We have listed out below answers to some questions which many women commonly ask regarding rape and sexual assault.
1. As per the law, what falls under the crime of sexual offences?
Based on the Justice Verma report submitted in January 2013, the Parliament passed a Bill in March 2013 which made amendments to the Indian Penal Code 1860, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the Protection of Children from Sexual Offences Act, 2012.
Under this Amendment, insertions have been made in Section 354 to include:
- Definition of Sexual Harassment
- Physical contact and advances involving unwelcome and explicit sexual overtures
- A demand or request for sexual favours
- Showing pornography against the will of a woman
- Making sexually coloured remarks
- Assault or use of criminal force to woman with intent to disrobe or compelling her to be naked in a public place
The act of watching or capturing the image of a woman engaging in a private act without her knowledge.
Private act includes the act of watching:
- Exposure of genitals, posterior or breasts or these being covered only by underwear
- The use of a lavatory
- A sexual act that is not of a kind ordinarily done in public.
- Follows a woman and contacts, or attempts to contact her to foster personal interaction repeatedly despite clear indication of disinterest by the woman
- Monitors the use by a woman of the internet, email or any other form of electronic communication
- Watches or spies on a woman in any manner resulting in a fear of violence, serious alarm or distress in her mind
Amendments under Section 375 include:
- Replacing the word “Rape” by “Sexual Assault”
- A man is considered to have committed an offence under Sexual Assault by the following:
- Penetration of the penis into the vagina, mouth, urethra or anus of a woman by a himself or making another person do so.
- Penetration of any object or any part of body to any extent into the vagina, urethra or anus of a woman by himself or making another person do so.
- Apply of mouth or touching the vagina, mouth, urethra or anus of a woman by himself or making another person do so.
- The above is considered an offence under the following circumstances:
- Against the will or consent of the woman.
- With her consent but under threat or duress.
- With her consent when she believes that she is married to the man when the man is aware that they are not lawfully married.
- With her consent but under the influence of intoxication, administration of stupefying or unwholesome substances or by reason of unsoundness of mind.
- With or without her consent when she is under 18 years
- When she is unable to communicate consent
2. Am I responsible for the sexual assault on me?
No. The causes for sexual assault/rape are generally motives of power, i.e., putting a woman in her place, revenge, politics, influence of pornography, liquor & drugs.
3. What is the evidence required to build a strong case?
Generally, the only evidence is that of the victim’s. Witnesses are available only in few cases. It is important to build evidence as it is usually lost during the period of shock and trauma. It is important that the survivor does not change her clothing or bathe as this will erase valuable evidence such as semen, blood, hair, skin samples, etc required to convict the culprit. The case should be built up during the investigation stage. The requirements of the Evidence Act should be complied with.
4. What is the first step that I should take?
You should lodge an FIR at the police station under the whose jurisdiction the assault/rape occurred. The FIR may be filed by the survivor or a witness.
The crime should be reported as soon as possible. Photos should be taken if possible.
5. What should I do if the police refuse to lodge the FIR?
If the crime is being ignored by the police, then you can file a petition before the lower court. The court will direct the police station concerned to investigate the crime. The police officer concerned is punishable by law for refusal to take a complaint.
6. Can I go to any hospital for the medical examination?
Medical examination should be at a government hospital as the medico-legal certificate can only be issued by the government hospital. Even if you go to a private doctor or hospital for first aid, s/he or the hospital cannot issue a medico-legal certificate. This certificate is required to fight the case in court.
7. What happens after the FIR and medical examination stage?
The accused is arrested.
8. What is the legal process after the arrest?
- The accused is produced before the Magistrate within 24 hours after the arrest (usually the defense will move a bail petition however bail is usually not granted).
- The accused is then remanded to judicial custody.
- The trial begins only after the charge sheet.
- After the charge sheet, the accused appears before the magistrate If the accused does not appear then a non-bailable warrant is issued. The trial is pending till the accused surrenders.
- Trial begins in the session’s court depending on the jurisdiction of the Police Station.
9. When is the accused likely to get bail?
Bail is granted usually after 90 days (sometimes 60 days) of judicial custody to prevent the accused from intimidating the survivor and witness/es.
10. Can I engage a private lawyer to fight my case?
Your case will be represented by the public prosecutor. Your private lawyer can assist the public prosecutor. However during the course of the trial, if you are unhappy with public prosecutor’s handling of your case, then you may petition the court for your case to be handled by a lawyer of your choice. This is provided for under the Nirbhaya Act.
11. What is happens if there is no witness/es or if they don’t turn up when called for by the court?
The court will go by circumstantial evidence.
12. Supposing I win the case in the session’s court, can the accused file an appeal in the High Court?
Yes. If you win the case in the session’s court, the accused can file an appeal in the High Court. Similarly, if you again win in the High Court, the accused may file an appeal in the Supreme Court.
13. Can I ask for the case to be tried in a fast track court?
The High Court decides whether a case goes to a fast track court.