The Constitution of India provides equality of status and opportunity to all its citizens. Sexual assault of women violates the equality principle of the constitution which is guaranteed by Article 14 and 15. Sexual assault creates unkind and precarious environment for women which discourages them and adversely affects their social and economic progress.
Various laws like Section 354 of the IPC, POCSCO act 2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”)etc,are made to prevent and protect women from sexual harassment and assault for the effective redressal of complaints of sexual harassment.
What is Sexual Assault?
Sexual Assault means illegal sexual contact that usually involves infliction of force upon a person, without consent or, who is incapable of giving consent (as because of age or physical or mental incapacity) or, who places the assailant (such as a doctor) in a position of trust or authority.
Meaning of Sexual Assault as per the POCSO (the protection of children from sexual offenses) Act
It is any act with a sexual intent involving physical contact without penetration that involves touching the private parts of the child or forcing the child to touch the private parts of the accused or any other individual. Since the IPC is unable to protect children, a special act, known as the POCSO Act, was enacted in 2012.
Punishment of sexual assault under IPC
Sexual harassment has been definedunder Section 354A of the IPC as the following acts committed by a person:
- physical contact and advances involving undesirable and explicit sexual proposals; or
- a demand or request for sexual favours; or
- showing pornography without the consent and will of the women; or
- making sexually coloured remarks
Punishment
As mentioned above, the punishment for (1), (2), and (3) is rigorous imprisonment for a period of up to three years, or a fine, or both, while the punishment for (4) is either simple or rigorous imprisonment for a term of up to one year, or a fine, or both.
Amendments to laws of Sexual Assault
Several amendments were made to widen the scope of Sexual Assault like the criminal law(amended) bill,2010, in which the term rape was substituted by ‘sexual assault’. The criminal law (Amendment) Act, 2018, which increased the minimum punishment for Sexual Assault under section 376(1) from seven years to ten yearsand which may extend to life imprisonment and Section 376(3) was inserted which provided for the minimum punishment of twenty years which may extend to life where the victim is under the age of sixteen.
Changes in the section 160 and 273 of the Criminal procedure codes were made which state that the evidence of the victim should be videotaped, the confrontation of the victim with the accused should be dispense with so that victim does not have to face any humiliation during the process.
Procedure for Complaint
- The victim has to report to the police first
If the victim wants to report the assault right away, she can dial 100 or another emergency number like 1091. There is no time limit for reporting, but the earlier the victim does, the easier it will be for the police to collect evidence.
- Enquiry by police
Once victim reaches to the police station, police enquire by asking questions about the incident. It is recommended for the victim to write down the notes before going to the police station if she is reporting the incidentafter a long time ago.
- Record of the victim’s statement by the police
The police will take down the notes or videotape the victim’s statement. The police may caution victim before recording the statement about consequences of lying and certain charges for the same and the fact that victim will be cross-questioned by the court based on her statement.
- Investigation by the police
The police will investigate and, if sufficient proof exists, will file criminal charges against the accused. Only the police (not the victim) have the authority to determine what charges will be filed. If the police file charges, the state will take over the case and will prosecute it (try to prove the accused person is guilty in Court). The Victim can file the legal proceedings if police investigation and the charges are improper and can also hire a lawyer to assist the prosecutor.
- Decision by the court
If the accused is arrested and charged, the police can conditionally release him or will send him before the Magistrate for remand and the Judicial Custody. In the latter case, the accused will remain in Judicial custody (Jail) until a bail hearing. In case any bail application is moved by the Accused before the Court, the Court will determine if the accused should be held in prison or be released into the community on bail subject to conditions during the trial. When the accused gets released on bail, he must follow certain conditions, such as not having any contact with the victim. If the conditions are not met, the accused can be re-arrested and held in custody until his or her trial.When the Police files chargesheet, the Magistrate will take the cognizance of the Offence and will frame Charge and the Accused will be asked that whether he wishes to enter a plea of guilty or not guilty. If he enters the plea of guilty,Accused will be sentenced after the Court declares him guilty while ensuring that he entered the said plea without any force and coercion. If the accused pleads not guilty, then the matter will proceed for the trial. During the trial, prosecution and the accused will present their case before the Court and the accused will only be declared guilty if the prosecution succeeds to prove the charges against the Accused beyond any reasonable doubt.
Procedure of Complaint under POCSCO
- Firstly, the offence must be reported to the SJPU (Special Juvenile Police Unit or the local police department (Section 19).
- If a child is in need of care and protection including medical assistance, the SJPU/local police must provide treatment and safety within 24 hours of the complaint (Section 19(5)). Then, according to Section 19(6), the SJPU/local police must report the incident to the CWC (Child Welfare Committee) and Special Court within 24 hours.
- Media, studios, and photography facilities are required to report incidents to the SJPU/local police about coming across any sexually exploitative material of a child including photographs and video as non-reporting is punishable. (Section 20)
- Failure to report or recordthe commission of the offence is punishable by a six-month prison sentence, a fine, or both (Section 21(1)).
- If an individual in charge of a business or an organisation fails to disclose an offence committed by subordinate, he will be punished with a imprisonment of one year, or fine or both.
- However, in case a child fails to report the offence despite having knowledge, failure to report is not punishable (Section 21(3)).
- Falsely accusing someone or a child with malicious intent is punishable by imprisonment upto6 months in former case and upto one year in latter case or a fine, or bothunder Sections 22(1) and 22(3).
- Section 19(7) states that there is no civil or criminal responsibility for providing information in good faith.
- Information like: Name, address, photograph, family information, school, neighbourhood, or any other particulars that may lead to disclosure of the child’s identity cannot be disclose by the media.Punishment in case of contravention is imprisonment for not less than 6 months but which may be extend to one year, or fine or both.
- Child-friendly procedures (Section 24):
- recording at the child’s residence by an officer not lower than the rank of sub inspector
- It is forbidden for a police officer to wear a uniform.
- Ensure that the child does not come into contact with the accused.
- A child should not be held in a police station late at night.
- Procedures for Taking a Child’s Statement
- Recording of a child’s statement in the presence of his or her parents or another person in whom the child has faith and confidence
- Assistive services of a translator, interpreter, or special instructor, as applicable (Section 26(2))
- Wherever practicable, audio-video electronic recording is used.
- Recording of statement by Magistrate (Section 25):
As per Section 164 of CrPC.
Does sexual harassment against man is an offense?
Sexual violence can occur against anyone, regardless of their age and gender, in today’s world. Men, especially, face additional difficultiesbecause of social beliefs and compartmentalization regarding men in society. Sexual abuse was generally considered as a crime committed only to women, but now the society has accepted that it can occur against people of both genders. No gender or so-called “group” has been spared in the wake of these crimes. Rape of males is considered as a taboo in the society. However, Males are also raped in the name of manhood and masculinity. As a result, the majority of victims are unable or fearful of disclosing their sexual assault.Sexual violence and child protection laws are primarily concerned with the safety of girls and women. Rape cases involving boys and men has much less attention in law, and as a result, they are subjected to anxiety, flashbacks, and depression. The definition of masculinity is vastly different from what it entails. The definition of physical strength is commonly associated with masculinity. Emotional strength and health are seldom discussed.
Rape is something that only a man can do to a woman, according to Section 375 of the Indian penal code (IPC), and as a result, there is no statistical comparison of the exact male survivors in India. Persons accused of Rape against Men can only be punished under Sec 377 of the Indian Penal Code for Sodomy, which is based on the Buggery Act 1533, which states that unnatural sex is an act against God. Except for this segment, all other laws provide solely for women.
Conclusion
A crime is a crime, whether it is committed to a woman or a man. Every gender gets similarly affected.But Society do not recognize and accept that crimes such as Rape, Domestic Violence etc.can be committed against men as well. However, when such a case arises, one should understand that it is not their fault and that they should report the matter. However, on the other hand, stringent legislation should also be enacted to ensure that the victim receives proper justice. Evils like sexual offences will not be eradicated until the root causes of these offences are identified and victims get embraced by society. Laws that are enacted but not implemented or followed are nothing more than paper tigers. Acceptance for laws is fuelled by awareness. Any concerns voiced by a person should be answered.