Sexual Offences In India Law General Essay

Published Date: 02 Nov 2017

3.1. Introduction

At the beginning of human civilization all laws were religious laws, i.e., they expressed the will of some superhuman authority. The spirits, the gods, or God wanted human beings to behave in a certain way and promptly punished any disobedience. The laws, therefore, practically enforced themselves.

The earliest known sex laws were no exception to this rule. Originally, there was no difference between sin and crime. Sexual offenders were both sinners and criminals, and their punishment was certain. Where human law enforcement was necessary at all, it merely carried out divine orders. As a matter of fact, this was the prevalent view throughout most of human history. For thousand of years religious belief remained the foundation of all law. On the other hand the sex law was based on rational and empirical grounds. As a result, many sexual acts that once had been crimes were now found to be permissible.

Unfortunately, sexual offence can come in many forms. In order to better understand the wide range of personal offence that can occur, here in this chapter we have included definitions of different types of rape and sexual offences, as well as other kinds of offence that often arise hand-in-hand with sexual offences law in India.

3.2. Forms and Contexts of Sexual offences:

It is possible to classify sexual offences in four main categories. First is direct offence, which is most commonly emphasized, examples of which are rape, molestation, forced prostitution, female genital mutilations, etc. Second is indirect offence, which covers harmful, sometimes deadly situations, or actions which, though due to human intervention, do not necessarily involve a direct relationship between the victims and the institutions or the arranged marriages, where the woman is not allowed to make a choice regarding the marriage partner. Third is repressive offence, which relates to three groups of fundamental tights-civil rights, political rights and social rights. Repressive violence is used to suppress political or class movements, for e.g., rape or sexual abuse targeting towards low caste women, mass rapes during international and internal armed conflicts. Fourth is alienating violence, which deprives the woman of her higher rights, such as right to emotional, cultural or intellectual growth. Examples are marital rape, prescribing dress codes to regulate female sexuality; etc. [1] 

However, sexual assault in any form is often a devastating crime. Assailants can be strangers, acquaintances, friends, or family members. Assailants commit sexual assault by way of violence, threats, coercion, manipulation, pressure or tricks. Whatever the circumstances, no one asks or deserves to be sexually assaulted. A wide range of sexually violent acts can take place in different circumstances and settings. These include, for example:

Rape within marriage or dating relationships;

Rape by strangers;

Systematic rape during armed conflict;

Unwanted sexual advances or sexual harassment, including demanding sex in return for favours;

Sexual abuse of mentally or physically disabled people;

Sexual abuse of children;

Forced marriage or cohabitation, including the marriage of children;

Denial of the right to use contraception or to adopt other measures to protect against sexually transmitted diseases;

Forced abortion;

Violent acts against the sexual integrity of women, including female genital mutilation and obligatory inspections for virginity;

Forced prostitution and trafficking of people for the purpose of sexual exploitation.

There is no universally accepted definition of trafficking for sexual exploitation. The term encompasses the organized movement of people, usually women, between countries and within countries for sex work. Such trafficking also includes coercing a migrant into a sexual act as a condition of allowing or arranging the migration. Sexual trafficking uses physical coercion, deception and bondage incurred through forced debt. Trafficked women and children, for instance, are often promised work in the domestic or service industry, but instead are usually taken to brothels where their passports and other identification papers are confiscated. They may be beaten or locked up and promised their freedom only after earning- through prostitution- their purchase price, as well as their travel and visa costs. [2] 

However, according to Prof. N.V.Paranjape [3] , sexual offences in India have been categorized into the following forms which has clearly been enshrined and punishable under Indian Penal Code. They are:

(1) Rape (Sec.375).

(2) Intercourse by a man with his wife during separation (Sec. 376-A).

(3) Intercourse by a public servant with women in his custody (Sec. 376-B).

(4) Intercourse by Superintendent of Jail, Remand Home etc. (Sec.376-C).

(5) Intercourse by any member of the management of staff of a hospital with any women in that hospital (Sec.376-D).

(6) Assault or criminal force to women with intern to outrage her modesty (Sec. 354)

(7) Selling or buying minors for purposes of prostitution (Sec. 372 and 373).

(8) Unnatural offences such as carnal intercourse against the order of nature with any man, women or animal (Sec. 377).

But as far as the changing contour of sexual offences and with special reference to the criminological aspects of the same offence is concerned, according to The Criminal Law (Amendment ) Bill , 2010 on amendment of the Indian Penal Code for sections 375, 376, 376A, 376B, 376C and 376D of the Penal Code, the following sections shall be substituted, namely:-

3.3 Sexual Offences under Existing Legal system in India:

The law on sexual offences is not just a few sentences. It is a whole book, which has clearly explained the entire legal provision in India.

3.3.1 Provision under Indian Penal Code (IPC):

Section 375 of Indian Penal Code (herein after IPC) gives an exhaustive definition of ‘rape’ in following words: "A man is said to commit rape" who, except in the case hereinafter excepted has sexual intercourse with a women under circumstances falling under any of the six following descriptions:-

First- Against her will,

Secondly- Without her consent

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly- 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.

Exception- Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.

Section 376 of Indian Penal Code says in sub-section (1) Whoever, except in the cases provided for by sub-section (2),commits rape shall be punished with imprisonment of either description for a term which shall not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine o with both:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years.

(2) Whoever,-

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage o his official position and commits rape on any inmate of such jail, remand home, place or institutions; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine;

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1. - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.- "Women’s or children’s institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which established and maintained for the reception and care of women of children.

Explanation 3. - "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

Sections 375 and 376, Indian Penal Code have been substantially changed by the Criminal Law (Amendment) Act, 1983 (Act of 43 of 1983). The same Act has also introduced several new sections, i.e. Sections 376-A, 376-B, 376-C and 376-D, I.P.C. Of these, S.376-A punishes sexual intercourse with wife without her consent by a judicially separated husband, S.376-B punishes sexual intercourse by a public servant with woman in his custody, S.376-C punishes sexual intercourse by Superintendent of Jail, Remand Home, etc. With inmates in such institutions and S. 376-D punishes sexual intercourse by any member of the management of staff of a hospital with any woman in that hospital. These new sections were introduced with a view to stop sexual abuse of women in custody, care and control by various categories of persons which though not amounting to rape were nevertheless considered highly reprehensible.

The amended S.376, IPC, now prescribes a minimum punishment of seven years’ imprisonment for the offence of rape. For combating the vice of custodial rape, rape on pregnant woman, rape on girls under 12 and gang rape a minimum punishment of 10 years’ imprisonment has been made obligatory. The Court in either case can impose a sentence lesser than seven or ten years, as the case may be.

A further improvement in the law relating to sexual offences can be found in the provisions of S 228-A in I.P.C, which was introduced by the Criminal Law (Amendment) Act, 1983 explain regarding the disclosure as to identity of the victims of sexual offences as in Secs. 376, 376-A, 376-B, 376-C and 376-D, I.P.C. [4] Section 223 of Indian Penal Code not only protect the honour of sexually victimized women but also make it possible for them to depose in Court without any fear of social ostracism.

Sec. 376-A says "Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under custom or usage without her consent, shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine."

Section 376-B says, "Whoever, being a public servant, takes advantage of his official position and induces or seduces, any women, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine."

Section 376-C says, "Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extended to five years and shall also be liable to fine.

Explanation 1.- "Superintendent" in relation to jail, remand home or other place of custody or a women’s or children’s institution includes a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.

Explanation 2. - The expression "Women’s or Children’s institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.

Section 376-D says, "Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation- The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.

Section 377 of I.P.C. is comes under the category of Unnatural Offences and it says, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten yeas and shall also be liable to fine."

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Section 377 [5] of the IPC can be applied to other forms of penetration. It has frequently been used to address adult sexual abuse of children, including male children, as the current law on rape is inapplicable to such cases. The New Delhi High Court in dealing with a finger penetration of a six year old child in 1996 [6] barred the creative interpretation of Sec.377 to include non-penile abuse of children and said it amounted to an offence under Sec.354, ‘violation of modesty’. [7] 

Clauses (a) to (g) of Section 376 (2) elaborate certain special circumstances which have been already stated. These cases include gang rape, rape with pregnant woman, rape with under 12 years, rape in custody, rape in hospital etc. It is reiterated that minimum punishment is 10 years in place of 7 years in these situations. The presumption of ‘no consent’ also lies in favour of the victim in these cases.

Besides the above offences, incest and homosexuality are also sex crimes in India. Sex related offences are universal phenomena, which take place in every society. Sexual offences aptly take the form of sexual violence, which sometimes cause severe and irreparable damage to the physical and mental health of the victims. Physical injury includes an increased risk of a range of sexual and reproductive health problems. Its impact on mental health can be equally serious as that of physical injury. Sexual offences, [8] when they assume the form of sexual violence may lead to murder, suicide, acute depression, etc. of victims. It entirely disturbs the social well being of the victims because of stigmatization and the consequential loss of status in their families and the neighborhood. The main thrust of this paper is to understand the phenomenon of sex related offences in terms of forces operative in the process of their perpetration, their magnitude and prevalence, and their prevention and control measures. A Sexual offence has been defined by the Law Reform Commission of Canada (1978) as sexual contact with another person (including touching of the sexual organs of another) or touching of another with one’s sexual organs without that person’s consent. Any person may understand sexual violence as any sexual act using coercion regardless of their relationship to the victim, in any setting, including but not limited to home and work. In sexual violence, coercion constitutes an important component, which covers a whole spectrum of degrees of force. Apart from physical force, it may involve psychological intimidation, blackmail or other threats. [9] 

3.3.2 Provision under Criminal Procedure Code:

The further significant procedural development of law relating to sexual offences can be found amendment of Sec.327 (2) of the Cr.P.C. in Criminal Law (Amendment) Act, 1983 [10] trial in camera (S.327 (2) Cr.P.C and which added sub-sections (2) and (3). Section 327 of the Cr.P.C. deals with the right of the accused to an open trial but taking into account problems faced by rape victims in open Court, the new sub-sections were inserted.).

Section 327 says that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any state of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or to be or remain in, the room or building used by the Court.

Sub-section (2) says that, "Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376-A, section 376-B, section 376-C or section 376-D of the Indian Penal Code shall be conducted in Camera [11] .

This section empowers a Magistrate to exclude the public generally or any particular person from the Court-room. The Court has to exercise its discretion in proceedings in such matters as ought to be conducted in privacy. The poser of the Court to hold certain trials in Camera is inevitably associated with the administration of justice itself.

A further improvement in the law relating to sexual offences can be found in the provisions of Sec., 372(2) Cr.P.C., which was introduced by the Criminal Law (Amendment) Act, 1983. Inspite of this the government’s draft proposes amendments to the Indian Evidence Act, 1872, borrowing, almost literally, from the draft of the women’s groups, but stops short of adopting all its suggestions. For instance, it proposes the insertion of Section 53A in the Act- an amendment that could have been made long ago- with respect to the issue of consent and the character of the victim: "In a prosecution for an offence under Section 376, 376A, 376B, 376C, 376D, and 376E or for attempt to commit such an offence, where the question of consent is in issue, evidence of the character of the victim or of her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent."

Another suggestion made by the women’s groups that Section 114A of the Indian Evidence Act is modified on the issue of consent. Their draft suggested that if a person alleged to have been sexually assaulted has stated it was not with consent, courts were top presume that it was so. The government draft has not incorporated this suggestion, though it has accepted another addition to the Indian Evidence Act.- "where the question of consent is in issue, it shall not be permissible to adduce, evidence or to put question in the cross-examination of the victim as to her previous sexual experience with any person for providing such consent or the quality of consent." [12] 

3.3.3 Provision under Indian Evidence Act:

The Criminal Law (Amendment) Act, 1983 [13] made a significant change related to procedural law by adding Sec.114-A [14] to the Indian Evidence Act which allows drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape involving custodians. Under section 114-A is attracted only to cases that fall under s. 376 (2) I.P.C. and not to cases that fall under s. 376 (1) I.P.C. Where in a case f gang rape there was unexplained delay of nine days in lodging the complaint, the victim was desirous to marry one of the accused, the victim unwillingly made the report under the pressure of her parents and the uninhibited report of the chemical examiner contra-indicated story of sexual intercourse, it was held that presumption under s. 114-A was not attracted. It has been held that the absence of injuries on the person of the accused or the prosecutrix, the victim of rape, is not per se sufficient to indicate her consent.

While the evidence of the prosecutrix showed that she had protested and struggled while she was being subjected to forcible sexual assault by the accused persons; it was held that this evidenced the absence of consent on the part of the victim apart from the legal presumption under S. 114-A. [15] 

In case of rape, there was tendency of the Courts to go into past character of the victim, to arrive at the conclusion, whether or not consent to the act was given and also while awarding punishment to the accused. The legislature brought about an amendment in 2003 by inserting a provision to Sec. 146 [16] of the Indian Evidence Act, 1972 that in a prosecution for rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix with respect to her general moral character. This led to the deletion of sec. 155 (4) of the Indian Evidence Act 1872 in 2003, whereby the ‘generally immoral character’ of the prosecutrix cannot be a ground raised by the accused for rape.

And S.114-A of Indian Evidence Act by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape as in clauses (a), (b). (c), (d), (e) and (g) of sub-section (2) of S.376 , I.P.C., merely on the evidence of the ravished women has, at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident, a disclosure of this nature is likely to ruin the prospect of the girl’s rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused. Moreover, in cases of rape, particularly custodial rape it is almost impossible to get any other independent evidence t corroborate the testimony of the prosecutrix. It has also to be remembered that a husband cannot be prosecuted for committing rape on his own minor wife below fifteen years of age if more than one year has elapsed from the date of the commission of the offence. [17] 

3.3.5 Provision under Immoral Prevention Act

3.3.6 Provision Under Constitution of India

3.4 Sexual Offences India: The Problem of Law

3.4.1 Elements of ‘Rape’

Absence of Will or Free Consent:

Absence of Will or Free Consent is a basic element for constituting the offence of rape. The consent should be free. It should not be obtained under threat or fear of death or of injury. The threat may be of her life or of her interested person. This threat may be of life or injury. Most allegation of rapes have element of threat. Many times the women is cheated for consenting sex. Man represents the woman as her husband and she gives consent. It also amounts to rape. At many occasions, the woman’s consent is taken by reason of unsoundness of mind or under intoxication. Such consent is also not valid and amounts to rape. This element of consent is essential in all cases where the woman’s age is 16 years or more.

Sex with girl under 16 years of age:

Where the age of the victim is under 16, then her consent is immaterial for constituting the offence of rape. It means the sexual intercourse with a girl under 16 years is always rape.

Penetration is an essential element:

Penis penetration should be sufficient to constitute sexual intercourse for the offence of ‘rape’. Indian law has not laid oral sex or finger sex in the category of ‘rape’ though they are offensive under sexual harassment cases.

Special privilege to husband:

A husband can’t be punished for raping his wife, unless wife is under 15 years of age. This is an exception to normal rape law and a special protection for the husband. It means a wife of 15 years or above can’t punish her husband for doing rape, even if he did sexual intercourse against her Will or Free Consent. But it doesn’t mean the wife can’t take any action against her husband in such circumstances. The wife has remedies under the Protection of Domestic Violence Act, 2005.

Many important laws and amendments to existing laws dealing with the rights of women, which including protecting them from the worst forms of violence. The struggle is continuing as there still to be a wide hiatus between the laws, the perception about the law, and the attitudes of the people who have to implement the law.

3.4.2 Anti –Rape Law:

Under Section 375 of the IPC, a man is said to commit rape if he has sexual intercourse with a woman under any of the six specified circumstances. They are: i) it should be against her will; ii) without her consent; iii) when her consent has been obtained by putting in her, or in any person whom she is interested in, the fear of death of hurt; iv) when she consents believing that he is her husband, whereas he is not; v) when she consents by reason of unsoundness of mind or intoxication or administration of stupefying substance; or vi) when she is under 16 years of age. The provision also says that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape. But the study reveals that there is a gap in using these provisions to secure the conviction of alleged rapists. Secondly, the medico-legal propositions that acquires an axiomatic status that an able-bodied adult woman con not be raped by an unarmed man. But in the trial courts, the view is that women have the natural ability to resist rape by crossing their legs. Here, the male body is not thought of as a weapon, and women’s ability to resist is seen as given in nature. Thirdly, the practice of using lie-detection tests on raped women was common. It is important to note here that the medico-legal textbooks did not prescribe the use of lie-detection tests on raped women, and all most rape cases the documentation regarding such tests did not enter at the trial or appellate level. For the victim, the process of testified itself adds to her trauma. It is true that it makes her relive the rape and humiliates her. The cross-examination of the victim itself produces trauma. It attacks the reputation and veracity of the victim. It makes her relieve the rape and humiliates her. The production of trauma by the law itself is a serious issue that severely compromises the mental health of rape survivors.

Another issue in establishing rape is the ethics of the two-finger test. The test was evolved as an answer to the medico-legal problem that in some cases the hymen might remain intact as a sign it does so retrospectively after the technique is deployed on the victim’s body. Thus while the "natural" state of the hymen is not reliable, it is a technique which allows for a verification of the actual by substitution the penis which two fingers. The interpretation of the findings of the two-finger test provided in the medico-legal certificate of the victim is transcribed as "habituated to sex" or "used to sex". If a victim is categorized as habituated, it is assumed that she must have experienced regular sexual intercourse and this sexual intercourse must have been sexual. Some times if doctors give a certificate saying no sign of injury and write that she is habituated, the advantage of this goes to the accused. Thus, medico-legal techniques such as the two-finger test result in symbolic re-rape of the victims. The phalocentric law insists on doing mimetically to the victim what the accused rapists did to her, in order to know that rape was real.

3.4.3 Outraging Modesty:

India’s antiquated colonial-era criminal code does not define sexual assault or child sexual abuse. Section 354 [18] of the IPC provides for a punishment of up to two years with fine to anyone who assaults or used criminal force on any women, intending to outrage her modesty. But the provision does not define modesty.

The Supreme Court, in [19] defined modesty in this section as follows: "Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her sari, coupled with a request for sexual intercourse, is such as would be outrage to the modesty is likely to be outrage, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object." [20] The law, however, prohibits "outrages" or "insults" against "modesty", leaving the court to determine whether the infant had "modesty" that could be "outraged". So the Supreme Court, in finding the man guilty, created a test around whether a "reasonable man" would think his acts would outrage the modesty of a "reasonable women" keeping in mind "all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman".

In 1995, instead of addressing sexual violence head-on, the Supreme Court took even greater pains to define "modesty", referring to English dictionaries, "Womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct" and "decorous" in manner and conduct not forward or lewd". In the 63 years since Independence, there have been various piecemeal amendments to the penal code and criminal procedures, but the government is yet to fill the definitional gaps around sexual assault and child sexual abuse.

The Penal Code defines rape as penetration, narrowly read as penile-vaginal penetration. All other forms of sexual offences, penetrative or not, are dealt with as outraging or insulting the "modesty" of women. In cases where sexual assault does not lead to penetration, the prosecution is inclined to invoke Section 354 against the accused, which results in milder punishment. Child sexual abuse remains clumsily and inadequately prosecuted under "unnatural offences", which criminalizes a range of different acts, including oral sex and same-sex relations.

But these provisions on "out raging modesty" cause tremendous injustice to many women. For example, forcibly stripping and parading women naked, a practice that continues in many parts of India, is merely classified as outraging women’s "modesty" despite the serious psychological and physical harm often inflicted. Other grave forms of sexual offences, like sexual mutilation, are similarly categorized as outraging modesty or as causing grievous hurt or other offences. In the absence of law governing child sexual abuse, many cases of sexual abuse of girls have been punished lightly as "outraging modesty".

Section 511 of the IPC provides that when an offence is attempted to be committed for which no specific punishment has been provided for in the code, an offender will be punishable with half the longest term punishment that is prescribed for committing the respective offence. In other words, a court can convict the accused for attempted rape. Yet courts have in general been reluctant to do so even when the accused has been caught while attempting rape.

3.4.4 Sexual Harassment:

The emergence of sexual harassment as a wrong and a form of discrimination against women has been articulated exclusively by the Indian courts, and has not been enacted into any statue. The inability of Section 354 of the IPC to address adequately the claims of sexual harassment ultimately led the filing of a class action petition in 1997 in the Supreme Court. The Supreme Court held in the case of Visakha V. State of Rajasthan [21] that sexual harassment is a clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1) (g) "to practice any profession or to carry out any occupation, trade or business." Such violations attract the remedy under Article 32 for the enforcement of these fundamental rights of women.

The court defined sexual harassment to include such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; or e) any other unwelcome physical verbal or non-verbal conduct of a sexual nature.

For many years, the only precedent that operated in this area was the Supreme Court judgment of 1997 in the Visakha V. State of Rajasthan case [22] . In the absence of a law, the court had laid down guidelines to prevent sexual harassment in the workplace. These included asking employers to set up an internal committee to look into complaints. But this could only work for women employed in formal organizations. What of the millions outside the formal sector? Also, these guidelines, and not a law, they were routinely ignored, or followed without any seriousness. Thus, even where committees were set up, they did not work or women employees were not informed of their existence. Finally, such a law has seen the light of day. Although the introduction of this law is a welcome step, it still needs to be discussed in detail before it becomes law. In its statement of Objects and Reasons, the Bill states, "Sexual harassment at a workplace is considered violation of women’s right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth." [23] It also lays down provisions for compensation to be paid to the women complaint and punitive measures against the harasser. As in rape cases, the law prohibits the media from publicizing the name and address of the complainant or the witness.

Yet the law falls short on several important measures. For one, it specifically excludes domestic servants from the ambit of the law. This is a strange exclusion given the millions of women in our society who survive on domestic work and the problems they face.

The other mysterious clause seeks to punish women who cannot prove sexual harassment after registering a complaint. While it is possible that some women can misuse the law, should the work of an Internal Committee that is not convinced by a complaint be enough to actually penalize the complaint? When a woman who has been raped cannot establish this in a court of law, she is not penalized. Rape cases fail in court most often because the prosecution cannot, or will not, make a strong enough case.

In sexual harassment case, women face an uphill task to prove their case. Unlike rape, where there is physical evidence, what can you produce to prove the kind of harassment that consists of words and gestures? Only the woman and the man concerned know the truth, whose word will be accepted? As in the majority of such cases, the power equation is weighed heavily against the woman; it becomes even more difficult to prove sexual harassment. Against this background, if there is a punitive clause, women will shy away from even trying to prove sexual harassment for fear that instead they will be punished. So, these are some of the questions that should be amended as per law.

The definition of many of the offences in the Sexual Offences Act 1956 refers to ‘sexual intercourse’ which is defined as, ‘Where, on the trial of any offence under this Act, it is necessary to prove sexual intercourse (whether natural or unnatural), it shall not be necessary to prove completion of the intercourse by the emission of seed, but the intercourse shall be deemed complete upon proof of penetration only.’ Penetration is the entry of the penis into the vagina or the anus; the slightest degree is enough and where the intercourse is per vaginam the hymen need not be broken.

Most provisions in the 1956 Act distinguish between the sexes of those referred to by the terms ‘man’ and ‘women’. These terms respectively include ‘boy’ and ‘girl’. Many sexual offences can only be committed, as perpetrators, by men but even in the other offences the offenders are predominantly men and the victims predominantly women. The law is concerned with a person’s sex, not his or her gender (i.e. the sex to which he physically belongs). In law, the sex of a person is fixed at birth, and is determined biologically by reference to chromosomal, Gonadal and genital features at that time. It follows, for example, that a person born a ‘man’ remains of that sex, despite undergoing a ‘sex-change’ operation and treatment which gives the appearance of being a women. The fact that a man who is a male to female transsexual is philosophically, psychologically or socially female is irrelevant; that person remains a ‘man’ in law. The same applies vice-versa to a female to male transsexual. Where a person’s biological features are not congruent, the decision whether an individual is a man or a woman must have regard to the individual’s development and to psychological and hormonal factors and secondary sexual characteristics, in addition to chromosomal, gonadal and genital factors. [24] 

Rape declared a crime against humanity and also an element of genocide. Sexual Violence is a serious international human rights problem. Obviously, many women around the world are being affected by severe violence enacted on their bodies and minds.

This is a problem greatly in need of attention. The academic community has responded by documenting cases, raises awareness of rape and encouraging legal reform. Under the Geneva Convention rape was considered a crime against a women’s honour. This put the emphasis on the women’s character and value rather than her personhood or rights. Subsequently, the criminal tribunals have reclassified rape as crime against humanity-equal to but distinct from other crimes against humanity like murder and torture. [25] As the sexual offences review body put it in relation to the law at the time of the review, ‘much of the law dates from a hundred years ago and more, when society and the roles of men and women were perceived very differently. The result is a loose framework of offences, designed to meet specific problems that caused concern in their day, but with little coherence or structure’. The advent of a new century and the incorporation of the European Convention on Human Rights into English law, with its emphasis both on the responsibilities of the state and the rights of the citizen a timely context in which to examine this area of the law. In conducting its analysis, one of the review body’s fundamental guiding principles was that the law on sex offences embodies society’s view ‘of what is right and wrong should be based on assessment of the harm done to the individual. As a corollary of its adoption of this liberal harm principle, the review body also took the position that the criminal law should not intrude unnecessarily into the private lives of adults. The review body further more adopted another liberal premise, that the law should adopt a position of formal equality. In terms of sexual offences, this means that in order to deliver effective protection to all, the law needs to be framed on the basis that offenders and victims can be of either sex, that is, in gender neutral terms, unless there is a good reason for it to be otherwise. [26] 

There is an immediate need to enlarge the definition of rape to include oral and anal sex. There is several forms of sexual abuse, such as, incest, stalking and protracted sexual assault, were not even recognized or defined in the IPC. On several occasions courts had debated on what the expression "outraging the modesty of a woman" meant. A major definitional change would be to replace this expression in Section 354 of the IPC with "unlawful sexual contact"; besides, there must be a distinction between the molestation of an adult and that of a child and that the latter should invite more stringent punishment.

3.4.5 Writ Jurisdiction for Rape Victims:

The question arises here that whether there is any remedy for the rape victim under Writ Jurisdiction and Compensation can be granted under Writs? This question was considered in case ‘In Chairman, Railway Board V. Chandrima Das [27] wherein a Bangaladeshi girl was raped at the Howrah Railway Station by the Railway’s security men. A writ petition under Article 226 of the Constitution of India moved before the Calcutta High Court against the various railway authorities of the Eastern Railway in which compensation was also claimed. The High Court awarded Rs. 10 lacs as compensation. An appeal was preferred and it was contended by the State that the victim being a foreigner can’t knock Writ Jurisdiction and can’t get compensation and that, the remedy for compensation lie in the domain of private law and not public law and that, the victim should approach the Civil Court for seeking compensation or damages, in place of knocking writ jurisdiction under Article 226.

Considering the above said contentions, the Supreme Court observed: "Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved as the petitioned was a victim of rape, which a violation of fundamental right of every person guaranteed under Article 21 of the Constitution." It was further held "the relief can be granted to the victims for two reasons-firstly, on the ground of domestic jurisprudence based on the Constitutional Provisions, and secondly, on the ground of Human Rights Jurisprudence based o9n the Universal Declaration of Human Rights, in 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General assembly of the United Nation."

Sexual offending is often considered as somehow inherently ‘differently’ from other forms of offending. What constitutes a sex offence also varies over time and place. The exact number of se offences committed each year is difficult to determine because of the varying forms, the nature of police recording and the unwillingness of some victims to report crimes in the first place. The common theme to nearly all sexual offending is the lack of a real consent, whether by age, by coercion or from consent being given to a ‘prohibited relationship’. Adults may be coerced into sexual activities against their will by threats or violence, and that will include coercion caused by poverty and economic imperatives that turn women (and men) to prostitution. Offences may be committed against women with mental impairments when adults enter ‘prohibited’ (incestuous) relationships. Violent attacks on women where there is no sexual element can still be seen as sexual assaults simply because they are targeted as women.

Some offences may be committed even when there is consent between the adult parties concerned and most notably when activities are committed in a public rather than a private place, when they are deemed to offend our concepts of public decency.

Children and young people below the ‘age of consent’ may be engaged in unlawful sexual intercourse, either with or without their consent. Such offending can take place within a family (intra-familial) or outside of the family (extra-familial); within a family it will probably be incestuous. Sexual offending outside of the family is sometimes referred to as the ‘stranger-danger’ that children should be wary of.

Allegations have been made that children have been subjected to ‘ritual’ or ‘satanic’ abuse, whereby the abuse is subsumed into ceremonies that serve to frighten the children into saying nothing afterwards. The truth of these allegations has been hotly disputed. . [28] 

3.4.6 Anonymity of victims:

In all rape trials, ‘anonymity’ of the victims should be maintained as far as necessary so that the name is shielded from the media and public. As many scholars suggest, the courts should avoid disclosing the name of the victims in the rape case as far as possible in order to save them from further embarrassment. In fact, the identity of victims, along with their addresses may be kept confidential throughout criminal proceedings. This includes the process where copies of the complaint are delivered to the accused. The court also observed that the experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.

The idea of keeping the victims’ names anonymous are well responded in many countries. The New Zealand Evidence Act of 1908 contains detailed provisions regarding the maintenance of anonymity of victims and witnesses. [29] 

In the UK, the court is empowered to withhold the name of the victim/witness in a criminal trial. Section 11 of the UK Contempt of Court Act, 1981 provides that the court may give directions to prohibit the publication of names or other matter in connection with the proceedings. [30] In Canada, anonymity of witness/ victims is treated as a privilege granted under common law.

3.4.7 Trial of Sex-related offences in Camera:

The trial of certain sexual offences should be conducted in camera. In the cases that the victims are women or children who are relatively sensitive to surrounding circumstances, giving testimony in front of the public and the media could create a sense of embarrassment in their mind. This would help the victim, to give their testimony more naturally. The study reveals that the more comfortably the rape victim feel while giving testimony, the more quality of evidence the trial can get

Trial in camera in the sex-related offences has become more acceptable internationally. For example, although the European Convention for the Protection of Human Rights an Fundamental Freedoms supports the right to ‘open justice’, it however suggests that the exceptions in the interests of morals, public order, national security and protecting the privacy of juveniles and others where publicity could otherwise prejudice the interest of justice be needed. [31] 

3.4.8 Use of Screen during the victim’s testimony:

According to the laws in most countries, including India, trials are usually conducted in the presence of the defendants. Against this background, most women or children who are victims have hesitation to give statements freely in the presence of offenders. This is especially the case for the sex-related offences. Merely a glance of the defendant may generate a feeling of extreme fear or embarrassment in the mind of the victims who are doing witness duty. In this regard, the Law Commission in its 172 Report (2000) [32] has recommended that where the testimony of a person below 16 years who is alleged to have been subjected to sexual assault is to be given, the court may take appropriate measures to ensure that such a person is not confronted by the defendant. Such measures include the use of a screen or some equipment that can help prevent the victims from seeing the body or face of the defendants during their testimony.

Under sections 16 to 33 of the UK’s Youth Justice and Criminal

Evidence Act, 1999, if a defendant in person seeks to dominate, intimidate or humiliate a complainant, or should it be reasonably apprehended that he will do so in the case where children give evidence in criminal trials about sexual abuse, the court is required to consider special measures of various kinds for protection of vulnerable and intimidated witness. As a result of these provisions a screen is allowed to be placed between the witness and the defendant.

3.4.9 Taking testimony through video conferencing:

Taking testimony by way of video conferencing is another method by which the victims may avoid direct confrontation with the defendants while giving testimony. The study reveals that this method has become more permissible as the victim would feel more comfortable and will testify without any fear or pressure. In the UK, video conference is admissible in certain cases namely: (a) an offence which involves an assault on or injury or threat of injury person, (b) an offence of cruelty to persons under the age of 16 years, and (c) offences under the Sexual Offences Act, 1956 and 1967, Indecency with Children Act, 1960, Protection of Children Act, 1987, etc. [33] 

3.4.10 Examination through the questions handed over to the judges:

Victims, particularly who are women or children, in sex-related cases, usually feel embarrassed due to the questions put by the defense lawyer during cross-examination. Often, such questions are purposely designed to embarrass or confuse the victims of rape or child abuse. The reason is that feeling of shame or embarrassment could result in the victims not speaking out or giving details of certain acts committed by the defendants.

Against this backdrop, a suggestion has been that in some cases, instead of directly putting questions to the witness by the defense lawyers, a set of questions may be lodged to the judge by the defense before the hearing. The presiding judge then may be able to rephrase those questions to the language which is not embarrassing when putting them to the victims during the trial. This strategy could help protect the victims from being jeopardized by the questions designed to embarrass the victims.

3.4.11 Changing Venue of trial:

In certain circumstances, the venue of the trial may be shifted if the victims are reluctant to testify. In India, for example, Sections 406 and 407 [34] of the Code of Criminal Procedure, 1973 contains provisions in respect of transfer of cases. The Supreme Court in Zahira Sheikh’s case [35] has recently ordered a shift in the venue of the trial from Gujarat to Maharashtra. This measure has been done in cases in the UK and Northern Ireland also. [36] 

Where the violation of sexual norms is defined as a legal problem, sexual conformity and sexual deviance are seen as respect for the law and crime. Conforming sexual behavior is "correct", "law-abiding", and "legal". Deviant behavior is "offensive", "criminal", and "illegal".

There is, of course, no question that certain kinds of sexual behavior have to be prohibited by law, because they involve force, fraud, violence, or exploitation, or take place in front of unwilling witnesses. The victims of such behavior are clearly justified in demanding legal protection, and virtually all human societies try to fulfill this demand, at least for their "important" members. In short, no society can survive very long without a certain minimum of sex legislation. However, there have been societies in which large numbers of people were deliberately left unprotected even against the most brutal forms of sexual assault. In these societies the law served only the powerful and privileged and was, in fact, nothing more than a tool of class justice. Thus, slaves and serfs often were "fair game" for their masters. Sometimes, members of religious or racial minorities also were denied their full human rights and could be sexually abused by the majority without fear of punishment

On the other hand, most modern societies which are devoted to "equal protection under the law" take great pains to punish all sexual abuse, no matter who the offender. Indeed, in their zeal to make the world "safe" for everyone, they sometimes over legislate and create sexual offenses where otherwise none would exist. Thus, they end up protecting not only the righteous from the wicked, or the wicked from each other, but also the righteous from themselves. That is to say, when the sex laws begin to extend to "victimless crime", they take on a totalitarian character and may themselves victimize many good people.

Still, even the most zealous lawmaker must leave many forms of sexual wrongdoing unpunished. For example, husbands and wives who use sex as a means to degrade each other, parents who keep their children sexually ignorant, teachers who frighten their students with lies about masturbation, or clergymen who call for the persecution of sexual nonconformists may do a great deal of harm. Nevertheless, they are not regarded as sex criminals, and it is doubtful whether any specific law could control them.

All of this leaves us with two conclusions:

Law and morality are not the same thing. Undoubtedly, the two are somehow related, but the relationship is not a direct one. Some immoral sex acts may be entirely legal, while certain moral sex acts may be illegal.

One cannot simply assume that the purpose of sex legislation is to provide physical or emotional protection. After all, as we have seen, some dangerous behavior may be legal, and harmless behavior may be illegal.

How, then, are we going to find the "true" reasons behind our often puzzling sex laws? Or, in other words, what is the real basis on which societies determine the legality or illegality of sexual behavior? Perhaps we can arrive at an answer by taking a brief look at history. [37] 

3.5 Perspectives:

Sexual offence occurs throughout the world, regardless of race, nationality, financial status, etc. However the study reveals that women and children are vulnerable to become the victims of crimes more particularly sexual offences. Sexual offence is one of the most extreme and effective forms of control in a male dominated society, which simultaneously damages and constrains women’s lives and prompts individual and collective resistance among women thereby maintaining the status quo of gender inequality, subjugation of women and their control. Sexual violence manifests itself at all sites of human life- the community perpetuates it, the State legitimates and condones it and even the presumably safe and secure niche of home is not free of violence. [38] It has a profound impact on physical and mental health. As well as causing physical injury, it is associated with an increases risk of range of sexual and reproductive health problems, with both immediate and long-term consequences. Deaths following sexual violence may be as a result of suicide, or murder-the latter occurring either during a sexual assault or subsequently, as a murder of "honour". Sexual offence can also profoundly affect the social wellbeing of victims; individuals may be stigmatized and ostracized by their families and others as a consequence.

The greatest danger is posed by sex crimes committed with the use of physical or mental force: rape and forcible pederasty. Some other types of sex crimes also pose considerable social danger. Therefore the compulsion of a woman to enter into sexual intercourse or to satisfy sexual passion in another form by a person on whom this woman is dependent materially or occupationally is punishable under criminal law by deprivation of freedom for up to three years. Punishment for sexual intercourse with a person who has not reached puberty, for example, the conclusion of a marital agreement between an adult and a minor, has been established in the form of deprivation of freedom for up to three years.

The issue of sexual harassment of all women is still one that remains unaddressed, especially in our country. And here it is the Supreme Court that has stepped in to remind us. In a ruling on October 19, the apex court has asked all states, union territories and regulatory bodies to set up mandatory committees where women who are harassed at work can take their complaints. It has been found from the study that many such directions on a range of issues have been given in the past and convenient excuses have always been found for not implementing them. In this regard the apex court has been quite specific about implementation of the existing guidelines against sexual harassment in the workplace, incidentally also set out by the same court in 1997.

Sexual assault is mostly committed on women or children. It is one of the most under-reported of crimes, whether committed against women, men or children, partly because many people who have been sexually assaulted fear that they will not be believed, and because they are afraid of the response that their complaint will elicit from the legal system.

The Preamble to the Constitution of India assures among other things the ‘dignity of the individual’. Article 39 (a), (d) (e) and Article 51A (e) inter alia proclaim that state shall ensure a just social order for the women. Article 14 certainly provides for equality before law and the equal protection of the laws. Article 15 commands the state to follow a policy of non-discrimination on the grounds of religion, race, caste, sex, and place of birth or any of them. Article 15(3) empowers the state to make special provisions for women and children. Article 21 gurantees the right to life to this otherwise dead provision by proclaiming that the right to life includes the right to live with human dignity. In the landmark case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi [39] , Justice Bhagwati observed: "The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more th