This article is written by Abanti Bose, pursuing B.A.LL.B(H) from Amity University Kolkata, India. This article encompasses all the legal measures which have been taken by the legislature and the judiciary in order to deliver justice to sexual assault victims.
Sexual assault can be defined as an act of physical, psychological, and emotional violation in the form of a sexual act which is inflicted on someone without their consent. Not all cases of sexual assault involve violence or cause physical injury, it can also cause severe distress and emotional harm to the victim. Sexual assault is a form of sexual violence and involves offence like rape, child sexual abuse, torture in a sexual manner, etc. Sexual assault can have detrimental effects on the victim. Not only does it affect the victim physically but also causes long-term emotional damage. The victims develop post-traumatic stress disorder, major depressive disorder, and other psychological disorders which makes it difficult for the victim to return to his or her normal life.
National Crime Records Bureau (NCRB) stated that in India from 2001 to 2017 4,15,786 rape cases were registered and on an average 67 women were raped across the country every day. However, the courts, legislature, the Law Commission of India and women activists have taken active steps to render justice towards the victims of sexual assault. It is essential to deliver justice to the victim of sexual assault and to punish the offender. Amendments in the law have been made in both procedural and factual details and further changes have been incorporated with regards to the legal obligations of medical personnel and other healthcare providers in response to a case of sexual assault.
Types of sexual assaults under the Indian Penal Code
The various types of sexual assaults under the Indian Penal Code, 1860 are:
Assault or criminal force to a woman with intent to outrage her modesty
Section 354 of the Indian Penal Code states that if a person uses criminal force on any woman with the intent to outrage her modesty shall be punished for not less than one year and will also be liable to fine.
Under Section 354A of the Indian Penal Code, a man is said to be committing sexual harassment if he makes unwelcome explicit sexual advances, demands or requests sexual favors, shows pornography without the consent of the woman, etc. The section also lays down the nature of the punishment for committing the above mentioned offences.
Intent to disrobe a woman
When a man uses criminal force with the intent to disrobe a woman without her consent, he shall be punished under Section 354B of the Indian Penal Code with not less than three years and shall also be liable to fine.
A man is said to commit the heinous offence of rape under Section 375 of the Indian Penal Code. It is a form of sexual assault and involves sexual intercourse and sexual penetration without the consent of the woman. This act not only violates the privacy of a woman but also humiliates and degrades the character and dignity of a woman.
Section 376 of the code lays down detailed provisions for the punishment of rape.
Intent to insult the modesty of a woman
If a person with the intention to insult the modesty of a woman says any word, makes a gesture or exhibits any object is said to commit an offence under Section 509 and therefore, shall be punished with imprisonment for a term which may extend to three years with fine.
Legal measures that have been incorporated
Numerous legal changes have been incorporated in order to ensure justice towards the victims of sexual assault. Some of the legal changes are mentioned below:
The Criminal Law (Amendment) Act of 1983
The case, Tukaram and anr. v. The State of Maharastra led to significant amendments in the Criminal Procedure Code in 1983, specifically pertaining to custodial rape. In the case, a young tribal girl (between the age of 14 to 16) was allegedly raped by two policemen on a compound of Desaiganj Police Station in the Gadchiroli district of Maharashtra. However, the Supreme Court reversed the judgment of the Bombay High Court and acquitted the policemen on the grounds that there were no visible marks of injury or forced entry.
Thereafter, the legislature amended Section 376 (2) of the Indian Penal Code to grant the required punishments to the offenders and to fill the discrepancy in the law. In the cases of custodial rape, rape of a pregnant woman, and gang rape if it is proved that the accused is said to have sexual intercourse with the victim who allegedly has been raped and if she states before that the court that it was without her consent then the court presumes that she did not consent.
The function of this amendment was to bridge the gap between gender inequalities which is prevalent in the workplace, police station, jails, etc. Where the victim is overpowered and dominated by the offender while committing a forceful sexual act. These situations make it difficult to prove the non-consensual act with the testimony of other witnesses.
This amendment also focused on the part where the examining doctors should be able to understand the victims’ ability to put up with the restraint, and it is taken into account that there can be instances where a woman is overpowered and subjected to sexual intercourse without her consent.
The Indian Evidence (Amendment) Act of 2002
Previously, Section 155(4) of the Indian Evidence Act permitted the defense lawyer to raise questions about past sexual relationships in order to defile her character. This provision, legally allowed advocates to cross-examine the victim’s prior sexual acts and private matters. It deterred many women to register complaints about rape with the fear that it may sully her reputation and disclose her private life. But in the 2002 Amendment Act, this provision was struck down and a new provision under Section 146 of The Indian Evidence Act was added, which stated that it is not permissible to ask questions which will question the general moral character of the prosecutrix. Thus, preventing unwarranted attacks on the character and private relationships of the victim.
Although a medical practitioner conducting an examination of the victim might inquire about the previous relationships of the victim to correctly interpret the physical and genital findings of the victim.
The Code of Criminal Procedure (Amendment) Act of 2005
Section 53(2) of the Criminal Procedure Code made it mandatory practice for a rape victim to be examined by a female doctor. The provision caused a lot of problems due to the less number of female doctors and their workload with maternity services. It further delayed the process of examination and if even it was conducted, the collection of evidence was inadequate and improper. The Criminal Procedure Code (Amendment) Act of 2005 introduced specific sections for medical examinations of victims of rape, medical examinations of those accused of rape, and investigation by judicial magistrate of custodial rape and deaths.
- Section 164 (A) of CrPC state legal requirements for medical examination of rape victims. The most essential aspect is the consent of the victim. The examination is conducted by any registered medical practitioner employed in a hospital run by the government and in the absence of such practitioner any other registered practitioner. It further mentions in case of the unavailability of a female doctor that it can be conducted by a male doctor if the victim consents to it. The examination must be carried out within 24 hours of the police receiving the report and a resonated report is to be prepared, recording the relevant information.
- Section 53 (A) of the Criminal Procedure Code sets down the requirements of the medical examination of a person accused of rape. Previously there was no explicit provision defining the details of the medical examination of the accused. This section in detail mentions what necessary steps should be taken while conducting the medical examination. The medical examination should be carried out by a registered medical practitioner and the law also states that an immediate medical examination of the person accused of rape must be conducted and a reasoned report is to be prepared.
- Amendments have also been made concerning the inquiry by a magistrate. Section 176 of CrPC states that if any person dies or disappears or rape is alleged to have been committed while the woman is in the custody of police or in any other custody authorized by the magistrate he is authorized to conduct an inquiry within the local jurisdiction.
The Code of Criminal Procedure (Amendment) Act of 2008
The Code of Criminal Procedure (Amendment) Act of 2008 brought changes in situations that hindered the registration process for the victims due to the cumbersome procedure and unsupportive atmosphere at police stations. Section 157 of CrPC dealt with the procedure of investigation of rape, it states that the recording of the of the statement of the victim shall be conducted at the residence by a woman police officer in the presence of her parents.
- The amendment to Section 173 of the Criminal Procedure Code states that investigation concerning the rape of a child must be completed within three months of receiving information.
- The Amendment has brought about progressive changes in providing justice to the victims of sexual assaults. Section 357 (A) mentions that all state governments in consultation with the Central Governments to prepare a scheme for victim compensation. Furthermore, there is also a provision for relief after an inquiry that is to be provided by the state or district legal service authority. This provision has aptly identified the need for monetary support towards the victim.
The Supreme Court judgement in 2000
In the case of, State of Karnataka v. Manjanna; the prosecutrix was a schoolgirl and was raped by the respondent. When the prosecutrix was about to be examined by a medical officer there was an unnecessary delay as doctors would only examine the victims after receiving a request from the police. After examining all the evidence that was presented before the Sessions Court, the court convicted the accused under Section 376 of the Indian Penal Code. However, the High Court of Karnataka reversed the judgment of the Sessions Court. But the Supreme Court set aside the judgment of the High Court and restored the conviction. The Supreme Court also added medical facilities in rural areas where hospitals are less and there are very few female medical examiners, thus refusal to conduct medical examinations results in further delay, and by that time the evidence might get washed away by the complainant herself or be otherwise lost.
In this judgment, the need for the medical emergency of the victim was recognized. It states the right of the victim to directly approach medical services before legally registering a complaint in the police station. The hospital is obliged to examine the victim immediately and can initiate a police complaint later on. This judgment acknowledges the rape victim by voluntary reporting by the victim; reporting on requisition by the police, and reporting on requisition by the court. Unfortunately, this information has not been disseminated to all doctors, and the majority of them still insist on a police requisition before examining a rape victim.
The Delhi High Court judgement 2009
In the case, Delhi Commission for Women v. Delhi Police, the Delhi High Court stated in the judgment specifically mandating a Sexual Assault Forensic Evidence (SAFE) collection kit, for collecting and preserving physical evidence following sexual assault. The court mentioned the details of the contents of the kit, instructions for the examiner, forms of documentation, blood sample collection, paper bags for the clothing collection, etc. The court further added that special rooms should be set up for rape victims for them to be examined in privacy in every hospital. The hospitals and medical staff should cooperate with the police and the investigation and preserve the evidence for it to be produced before the court.
The judgment also stated the presence of a woman police official to comfort the victim and family while registering the complaint. Proper steps should be taken to ensure adequate privacy of the victim and take help from psychologists, psychiatrists, sign language experts, etc should be taken depending on the situation. Further, it mentions providing compensation to the victim in such cases.
Sexual assault is a grave and heinous crime. It is not only a perverted or dehumanizing act but also violates the privacy and sanctity of the human body. Sexual assaults and other atrocious crimes against women are amplifying every passing day in India. Although we have a long way to go in order to secure the absolute safety of women throughout the country, the above mentioned steps taken by the legislature and judiciary will guarantee safety to the women of this country to some extent.
However, active judicial and legislative measures are desperately needed to be incorporated to prevent grave sexual offences. Medical officials and the police force should be informed and educated when dealing with such cases where it involves collection of evidence, preserving the evidence, comforting the victim and her family members, etc. Furthermore, rehabilitating the victim is also essential as sexual assaults cause severe psychological damages apart from physical injuries.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: