Home rape laws government notifications/advisories Changed legal position on sexual offences -Understanding Criminal Law (Amendment) Ordinance, 2013

Changed legal position on sexual offences -Understanding Criminal Law (Amendment) Ordinance, 2013

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PROTESTS ON RAPE IN DELHIRajul Jain, Legal Research  Shakti Vahini

The recent Criminal Law Amendment Act 2013 passed in the background of strong protests has brought about some strong changes in the law relating to sexual offences. The Criminal Law Amendment Act 2013 provides for the following changes:

The Criminal Law Amendment Act 2013 has enhanced the term of imprisonment prescribed for the offence which falls under the category of assault or criminal force to woman with intent to outrage her modesty (section 354).  While earlier the accused was liable to imprisonment of a term which could extend to two years or fine or both, now, the same offence is punishable with a term of one year which may extend up to five years and shall also be liable to fine.

This reflects substantial change in the outlook towards the crime and a stronger determination to deter criminals.

  1. Insertion of section 354 A, 354 B, 354C and 354D in the Indian Penal Code– the Criminal Law Amendment Act 2013 mandates insertion of  new sections after the already existing section 354 which deals with assault or criminal force to woman with intent to outrage her modesty.

 Section 354A deals with the definition of “sexual harassment” which is very broadly defined and criminalizes acts like forcibly showing pornography, physical contact and advances involving unwelcome and explicit sexual overtures, demanding or requesting sexual favours, any other unwelcome physical,  verbal or non-verbal conduct of sexual nature. This section further deals with the punishment to be awarded for the offence depending upon the act in question.

While demanding or requesting sexual favours and physical contact or advances which involve unwelcome and explicit sexual overtures is punishable with rigorous imprisonment of a term which may extend to five years or with fine or with both, the other three acts enumerated above attract a lesser term which may extend to one year or fine or both.

A bare reading of this section shows that it is gender neutral in nature.

Further section 354B deals with offence where criminal force or assault is used up on a woman with the intention of disrobing her or compelling her to be naked in public and penalizes the same with an imprisonment term which shall not be less than three years but may extend to seven years and also attract fine. This section deals with a very specific offence and adds to and will supplement the provision dealing with the offence of outraging the modesty of a woman. This is a welcome provision in view of the fact that many cases have been reported in the news of women being stripped in public as an instrument of punishment mostly in backward areas.

Section 354 C also deals with the specific act of either watching or capturing the images of a woman engaging in a private act where she expects privacy and observation by the perpetrator or any other person at the behest of the perpetrator is not likely. Such watching or capturing images of a woman is criminalized and attracts an imprisonment term which shall not be less than one year but may extend to three years and fine. Also on a subsequent conviction the minimum imprisonment term shall be that of three years extendable to seven years and also fine.

For the purpose of this section the offence is widely defined and includes a situation where the victim may have consented to the capturing of images or any act but not agreed to the dissemination of the same to any third person.

 Section 354 D criminalizes the act of stalking which interferes with the mental peace of a person or causes distress, fear of violence or alarm. The same is punishable with a minimum imprisonment term of one year which may extend to three years and also liable with fine. However, the offence is subject to certain exceptions like where a person can show that the acts done were in pursuance of some law, amounted to reasonable conduct or in order to prevention of some crime.

  1. Further section 375 has been replaced with a newly worded section where the word “rape” has been substituted by “sexual assault”. It has two implications, one,  that under the changed law the offence of sexual assault has been made gender neutral and second that the new term will take under its ambit many more acts of sexual nature. Under the old provision read with case law, a very strict definition of rape, which required certain degree of penetration of the female genitalia, was followed. However, under the substituted provision the law stands substantially changed. It provides for the following:
  1. Penetration of penis into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  1. Insertion of any object or any body part, not being penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person;
  2. Manipulation of any body part so as to cause penetration of vagina, urethra, mouth or anus or any body part of such person or makes the person to do so with him or any other person;
  1. Application of mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person;
  1. Lastly, touching the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person.

As can be observed the new section has criminalized forcing a person to commit a sexual act on oneself as well as any other person. This is a very substantial change.

  1. Also consent by any person below 18 years of age is considered to be no consent. The age bar earlier was 16 years.
  1. Also added is the explanation 3 which says that“a person who does not physically   resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity”
  1. Any of the acts enumerated above will constitute the offence of sexual assault and be punishable with an imprisonment term not less than seven years but may extend to life imprisonment and shall also be liable to fine.
  1. Also aggravated sexual assault is liable for imprisonment of a term not less than 10 years but may extend to life imprisonment and also fine.

The Criminal Law Amendment Act 2013 has further amended the law to provide for the following:

  1. Where the commission of sexual assault or aggravated sexual assault causes death of the victim or leaves the victim in a persistent vegetative state the punishment is prescribed to be rigorous imprisonment of a term not less than twenty yearsbut may extend to life imprisonment (meaning the whole of the remainder natural life of the accused) or even with death.
  1. Further section 376 B provides that whoever commits sexual assault on his own wife, who is living separately under a decree of separation or under any custom or usage, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
  2. Also the substituted section 376 C provides that:

“Whoever,––

(a) being in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time  being in force, or a women’s or children’s institution; or

(d) being on the management of a hospital or being on the staff of a hospital, and abuses such position or fiduciary relationship to induce or seduce any person either in the first mentioned person’s custody or under the first mentioned person’s charge or present in the premises and has sexual intercourse with that person, such sexual intercourse not amounting to the offence of sexual assault, shall be punished with  rigorous imprisonment of either description for a term which shall not  be less than five years but which may extend to ten years, and shall also be liable to fine.”

  1. This provision reinforces the terms of new section 376(2) and perhaps is added to highlight the gravity of situation where the perpetrator is a person in a position of trust and authority.
  1. The provision added under section 376D provides“Where a person  is sexually  assaulted  by one or more persons constituting a group or  acting in furtherance of a common intention, each of those persons shall be  deemed to have committed the offence of sexual assault, regardless of gender   and  shall be punished with  rigorous imprisonment  for a term  which  shall  not be  less  than twenty  years, but  which   may extend to  life and shall pay compensation to the victim which shall be reasonable  to meet  the medical expenses and rehabilitation of the victim”

This provision would make liable even a female person for the offence of sexual assault if she is a part of the group of persons committing the act.

  1. Further section 376 E has been added and section 509 amended to stand as follows:

376E. Whoever has been previously convicted of an offence punishable under section 376  or  section  376A or  section  376C or section 376D and  is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for  life, which shall mean the remainder of that person’s natural life or with death.’.

Also, “In section 509 of the Penal Code, for the words “shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”, the words “shall be punished with simple imprisonment for a term which may extend to three years and shall also be liable to fine” shall be substituted.”

The Criminal Law Amendment Act 2013 has further amended sections of Cr PC to provide that whenever an offence the above discussed provisions (i.e. sexual offences) is reported the statement of the victim if a woman will be taken by a woman police officer and legal assistance be provided to her.

It is further provided that where the victim is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of a special educator or an interpreter, as the case may be;

(b)  the recording of such information may be video graphed.

(c) the  police    officer   shall  get the statement of  the person recorded by  a  Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.”

The changes in law are a welcome change however, it remains to be seen how much deterrent effect it will have on the society.

(The Article is part of the Research Initiative under the Global Partnership Grant)

3 COMMENTS

  1. So very cleverly simply making a pass has been criminalised – requesting sexual favours is now an offence!! The scentence does not say making an unwelcome or unwanted request, simply that requesting a sexual favor is an offence. Guaranteed to be misused by the cops and feminists to score statistics and report to their masters and sponsors in the western hemisphere of course.

  2. And then a gesture may be informed as unwanted only after it is made and the lady indicates so. How does a man know if his overture is going to be unwelcome or welcomed? After all no lady will say “oh you are welcome” she will “protest” and put on a mocj display of chaste behavior. All women do. But the man – he goes to jail.

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