if the present law is gender neutral or not. As consent is the greatest factor in the assurance of the fact whether a specific sexual activity is an offense or not, the present chapter therefore, focuses on the aspect of consent. Societies differ as to their perception of morality and with the passage of time human generation likewise changes its view and behaviour pattern. Thus changes can happen in the sexual orientation of the human beings and the law may not perceive that change. The present study therefore gives a cursory look in to this aspect to find out the premise of our criminal law relating to sexual offenses against women.
SEXUAL OFFENCES- CONCEPT ANALYSIS
At the out set it must be said that the law makes no formal distinction between sexual offense and other offences. How one separates is accordingly to a great extent a matter of individual choice, and the criteria for classification are open to debate. The law may mention to us in detail what is sexual offence but an abstract definition remains nebulous. Sexual is any will be any undesirable sexual action (i.e., kissing, grabbing, oral sex, intercourse, etc.) in which the victim feels. forced, coerced, or manipulated. Sexual offence may also be defined as sexual assault i.e. an act which sex is used as a weapon. Sexual harassment, molestation, incest and rape are all forms of sexual assault. Here one may also suggest that it is the instigation or compulsion of adults and children into sexual activities to which they have not consented or where the genuine consent is absent. This might include the exploitative use of people for prostitution or other unlawful sexual works including the production and publication of pornographic material. The absence of a genuine consent to sexual activity is the overall feature of sexual offending.
A sexual offence happens when your physical body is interfered with in an inappropriate manner by someone else, that is the point at which an person intentionally touches any part of your body including [by that person’s touching] your private parts in a sexual manner or way and by sexual intercourse, all without your permission or consent. A sexual offense may also happen where a child under 16 years old is met or contacted by an adult through calls, letters, or messages of any sort for example by texting or emails so as to meet with the youngster order to engage in behaviour that is sexual in nature. This is also known as sexual grooming.
The Sexual Offences Act is gender neutral meaning that both females and males can be accused of offences and both females and males can make complaints about being victims of the offences provided for under the act.
TYPES OF SEXUAL ASSAULT
There are many different types of sexual assault. Below is a list of the various acts that are considered sexual assault and abuse, as well as a short description of some of the most common types of assault.
Sexual assault includes:
Rape—sexual intercourse against a person’s will
Forcible sodomy—anal or oral sex against a person’s will
Forcible object penetration—penetrating someone’s vagina or anus, or causing that person to penetrate her or himself, against that person’s will
Unwanted sexual touching
Sexual contact with minors, whether consensual or not
Incest (Sexual intercourse or sexual intrusion between family members.)
Any unwanted or coerced sexual contact
Other sexual crimes include:
Solicitation of minors through the Internet
Possession of child pornography
What Is ACQUAINTANCE Rape?
Acquaintance rape occurs when somebody you know or trust drives you to have sexual intercourse. The rapist can be a friend, family member, neighbor, or a co-worker. Acquaintance rape can occur on a first date, at a gathering or when you have been going out for a long time. It can happen in any relationship, including:
Friends, classmates or co-workers
Boyfriends and girlfriends
Internet friends and contacts
Teachers and students
Coaches and athletes
Religious leaders and parishioners
Doctors and patients
Acquaintance rape is the most common type of sexual assault. Over 80 % of rapes are acquaintance rapes and more than 50 % of them happen on dates.
Of all these crimes, rape is considered to be the most obnoxious and gravest form of human rights violation in the country. Rape cases are increasing in the country every year. It has shown a continuous rising trend during the last five years.
As we can take the most recent case of Hathras rape case. A 19-year-old Dalit girl, who had been allegedly raped and assaulted at Hathras village in Uttar Pradesh on September 14, succumbed to her injuries on September 29. She was cremated in the dead of night with the family claiming they had been kept away from her last rites. This was another unconscionable atrocity committed in Uttar Pradesh. The girl was brutally assaulted when she was doing her chores, collecting fodder in the fields along with her mother. Her spinal cord was fractured and tongue slashed. This inhuman act which follows a string of sexual violence cases in Uttar Pradesh and elsewhere in India highlights some grim truths, primarily that the safety of women is not a guarantee despite the stringent laws in place. After the Nirbhaya rape in Delhi in 2012, the government set up a committee led by Justice J.S. Verma. On its recommendations, the Criminal Law (Amendment) Act was amended in 2013, bringing in changes to the Indian Penal Code and other laws. This March, the four convicted of the gang rape of Nirbhaya were hanged to death.
Section 376D of the IPC defines gang rape as the rape committed by one person or more than one constituting a group or acting in furtherance with the common intention and each of those persons shall be liable for the imprisonment for not less than twenty years which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim. As stated above, earlier the punishment was for imprisonment for not less than ten years was there but was later changed after The Criminal Law Amendment, 2013 to imprisonment not less than twenty years.
If we critically analyse this provision, we can see that no exception is given to a person who is below the age of eighteen years and would be prosecuted as an adult because earlier there was a loophole that if a man who is not the age of eighteen and involved in the rape were treated under the Juvenile Justice Act, 2000 and so was able to escape from the rigorous punishment but the court has realized later especially after the Nirbhaya Case where one man who was not of the age of eighteen was also involved, that, a man who is of the age of sixteen is still able to know the consequences of his actions and cannot the take the defence of a minor and thus will be treated as an adult. Further, some provisions were also made taking into consideration the age of the victim. As Section 376DA of the IPC states about the life imprisonment for the gang-rape committed to a woman who is below the age of sixteen years and would also be liable for the fine and Section 376DB of the IPC which stated for the imprisonment for life if the rape is committed to a woman under the age of twelve years of age, by both these sections, the age group of a woman from thirteen years to 16 years are prevented under IPC.
What Is DRUG FACILITATED Sexual Assault?
This frequently happens when you are at a gathering, club, or a social event and you are with people you know and don’t think you have any reason to fear. Somebody secretly drops a drugs such as roofies or ecstasy in your beverage. when the drug dissolves, it is odorless. It might be colorless, or may leave a bluish colored residue, and it might be tasteless. As you consume the beverage, the drug takes effect. You may experience drowsiness, dizziness, confusion, lack of coordination, slurred speech, loss of inhibition, impaired judgment and reduced levels of consciousness. You are incapacitated and cannot escape, resist or even call out for help. Often, these drugs cause amnesia, and you cannot remember what happened and who assaulted you.
‘Roofies’ are not the only drug used in drug-facilitated sexual assaults. Alcohol is in fact the most commonly used drug to facilitate the perpetration of sexual assault. Just as with roofies, alcohol impairs your judgment, lowers inhibitions, and affects consciousness. In the eyes of the law, you cannot consent to have sex when you are under the influence of alcohol.
What Is CHILD SEXUAL ABUSE?
Child sexual abuse is any sexual act with a child by a parent, an adult or someone who is older or more powerful than the child. It involves forcing, tricking, bribing, threatening or pressuring a child into sexual acts.
The abuse can be physical, verbal or emotional and includes such acts as sexual touching, exposing the child to pornography, taking pornographic pictures of the child, “peeping” at the child, exposing oneself to a child, and attempting/performing oral, anal, or vaginal penetration.
WHAT IS UNNATURAL OFFENCE
Provision related to unnatural offences is incorporated under Section 377 of the IPC mentioning about imprisonment for life or of ten years against the one who is voluntarily doing carnal intercourse against nature with any man, woman or animal and shall also be liable for fine. This section came into existence in 1861 during the British rule where the term “against nature” included homosexual activities. Unnatural offences also include sterilization, sodomy, bestiality etc. This section has not made any classification between the married or unmarried woman because in marriage under Hindu Law(Hindu Marriage Act, 1954) also sodomy, bestiality or sterilization are the grounds for the annulment of the Hindu marriage. Also, the concept of bestiality revolves around the consent as how can you obtain the consent of an animal when they are not able to communicate, similarly ‘anal’ or ‘oral’ sex is equally unnaturally because both these two are out of the scope of the normal sexual intercourse and are physically harmful to both men and woman and are not the essential ingredients for a sexual intercourse.
What Is MARITAL RAPE?
Marital Rape is the sexual intercourse between the spouse and the wife without the consent of the wife. It is recognized as an exception in the meaning of rape as consolidated under Section 375 of IPC expressing that “Sexual intercourse or sexual activities with a man with his own wife, the wife not being under fifteen years age, isn’t rape”. This theme has different sides, from the perspective on a man and the other from the women. If we see from the women side, sexual intercourse with a wife without her consent amount to physical and sexual violence as held on case of State of Karnataka vs Krishnappa, also, in the case of Suchita Srivastava vs Chandigarh Administration, Right to make choices were given related to sexual activities, with right to liberty, privacy, dignity and bodily integrity under Article 21 of the constitution. The constitutionality of this exception has also been challenged in several petitions as violative of Article 14 and 21 of the Indian Constitution. As Article 14 states about the equality before the law and equal protection of laws, the woman is discriminated against the criminal law who are the victims who have been raped by the husbands. This section also discriminates against the married woman by denying them equal protection from rape and sexual harassment. One more concern if we see especially from the side of a married woman, this exception has created the classification between the married and unmarried woman, because unlike married woman, unmarried woman is protected under IPC but if a married woman is being raped by her husband, then, she cannot claim justice under IPC due to lack of legislative provisions regarding marital rape under IPC, they can just move to the court with the offence of domestic violence, whose punishments are different and are less strict as compared to the provisions under IPC.
The Importance Of CONSENT!
Consent to any sexual activity is pivotal to the reduction and prevention of sexual assault and coercion.Consent is a voluntary, sober, enthusiastic, informed, mutual, honest and verbal agreement. It is an active agreement and cannot be coerced. Consent is a process which must be asked for every step of the way; if you want to move to the next level of sexual intimacy, just ask! Consent is never implied and cannot be assumed, even in a relationship. Just because you are dating a person does not mean that you have natural permission to have sex with your partner. A PERSON WHO IS INTOXICATED CANNOT LEGALLY GIVE CONSENT. If you are too drunk to make decisions and communicate with your partner, you are too drunk to give consent. The absence of a “no” does not mean “yes”. both people should be involved in the decision to have sex!
Communication, respect and honesty make sex and relationships better. Asking for and getting consent shows that you have respect for both yourself and your partner. Positive views on sex and sexuality are empowering. The idea of consent helps to question traditional views about gender and sexuality and asking for it eliminates the entitlement that one partner may feel over the other. Neither your body nor your sexuality belongs to anyone else but you! And it is normal and healthy for women to expect to be included in the consent process.
You should ask for consent before you act! It is the responsibility of the person initiating sexual activity to obtain clear consent. If you are unsure if consent is given, ASK! And keep asking; giving consent ahead of time does not waive a person’s right to change their mind or say no later.
Consent is not just about getting a yes or no answer, but about understanding what a partner is feeling. Ask open-ended questions, and listen to and respect your partner’s response, whether you hear yes or no: “I’d really like to.. how does that sound to you?” “How does this feel?” “What would you like to do?”
PUNISHMENT OF RAPE
The provision for punishment for rape is expressed under Section 376 of the IPC where the rigorous imprisonment for not less than 10 years is given which can be stretched out up to imprisonment for life. Also, a few entities are specified separately, namely, public servant, police officers, members of armed forces, management of staff or jail or if the rape is committed repeatedly on the same woman, are also subjected to liable for the rigorous imprisonment for not less than 10 years and can be extended up to imprisonment for life and will also be liable for fine for the same.
Also, if the rape is committed to a women who is younger than twelve, he will be liable for the imprisonment which will not be under 20 years and can extend to imprisonment for life as incorporated under Section 376AB of the IPC. The legislation have made further and separate provision for the sexual intercourse by an individual in power which fundamentally implies if there is a fiduciary relationship between a man and a women meaning thereby, where one person is in a position to dominate the other like the relationship between a doctor and a patient, or by the manager of a jail of a custody, where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5 years which can extend up to 10 years and is incorporated under Section 376B of the IPC.
This provision was made to restrict the sexual abuse to a woman by the doctor because “ doctor ” is a position which can easily influence the patient and the patient believes in them easily, thus, no questions can be raised against their acts to the patients, therefore, this provision limits the sexual abuse especially by the doctors. Also, after the Nirbhaya Case, 2012, some provisions were modified and some new provisions were added like earlier the punishment for rape was earlier 7 years of imprisonment but changed to 10 years, stalking was also made as an offence and imprisonment up to 3 years was made for the same under Section 354D of the IPC, the imprisonment for the offence of Gang rape was increased from not less than 10 years to not less than 20 years under Section 376D of the IPC. Also, earlier there were no provisions made for the unwelcome physical contact, words or gestures, demand or request for several favours, showing pornography against the will of a woman or making sexual remarks but now all these activities are recognized as an offence and laws are made under IPC.
Proposals for Reform
The punishment given under the provision related to rape under IPC is for imprisonment for not less than ten years which can extend up to imprisonment for life. These are the following proposals which should be made regarding these offences-
There should be the provision of the death penalty for the accused where the rape is of such extent that it has amounted to the death of the victim. Also, the accused which we witness in these cases, they are not different species but they exist between us only, therefore, changes are required in the minds of society rather than the law, like, there should be a strict ban on porn websites, adult entertainment because nowadays in the time of technology, these are accessible to everyone in the society and can be accessed by even the child who is not even a teenager, therefore, the Ministry of Information and Technology should take strict action about this problem.
There should be some awareness programs in urban as well as rural areas where the children, especially girls should be made aware about the good touch and the bad touch, this will help to prevent the cases of child abuse.
There should be legal awareness programs primarily in the rural areas, about not to fear from filing a case, if the offence is related to rape, it has to make them understood, that now the crime has committed and the police, the judiciary will be able to help them if they wanted them to.
Another big concern is the speedy trial, it is to suggest that in the cases where there is constructive evidence like CCTV recording etc. where it is clearly seen the identity of the accused, then, those proceedings should be done quickly.
There should be the programs regarding the sex education to be organized in schools, so as to aware the students about these things because it is important to aware about the reproduction process, especially make them aware about the sodomy, bestiality or sterilization, about the contraceptives which make them aware about these private things.
Sexual crime against women and children is universally condemned. In fact, this type of crime is a blot on the face of any civilized society. It reflects the mindset of a regressive era with patriarchal dominance. Whether overt or covert violence has seeped into the psyche of perpetrators these crimes are multi-causal and multidimensional. They are the manifestations of a very deep-rooted disease, which has socio-economic, cultural and political moorings. Many research studies have confirmed, and even experiences of different countries have shown, that simply the enactment of special laws will not serve the purpose unless laws are strictly implemented. The task cannot be accomplished only by the police alone but has to be shared by all the other wings of the criminal justice system. Particularly, the judiciary has to take it upon itself to see that no perpetrator of these crimes goes unpunished. Along with the criminal justice functionaries, non-governmental organizations, media people, political leaders, social workers and even the common man have to coordinate to create an environment in which sexual violence against women and children will not proliferate. What is most important is that the general attitude of society needs to be changed in favour of the dignity of women and children which would necessitate large scale literacy among women folk and the economic improvement of the downtrodden masses. International endeavours need to be further invigorated to such an extent that their outcome is reflected in the national efforts of different countries.
In many countries, data on most of the aspects of sexual violence are lacking, and there is a great need everywhere for research on all aspects of sexual violence. Of equal importance are interventions. These are of various types, but the essential ones concern the primary prevention of sexual violence, targeting both women and men, interventions supporting the victims of sexual assault, measures to make it more likely that perpetrators of rape will be caught and punished and strategies for changing social norms and raising the status of women. Health professionals have a large role to play in supporting victims of sexual assault- medically and psychologically – and collecting evidence to assist prosecutions. The health sector is considerably more effective in countries where there are protocols and guidelines for managing cases and collecting evidence, where the staff is well trained and where there is good collaboration with the judicial system. Ultimately, the strong commitment and involvement of governments and civil society, along with a coordinated response across a range of sectors, are required to end sexual violence against women and children.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.A