Theme: Sexual Violence

Marital Rape

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

Indian law does not criminalise marital rape. The law does not punish a husband for having forcible sexual intercourse with his wife without her consent, unless she is below eighteen years of age (a minor).(( Independent Thought v. Union of India, (2017) 10 SCC 800.))

So, any sexual intercourse or sexual acts by a man with his adult wife is not rape.  However, this does not apply if a woman is living separately from her husband. If a couple is married, but living separately, then the husband is guilty of rape if his wife does not consent to sexual intercourse. In this case, the punishment for the husband is imprisonment between two and seven years, along with a fine.(( Section 376B, Indian Penal Code, 1860.))

Though the law does not punish marital rape, a woman can get relief under the Domestic Violence Act, 2005. This law criminalises sexual abuse, including any behaviour of a sexual nature that abuses, humiliates, degrades or violates the dignity of a woman.(( Section 3, Domestic Violence Act, 2005.)) To know more about the rights of a woman against domestic violence, read here.

What are Sexual Gestures?

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

If anyone makes any sexual gestures that are insulting and sexual in nature, it is a crime. Under the law, only a man can be punished for the crime.(( Section 354A, Indian Penal Code, 1860)) 

Some examples of sexual actions and gestures are, when a person:

  • Inappropriately touches themselves while looking at someone.
  • Makes gestures such as flying kisses, whistling or gesturing to someone’s body.(( State v. Mohd Zahir, District Court, Delhi, SC No. 103/13, Order dated: 08.10.2013; Yogendra Nath v. Commissioner Kendriya Vidyalaya Sangathan ILR (2014) 2 Delhi 1428.))
  • Undressing in front of a person and showing sexual gestures, even after the person has clearly expressed disinterest and discomfort.

The punishment for making sexual gestures is jail time between minimum one year and maximum five years along with a fine.(( Section 354, Indian Penal Code, 1860.))

Helping Someone Sexually Abuse a Child

Portfolio Keyphrase: Helping someone sexually abuse 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.]

When a person helps, protects, or intentionally encourages someone to sexually abuse a child, they become an abettor of child sexual abuse(( Section 16, The Protection of Children from Sexual Offences Act, 2012.)).

For example, if a person wants to shoot pornographic videos of a child and someone knowingly encourages them to go ahead with it, that person will be punished under the law for abetting child sexual abuse.

The abettor can be punished with jail time and fine for the actual crime committed(( Section 17, The Protection of Children from Sexual Offences Act, 2012.)).

Abuse of Position or Authority

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

If a man has control over a woman because of his job or position, and uses this control to make a woman have sex with him, it is a crime.(( Section 376C, Indian Penal Code, 1860.)) The law provides punishment for any person who abuses his position or fiduciary relationship (relationship of trust) to convince or seduce any woman to have sexual intercourse with him. The woman could be in his custody, under his charge or present in the premises. Here, sexual intercourse does not refer to rape, which is dealt with as a separate offence under Section 375 of the Indian Penal Code.

The person who persuades the woman to have sexual intercourse could be:

  1. a) in a position of authority or in a fiduciary relationship; or
  2. b) a public servant; or
  3. c) superintendent or manager of a jail, remand home, other place of custody, or a women’s or children’s institution; or
  4. d) on the management or staff of a hospital.

In these cases, the person in authority is punishable with imprisonment for five to ten years, along with a fine.

For example, if a male jail superintendent asks a female prisoner to have sex with him in return for supporting her release, and thus convinces her to have sex with him, he is abusing his positon. In this case, he has not forced himself on her and committed rape, but convinced her to have sex with him by using his position of power.

How do you Complain against Sexual Crimes?

 

Police

Go to Police Station

An FIR can be filed at any police station or the one nearest to where the crime happened. Anyone, including a friend or relative can also file an FIR on a survivor’s behalf. However, at the time of reporting, the survivor will have to give a statement which a female police officer will record in the FIR.(( Section 46(4) of The Code of Criminal Procedure, 1973.))

Call 100 

By calling 100 a survivor can seek immediate help from the police. If a survivor is in trouble, a police unit will be sent to their location for further assistance.

Cyber Cells

By approaching the cyber cell of the Police, anyone can complain about online sexual harassment. For example, a complaint can be filed with the Delhi Cyber Crime unit online.

National Commission for Women

A survivor can approach the National Commission for Women (NCW) in any of the following ways(( National Commission for Women, available at http://ncw.nic.in/.))  :

Call 1091 

  • Call 1091
  • Describe the crime in detail
  • Give the address and contact number

A police unit will then be sent to the address given, to assist the survivor with the steps that need to be taken. Any kind of violence against women including sexual offences and domestic violence can be reported to 1091.

Online

The National Commission for Women has an online complaint system known as Complaints Registration and Monitoring System where a survivor can fill in details and file a formal complaint. The following information has to be given:

  • Details of the complainant (the person who is filing the complaint),
  • Details of the survivor (woman who has faced the violence),
  • Details of respondent (perpetrator i.e. the person who commits sexual violence) and
  • Details such as:
    • Particulars of the Incident
    • Date and Time
    • Place of incident

Email

A complaint with National Commission for Women can be filed by sending an email to complaintcell-ncw@nic.in with any details regarding the sexual assault such as the description of the person who commits sexual violence or the description of the incident.

Post/ Letter/ Messenger

A letter can be written to the National Commission for Women, to this address:

National Commission for Women

    Plot-21, Jasola Institutional Area, 

    New Delhi- 110025

A friend/relative can also file a complaint on a survivor’s behalf or can handover the letter to a friend/relative who in turn can deposit it in the above-mentioned address.

Online Crime Reporting Portals

All the following ways given below can be used to report an online sexual crime. For example, if someone is stalking a person on Facebook or Instagram, then they can use any of the portals below to take an action.

Social Media Reporting

There are two ways through which a person can take action against the abuser. They can use either of the methods or both of them:

  • Block Abusers on Social Media
  • Report Abuse to the Administrators
  • File a complaint with the Cyber Cell

To explore more on online crime reporting, read our explainer on Reporting Online Abuse.

Sexual Harassment at the Workplace

If anyone is facing any sexual harassment at work and they want to stop the sexual harassment through employer action (for example, dismissal of the perpetrator), then they can file a complaint with the Internal Committee, which is a complaint mechanism available at all offices.(( The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) Every survivor or someone on their behalf also, has the option of going to the police as well to file a complaint.

Sexual Abuse by Another Child

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

If a child above  7 years of age sexually harasses or sexually assaults another child , they can be considered an abuser and  punished under the Juvenile Justice (Care and Protection of Children) Act, 2015.(( Section 34, The Protection of Children from Sexual Offences Act, 2012.)) If the child is between 16 and 18 years, they can also be put on trial as an adult and charged for crimes under the Indian Penal Code, 1860.(( The Juvenile Justice (Care and Protection of Children) Act, 2015.))

The law assumes that any child under 7 years of age does not have the mental capacity to commit a crime(( Section 72, The Indian Penal Code, 1860.)) because the child cannot understand the consequences of their actions. Read more in our explainer “Children Accused of Crimes”.

Reporting Rape

Police

  1. If an offence of rape is committed, the first and most important thing to do is to report it to the police by filing a First Information Report (FIR).(( Section 154, Code of Criminal Procedure, 1973.)) Otherwise, call 1091 (Women’s Helpline Number) and report the rape. Even if someone does not report the crime right away, this does not mean that the delayed FIR will harm the case. It may become more difficult for the police to carry out the investigation and gather evidence, but it is possible to file an FIR at a later date as well.
  2. To file an FIR, visit the nearest police station. The police station does not necessarily have to be in the area where the crime has been committed. To locate the police station, download the ‘Indian Police at your Call’ app and locate the nearest police station. Otherwise, call 100.
  3. Approaching the police immediately after being assaulted can be very daunting for the survivor. However, the survivor doesn’t have to do this alone. The woman can take the help of a friend or approach a lawyer to assist her in filing a complaint. In fact, another person can file the FIR for the woman if she doesn’t want to approach the police by herself.(( Hallu and Others v. State of Madhya Pradesh, 1974 AIR 1936.)) If the survivor approaches the police with her complaint, the information is recorded only by a woman officer.(( Proviso to Section 154, Code of Criminal Procedure, 1973.))
  4. If the survivor is physically or mentally disabled, the police come and take her complaint from her residence or any other place where she feels comfortable.(( Proviso (a), Section 154, Code of Criminal Procedure, 1973.)) The survivor’s statement is recorded at her residence or in any place of her choice. As far as possible, the statement is recorded by a woman police officer in the presence of the survivor’s parents/guardian/near relatives/ social worker of the locality.(( Proviso to Section 157(1), Code of Criminal Procedure, 1973.))
  5. It is perfectly alright if the survivor does not remember specific details of the assault or even the attacker. It is enough if she tells the police as many details as she remembers.
  6. Once the police have read out the complaint, if all the details are correct, the complainant signs the FIR.(( Section 154(1), Code of Criminal Procedure, 1973.)) Any police officer who refuses to file the FIR or fails to record information of the offence is punishable with imprisonment for six months to two years, along with a fine.(( Section 166A(c), Indian Penal Code, 1860.))
  7. The complainant can get a copy of the FIR for free.(( Section 154(2), Code of Criminal Procedure, 1973.)) It is also possible to freely access the FIR online using the FIR number, date of FIR and the name of the police station.
  8. After the FIR has been registered, the contents of it cannot be changed. However, additional information can be given to the police later on at any point.

One Stop Centres

A survivor can also approach One Stop Centres, which provide an integrated range of services to women affected by violence. These services include medical aid, police assistance, legal aid/case management, psycho-social counseling and temporary support services.

What is Stalking?

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

If a person repeatedly follows, contacts or monitors someone despite their disinterest or lack of consent, it is known as stalking. Stalking is a term used for numerous activities done by a person, which when taken together can disrupt the life of the survivor.(( Section 354D, Indian Penal Code, 1860.)) Under the law, only a man can be punished for the crime.

Stalking can happen in close proximity physically or over the phone or even online. The crime of stalking is:

  • Repetitive in nature and is consistent.(( State v. Sh. Abhimanyu, District Court, (Special Judge, CBI) Delhi (2018) CA No.18/15.)) 

For example, if a person sends love letters every day to someone, despite their disinterest.  

For example, if flowers are repeatedly sent to a person’s office by someone and this makes them the subject of ridicule at the office. 

  • It is an invasion of personal space.

For example, if someone is followed every day to their place of work.

  • Attempting to establish a relationship or personal contact with someone without their consent.

For example, if someone sends multiple WhatsApp messages hoping for a reply.

The punishment for online stalking is jail time up to three years along with a fine. For repeat offenders, the punishment is higher, i.e. up to five years jail time along with a fine.(( Section 354D, Indian Penal Code, 1860.))

Child Sexual Abuse By A Family Member

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

When a child is sexually abused by a family member, they face a more severe punishment than someone who is not a family member since they are in a position of authority and trust to the child. A family member of a child can include anyone(( Section 5(n) & 9(n), The Protection of Children from Sexual Offences Act, 2012.)):

  • Related to them by blood, adoption, marriage, guardianship, or foster care; or
  • Someone who has a domestic relationship with the parents or child; or Family members living in the same house as the child.

Depending on the type of crime committed, the punishment will vary for the family member.(( Section 6 & 10, The Protection of Children from Sexual Offences Act, 2012.))

If a child is being sexually abused by a family member or someone knows about a child being sexually abused in the family, report the crime to the police.

Seeking Medical Help

Survivors have the right to get immediate and free first-aid or medical treatment from medical institutions (both public and private). The institution must also inform the police of the criminal incident.(( Section 357), Code of Criminal Procedure, 1973.)) If the institution refuses to provide treatment and inform the police, the person in charge of the institution is punishable with imprisonment for up to one year and/or a fine.(( Section 166B, Code of Criminal Procedure, 1973.))

Within 24 hours of receiving information about the criminal incident, the police sent the survivor to an authorised doctor for a medical examination. The medical examination can happen only with the consent of the survivor or someone who can consent on her behalf.(( Section 164A(1), Code of Criminal Procedure, 1973.)) After obtaining consent, the doctor immediately examines the survivor and prepares a detailed report with conclusions about the survivor’s injuries, mental condition, etc.(( Section 164A(2), Code of Criminal Procedure, 1973.)) The report also records that consent was obtained,(( Section 164A(4), Code of Criminal Procedure, 1973.)) and notes the exact time at which the medical examination was started and completed.(( Section 164A(5), Code of Criminal Procedure, 1973.)) The doctor immediately sends the medical report to the concerned police officer who is investigating the case, and the officer then forwards it to the Magistrate.(( Section 164A(6), Code of Criminal Procedure, 1973.))