*** This resource was first published on Dec 31, 2017 as a ready reckoner for women facing sexual harassment on New Year’s Eve
New Year’s Eve often ends badly for women revelers in India. While the mass molestation of women in Bangalore in 2016 is still fresh in public memory, there have been similar incidents even in Mumbai, a city known for its relatively safe environment. But it is not just the beginning of the year. Street sexual harassment, sexual assault and rape are also common throughout the year in both, urban as well as rural India. According to the National Crime Records Bureau (NCRB) 38,947 cases of rape were registered across India in 2016 alone! We have compiled here, the various sections of the law that apply to molestation, sexual harassment and rape in India. We have also compiled a list of things you can do to file a police complaint in case of inappropriate sexual contact.
But before we get an understanding of the law, it is important to know a few things:
1) Rape is NEVER the survivor’s fault: What you wear, how you talk or behave, your sexual history, alcohol consumption, beauty, age, where you go, at what time of the day you are out of your home etc. are irrelevant. 8 month old babies are raped, as are 8 year old boys and 80 year old grand mothers. Sex workers are raped, as are nuns. Rape happens because the perpetrator willfully and deliberately assaults the survivor. Rape is an act of targeted, gendered violence. It can take place within relationships and also be perpetrated by a stranger.
2) SC has scrapped the Two finger test: The Supreme Court has held that the two-finger test on a rape survivor violates their right to privacy. The SC has asked the government to provide better medical procedures to confirm sexual assault. The two finger test is an outdated method to determine the presence or absence of the hymen and the laxity of the vagina. The findings of this test are used just to discredit the survivor by shaming them for their previous sexual activity. Nobody has the ‘right’ to rape you, even if you are a sex worker! Also, no doctor has the right to insert their fingers into your private parts.
3) Rape is not the loss of your ‘honour’: As soul crushing it is to have your bodily privacy invaded violently, your ‘honour’ does not lie between your legs. Also, the ‘dishonour’ lies with the perpetrator of the despicable act and it is the perpetrator who should be shamed and punished as per the law, not the survivor.
4) Rape is gender neutral: Women, men and trans-gender people can be both survivors as well as perpetrators of rape.
Sexual Assault and Rape Laws
Everyday new instances of sexual assault and rape are brought to light in India. Rape laws in India begin with section 375 of the IPC, according to which:
A man is said to commit the offence of rape with a woman under the following six circumstances:
1. Sexual intercourse against the victims will,
2. Without the victims consent,
3. With her consent, when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt,
4. With her consent, when the man knows that he is not her husband,
5. With her consent, when at the time of giving such consent she was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent,
6. With or without her consent when she is under sixteen years of age.Further explanation provided to the section states that penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape, whereas the exception leaves out marital rape altogether if the wife is not under fifteen years of age.
1. Sexual intercourse against the victims will,
2. Without the victims consent,
3. With her consent, when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt,
4. With her consent, when the man knows that he is not her husband,
5. With her consent, when at the time of giving such consent she was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent,
6. With or without her consent when she is under sixteen years of age.Further explanation provided to the section states that penetration is sufficient to constitute the sexual intercourse necessary to constitute the offence of rape, whereas the exception leaves out marital rape altogether if the wife is not under fifteen years of age.
While there are different sections of the law that deal with technical and custodial rape, the subject of marital rape is still being debated given how sex with a minor is technically rape, but not considered rape if the minor is the wife of the perpetrator and is above 15 years of age.
Other relevant sections of the law include:
Section. 376(A) that punishes sexual intercourse with wife without her consent by a judicially separated husband.
Section. 376(B) that punishes for sexual intercourse by a public servant with a woman in custody.
Section. 376(C) that punishes sexual intercourse by superintendent of jail, remand house, etc. whereas,
Section. 376(D) that punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.
Section. 376(B) that punishes for sexual intercourse by a public servant with a woman in custody.
Section. 376(C) that punishes sexual intercourse by superintendent of jail, remand house, etc. whereas,
Section. 376(D) that punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital.
Now that we have discussed the laws applicable to rape, it is important to delve into laws related to similar offenses:
Understanding Sexual Harassment
The first time sexual harassment was clearly defined was in the judgement delivered in the Vishaka Vs State of Rajasthan 1997 case. A bench comprising the then Chief Justice JS Verma, SV Manohar and BN Kirpal had delivered a landmark ruling where sexual harassment was defined as:
“unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.”
Outraging the Modesty of a Woman
This is a common section of the law under which people are booked in cases of molestation and street sexual harassment, colloquially known as ‘eve teasing’. Section 354 in The Indian Penal Code deals with Assault or criminal force to woman with intent to outrage her modesty
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Obscene Acts
Harassment can also take place when the perpetrator engages in an obscene act such as exposing private parts or masturbating in public etc. In such cases, section 294 of IPC is applicable. According to this:
Whoever, to the annoyance of others—
(a) does any obscene act in any public place, or(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Tips for dealing with the police
In case of any kind of sexual violation, it is important to inform the nearest police station at the earliest. If you don’t want to go alone, take a friend, parent, partner, family member or trusted adult along with you. Infact, as per the law, the survivor can file a complaint without having to actually be physically present at the police station. The cops will come to your location to take your statement.
Critically in cities like Mumbai, in response to the wider consciousness on the issue, the police have set up specific “Children and Women Safety Cells” online. For example, this link( https://mumbaipolice.maharashtra.gov.in/womensafety.asp) enables and empowers citizens to be pro-active and act.
To quote, the Mumbai Police says, “Violence against you is not your fault. Violence is not anyone’s right. Don’t hesitate, don’t be afraid to call for help.
Call 103 – 24 hour helpline for crime against women in Mumbai and the police will be there immediately to take action. It is up to you to make that call.”
Call 103 – 24 hour helpline for crime against women in Mumbai and the police will be there immediately to take action. It is up to you to make that call.”
Every city has such an option. Here are a few helpline numbers for women from other cities of India.
Evidence is paramount in such cases, so ensure you don’t unknowingly or accidentally tamper or destroy any evidence. Private parts should not be washed so that the perpetrator’s DNA can be collected and used as proof against them to prosecute them. All clothes, including underwear should be preserved and not washed before submission as evidence for the same reason.
In case of sexual harassment, see if it is possible to take pictures of the perpetrator. But don’t put yourself in danger while trying to take a picture. It is wiser to run away rather than remain in a situation that could escalate quickly if the perpetrator decides to take things up a few notches.
To help a survivor of rape or sexual assault overcome the trauma of the incident, assist her to find a counsellor. Here are a few phone helplines she could turn to.
Dilaasa, Mumbai
Tel: +91 22 2640 0229
Timings: 9 am to 4 pm (Monday–Friday)
9 am to 12 noon on Saturday
iCall, Mumbai
Tel: +91 22 2556 3291
Monday to Saturday, 10 am to 10 pm
Email: icall@tiss.edu
Facebook: www.facebook.com/helplineicall
Twitter: @iCALLHelpline
Vandrewala Foundation, Mumbai and Delhi
Tel (Mumbai): +91 22 2570 6000
Tel (Delhi): +91 11 6642 9999
Tel (All-India): 1 860 266 2345
Email: help@vandrevalafoundation.com
A Few Recent Developments
Of late feminists have been insisting that the word ‘survivor’ be used instead of ‘victim’. The contention is just because somebody has been raped, their life or will to live does not and should not end. If you are not dead, you are a survivor, not a victim. Also, though women are usually targeted more, rape survivors and perpetrators can be women, men and transgender people. There is therefore, a growing push to make rape laws gender neutral.
***The feature image illustration is inspired by a German poster for International Women’s Day, March 8, 1914. This poster was banned in Germany. [Plakat für den Frauentag am 8. März 1914]
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