Sexual Offence against Women and Children in Indian Society

I was a victim of sexual abuse

Women are not things you just use

Some men turn beasts at 6 O’clock

Should we as women just hide behind a rock?

• Krista Fletchet

I. Introduction

A sexual offence is a felony crime where the perpetrators commit a sexual act against another person will or without consent due to diminished mental capacity or age. It occurred when a person touches someone’s body inappropriate way and deliberately wants sexual intercourse. The sexual offence is also classified as a federal crime in which a child under the age of 16 meets adults who have wronged intention and deliberately touches the child's private parts in a sexual manner. Sexual offences are also committed through telephone calls, letters, emails in which they convince them to meet and try to engage in behaviour that is sexual in nature. Sexual offences can take many different forms and are defined in different ways but there is one thing that remains common in these offences there is no fault of victims. Sexual offences usually fall in state jurisdiction and include charges of Rape and Sodomy. The sexual offender can also be of any gender and of any sexual orientation.

II. Sexual offences in India

Sexual Offence is the border range of offences that are committed on a large scale in India, It Includes non-consensual crimes such as Rape or Sexual Assault and Sexual Harassment Many Crimes against children include child sexual abuse and crime that exploit others for a sexual purpose. Sexual offences are serious crimes that can have a long-lasting effect on the victim. In most cases, it seems that the persons who committed sexual office are close ones such as friends, acquaintances, ex-partners or family members work colleagues. They are responsible for their action no portion of blame or responsibility lies with the victim. Offending may be ongoing, occasional or a single Incident and it happens more frequently. It realized that sometimes the victim is afraid to speak about what was happened with them and doesn’t seek police help because they were voluntarily taken drugs or drink alcohol before the offence happened and sometimes they have little or no recollection of what has happened to them. The offender may have some criminal record by which they blackmail them and the victim might be worried that no one will believe him. That’s the big reason why sexual offences cases are not registered by victims in India.

III. Magnitude

The magnitude of sexual offences with women in India-

India is considered to be the world’s most dangerous country for sexual offences against women. According to the national crime record bureau, one woman is raped every minute in India.

In the year 2017 more than 32500 cases of rape were registered in India, that is about 90 a day. According to the most recent government data, more than 127800 rape cases were pending in the Indian Courts at the end of 2017.

The magnitude of sexual offences against children-

In India, a child is sexually abused every 15 minutes, according to the latest government figure. According to the recently NCRB data, 32,608 cases were reported in 2017 while 39,827 cases were reported in 2018 under the protection of children from sexual offences act (POSCO)

IV. Type of sexual offence

With children-

1. Sexual Assault

2. Penetrative Sexual Assault

3. Sexual Harassment with child

4. Using children for pornography purposes.

With Woman-

1. Sexual assault.

2. Rape.

3. Marital Rape.

4. Sexual harassment.

5. Sexual harassment at the workplace.

6. Stalking.

7. Voyeurism.

RAPE - Under section 375 of IPC is defined as “A man is said to commit a Rape when he penetrates his penis or any other body part or insert any object to any extent in vagina, mouth, urethra or anus of a woman, or applies his mouth to her private parts or make her do so with him or any other person. Also, this definition is further subjected to several circumstances like if the act is done against, her will or without her consent or if the consent is taken by coercion or if the consent is obtained when the girl was in intoxication or was unsound at that time or obtain the consent of a girl which is not able to communicate and the most important when the act is done with or without the consent of a girl below 18 years of age. Rape in India is now a more common crime than murder. If we see in terms of crime rate, India stands at 2.2 in terms of murder while standing at 5.2 in terms of rape according to the National Crime Record Bureau (NCIB) till 2017. These crime rates are made according to the cases filed in the court but there are still many incidents that are never reported in the police station due to illiteracy, lack of awareness, fear of respect, fear from society. Also, we cannot blame the laws related to sexual offences because now the courts after the outrage of the severe cases, especially after the Nirbhaya case have made very important amendments like they have widened the definition and scope of rape. After, the Nirbhaya case, the age of consent was extended from 16 years to 18.

V. Essential ingredients

1. Against her will

2. Without consent

3. Consent obtained under fear of death or hurt

4. Consent obtained by fraud

5. Consent of a woman under18 years of age

6. Consent of an intoxicated woman

Against her will- The will means the desire of whether to do any act or not. Against her will means that sexual intercourse occurs despite her resistance and opposition.

Without consent- Sexual intercourse with a girl or a woman without her consent constitutes rape while consensual intercourse does not amount to rape, and obviously, if the intercourse has been done by the consent, then it defeats all the provision relates to a sexual offence under Indian penal code 1860.

Consent obtained under fear of death or hurt- Section 375 (c) of the IPC assent that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without fear of death or injury. In such case consent obtained are free and valid.

Consent obtained by fraud- Section 375(4) of IPC consent given by a woman to a person who promises her to marry in future and doesn’t complete his promise and starts making excuses after a few time. These cases are basically related to bigamy which means that at the time of marriage, the accused have another spouse living.

Consent of women under the age of 18 years- As section 375(6) of IPC, According to this section if any person made a sexual relationship with under the age of eighteen years and the consent was given, even then the man is said to commit rape because the court believes that the girl between the age of 13 to 18 is not that mature to understand the consequences of the act.

Consent of an intoxicated woman- Section 375(5) of IPC states that if the consent has been taken from a woman who at the time of giving consent was intoxicated or not of sound mind. If the consent is taken by administration him personally or by any substitute to which the woman is unaware. Then the person will be liable for the rape of that girl.

VI. Marital rape

Marital rape is sexual intercourse between husband and wife without the wife's consent. It is recognized as an exception in the definition of rape under section 375 of IPC Sexual intercourse with a wife without her consent amount to physical and sexual violence. Right to make choice were given related to sexual activities, this exception has created the classification between the married women and the unmarried woman because unlike the married woman, is protected under IPC but if a married woman is being raped by her husband, then she can, not claim justices under IPC due to lack of legislative provision regarding material rape under IPC they can move to the court for domestic violence.³

VII. Punishment for rape⁴

Punishment for rape is given under section 376 of IPC where the imprisonment for rape, not less than 10 years is given and which may extend up to life. Also, some public servants, public officers, armed forces members, management of staff or jail or if the rape is committed on the same women are liable for the rigorous imprisonment for not less than 10 years and may extend up to life imprisonment.

Section 376(A) - Punishment for causing death or resulting in the persistent vegetative state under this section states that when the offence is committed in the course of commission inflict an injury which causes the death of women or cause the women to be in a persistent vegetative state will be liable for the rigorous imprisonment of not less than 20 years which may extend to imprisonment up to life.

Section 376B- Sexual intercourse by husband upon his wife after judicial separation, who is living separately whether under the decree of separation or otherwise, without her consent made a sexual relationship with him shall be punishable with imprisonment of a term not be less than two years but extended up to seven-year and liable for fine.

Section 376C-Sexual intercourse by a person in authority which is basically means if there is a fiduciary relationship between a man and women meaning, where one person is in a position to dominate the other like the relationship between doctor and a patient, or manager of jail of custody, where a man committed such offence is liable for the rigorous imprisonment for not less than five years and which can extend up to ten years and with fine.

Section 376D – IPC defined gang rape in this section as a rape committed by one person or more than constituting a group acting in furtherance with common intention and each of them shall be liable for rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life and they would be liable for fine and the fine will be reasonable to the medical expense and rehabilitation of the victim.

Section 376DA- Where a woman under sixteen years of age raped by one or more person or groups acting furtherance of a common intention, each of those people shall be deemed to have committed the offence of rape and shall be punishable with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine. Any fine imposed under this section shall be paid to the victim.

Sexual 376DB-Where a woman under twelve years of age raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those people shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life and with fine or with death.

VIII. ⁵Sexual harassment

Sexual harassment is unwelcome sexual behaviour that humiliates the victim. Sexual harassment can be written or oral verbal, physical and can be happened by a person or online both men and women can be a victim of sexual harassment.

Sexual harassment includes-Sexual harassment defined under section 354A of IPC. A man can liable for sexual harassment if he was doing unwelcomed touching or another physical contact with a woman asking and demanding sex, any other sexual activity from women or making a sexual coloured remark. Showing pornography against the will of a woman then the person will liable for sexual harassment.

There is a separate law related to sexual harassment at the workplace (prevention, prohibition act 2013). These are provisions in the Indian Penal Code. Which are different from the special law on sexual harassment IPC is not limited to sexual harassment at the workplace, but punishes harassment done anywhere.

IX. Punishment for sexual harassment

• Punishment for sexual harassment for the first three kinds is imprisonment which may extend up to 3 years or with a fine.
• Punishment for making a sexual colour remark, punishable for 1-year imprisonment or with a fine.

X. Assault or use of criminal force to woman with intent to disrobe

Under section 354 B of IPC. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished with imprisonment either for the term shall not be less than 3 years but which may extend up to 7 years.

Section 354 c voyeurism-

According to the section it is a crime to look at or capture an image of a woman engaging in a private act where she thinks that no one is watching her.

• Using toilet
• Who is undressed or
• Engaged in a sexual act

The legal term for such an act is voyeurism.

Punishment for that act for the person is imprisonment of not less than 1 year but which may extend up to 3 years.

Voyeurism-

Where the victim gives consent to the capture of the image or any act but not to their dissemination to that person and where such image or act is disseminated. Such dissemination is an offence under section 354 C of IPC and punishment for imprisonment of 3 years and may extend up to 7 years.

(If anyone repeated the offence again and again then the punishment of imprisonment is between 3 years to 7 years with a fine)

Section 354 d stalking-

According to the section any man who is continuously following a woman and contacts or attempts to contact such woman clear indication of disinterest by such woman or following a woman through either online or in-person where she clearly shows she does not want the attempt. The person is liable for the offence of stalking.

Punishment for staking is 3 years and fine. If someone is found guilty of committing the same crime the one-time punishment of imprisonment time up to 5 years with a fine.

XI. Landmark judgment

Apparel Export Promotion Council Vs A.K Chopra & Others 1997 IVAD Delhi 646

In this case, Supreme Court declared that sexual harassment is gender discrimination against women and also said that any act or attempt of molestation by a superior will constitute sexual harassment.

Mrs. Rupa Deol Bajaj Vs Kanwar Pal Singh Gill 1996 AIR 309

This case has changed the meaning of the term, modesty and privacy in such a way that, any kind of harassment or inconvenience done to a women’s private or public life will be considered as an offence.

Vishaka & Ors Vs State Of Rajasthan(AIR 1997 Sc 3011)

The case deals with the evil of sexual harassment of a woman at her workplace. It is a landmark judgment case in the history of sexual harassment which is being decided by the Supreme Court. In this case, Supreme Court held that women have the fundamental right towards the freedom of sexual harassment at the workplace. It also put forward various important guidelines for the employees to follow and avoid sexual harassment of women at the workplace. The court also suggested having a proper technique for the implementation of cases where there is sexual harassment at the workplace. The main objective of the Supreme Court was to ensure that there should be no discrimination towards women in their workplace.

Medha Kotwal Lele Vs Union of India and others (2012) INSC 643

The case was presented by the human rights law network(HRLN)and other groups petitioned in the court high lighting a number of individual cases of sexual harassment and arguing that the guideline given under the Vishakha Vs State of Rajasthan was not being effectively implemented.

State of Punjab Vs Gurmit Singh (1996) 2 SCC 384

In this case, 3 accused abducted a young girl studying in 10^TH Standard and forced her to have sexual intercourse against her will. When in the trial, the accused put blamed the girl was of a loose moral character and had on earlier occasion given company to accused trial court acquitted the accused. Supreme Court Criticized the stand of lower courts by emphasizing that no stigma, like that one as cast in the present case, should be cast against such a witness by the courts, for, after all, it is the accused and not the victim of a sex crime who on trial in the court.

Tukaram Vs State of Maharashtra (1979)2 SCC 143

The case popularly known as the Mathura rape case due to this case IPC was amended by the criminal law amendment act 1983, as a consequence of the judgment(section 376 A and 376D)added in the IPC which recognized custodial rape as a punishable offence along with other providers.

XII. Sexual offence with children

In India, sexual offences with children happened on a large scale. Whenever a man touches children to satisfy his own sexual desire and used his power over a child or youth and involves a child in a sexual act.

Sexual assault with child-

Whenever men tried to touch the vagina, anus, penis or breast of a child with sexual intention and force them to do so with him in the same manner. This also includes the situation when a man penetrates the vagina, anus and mouth of a child and manipulates him so to penetration as well. It includes exploiting a child and involving him in pornography or prostitution. Many time the offender engage a child in the sexual act through threats, force or misrepresentation and most of the time the sexual offences committed on children are by the known person trusted by the child's family. Many times children are not able to share with anyone what was happening with them and most of the time they are not able to understand what was happening that is the reason many of them go into depression and suffered from mental trauma. The offender performed this act with the child any age group offender want to satisfy his sexual need and this act destroyed the life of the children.

XIII. The protection of children from sexual offences act 2012(pocso)

The act deals with sexual offences committed against persons below the age of 18 years who are deemed as children. The act came into force on 14 Nov 2012 along with the rules framed thereunder. The act is a law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography while safeguarding the interests of the child at every stage of the judicial process by incorporating child –a friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offences through the appointment of special public prosecutors and designated special court. The Act provides for stringent punishments which have been graded as per the gravity of the offence.

People who traffic children for sexual purposes are also punishable under the provision relating to abetment in the act. The act prescribed stringent punishment graded as per the gravity of the offence with a maximum term of rigorous imprisonment for life and fine.

As per rule 4(2) of the protection of children from sexual offences act 2012 when police received information about an offence committed or attempted or likely to be committed it is the duty of the police officer to register an FIR and provide a copy of the FIR to the complainant. If the child is in a medical emergency arrange immediately without delay.

AS per rule 4(9) of the protection of children from sexual offences rule 2012 the police shall within 24 hours inform the special court of the support person provided to the child in writing.

The POCSO act is only applicable to child survivors and adult offenders. In the case two children have sexual relations with each other or in a child perpetrates a sexual offence on an adult, the juvenile justice (care and protection of children act) 2000 will apply.

Section (3) of the POCSO act described the penetrative sexual assault on a child who is not less than seven years in this case the described punishment in the act is imprisonment for life and fine.

Under section (7) of the POCSO act described a sexual assault or a sexual contact with children without penetration and the child's age is not less than 3 years in the case the act describes punishment which may extend to five years and fine or both.

The Act casts a duty on the central and state government to spread awareness through media including the television, on radio and print media at regular intervals to make the general public and children as well as their parents and guardian aware of the provision of this act.

XIV. The protection of children from sexual offences act 2019

The main motive of the act is to protect the children from sexual offences and sexual harassment, to cover the drawback which was seen in the POCSO act 2012.

The act was introduced in Rajya Sabha by the minister of women and children development by Ms Smriti Zubin Irani on July 18 2019 and passed in Lok Sabha on July 24, 2019, on 5 Aug 2019 act came into force. The act amended the protection of children from sexual offences act 2012.

Under the POCSO act 2012 if any person penetrates his penis into the vagina, mouth, urethra, or anus of the child or makes the child do the same or insert any both to the child's body. The punishment for such offences is imprisonment between seven years to life or fine. But the act 2009 increased the punishment from seven years to ten years or further add if any person commits any sexual offence with a child under the age of 16, he will be punishable with imprisonment between 20 years or fine both.

Step for reporting sexual offences- First of all if you are in danger call the police for your help or call the women's helpline number and go to the police station and file an FIR. Give the important information to a lady police officer and tell her everything that was happened and how or tell the information of the accused if the accused is known. Then go for a medical examination as soon as possible because the medical report is important evidence for a sexual offence. File a case in court and examine all proceedings of the court.

XV. Mentality of the offender

Most of the time the offender who is committing the crime of sexual offence against women and children is a near relative or friend of the victim who knows everything about the victim. Most of the time they commit a crime in a very brutal way, few times it was examined that most of the offenders do this act for their personal revenge or to satisfy their lust. Most of them belong to an illiterate and male dominating society where women are treated as non-living things and don’t have any rights. Government should make strict laws against these offenders.

XVI. Proposals to reform

There should be the provision of making an awareness program in urban as well as rural areas where the children especially girls should make aware of the good touch and bad touch this help to prevent the cases of child abuses.

There should be a legal awareness program primarily in rural areas for in coursing women and children not to fear filing cases against the wrongdoer and how the judiciary will help them to fight for their justice.

There should be a program related to sex education organized in school so as to aware the students about sexual activities it is important to be aware of the reproduction process, Especially to make them aware of sodomy.

XVII. Conclusion

The government are enacting different law day by day to decrease these offences but the implementation of these laws are not that appropriate due to which these offences are growing. According to different cases, it was found that the offenders are close relatives, colleagues and family friends of the victim so it’s the duty of the parents to make a friendly environment with the child so that if a child is feeling uncomfortable about something and about any mishappening he can freely tell to his parents.

Judiciary should give strict punishment against these offences and set an example in society so that the person who tries to make an attempt for these offences a fear should create in his mind after seeing the strict punishment.

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XVIII. References

1. Article-

• Sexual offences and laws in India, By- Saurab Verma, Published on -pleader intelligent legal solution.
• Legal provision related to sexual offences against women, https://vikaspedia.in.
• Offences against women and provision for it in the IPC, BY – Neha Gururani, Published on- https://blog.ipleaders.in
• Reformation in the laws relating to sexual offences in India, By- Saurab Verma, Published on- https://blog.ipleader.in
• Sex-related offences and their prevention and control measures: An Indian perspective, by – Dr. Barindra N. Chattoraj, https://www.unafei.or.jp
• Child Sexual Abuse and the Concerned Indian Legal Provision, by – Vanshika Samir, Published on- https://lexpeeps.in
• Child Sexual abuse and Law, By- Ghanshyam Panchariya, Published on – Lawctopus.
• Analysis of the child sexual abuse and the Indian Legal Position, By- Dr. Shaikh Ahmad, Published on- https://www.readcube.com

2. Cases-

• Vishaka & Ors. V/S State of Rajasthan(AIR 1997 Sc 3011)
• Tuka Ram And Anr V/S State of Maharashtra AIR 1979 SCR (1) 810
• Mukesh and Anrs. V/S NCT Delhi (Nirbhaya Case) 2017 6 SCC 1
• Mrs. Rupan Deol Bajaj & Anr V/S Kanwar Pal Singh Gill& Anr 1996 AIR 309.

3. Website-

• https://indiankanoon.org
• https://lawtimesjournal.in
• https://www.latestlaws.com
• https://www.legalserviceindia.com

4. Bare Act-

• Indian penal code 1860

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