Sexual Assault : Recent Amendments in Law

The need for a new law on sexual assault was felt as the present law does not define and reflect the various kinds of sexual assault that women are subjected to in our country. The Supreme Court in Sakshi vs. union of India had recognized the inadequacies in the law relating to rape and had suggested that the legislature should bring about the required changes.

The nationwide public outcry, in 2012, following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent. Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes. The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state. It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking. The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

Earlier, there was no specific provision in law for offences such as use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks. But, the 2013 Act clearly defined these offences and allocated punishment. Similarly, stalking was made punishable with up to three years in jail. The offence of acid attack was increased to 10 years of imprisonment.

Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370 and 370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 years to imprisonment for the remainder of that person's natural life depending on the number or category of persons trafficked.Employment of a trafficked person will attract penal provision as well.

The most important change that has been made is the change in definition of rape under IPC. Although the Ordinance sought to change the word rape to sexual assault, in the Act the word 'rape' has been retained in Section 375, and was extended to include acts in addition to vaginal penetration. The definition is broadly worded with acts like penetration of penis into the vagina, urethra, anus or mouth; or any object or any part of body to any extent, into the vagina, urethra or anus of another woman or making another person do so; to apply mouth or touching private parts constitutes the offence of sexual assault. The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situations the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death." In case of "gang rape", persons involved regardless of their gender 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. The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.

Certain changes has been introduced in the CrPC and Evidence Act, like the process of recording the statement of the victim has been made more victim friendly and easy but the two critical changes are: 1. the 'character of the victim' is now rendered totally irrelevant, and 2. there is now a presumption of 'no consent' in a case where sexual intercourse is proved and the victim states in the court that she did not consent.

An approach to the laws of sexual offences in India has to be comprehensive and holistic. The new incident of rape in India had re-ignited the issue of making rape laws in India more stringent. As a consequence, to the extensive reporting and public roar to the issue the parliament was forced to take corrective measures. The cabinet thus approved of The Criminal Law (Amendment) Ordinance, 2018 which was signed by the President on the 21^st of April, 2018. The ordinance enhanced punishment to those who are charged for raping minors. To fulfill the constitutional requirement The Criminal Law (Amendment) Bill, 2018 was placed before the parliament to replace ordinance. The Bill was passed by Lok Sabha on the 30^th of July, 2018 and Rajyasabha on 6^th of August, 2018. Thereafter it received the Presidential assent on 11^th of Augusta, 2018 and came into force as the Criminal Law (Amendment) Act, 2018. The amendment which has a retrospective effect has amended four legislation in total, namely, the Indian Penal Code, the Code of Criminal Procedure, Indian Evidence Act and the Protection of Children from Sexual Offences Act.

Amendments to the Indian Penal Code, 1860

Increased Punishments 

When we go through the Indian Penal Code, 1860 we can see that rape is being defined under Section 375 of the Indian Penal Code and the punishment for rape is mentioned under Section 376 of the Indian Penal Code. Rape similar punishment is given under Section 376(1) whereas the aggravated forms of rape are punishable under 376(2) of the Indian Penal Code, 1860 which lays out 14 circumstances.

Before the Criminal Law (Amendment) Act, 2018 the minimum punishment for rape simpliciter was 7 years whereas the maximum was of life imprisonment, whereas the Criminal Law (Amendment) Act, 2018 changed the minimum punishment to 10 years. This step in itself a very strong step towards the increasing culture of rape in India.

New offences for rape and gang rape of minors

The Criminal Law (Amendment) Act, 2018 institutes some new criminal offences namely Section 376AB, Section 376BA and Section 376DB in the Indian Penal Code, 1860. These provisions mark serious graduation in terms of severity and punishment when it comes to the incident of raping minors. Section 376AB specifically deals with the cases where a minor who is belowdecks 12 years of age has been raped. The minimum punishment for an offence under Section 376AB is 20 years which may extend to life imprisonment (which means remainder of a person’s natural life) and the maximum sentence may be that to death.

Whereas in Section 376DA and 376DB deals with the issue of gang rape of women under 16 years of and under 12 years of age respectively. Section 376DA has introduced a mandatory sentence of life imprisonment in the instance of Gand raping a girl under 16 years of age and Section 376DB has introduced a minimum punishment of life imprisonment (which means remainder of persons natural life) and the maximum punishment is of death penalty in the instance of gang raping a girl under 12 years of age.

Compensation for minor rape victims 

The Criminal Law (Amendment) Act, 2018 has made some progressive provisions in the domain of compensatory jurisprudence. All the provisions for the rape of minor in the Criminal Law (Amendment) Act, 2018 provide for compulsory compensation to the victims. The provisions provide that any fine imposed on the convict shall be paid to the victim and it shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Prior to the Criminal Law (Amendment) Act, 2018 no such rehabilitation clause was provided except in cases of gang rape. Similar amendments have been made in the Code of Criminal Procedure, 1973, so that the benefit of compensation and rehabilitation goes to the victims of rape who are minor.

Section 354 of IPC, 1860

Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

375(6) of IPC, 1860

With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Section 4, POCSO

Punishment for penetrative sexual assault.—Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 5(f), POCSO

Aggravated penetrative sexual assault.— (f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution.

Section 6, POCSO

Punishment for aggravated penetrative sexual assault.—Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

Section 12, POCSO

Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

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