This article is written by Bheeni Goyal from Symbiosis Law School on the meaning and scope of indecent assault and discussed some landmark judgments given by the Supreme Court for indecent assault.
Assault can take many forms, either it could be an assault that was committed before committing a battery or it could be a sexual or indecent assault. Different jurisdictions in the world have defined assault in their own ways, however, there is a similarity in some of the elements describing it. The term indecent assault has different meanings in different jurisdictions and the punishment inflicted for committing such assaults is also different. Individuals generally consider sexual assault and indecent assault as one and the same thing, but both the terminologies have different meanings. It is really necessary to differentiate sexual assault with indecent assault as the gravity of both the offenses is different. The author in this article has made an effort to define the term indecent assault and the scope of the same in our country as compared to the other nations.
Meaning of indecent assault
Assault is generally referred to as an attempted battery. It basically means any individual intentionally causing someone to have an apprehension of the harm. Section 351 of the Indian Penal Code has defined the term assault. It provides that if any individual makes any gesture or preparation with an intention that his gesture will cause the other person to apprehend that he is likely to use the criminal force on him, is said to commit an offense.
“Whoever makes any gesture, or any preparation intending or knowing. it is likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”
Indecent assault is considered to be a part of sexual assault. It can be described as the unwanted touch by one person on another persons’ body. This includes inappropriate touching of the genital areas or bottom areas etc. All types of assault are non-consensual contact but indecent assault is not just a non-consensual contact but it is sexual in nature which can be done by violence or using force against another person. However, Merriam Webster has defined the medical definition of indecent assault as an offensive sexual act or series of acts exclusive of rape which has been committed against another person without his/her consent.
Different types of indecent assault
There could be various things which can be considered as indecent assault according to the government of that state, or certain activities which can be considered as inappropriate by the judiciary and could be declared as indecent. The most indecent form of assault can be considered as touching inappropriately the private parts. Some of the popular types of indecent assault include-
- Groping someone in an inappropriate manner for the purpose of arousing any sexual desire.
- Touching any individuals or rubbing against their bodies in a sexual manner.
- Teasing someone inappropriately and body shaming the other person
There could be numerous examples of indecent assault by the third party but the distinction has to be made between the indecent assault and rape. In rape, the main element is the penetration. If there is penetration inside the women’s body it will amount to rape. Let’s look at the scope of the indecent assault for the purpose of making differentiation between the indecent assault and the sexual assault.
Limits and scope
Generally, people consider sexual assault, indecent assault, and rape as the same thing but it is not the case. All these terminologies are different and hold different meanings. Sexual assault is generally considered as a broad term which can also include sexual intercourse with some other person without their lawful consent. Consent can be considered as lawful when that person voluntarily agrees to do something and he is not unconscious or asleep for that matter.
However, the indecent assault includes the inappropriate and intentional touching on private body parts without the consent of another person. The scope of the indecent assault varies with different jurisdictions. In many jurisdictions, both sexual and indecent assault are considered under the same category of offense and hence their punishment is also the same. If any individual is charged with such crime he can be made liable either for sexual assault or indecent assault.
In India, sexual assault includes rape and the punishment for the same have been provided under Section 376 of the Indian Penal Code. The punishment for rape is imprisonment for a term which should be a minimum of seven years but can extend to imprisonment for life. This punishment is more rigorous as compared to the penalties or punishment under assault. In the famous Mathura Rape case, the Supreme Court also highlighted that there is a world of difference between both the offenses and cannot be considered as one. it is very difficult to find out a difference between the two terminologies as there is a very thin life of difference. There is also a thin line of difference between the attempt to commit the rape and indecent assault. Unlike, in India, Section 14 of the Sexual Offences Act 1956 in the UK, describes the indecent assault on women. But the indecent assault does not involve the penetration.
Legal provisions for indecent assault
Different countries have different provisions for describing and punishing the indecent assault. The punishment varies from jurisdiction to jurisdiction. In the Indian Penal Code, the term indecent assault has not been defined. However, the definition of the assault or criminal force to a woman with intent to outrage her modesty is provided under Section 354 of the Indian Penal Code. Although a proper description of indecent assault has not been provided under the code, the court interprets whether the indecent assault is a mere assault as provided under section 354 of the code or it is punishable as a sexual offense under section 376.
Penalties for indecent assault
Whenever a person commits an indecent assault, he is punishable with the imprisonment for a term which can extend to 2 years or with fine or both. In England Wales, under the Sexual Offences Act of 1956, the punishment for the indecent assault is at least 30 months which can extend further. Under that act, the provision of punishment for indecent assault is applicable for both men and women.
In India, the concept of indecent assault is often considered as a synonym to sexual assault and rape, and because of that sometimes the punishment which is inflicted on the individual for indecent assault is at par with the punishment which is given for offense of rape or sexual assault. Although the person who does the act of indecent fault is not at less fault, however, the gravity of the offense is less than rape.
In England and Wales, the Sexual Offences Act 2003 superseded the Act of 1956 and the indecent assault was merged with other offenses, including rape. Therefore in England, the person who has committed the indecent assault can be punished with equivalent punishment or fine as that of rape. The judiciary should play an active role in the proper interpretation of the offense and should impose punishment accordingly. However, the requirement for mens rea that is the intention to commit the reasonable apprehension of danger in mind of another person can be considered as a significant requirement for proving any kind of assault.
In 2019, our country witnessed a nationwide “Me too” movement, where many women came out and discussed the type of assault they have faced either at their workplace or in their families. Some of them either claimed the grave sexual assault by man, while many women claimed that have been touched inappropriately by the men at their workplace. Some of them were real accusations but there were some false allegations as well which have been inflicted for defaming another person which has led to the suicide of many individuals.
Therefore, the Judiciary should make a constant effort to try and differentiate between the indecent assault and sexual assault. An act of indecent assault could be either done intentionally or it could be a product of a naive mistake. Therefore, it is the responsibility of the judiciary to punish the accused, after thoroughly going through all the facts and circumstances of the case and the proper interpretation. However, if the intensity of the assault is such that it has caused serious mental and physical harassment to the other person, then the punishments should create a deterrent effect so that no one can commit such offenses in the future.
There are many cases which hold a differentiation between sexual assault and indecent assault. One of the landmarks for this is the State of Uttar Pradesh v. Babul Nath. In this case, a girl was brought in a semi-conscious state and blood was flowing from the private part of the body. Her hymen was completely ruptured and one could easily contemplate it being a sexual assault. But the opposite party claimed that all the injuries found on the private parts could be caused by other reasons as well, like indecent assault and there was no proof to prove whether it was a sexual assault or rape. The court held that the injuries clearly suggest that the girl has been a victim of sexual assault. If she had been subjected to the indecent assault then she would not have incurred such grave injuries that are detrimental to her life.
In another case of Aman Kumar and Another v. State of Haryana, an effort was made by the court to distinguish between the attempt to commit rape and indecent assault to find out whether the accused is responsible for attempting to commit the rape or indecent assault. The point of distinction here is that for committing the rape there should be some action on the part of the accused which depicts that he is planning to make any kind of sexual connection with her. Whenever there is an indecent assault, it is not necessary that the accused must have an intention to create a sexual connection with her.
In the case of Tarkeshwar Sahu v. State of Bihar where the court has held the accused liable for the indecent assault and not the attempt to commit rape. The court provided that there is a lot of difference between both the terms despite it being a thin line of difference. When a person has made an attempt to commit the rape means that he had an intention to commit the rape i.e. mens rea was present. However, while committing an indecent assault it is not always necessary that the accused have mens rea to commit the rape or having sexual intercourse. There should be some actus rea showing that he might have an intention to commit rape.
After considering the provisions under the Indian Penal Code and various judgments given by the Supreme Court, it can be concluded that the concept of indecent assault lacks clarity and it is only left for interpretation by the courts. These concept keeps jumping from assault to sexual assault. Even in England and Wales, the Sexual Offences Act of 2003 has merged the concept of indecent assault under the provisions of Rape.
The crime of indecent assault has increased many folds in a decent time and therefore, it is high time that the government should make an effort to properly define and include the definition of indecent assault in the code so that the courts can also get clarity while inflicting the punishment on the accused. Lack of clear provisions can either lead to inflicting graver punishment than actually required or punishing him with less punishment than that is actually necessary for meeting the ends of justice. It is really significant that the modesty of the women is protected at every cost and there should be no carelessness in this matter, however, at the same time there should be no injustice towards the accused and for that, we require more stringent as well as clearer provisions for this concept.
- Sexual offenses Act of 1956
- Sexual Offenses Act OF 2003
- Indian Penal Code,1860.
Online legal websites
- SCC ONLINE
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