Theme: Sexual Violence

Types of Child Sexual Abuse

Portfolio Keyphrase: Sexual Abuse of Children

Tags: Abuse, Violence, Crime, Children, Explainer

[Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.]

Indian law classifies types of child sexual abuse into different types of crimes, regardless of the child’s gender . Given below are some of the punishable crimes:

Non-Physical Behaviour

  • Any non-physical sexual behaviour through gestures, speech, and visuals. For example, gesturing to a child’s private parts or showing naked pictures(( Section 11, The Protection of Children from Sexual Offences Act, 2012.))
  • Any act related to child pornography, including its creation, distribution, transmission, publication, etc.(( Section 13, The Protection of Children from Sexual Offences Act, 2012.))
  • Administering any drug, hormone or any chemical substance to a child so that the child attains early sexual maturity.(( Section 9(v), The Protection of Children from Sexual Offences Act, 2012; Protection of Children from Sexual Offences (Amendment) Act, 2019.))

Physical Behaviour

  • Touching a child in a sexually inappropriate way. For example, touching the private parts of a child.(( Section 7, The Protection of Children from Sexual Offences Act, 2012; Section 9, The Protection of Children from Sexual Offences Act, 2012.))
  • Sexually abusing a child through penetration – either with a penis or any other object.(( Section 3, The Protection of Children from Sexual Offences Act, 2012; Section 5, The Protection of Children from Sexual Offences Act, 2012.))

Attempt of sexual abuse

If a person tries to commit(( Section 18, The Protection of Children from Sexual Offences Act, 2012.)) any sexual crime against a child, this is also a crime. It does not matter if the offender fails to actually commit  the crime , the attempt itself will hold them liable.

Further, the law also makes a distinction based on the person committing the offence. For example, if any sexual abuse done by a person in a position of trust or authority to the child like a teacher or police officer, the punishment is higher.(( Section 5, The Protection of Children from Sexual Offences Act, 2012; Section 9, The Protection of Children from Sexual Offences Act, 2012.)) The law defines these kinds of abuse as “aggravated” to highlight the fiduciary relationship between the harasser and the child. Read more in our explainer here.

What is Rape?

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

Rape is the crime that occurs when a man has sexual intercourse with a woman against her will or without her consent.

A man commits rape on an non-consenting woman if he:(( Section 375, Indian Penal Code, 1860.))

  • penetrates his penis or inserts any other part of his body (to any extent) into the woman’s vagina, mouth, urethra, or anus, or forces her to do this with him or another person; or
  • inserts any object into the woman’s vagina, mouth, urethra, or anus, or forces her to do this with him or another person; or
  • applies his mouth to the woman’s vagina, anus or urethra, or makes her do this with him or any other person.

A medical procedure or intervention is not considered as rape. For example, if a doctor examines the private parts of a patient as part of medical procedure, this is not rape.

What is Sexual Harassment?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

Sexual harassment can happen in several ways. Actions such as following a person on the streets or in any public space, peeping into their bedroom, making sexual gestures at them while they are at work or in the classroom, singing lewd songs – all of this is sexual harassment. Under the law, only a man can be punished for the crime.(( Section 354A and 354, Indian Penal Code, 1860.))

There are many ways to reach out to an authority that will help, and anyone can file a complaint on a survivor’s behalf. A survivor can file a complaint of sexual harassment, irrespective of the place where it has happened. An FIR can be filed at any police station. The fact that the crime may not have been committed in that police station’s jurisdiction has no consequence to the filing of the complaint. It is mandatory for the police to record the information provided, and then transfer it to the police station in whose area/jurisdiction the offence took place. For instance, if a crime was committed in North Delhi, the information can even be registered with a police station in South Delhi.

The law deals with four categories of sexual harassment(( Section 354A, Indian Penal Code, 1860.)):

The punishment for inappropriately touching, demanding or requesting sexual favours and making sexual coloured remarks is jail time up to three years with a fine. For showing pornography, the jail time is up to one year along with a fine.1

Recourse against the Perpetrator

A survivor can go to the police and file an FIR after which the police will investigate and file charges before the court. The court will then decide whether the person is guilty or not. If the person is found to be guilty, they will be fined and punished with jail time depending on the kind of crime committed.

To explore more on complaining against the perpetrator, you can read our explainer on ‘How do you complain against sexual crimes’.

When a child has been harassed

If a child (below the age of 18) has been sexually harassed by anyone, including someone they know, relatives, friends, etc., anyone including the parents or teachers can report the crime on behalf of the child. It is illegal to not report the crime and a person can face criminal consequences for knowing about the crime and not reporting it.(( Juvenile Justice Act (Care and Protection of Children), 2015; The Protection of Children from Sexual Offences (POCSO) Act, 2012.)) To explore more on sexual abuse against children, you can read our explainer on Sexual Abuse of Children.

  1. Section 354A (2) and (3), Indian Penal Code, 1860. [↩]

Consent to Have Sex

Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.

No. The law does not recognize a child’s ability to give consent to have sex. This means that if an adult (above the age of 18) asks a child (below 18 years) to engage in any kind of sexual activity, and the child says yes explicitly or implies that they consent, this activity will still be considered as child sexual abuse or rape under the law.(( Independent Thought v. Union of India and Another (2017) 10 SCC 800.))

Consent Between Children

If two children engage in sexual activities willingly, it is still considered illegal. The age of consent for girls and boys is 18 years.(( Section 2(d), The Protection of Children from Sexual Offences Act, 2012; Independent Thought v Union of India and Another (2017) 10 SCC 800.)) Read more information in our explainer “Children Accused of Crimes”.

What is Consent?

Consent is voluntary, clear and unmistakable agreement by a person who expresses their willingness to take part in a specific sexual act. A woman should understand what she is agreeing to and what the consequences will be if she agrees to the sexual activity . Even if she doesn’t physically resist the act of penetration, this does not automatically mean that she has consented to the sexual activity.(( Explanation 2, Section 375, Indian Penal Code, 1860.))

Under the following circumstances, a man is said to commit rape even if the woman has given her consent:

  • If her consent has been forcibly obtained by threatening to hurt her or making her fear for her life or the lives of her dear ones.
  • If the man knows that he is not a woman’s husband, and that she has given her consent only because she thinks that the man is her husband.
  • If the woman is unable to understand the nature and consequences of the act to which she gives consent, due to unsoundness of mind or intoxication or because the man has given her an unwholesome substance.
  • If the woman is under eighteen years of age.

How is Invasion of Privacy a Sexual Crime?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

Everyone has a right to privacy.(( Article 21, Constitution of India, 1950.)) This means that anyone can do anything, sexual or not, thinking that no one is watching them (provided that it shouldn’t be illegal). Under the law, only a man can be punished for the crime.

Being Watched by Someone

If a person tries to watch someone while they are doing any private act, which they would do only if they thought(( Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism])) they were either completely alone or with a particular person they gave consent to, then it is a crime under the law. This crime is commonly known as voyeurism. Some examples are in cases where:

  • A person is being watched by someone when they are alone. For example, while they are using the toilet.(( State v. Shailesh, Delhi District Court, Criminal Appeal No.33/2016.))
  • Someone has illegally installed a camera in a person’s bedroom or hacked into their webcam to watch them in their private space.

Capturing Private Images 

If pictures, video or audio recordings of a person are without their permission, then it is a crime.

The punishment for capturing or watching someone without their knowledge or consent, is jail time of at least three years or a maximum of seven years along with a fine.(( Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism].))

Distribution of Private Pictures and Videos(( Section 354C, Explanation II, Indian Penal Code, 1860; Section 67 of Information technology Act, 2000.)) 

No one can record or distribute private pictures or videos of a person, unless they give consent. For example, if a person gives consent to only recording a sexual act with their loved one but has not given permission to distribute it to other people, and that recording is distributed, then it is a crime.

The punishment for distribution of private pictures, images or audio is jail time of at least three years or a maximum of seven years along with a fine.1

  1. Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism]. [↩]

Sexually Touching a Child

Portfolio Keyphrase: What is Child Sexual Assault

Tags: Abuse, Violence, Crime, Children, Explainer

 

[Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.]

A person commits sexual assault on a child if they(( Section 7, The Protection of Children from Sexual Offences Act, 2012.)):

  • Touch a child with a sexual intent. This includes touching the child’s  vagina, penis, anus, breast etc.
  • Force a child to touch their own or anyone else’s vagina, penis, anus, breast, etc.

The punishment for this is jail time from three to five years to a life in prison along with a fine.(( Section 8, The Protection of Children from Sexual Offences Act, 2012.))

If the offender is in a position of trust or authority, then this is a higher degree of crime known as Aggravated Sexual Assault(( Section 9, The Protection of Children from Sexual Offences Act, 2012.)) which has a higher degree of punishment. Read more in our explainer “What is an aggravated crime of sexual abuse by an authority figure?”.

Consent of a minor

Sex with a girl who is below eighteen years of age (a minor) is considered as rape, even if the girl consents to have sex.(( Description 6, Section 375, Indian Penal Code, 1860.)) For example, if a man has sex with a seventeen year-old girl, it is considered as rape, even if the girl agrees to have sex.

What is Forceful Sexual Behaviour?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

There are many forms of forceful sexual behaviour that a person might encounter. Some of them are:

Forcefully Removing Clothes 

Whenever someone forcefully removes or tries to remove a person’s clothes, it is a crime. Even if there is any intention(( Sunil Kumar Mishra and Ors. v. State of Orissa and Ors  119 (2015) CLT 396.)) or behaviour where a person thinks the perpetrator is going to or might remove their clothes by hurting them, it is a crime. For example, if someone forcefully tries to remove a person’s clothes in a secluded place, it is a crime.

This crime is commonly known as disrobing. Under the law, only a man can be punished for the crime.(( Sunil Mishra v. The State of Jharkhand  2016 (1) J.L.J.R.279.)) The punishment for forcefully removing someone’s clothes is jail time of minimum three year and maximum five years with a fine.(( Section 354B, Indian Penal Code, 1860.))

Rape 

Rape(( Section 375, Indian Penal Code, 1860.)) is a forceful act committed when the perpetrator penetrates their body parts into someone else or applies their mouth on someone else’s body parts.  Further details on this crime are available in our explainer on Rape. The punishment for rape is jail time anywhere between ten years to life imprisonment with a fine.(( Section 376, Indian Penal Code, 1860.)) If a person rapes a child below the age of 14, then they can be punished with death penalty.(( The Protection of Children from Sexual Offences (POCSO) Act, 2012.))

 

Marital rape is not an offence in India and a wife cannot file a complaint against her husband if he has raped her. However, a wife can file a complaint against him for domestic violence(( Protection of Women from Domestic Violence Act, 2005.)) and seek immediate protection for herself or her children. Further details are available in our explainer on Domestic Violence.