Notes on Sexual offences against woman as per Amendment Act 2013

Criminal law amendment Act 2013 has expanded protection to woman against sexual offences and several new offences are brought on statute book.

Earlier provisions dealing with offence of Rape namely

S 375,376,376A,376B,376C and 376D have been substituted by new sections which are as under:

Definition of Rape(S 375)

A man is said to commit rape if he-

a) penetrates his penis,to any extent,into the vagina,mouth,urethra,or anus of a woman or make her to do so with him or any other person;or

b)insert,to any extent,any object or a part of the body,not being the penis,into the vagina,the urethra or anus of woman or make her to do so with him or any other person;or

c)manipulates any part of the body of a woman so as to cause penetration in to the vagina,the urethra or anus of woman or make her to do so with him or any other person;or

d)applies his mouth to vagina,anus, urethra of a woman or makes her to do so with him or any other person,-

under the circumstances falling under any of the following seven descriptions,namely-

Firstly- against her will

Secondly- without her consent

Thirdly- with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt

Fourthly- With her consent,when the man knows that he is not her husband and that her consent is given because she believes that he is another person to whom she is or believes herself to be lawfully married

Fifthly- With her consent when, at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stuperfying or unwholesome substance,she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly-with or without her consent,when she is under eighteen years of age.

Seventhly- When she is unable to communicate consent.

It is clarified that for the purposes of this section, Vagina shall also include labia majora. It is further clarified that the word consent as used above means an unequivocal voluntary agreement when the woman by words,gestures or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act.

It is also expressly provided that a woman who does not physically resist to the act of penetration shall not be regarded as consenting to sexual activity.

Provisions of Indian Evidence Act have also been amended in 2013 which provides if victim of rape testified that she did not consent to the act,the court must draw rebuttable presumption that she did not so consent.

Exception 1- A medical procedure or intervention shall not constitute rape.

Exception 2- Sexual intercourse or sexual acts by a man with his own wife who is above fifteen years of age is not rape.

Sex With Minor Wife Is Rape:- A two Judge Bench of Supreme Court held that sexual intercourse with minor (below 18 years) wife is rape. Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC will apply to cases of rape  of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code. To this end, the Court read down exception 2 to Section 375 (which defines rape) of the IPC amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

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S 376A:- Punishment for rape which causes death or results in persistent vegetative state of victim.

S 376B:- Sexual intercourse by husband upon his wife during separation.

S 376C -Sexual intercourse by person in authority:-

If a person is -

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

b) a public servant;or

c)Superitendent 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

500. on the management of a hospital or being on the staff of a hospital,-

and he abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him,such sexual intercourse not amounting to offence of rape,he becomes punishable 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 fine.

S 376D- Gang rape:-

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention,each of those persons is deemed to have committed offence of rape.

Fine imposed under this section is to be paid to victim and such fine should be just and reasonable to meet the medical expenses and rehabilitation of the victim.

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S 376E-Punishment for repeat offenders:- Enhanced punishment if previously convicted of offences punishable under S 376,S 376A or S 376D( Gang rape).

Other Sexual offences inserted by 2013 amendment

All these offences are gender-specific and can be committed only by men against women.

S 354A of IPC- Sexual harassment:-

If a man commits any of following four acts, he is deemed to be guilty of offence of sexual harassment. They are;

1) Physical contact and advances involving unwelcome and explicit sexual overtures;or

2. Demand or request for sexual favours; or
3. Showing pornography against the will of a woman; or

4 )making sexually coloured remarks.

The punishment for acts falling under clause 1,2,3 is rigorous imprisonment for maximum term of three years or fine or both. The punishment for acts falling under clause 4 is imprisonment of either description for up to one year or fine or both.

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S 354B- assault or criminal force with intent to disrobe a woman:-

If any man assaults or uses criminal force to any woman-or abets such an act- with the intention of disrobing her or compelling her to be naked,he is to be punished with minimum imprisonment of either description for three years which can extend to a maximum of seven years and also fine. Imposition of fine is mandatory.

S 354C- Voyeurism:-

S 354C has introduced the concept of voyeurism in to the IPC,with stringent punishment prescribed for this act.

This section provides that any man who watches or captures the images of a woman engaging in a private act,in circumstances where she usually expect not being observed by the perpetrator(or any other person at his behest) or who disseminates such an image,is liable to be punished for such an offence.

Punishment for first offence -Imprisonment of either description from one to three years plus fine.

Repeat offence- Imprisonment of either description from three to seven years plus fine.

It is clarified that if the victim has consented to the capturing of images but not to their dissemination to third persons,such dissemination is an offence.

S 354C also clarified the term 'private act'. This expression includes an act of watching,carried out in a place which, in the circumstances would reasonably be expected to provide privacy,and where the victim's genitals,posterior or breast are exposed or covered only in underwear,or the victim is using a lavatory,or the victim is doing a sexual act that is not of a kind ordinarily done in public.

S 354D- Stalking:-

This section makes it offence and provide that a man shall be guilty of this offence if he-

1. follows a woman and contacts, or attempts to contact such woman to foster interaction repeatedly,despite a clear indication of disinterest by such woman;or
2. monitors the use by a woman of the internet,e-mail or any other
   form of electronic communication.
   Punishment for first offence- Imprisonment of either description up to three years plus fine.
   Repeat offence- Imprisonment of either description up to five years plus fine.
   However no such offence is committed if the man who is accused of the offence proves that-
   1) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by state.
   2)it was pursued under any law or to comply with any condition or requirement imposed upon any person under any law;or
3. in the particular circumstances,such conduct was reasonable and justified.
   Although these three defences are available to a man who is accused of offence,language of this section makes it clear that the burden of proof lies on the accused.

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