Sexual Violence Laws under the Indian Penal Code
Here we look at the law in relation to acts of sexual violence that are covered by the Indian Penal Code, 1860 (IPC).
- Assault or criminal force to woman with intent to outrage her modesty
What does the law say about assault of a woman?
Section 354 of the IPC criminalises any act by a person that assaults or uses criminal force against a woman with the intention or knowledge that it will outrage her modesty. Such an act is punishable with either simple or rigorous imprisonment of up to 2 years, or a fine, or both.
Indian courts have ruled that the essence of a woman’s modesty is her sex, ie: a woman possesses modesty by virtue of being a woman.
- Sexual Harassment
How is Sexual Harassment defined under the IPC?
Sexual harassment is defined under S. 354 A of the IPC as a man committing any of the following acts:
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
This law covers a wide ambit of acts that constitute sexual harassment, including unwanted verbal or physical advances of any kind. This law is not limited by location at which the sexual harassment takes place, unlike the law to prevent sexual harassment at work places which is explained in a later section.
What is the punishment for Sexual Harassment under the IPC?
The punishment for (i), (ii) and (iii) as given above is rigorous imprisonment for a term that may extend to 3 years, or a fine, or both while the punishment for (iv) is either simple or rigorous imprisonment for a term which may extend to 1 year, or a fine, or both.
- Assault or use of criminal force to woman with intent to disrobe
Section 354B of the IPC criminalises assault or use of criminal force against a woman with the intention of disrobing her, i.e. with the intention of depriving her of her clothing or forcing her to be naked. Such an act is punishable with either simple or rigorous imprisonment of 3 to 7 years and a fine. Aiding such a crime also carries the same punishment.
While this may sound similar to outraging modesty, it isn’t. It is considered an offence whether or not the man intended to outrage the modesty of the woman.
How is voyeurism defined under the IPC?
Section 354C of the IPC criminalises the act of voyeurism. It defines it as a man watching or capturing the image of a woman engaged in a private act in circumstances where she would usually not expect to be observed by the perpetrator or by any other person on the orders of the perpetrator or the distribution of an image so captured by the perpetrator.
What is the punishment for an act of voyeurism?
The punishment for committing this offence is simple or rigorous imprisonment of 1 to 3 years and a fine. Repeated offenders are punished with simple or rigorous imprisonment of 3 to 7 years and a fine.
How is Stalking defined under the IPC?
Section 354D of the IPC criminalises stalking of a woman by a man. It defines the Act to include continuous following or contacting a woman by a man or attempts to contact a woman to build a personal relationship with that women even when the woman has shown a clear lack of interest. It also include acts of monitoring a woman’s electronic communication, i.e. communication over emails, social media etc.
What is the punishment for stalking?
First time offenders are punished with either simple or rigorous imprisonment of upto 3 years and a fine while repeated offenders are punished with simple or rigorous imprisonment of upto 5 years and a fine.
When is stalking not considered a crime?
Stalking is not considered a crime if it is done as a legal duty for prevention and detection of crime by the State or under any legal duty imposed by a law in practise or in a situation where such an act of stalking is seen as reasonable and justified.
- Human Trafficking
How is human trafficking defined under the IPC?
Section 370 of the IPC defines human trafficking as the action or practice of transporting people illegally or without their consent across areas mainly to be used in the labour or commercial sex industry. The Immoral Traffic (Prevention) Act, 1956 is the law regulating human trafficking in India.
How is rape defined under the IPC?
Section 375 of the IPC defines rape to include any or all of the following acts, by a man against a woman:
- Penetration of a man’s sexual organ (penis) into a woman’s mouth, vagina, urethra or anus or making her do so with him or someone else; or
- Inserting any object, not the penis, into a woman’s vagina, urethra or anus or making her do so with him or someone else; or
- Manipulating any body part of the woman to cause penetration into her vagina, urethra, anus or any other body part or making her do so with him or someone else; or
- Applying his mouth to a woman’s vagina, urethra or anus or making her do so with him or someone else.
Under the following circumstances:
- Against her will;
- Without her consent;
- With her consent, if such consent is obtained by causing her fear of death or hurt for herself or for someone she knows;
- With her consent, if she believes the man she is engaging with sexually is her husband;
- With her consent, where due to unsoundness of mind or intoxication, the woman is not able to fully understand the nature and consequences of the act she consents to;
- With or without the consent of a woman who is below 18 years if age;
- When the woman is unable to communicate consent.
Consent is defined as clear, voluntary communication that the woman gives for a certain sex act. Lack of physical injuries from the incident does not imply that consent was involved in the incident. Medical procedures or interventions do not constitute as rape.
Marital rape, i.e. rape by one spouse of another is also listed as an exception to the act of rape, as long as the woman is above 15 years of age. Rape by a husband of his wife constitutes as rape if they are living separately and has a punishment of 2 to 7 years jail term and a fine.
In October 2017, the Supreme Court stated that the act of sexual intercourse by a husband with his wife who is under the age of majority (18 years) would also be treated as rape. The apex court read down the exception, and the age of consent has been changed from 15 to 18 years.
What is the punishment for an act of rape?
The punishment is rigorous imprisonment of 7 years to life and the person will also be liable to pay a fine.
How is aggravated rape defined under the IPC?
Special provisions are provided for cases of aggravated rape under the IPC, as amended by the Criminal Law (Amendment) Act, 2013. A rape is considered aggravated if it meets any of the following conditions:
- Rape by someone having authority over the woman because of legal status (for example: police officer, army personnel)
- Rape by someone who is in a position of trust in relation with the survivor (for example: family, hospital staff)
- Special nature of woman (a pregnant woman, a mentally ill woman, a woman who cannot give consent, a woman below the age of sixteen)
- Rape involving violent circumstances (rape during time of communal riots, repeatedly raping someone)
- Other forms of aggravated rape include where the survivor die from the rape, where the survivor ends up in a vegetative state or where the survivor is gang raped.
What is the punishment for an act of aggravated rape?
A person accused of aggravated rape can be imprisoned from ten years to life along with a fine.
In case of gang rape or one where during the act of rape, the accused kills the woman or puts in her in a persistent vegetative state, he can be charged with 20 years rigorous imprisonment to life, or be given a death sentence. The Supreme Court has defined persistent vegetative state as a state where the victim is alive but not aware of her environment.
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