Offenses Against Women and Children Under BNS

OFFENCE AGAINST WOMAN AND CHILDREN

The Latin term “rapio,” meaning “to seize,” derives the word “rape.” Thus, rape literally means a forcible seizure. After the 2012 Delhi gang rape case, the Justice JS Verma Committee was appointed. It suggested amendments to criminal law to sternly address Offenses Against Women and Children. Based on the committee’s recommendations, the government enacted The Criminal Law Amendment Act, 2013. The Criminal Law Amendment Act, 2013 changed the definition and scope of the offence of rape.

Sec 63 defines the offence of rape as a man is said to commit “rape” if he-

Rape is a criminal offense that involves a man engaging in non-consensual sexual intercourse with a woman. It involves penetration of the vagina, mouth, urethra, or anus of a woman without consent. This occurs through force, coercion, or deception.

Key elements of rape include:

1. Lack of Consent: Consent must be freely given, informed, and uncoerced.
2. Force or Threat: The act may involve physical force, threats, or intimidation.
3. Deception: Consent obtained by fraud, such as pretending to be someone else, is invalid.
4. Incapacity to Consent: Victims who are mentally incapacitated, intoxicated, unconscious, or underage cannot legally provide consent.

Under the circumstances falling under any of the following seven descriptions:—\

1. Against Her Will

This refers to sexual intercourse done despite the woman’s resistance or opposition. In State of Uttar Pradesh vs. Chottey Lal, the court clarified that “against her will” means intercourse occurred despite her clear resistance. The expressions “against her will” and “without her consent” may overlap.

2. Without Her Consent

Consent is a crucial factor in determining rape. The absence of consent, even without resistance, is enough to constitute rape. In State of Punjab v. Gurmit Singh, the Supreme Court convicted the accused for abducting and raping a girl under threat. The court laid down guidelines for rape trials, stating that the victim’s testimony is sufficient for conviction. You only need further corroboration if there are compelling reasons.

3. Consent Obtained by Threat of Death or Harm

If a woman cannot understand the nature and consequences of the act due to unsoundness of mind or intoxication, her consent is invalid. This coerced consent makes the act of intercourse rape.

4. Consent Given Under Misconception of Identity

Consent given by a woman who believes the man is her lawful husband, but he is not, is not valid. In Bhupinder Singh vs. In the Union Territory of Chandigarh, the man deceived the complainant into marriage while already being married. Such deception invalidates consent.

5. Consent Given Due to Mental Incapacity or Intoxication

If a woman cannot understand the act’s nature and consequences due to unsoundness of mind or intoxication, her consent is invalid. In Tulshidas Kanolkar vs. State of Goa, The Supreme Court held that consent from a mentally challenged woman with undeveloped mental faculties is not valid consent.

6. With or Without Consent When She is Under 18 Years of Age

Sexual intercourse with a woman under the age of 18, regardless of her consent, constitutes rape. The Criminal Law (Amendment) Act of 2013 reinforced this by raising the age of consent from 16 to 18. The Protection of Children from Sexual Offences (POCSO) Act, 2012 also criminalizes sexual offenses against minors.

7. When She is Unable to Communicate Consent

If a woman cannot communicate her consent due to unconsciousness or other reasons, any intercourse with her constitutes rape.

Exceptions:

• Exception 1: Medical procedures or interventions, even if they involve penetration, are not considered rape as they are performed for the victim’s benefit or to collect evidence.
• Exception 2: Sexual intercourse between a man and his wife is not considered rape if the wife is 15 years or older. However, in Independent Thought vs. Union of India, The Supreme Court ruled that intercourse with a girl under 18, even if married, is rape. It struck down the distinction between married and unmarried girls under 18, calling it unconstitutional.

The issue of child marriage and marital rape in India has been addressed in Independent Thought vs. Union of India. The Supreme Court ruled that sexual intercourse with a girl below 18 years of age constitutes rape, even if married. This judgment removed the exception under the Bharatiya Nyaya Sanhita (BNS). It allowed a husband to avoid rape charges if his wife was over 15 years of age.

Key Points:

• Child Marriage Law: Child marriage in India is not completely void but is voidable, meaning it remains legally valid unless one of the parties challenges it. This left room for marital rights, even for underage girls.
• BNS Exception: Prior to this ruling In Independent Thought vs. Union of India, the BNS had an exception stating that a man could not be charged with rape his own wife if she was over 15. This exception created a distinction between married and unmarried girls.
• Supreme Court’s Ruling: The Court held that this distinction between a married girl child and an unmarried girl child lacked any rational basis and was arbitrary. The exception violated fundamental rights under Article 15(3) (protection of women and children) and Article 21 (right to life and personal liberty) of the Constitution.

Section 64: Punishment for Rape

This provision outlines the punishment for rape, particularly in situations where the offender holds a position of authority or power over the victim. Here’s a simplified version:

General Punishment for Rape:

• Anyone who commits rape, except in special cases mentioned below, will face rigorous imprisonment for at least 10 years, which can extend to life imprisonment (meaning for the rest of their life), and they will also be liable to a fine.

Aggravated Rape Cases (Specific Situations):

• The punishment remains the same (minimum of 10 years imprisonment, up to life imprisonment), but it applies to the following aggravated cases:

1. Police Officer:

1. • If a police officer commits rape:
     • (i) within the police station where they are appointed,
     • (ii) in any police premises,
     • (iii) on a woman in their custody or the custody of a subordinate officer.

2. Public Servant:

1. • If a public servant commits rape on a woman in their custody or under the custody of a subordinate public servant.

3. Armed Forces:

1. • If a member of the armed forces, deployed by the Central or State Government, commits rape in the area where they are stationed, they will face legal action.

4. Jail or Custodial Institution:

1. • If a person managing or working at a jail, remand home, or any institution for women or children commits rape on any inmate.

5. Hospital:

1. • If a person working at a hospital commits rape on a woman in that hospital.

6. Person in a Position of Trust or Authority:

1. • If a relative, guardian, teacher, or someone in a position of trust or authority commits rape on the woman.

7. During Communal or Sectarian Violence:

1. • If someone commits rape during incidents of communal or sectarian violence, they will face legal consequences.

8. Pregnant Woman:

1. • If someone commits rape on a woman knowing she is pregnant, they will face aggravated charges.

9. Woman Incapable of Consent:

1. • If someone commits rape on a woman who is incapable of giving consent, they will face severe legal penalties.

10. Position of Control or Dominance:

1. • If a person in control or dominance over a woman commits rape.

11. Woman with Mental or Physical Disability:

1. • If someone commits rape on a woman suffering from mental illness or physical disability, they will face aggravated charges.

12. Causing Serious Harm:

1. • If someone commits rape during which grievous bodily harm is caused, or if the woman is maimed, disfigured, or her life is endangered, they will face severe legal penalties.

13. Repeated Rape:

1. • If the offender rapes the same woman repeatedly.

Definitions:

• Armed Forces: Includes the Navy, Army, Air Force, paramilitary forces, and any auxiliary forces under the control of the Central or State Government.
• Hospital: Refers to the entire premises of a hospital or any medical institution for treatment or rehabilitation.
• Police Officer: Defined as per the Police Act, 1861.
• Women’s or Children’s Institution: Any establishment maintained for the care and shelter of women or children, such as orphanages or homes for neglected women or children.

Section 65 : Punishment for rape in certain cases

The provision referred to under Section 65, which addresses the punishment for rape in specific aggravated cases involving minors, outlines severe penalties aimed at deterring such heinous acts and delivering justice to the victims.

Legal Framework:

1. Rape of a woman under 16 years of age:
   • The law mandates a minimum sentence of rigorous imprisonment for 20 years, which may extend to life imprisonment. Life imprisonment in this context means imprisonment for the remainder of the offender’s natural life. Additionally, the court shall impose a fine on the offender, with the amount determined based on the facts and circumstances of the case.
2. Rape of a woman under 12 years of age:
   • The provision is more stringent when the victim is under 12 years of age. In such cases, the punishment consists of a minimum of 20 years rigorous imprisonment, which may extend to life imprisonment for the remainder of the offender’s natural life, or the death penalty. The offender is also subject to a fine.

Purpose of the Law:

The legislative intent behind these provisions is twofold:

1. Deterrence: To provide a strong deterrent effect against sexual offenses committed against minors by imposing severe penalties, including life imprisonment and the death penalty, for particularly grievous cases.
2. Victim Protection and Justice: The court ensures that the punishment reflects the severity of the offense, particularly when committed against minors, who are highly vulnerable and need stronger legal protections.

Application of the Law:

To better understand the application of this legal framework, consider the following examples:

Example 1: Rape of a 14-year-old girl

• In a case where an individual is convicted of raping a 14-year-old girl, the court, following the prescribed legal standards, would impose a sentence of 20 years of rigorous imprisonment. Depending on the circumstances, the court may decide whether life imprisonment is warranted. Additionally, the offender would be liable to pay a fine, the proceeds of which could be directed toward the victim’s rehabilitation.

 Example 2: Rape of a 9-year-old girl

• In a more aggravated case, involving the rape of a 9-year-old child, the court might take into account factors such as the brutality of the crime, premeditation, or the mental and emotional harm inflicted on the victim. Given the gravity of such offenses, the court could impose life imprisonment for the remainder of the offender’s natural life or, in extreme cases, the death penalty. The offender would also be liable for a fine as mandated by the law.

Judicial Discretion:

While the law provides for harsh penalties, judges exercise discretion based on factors such as:

• The nature and severity of the offense.
• The age of the victim and the circumstances of the case.
• Mitigating factors, including the offender’s background and any other relevant information, which may influence sentencing decisions.

 

Section 66 : Punishment for causing death or resulting in persistent vegetative state of victim

The provision states that if someone commits an offense under sub-section (1) or (2) of Section 64 and, during the offense, causes the woman’s death or leaves her in a persistent vegetative state, they will face severe punishment. The punishment includes:

The court may impose rigorous imprisonment for at least 20 years, which can be extended to life imprisonment, meaning the person will remain in prison for the rest of their life. In the most serious cases, the offender may also receive a death sentence.

Section 70 : Gang Rape

• Gang Rape of a Woman (18 Years or Older):

• If a woman is raped by a group of people or by individuals with a common intent, each person involved is guilty of rape.
• The punishment:
  • Minimum 20 years of rigorous imprisonment, which can extend to life imprisonment (imprisonment for the rest of their natural life).
  • A fine that is fair and reasonable to cover the medical costs and rehabilitation of the victim.
  • The fine will be paid directly to the victim.

• Gang Rape of a Girl (Under 18 Years):

• If a girl under 18 is raped by a group or by people acting with a shared intent, each person involved will be guilty of rape.
• The punishment:
  • Life imprisonment (for the rest of their natural life), or
  • Death penalty in extreme cases.
  • A fine may also be imposed.

Mukesh & Anr vs State (NCT of Delhi)  [(2017) 6 SCC 1]

In this case, the six accused persons, brutally assaulted, tortured, and raped a 23-year-old paramedical student, on a moving bus, before leaving her bleeding on the side of the road late in the night.

Here the victim  succumbed to her injuries after few days of the incident.

So an FIR was registered against the accused person u/s 302, 120-B, 365, 376(2)(g), 377, 201, 395, 396, 412 of Indian Penal Code

Here the Court stated that even if there were mitigating circumstances like young age, dependants and ailing parents, post crime remorse, aggravating circumstances outweighed them, warranting confirmation of death sentence.

Section 76 : Assault or use of criminal force to woman with intent to disrobe

The provision addresses the offense of assault or the use of criminal force against a woman with the intent to disrobe her or compel her to be naked.

Key Elements:

1. Assault or Use of Criminal Force: This applies when an individual either assaults a woman or uses unlawful physical force against her. “Assault” refers to any act that causes apprehension of imminent harm, while “criminal force” denotes the use of illegal physical force.
2. Intention to Disrobe: The act must be committed with the intent of either:

1. • Forcing the removal of the woman’s clothing without her consent, or
   • Compelling her to be naked.

3. Abetment: This also extends to any individual who abets, meaning encourages or assists, another person in carrying out such an act.

Punishment:

• Imprisonment: The perpetrator is subject to imprisonment for a minimum of three years, which can extend to seven years.
• Fine: In addition to imprisonment, the offender is also liable to a fine.

Section 77 : Voyeurism

The provision addresses the illegal observation, capture, or distribution of images of a woman engaged in a private activity where she has a reasonable expectation of privacy.

Key Aspects:

1. Unlawful Observation or Capture: This provision criminalizes:

1. • Watching or recording images of a woman in a private setting, such as while she is changing or using the bathroom, where she expects to be unobserved, is a criminal offense.
   • Actions taken either by the perpetrator themselves or on their instructions to capture or view such private moments.

2. Dissemination: It also prohibits the distribution or sharing of these private images without consent.

Penalties:

• For a First Offense: The offender faces imprisonment for a term of not less than one year, which may extend up to three years, and is also subject to a fine.
• For Subsequent Offenses: On a second or further conviction, the court will increase the punishment to imprisonment for a term of not less than three years, extending up to seven years, along with a fine.

 

CONCLUSION

The Criminal Law Amendment Act, 2013, enacted in response to the 2012 Delhi gang rape case, brought significant reforms to the legal framework addressing sexual offences in India. This act broadened the definition and scope of rape under Section 63 of the IPC, ensuring more comprehensive protection for women. It clarified various circumstances under which consent is invalid, such as situations involving coercion, deception, intoxication, or incapacity to consent.

State of Uttar Pradesh vs. Chottey Lal and State of Punjab v. Gurmit Singh

Key cases like State of Uttar Pradesh vs. Chottey Lal and State of Punjab v. Gurmit Singh have underscored the importance of understanding ‘against her will’ and ‘without her consent’ in rape prosecutions. Additionally, the act emphasizes the necessity of sensitive and respectful treatment of victims during trials, as outlined in the guidelines from Gurmit Singh’s case.

The amendments also introduced severe penalties for sexual offences against minors and cases involving gang rape, with specific provisions under Sections 65, 66, and 70. The act stipulates stringent punishments, including life imprisonment and the death penalty in extreme cases, to serve as a strong deterrent.

Moreover, the amendments addressed specific crimes like voyeurism (Section 77) and assault with intent to disrobe (Section 76), reflecting a broader understanding of sexual violence beyond physical assault.

Overall, the Criminal Law Amendment Act, 2013, marked a significant step towards a more robust legal framework for combating sexual violence, providing better protection for women and children, and ensuring stricter penalties for perpetrators. This legislative response aims to uphold justice, enhance victim protection, and create a deterrent effect to reduce the incidence of sexual crimes in India.