Legal provisions concerning sexual violence against women and children in India
- Part 1 -

Audrey D'mello *

One Billion Rising: Imphal - To stop violence against women on February 14 2013 :: Pix - Deepak Oinam

Introduction:

On 14th November, 2012, a new law was enacted, the Protection of Children from Sexual Offences (POCSO) Act, which brought in major changes in the law related to sexual violence, as far as children below 18 years are concerned.

The aims and objectives of this Act were:

* To secure a child's right to safety, security and protection from sexual abuse.

* To protect children from inducement or coercion to sexual activity

* To prevent exploitative use of children in prostitution and generation of pornographic material.

* To provide a comprehensive legislation to safeguard the interest of a child at every stage - reporting, recording of evidence, investigation and trial of offences.

* To provide for establishment of special courts for sensitive and speedy trial

It made the law gender neutral and brought within its purview sexual assault of both girls and boys below the age of 18 years. It also widened the definition of sexual violence beyond the conventional peno-vaginal penetration to include crimes which did not amount to rape under the IPC. It also prescribed stringent punishment and many procedural safety measures to protect the child during investigation and trial.

But this statute received hardly any media attention and the police continued to use the existing IPC sections in most cases of sexual assault on children. Things began to change only by January, 2013, when, after the gruesome gang rape and murder of a 23 year old para-medic in Delhi, there were widespread protests and international attention was drawn to the issue of sexual violence against women in India and the question whether we have adequate and stringent laws in place to address the issue became the point of debate in the media.

In response, the government set up a committee headed by late Justice J.S. Verma to make recommendations for formulating a new law to deal with sexual violence. As per these recommendations a draft Bill was submitted to the Parliament, and without much delay, on 3rd April, 2013, the Amended law came into effect which changed the relevant sections in the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act (IEA). With these changes the definition of sexual violence and the procedural aspects to provide safety to women and children are more or less, similar.

The same are provided here below in a tabular form for easy reference.

Important provisions under the POCSO Act, 2012

Victim under the Act: Any person, both male and female, below the age of 18 years.

Accused under the Act: Any person, both male and female, adult or child.

Note: As far as the offence of sexual violence against children is concerned, the law is gender neutral. Also note that the POCSO Act does not use the word "rape" and uses instead the word "sexual assault". The definition is very wide and includes a range of offences including non-penetrative sexual abuse and also oral and anal sex and insertion of objects into the vagina, anus or other body orifices. If grave harm is caused to the victim or if the offence is committed by a person in authority, the offence is termed as "aggravated" offence.

Section Provision

S. 3 Penetrative Sexual Assault: Insertion, penetration, manipulation with the penis, any body part, or any object into the vagina, mouth, urethra or anus of a child.

S. 5 Aggravated Penetrative Sexual Assault: 'per son in authority' and/or if additional harm and injury is committed.

S. 7 Sexual Assault: touching a child with sexual intent (non penetrative). (Touching vagina, penis, anus, breast or any body part of a child)

S. 9 Aggravated Sexual Assault: 'person in author ity' and/or if additional harm and injury is committed.

S. 11 Sexual Harassment: Word, sound, gesture, exhibiting any body part, showing pornogra phy with sexual intent. Making a child exhibit any body part, stalking the child, threatening the use of pornographic media

S. 13 & S.15 Pornography: use of a child for pornographic purposes. Storing pornographic media of a child for commercial use.

S. 19-21 Mandatory Reporting:

S.19 (1) any person who has knowledge of sexual offence committed or likely to be com mitted on a child

S.20 management and staff of media, hotels, lodges, hospitals, clubs, studios and photo graphic facilities

S.21. Failure to report or record is punishable

S.21 (3) However, a child who fails to report not punished.

All offences under the POCSO Act are considered as grave offences. Hence they are non-bailable and cognisable and the trial are to be conducted by the Court of Sessions.

Amended provisions under the Indian Penal Code

S. 376 Insertion, penetration, manipulation with the penis, any body part, or any object into the vagina, mouth, urethra or anus of a woman.

S. 376 (2) Special circumstances

S. 376 A Injury which causes the death or persistent vegetative state

S. 376 B By husband upon his wife during separation

S. 376 C By a person in authority

S. 376 D Gang Rape

S. 376 E Repeat Offenders

These are serious offences and hence they are non bailable and cognisable and the trial is to be conducted by the Court of Sessions.

S. 354 Assault or criminal force with intent to outrage modesty: If a man assaults or uses criminal force on any woman with the intention of outraging her modesty

S. 354 A Sexual Harassment: If a man makes physical contact and advances, demands or requests for sexual favours, shows pornography against the will of a woman or makes sexually col oured remarks

S. 354 B Assault or criminal force with intent to disrobe: If a man assaults or uses criminal force against a woman with the intention of disrobing her

S. 354 C Voyeurism: If a man watches or captures the image of a woman in a private act or dissemi nates such an image

S. 354 D Stalking: If a man follows or contacts a woman despite a clear indication of disinterest

S. 509 Word, gesture or act intended to insult the modesty of a woman: If a man utters any word, sound, gesture, exhibits any object with the intention that it is heard or seen or intrudes the privacy

These are considered to be less serious offences and hence the trial is to be conducted by the Judicial Magistrate First Class (JMFC) or the Metropolitan Magistrate (MM) of the area. Some of these are bailable and the others are non-bailable.

To be continued...

—PIB Features