Sexual Harresment & Rape

 Sexual Harresment & Rape 

SEXUAL HARASSMENT (under IPC)

ORIGINAL JURISDICTION:

Metropolitan Magistrate

 

BRIEF:

Under the Indian Penal Code, 1860 the following sections are related to the offence of sexual harassment:

SECTION :356
Offence: Outraging the modesty of a woman assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that modesty would be outraged.
Punishment: Simple/Rigorous imprisonment for a term which shall not be less than one year but which may extend to five years; and fine
Cognizable/ Non-cognizable : Cognizable

Section: 354 A
Offence: Sexual harassment by a man

 

1. Physical contact and advances involving unwelcome and explicit sexual overtures;

2. Demand or request for sexual favours;

3. Showing pornography against the will of a woman; or

4. Making sexually coloured remarks.

Punishment: Offences (i),(ii) abd (iii) are punishable with rigorous imprisonment for a  term which may extend to three years, or with fine, or with both.

Offence (iv) is punishable with simple/rigorous imprisonment for a term which may extend to one year, or with fine, or with both.

Cognizable/ Non-cognizable: Cognizable

Section: 354-B
Offence: Assault or us of criminal force to woman with intent to disrobe

Assault or use of criminal force to any woman or abetment of such act with the intention of disrobing to compelling her to be naked.
Punishment: Simple/Rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and fine.

Cognizable/ Non-cognizable: Cognizable

 

Section: 354 C
Offence: Voyeurism

Watching, or capturing the image of a woman engaging in a private act in circumstances where she would usually have the exception of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image.
Punishment: First Conviction: Simple/Rigorous imprisonment for a term which shall not be less than one year, but which may extend to three years, but which may extend to three years, and fine.

 

Second or subsequent Conviction: Simple/Rigorous imprisonment for a term which shall not be less than three years, but which may extend to seven years, and fine.

 

Cognizable/ Non-cognizable: Cognizable

 

Section: 354 D
Offence: Stalking

Following a woman and contacting or attempting to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or Monitoring the use by a woman of the internet, email or any other form of electronic communication.
Punishment: First Conviction: Simple/Rigorous imprisonment for a term which may extend to three years, and fine.

Second or subsequent conviction: Simple/ Rigorous imprisonment for a term which may extend to five years and fine

Cognizable/ Non-cognizable: Cognizable

 

Section: 509
Offence: Insulting the modesty of a woman

Uttering any word, making any sound or gesture, or exhibiting any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by a woman, with an intention to insult her modesty, or intruding upon the privacy of such woman.
Punishment: Simple imprisonment for a term which may extend to three years, and fine.

Cognizable/ Non-cognizable: Cognizable

RAPE

ORIGINAL JURISDICTION:

Triable by Court of Session

BRIEF:

‘Rape' under the Indian Penal Code has been divided into two parts under section 375 as follows:

 

non-consensual penetration of any orifice (vagina, anus, mouth, urethra) in a woman by a man, OR,

non-consensual touching of any orifice with the mouth. This is not restricted to having sex. Forcing a woman to do this to herself, or with someone else, is also rape.

The court will usually decide, if the act of rape has been committed, on the basis if the following grounds:

If the Act took place without her consent, or

If she had agreed only because she, or someone she knows was in danger, or

If she had agreed, because she was under the impression that the accused person is her husband, or

If she had agreed, but she was under the influence of drugs, or alcohol, or mentally ill, or

If she was under 18 years of age - then it does not matter if she gave consent or not, or

If she was in no position to indicate whether she is giving consent or not - for example, if she is unconscious.

 

Thus, ‘Consent’ plays a very important role here and has been defined as a clear and voluntary communication that the woman agrees to the specific sexual act, which leaves no room for any debate. It also made clear that the absence of any kind of physical injuries is totally immaterial for deciding whether consent was given or not.

Section 375. Defines ‘Rape’ as:

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.