ORDINANCE ON SEXUAL CRIMES

[Mr. M. GOVINDARAJAN]

‘Criminal Law (Amendment) Ordinance, 2013’ was promulgated by the President of India which would come into effect from 03.02.2013 to amend the Indian Penal Code and the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. This ordinance brought amendment among the other things on sexual harassment on the basis of the report of Justice Verma Committee. In this article the change brought in reducing the sexual harassment is discussed.

SEXUAL HARASSMENT

Section 354A has been inserted after Section 354 of the Indian Penal Code which deals with sexual harassment and punishment for the same. The said section provides what acts or behaviors shall constitute the offence of ‘sexual harassment’. According to the following acts or behaviors shall constitute the office of ‘sexual harassment’:

• Physical contacts and advances involving unwelcome and explicit sexual overtures; or
• Demand or request for sexual favors; or
• Making sexually colored remarks; or
• Forcibly showing pornography; or
• Any other unwelcome physical, verbal or non-verbal contact of sexual nature.

The punishment for sexual harassment is of two categories. The punishment for first two acts or behaviors as stated above is rigorous imprisonment which may extent to five years or with fine or with both. The punishment for any of the remaining acts or behaviors as stated above is imprisonment of either description that may extend to one year or with fine or with both.

DISROBING WOMAN

Section 354B has been inserted by this ordinance which deals with the punishment for disrobing woman in public places. The said section provides that whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, shall be punished with the imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and with fine.

VOYEURISM

Voyeurism is the sexual interest in or practice of spying on people engaged in intimate behaviors, such as undressing, sexual activity, or other actions usually considered being of a private nature. Section 354C, inserted by the ordinance, deals with this subject. According to this section whoever watches, or captures the image of , a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second on subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.

The terms ‘private act’ is explained as an act which includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals, buttocks or breasts or exposed or covered only in underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a kind ordinarily done in public.

It is further explained that where the victim consents to the capture of images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

STALKING

Stalking is a term commonly used to refer to unwanted or obsessive attention by an individual or group toward another person. Stalking behaviors are related to harassment and intimidation and may include following the victim in person or monitoring them. Newly inserted section 354D deals with stalking. According to this section whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, email or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such person, or interferes with the mental peace of such person, commits the offence of stalking. The punishment for stalking is imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine. The following acts would not amount to staking:

• It was pursued for the purpose of preventing or detecting crime and the person accused of stalking had been entrusted with the responsibility of prevention and direction of crime by the state;
• It was pursued under any law or to comply with any condition or requirement imposed by any other person under any other law;
• In the particular circumstances the pursuit of the course of conduct was reasonable.

TRAFFICKING

Human trafficking is the illegal trade of human beings mainly for the purposes of commercial sexual exploitation or forced labor. Other purposes can be extraction of organs, or tissues or even surrogacy or ova removal. Newly substituted Section 370 deals with the said subject. According to this section whoever, for the purpose of exploitation, recruits, transports, harbors, transfers or receives a person or persons by using threats or using force or any other form of coercion, or by abduction or by practicing fraud, or deception, or by abuse of power, or by inducement including the giving or receiving of payments or benefits, in order to achieve the consent of any person having the control over the person recruited, transported, harbored, transferred or received commits the offence of ‘tracking’.

The expression ‘exploitation’ shall include prostitution or other forms of sexual exploitation, forced labor or services, servitude or the forced removal of organs. In this case the consent of the victim is immaterial. The following are punishments for this offence:

• Committing the offence of trafficking – Rigorous imprisonment for a term which shall not be less than seven years but which may extend to ten years and shall also be liable to fine;
• Trafficking more than one person – Rigorous imprisonment for a term which shall not be less than ten years but which may extend imprisonment for life, and shall also be liable to fine;
• Trafficking of a minor - Rigorous imprisonment for a term which shall not be less than ten years but which may extend imprisonment for life.
• Trafficking of more than one minor at the same time - Rigorous imprisonment for a term which shall not be less than fourteen years but which may extend imprisonment for life.
• Offences by public servant including police officer – imprisonment for life which shall mean the remainder of that person’s natural life.

Section 370A provides punishment for those who employs such trafficked person. The punishment for such offence is as follows:

• Employing child – rigorous imprisonment for a term which shall not be less than five years but which may extend to seven years and with fine;
• Employing adults - rigorous imprisonment for a term which shall not be less than three years but which may extend to five years and with fine;

SEXUAL ASSAULT

Newly substituted Section 375 deals with ‘Sexual assault’. According to this section a person is said to commit ‘sexual assault’ if that person-

• penetrates his penis, to any extent, into the vagina, mouth urethra or anus of another person or makes the person to do so with him or any other person; or
• inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or
• manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of the body of such person or makes the person to do so with him or any other person; or
• applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person; or
• touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any the following descriptions:
• against the person’s will;
• without the other person’s consent;
• with the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt;
• when the person assaulted is a female, with her consent, when the man knows that he is not her husband and that consent is given because she believes that he is another man to whom she is or believes to be lawfully married;
• with the consent of the other person when, at the time of giving such consent, by reason of unsoundedness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature of consequences of that action to which such other person gives consent;
• with or without the other person’s consent, when such other person is under eighteen years of age;
• when the person is unable to give consent.

The punishment for sexual assault is rigorous imprisonment of either description for a term which shall not be less than seven year but which may extend to imprisonment for life, and also with fine. The punishment for sexual assault committed by a police officer, public servant, member of the armed forces, staff of jail or hospital, relative, guardian, teacher, is rigorous imprisonment for a term not less than ten years but which may extent to imprisonment for life and also with fine. The following are the other punishments prescribed by the amendment:

1. Causing death or resulting in persistent vegetative state of the victim-rigorous punishment for a term which shall not be less than twenty years but which may extend to imprisonment for life, which shall mean the reminder of that person’s natural life; or with death;
2. Sexual assault by husband upon his wife during separation-imprisonment not less than 2 years but may extend to seven years and with fine;
3. Sexual intercourse by a person in authority-rigorous imprisonment for a term which shall not be less than five years but which may extend to ten years and with fine.
4. Sexual assault by gang -rigorous imprisonment for a term not less than twenty years but which may extend to life and shall pay compensation to the victim to meet the medical expenses and rehabilitation of the victim.

Many comments in favor and against of this ordinance have been arised. The Government said that the ordinance was meant to address ‘a sense of urgency’ in the wake of the nationwide tumult over the brutal gang rape of a 23-year-old paramedical student inside a bus in the national capital on December 16, 2012.

The ordinance provides for capital punishment in cases of rape that leads to death or leaves the victim in “persistent vegetative state’, a proposal disfavored by the Verma Committee. The common factor in all the criticism generated was that the Ordinance was implemented with stealth and was marked by total lack of transparency. Human rights activist and legal eagle Vrinda Grover commented that it seemed to be some kind of “emergency measure”. The Government is on the hope that the ordinance will be replaced by the bill that may be passed in the budget session.