The Criminal Laws Amendment related to sexual offences

Summarising some of the key changes in the various laws related to sexual offences.

250917879_a4bf25f6e4_b The Delhi gang rape episode in December and the subsequent public outcry have led to some significant legislative changes. The central government constituted a committee chaired by Justice JS Verma to suggest changes to various criminal laws to increase protection to women from sexual crimes. After the Verma Committee presented its report, the central government promulgated an Ordinance that incorporated some of its suggestions. Subsequently, a Bill was passed in Parliament, with several changes from the Ordinance. In this note, we summarise some of the key changes in the various laws.

The Indian Penal Code (IPC) has been amended to specify new offences, modify definitions of some offences, and enhance penalties. There are also procedural changes. The IPC is amended to penalise any public servant who fails to record information related to offences such as stalking, voyeurism, rape, acid attacks, trafficking etc. The new Act amends the Code of Criminal Procedure to require that any complaint by a woman related to these offences should be recorded by a woman police officer. It removes the requirement of sanction for prosecution by a public servant for these offences (though, the provision is retained in cased of armed forces).  The new Act also amends the Indian Evidence Act: in case of rape, it prohibits admission of evidence or cross-examination related to the victim’s moral character or previous sexual experience. These amendments are expected to ease filing of cases, as well as protect victims from harassment during the trial process.

The Ordinance had replaced the offence of ‘rape’ with that of “sexual assault” in which both the perpetrator and the victim could be of either sex. The Act passed by the Parliament reverts to the earlier concept that rape can be perpetrated only by a man on a woman.  It expands the definition to include penetration of private parts by objects etc. It specifies that the penalty for gang rape would be at least twenty years, and could be life imprisonment (i.e., until the person dies). It also prescribes life imprisonment for repeat offenders, and life imprisonment or death penalty if the victim dies or causes her to be in a persistent vegetative state. It has enhanced penalties for offences committed by those in positions of authority or fiduciary position.

One of the contentious provisions emanates from the PCSO Act that was passed last year. The IPC had the age of consent at 16 years, i.e., consent by any woman below that age was not valid, and would be considered as rape. The PCSO Act raised this age to 18 years. The Verma Committee recommended a decrease to 16 years but both the Ordinance and the new Act have amended IPC to make this 18 years, and consistent with the PCSO Act. The National Commission for Women had recommended that an exception should be made if the victim was above 16 years of age, and the age difference was less than five years; the objective was to prevent criminalising consensual sex between young persons (when the woman was at l6 years old). This recommendation has not been accepted.?
Another contentious provision relates to marital rape. The IPC exempts any sexual act by a man with his wife, if she is at least 15 years old.  That is, it assumes that the act of marriage implies consent. The Verma Committee and the National Commission for Women had recommended that this exemption be removed. The Ordinance raised the age of the wife to 16 years.  The new Act has reverted to the earlier provision of 15 years, i.e., marital rape is not an offence if the wife is 15 years old.?
The IPC now includes acid attacks, sexual harassment, stalking and voyeurism as offences. Acid attacks will carry penalty ranging from 10 years imprisonment to life imprisonment; attempt to commit this offence will carry penalty of five to seven years.  Sexual harassment is defined as an action by a man that includes physical contact involving unwelcome and explicit sexual overtures, demand for sexual favours, showing pornography against the will of a woman, or making sexually coloured remarks.  The penalty is imprisonment up to three years.  It is pertinent to note that Parliament has also passed a separate law in this session regarding sexual harassment of women at the workplace.

Stalking is defined as repeated attempts to follow or contact a woman despite her disinterest, or monitoring her use of internet, email or other electronic communication.  The penalty is imprisonment of up to three years for the first conviction, and up to five years for subsequent convictions. Voyeurism is defined as the viewing or capturing the image by a man of a woman engaging in a private act.  The penalty is imprisonment of one to three years for the first conviction, and three to seven years for subsequent conviction.  The definition of this offence and penalty differ from a similar offence defined in the Information Technology Act. That Act penalises the capture of images of private parts of both men and women, and prescribes a penalty of up to three years imprisonment.

The Ordinance included several offences for which the penalty was greater than that prescribed under the Protection of Children from Sexual Offences Act, 2012 (PCSO Act).  The Bill that was passed by Parliament amends the PCSO Act to state that if the penalty for these offences is higher in the IPC, the higher penalty would apply.

This amendment Bill makes significant changes to criminal law. These include several contentious provisions such as the increase in the age of consent and the lack of change in law to make marital rape an offence. The Bill was not referred to the standing committee for examination (though an earlier version was).  The final Bill was introduced on 19th March, and passed the same day by Lok Sabha, and a couple of days later, by Rajya Sabha.  Perhaps, Parliament should follow the practice (laid down in the Rules, but occasionally waived) of waiting at least a couple of days after introducing any Bill before discussing and passing it.

Photo: Sgt. Pepperdejane