SEXUAL ASSAULT

Written by: ANUKSHA ROY

“You are not victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth and ragging courage.”

INTRODUCTION

In the light of the circumstances, we all have been witnessing for quite a long period of time it would not be wrong to call it “Sexual Terrorism” instead of “Sexual Assault”. Year after year when we expect it to get better it keeps getting worse. That’s a shame cause us humans like to call ourselves civilised and superior to others species; because we believe we have the ability to think, we have the ability to distinguish between right and wrong, because we have conscience. But do we? Every year cases of sexual assault rise to 6.3% on an average in India[1] which is shameful its just one country in this vast arena whereas Australia has an average increase of 4%.[2] America has nearly 22.02 million victims on an average[3] (2017). Every 73 seconds someone is sexually assaulted in America[4]but in a recent report we are being told that about 86% of the cases are unreported in India.[5] As a common understanding we think sexual Assault is a crime against women that’s not the real scenario; indeed women are victimised largely but men are also victims of sexual assault. Overall according to World Health Organisation 84% of total cases of sexual assault are against women that means the remaining 16% of it are against men. Women are largely and commonly victims of sexual assault.

“If I have 3 daughters the one of them will experience physical sexual violence in their lifetime; so should I burn my womb or teach them how to be breathe fire.”

- Shatara Liora.

WHAT IS SEXUAL ASSAULT ?

Sexual assault is any physical sexual behaviour which is done purposely against the will of the victim with a motive to make them uncomfortable, scared or threatened. ( Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.)[6]

Sexual Assault includes passing coloured remarks, forcing to watch pornography against one’s will, intruding into private space of the victim or feasting eyes on the victim when they believe to be alone (Washrooms, trial rooms etc); it covers a wide range of unwanted sexual behaviour as a way to assert power and dominance over the victims. Sexual assault is a serious crime under the shadows; most of the cases of sexual assault are burnt to bones before they could be reported. This article focuses primarily on mostly rape and child sexual abuse because these two crimes are among the most ubiquitous and atrocious of all, and people encounter horrifying cases every day. There have been innumerable amendments and revisions to restrict these in order to protect the victims, yet the number of cases continues to increase year after year.

1. Rape: Sexual Assault which includes sexual intercourse or any kind of penetration against the consent of victim is rape. Section 375 of the Indian Penal code mentions rape as a sexual intercourse with a woman :

● Against her will

● Without her consent

● Consent by coercion or fear of death or hurt

● Consent while involuntary intoxication or unsoundness

● With or without the consent of a minor (16 or less)

1. Child Sexual abuse: when an adult or adolescent engages in sexual activities with a child or using a child for child pornography. Globally its estimated 19.7% of the females and 7.9% of the males are subjects of child sexual abuse. Mostly the offenders are relatives or acquaintances who are trusted by the minor and / or their families. Section 377 of the Indian Penal Code mentions child sexual abuse. POSCO Act[7] 2012 provides provisions against sexual assault, sexual harassment and pornography while safeguarding the interest of child at every stage of the judicial process.

CASE LAWS

India has enormous number of strict and stringent legislative provisions for women to safeguard their interest and protect them from violence, sexual harassment, rape etc. but still the cases of each are increasing day by day at a high pace. There are certain cases which stand out and have made landmark judgements by the Supreme Court of India and have changed the existing laws to a large extent.

1. Mathura Rape Case [8]

In the Mathura rape case, a tribal girl named Mathura was raped by two policemen while she was held in custody. This incident took place on 26th March 1972 at the Desai Gunj Police Station in Maharashtra. This was a case of custodial rape[9]. This case pointed out so many issues in the existing Indian Rape Laws like the issue of consent, reference of two finger test and reference of girls sexual history. The case was originally filed in a Session court where the defendants were not held guilty and it was held that Mathura gave her consent voluntary and that it was a not a case of rape. The case was then further appealed in the Bombay High Court the judgment by the sessions court was respected that there is a difference between voluntary sexual intercourse and rape but the Bombay High Court held that there is also a difference between consent and consent interfered by coercion and thus the two policemen are guilty because Mathura’s consent was obtained by serious threats and it was not voluntary. Later the case was taken upto the Supreme Court where the judgement of the Bombay high court by superseded and the accused were acquitted on the basis that there were no signs of injury was found also that there was no proof that the consent was involuntary. Also as a fact it was held that girl might have incited the cops as she was habituated to sexual intercourse and thus this did not amount to rape.

After the judgement was passed a series of protests broke out against the Indian Rape laws because at the time rape laws were heavily biased towards the rapists. The main question that was raised after the Mathura Rape case was regarding consent because its so difficult for women to proof whether they consented or not. After the Mathura case The Criminal Amendment Act 1983 brought some significant changes in the Indian Rape Laws.

1. Bhanwari Devi Case[10]

This case was regarding protection of women against sexual harassment at work place. In 1992 a low caste social worker in Rajasthan named Bhanwari devi was trying to stop a child marriage and was gang raped by five men of the upper class community. She filed a complaint but no investigation was intiated. This case raised a question that whether employer has any responsibility in case of sexual harassment by its employee or to its employee at a workplace. The accused were acquitted in the trial court due to lack of medical shreds of evidence. Due to this judgement again baised in the favour of the rapists a PIL was filed in the Supreme Court of India. Further the Supreme Court held that sexual harassment at workplace will violate a woman of her fundamental rights of gender equality, right to life and liberty under Articles 14,15,19,21 of the Indian Constitution. This judgment led to the enactment of Sexual Harassment of women at workplace(prevention, prohibition, and redressal)Act 2013.

1. The Nirbhaya Rape Case[11]

In 2012, Delhi witnessed a gang rape which shook the conscience of the entire country and turned all the rape laws upside down. A 23 year old woman was brutally raped repeatedly by 5 adults and one minor in a moving bus in Delhi on the night of 16th December 2012 she was penetrated by an iron rod and had her intestines pulled out. One of the accused in the case was a minor of 17 years and was tried as a juvenile. Due to this the age of being tried as an adult for violent crimes was changed from 18 to 16. One of the accused hanged himself while the others were sentenced to death early in 2020 by a bench of Justices Dipak Mishra, R Banumathi and Ashok Bhushan it was a unanimous decision to give the 4 death penalty. After the incident a panel was set up under the chairmanship of JS verma (Former CJI) which recommended the changes in Indian Rape Laws.

CONCLUSION

In conclusion to this article it could be said that in spite of all the changes that are made by the government the crimes of sexual assaults and rape still continue to increase at sprinting rate. The statistics keep getting worse and numerous of cases are still unreported which gives a hand to these offenders to continue committing such crimes and not being punished for it. What is heart breaking is the fact that such crimes not only hurt physically but damages the victim emotionally. Anciently the word ‘rape’ which has been originated from the latin word ‘rapere’ which means to snatch or grab and a roman word ‘raptio’ which means kidnapping as it was never a crime of sexual violence but it was more of theft of property where women were objectified as property of husbands or fathers. That is the history which we come from and it still remains to be the part of the society which we claim to be have advanced.

‘There remains what seems like an impenetrable wall of silence around violence and we must all play a role in breaking this silence’

Reece Wi

[1] The Wire: A closer look at Statistics on Sexual violence in India. [2] WA Health [3] NISVS 2017 data brief [4] RAINN.org [5] Livemint.com [6] Section 354 (criminal Law(Amendment) Act,2013) [7] The protection of children from sexual offences, 2012(Act no. 32 of 2012) [8] Tuka Ram And Anr V. State Of Maharashtra, AIR 1979 SC 185 [9]Custodial rape is rape perpetrated by a person employed by the state in a supervisory or custodial position, such as a police officer, public servant or jail or hospital employee. [10] Vishakha Vs State of rajasthan and ors., JT 1997(7)SC 384 [11] Mukesh & anr Vs State of NCT of Delhi and ors