Friday, 17 March 2017

Tanishka Mandal

Sexual Assault : Know where the line is

sexual assault know where the line is- lawji.in
Sexual Assault is a sexual contact or behavior. It occurs without the explicit consent of the victim. It is a form of sexual violence. It ranges from attempted rape and child sexual abuse, to torturing a person in a sexual manner. Sexual assault is a crime of violence, of power and of control in which sex is used as a weapon. It is a crime which extends over all age, sexual orientation, religion and gender. It affects people of all socioeconomic backgrounds and educational levels, both directly and indirectly. Sexual violence is always a weapon of the perpetrator to hurt and dominate others. Sexual violence is never a survivor’s fault.

The victim is considered as incapacitated if he or she is not mentally able to understand the nature of the sexual acts, or if the victim is physically incapable of expressing their unwillingness to participate in the sexual act. Use of alcohol or date rape drugs, give rise to these charges as both of them make it impossible for the victim to legally consent the sexual conduct.

Today, sexual assault laws cover the non consensual sexual conduct that take place between people irrespective of their sex or age. For example, an involuntary sexual conduct between two men, two women or two children, etc. and not just between an adult man and woman, is now covered by most of the sexual assault laws. For some sexual assault has become an umbrella term for other crimes like rape and unwanted sexual contact, whereas some distinguish between crimes involving penetration and crimes involving coerced or involuntary touching, which makes the former an aggravated or first-degree sexual assault and the latter a lower-level sexual assault. Sexual assault is the showcasing of male dominance. If men, committing sexual assault, are given an opportunity will definitely try to fulfill their desires.


Legal Provisions

In Constitution of India, Article 21 guarantees right to life with dignity. In this context, the apex court said that :

“The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.”

The Supreme Court of India held that sexual harassment violates the most cherished fundamental right, namely, the right to life contained in Article 21.

Article 15(3) of the Constitution of India states that a state can make provisions for women and children for safeguarding their interests. Under this article, various laws for the safety of the interests of women were passes. These include a new Sexual Assault Law (Nirbhaya Act), Workplace Harassment Law, Domestic Violence Act, and many other laws.

The Constitution of India as enshrined under Article (19)(1)(g) ensures and guarantees every individual the right “to practice any profession, or to carry on any occupation, trade or business”.

Under this every woman has a constitutional right of participating in public employment. The process of sexual harassment, compelling woman to keep away from such employment, infringes this right.

With increase in rate of women participation in workplaces legislature found it necessary to enact Act that focusses on the prevention and redressal of Sexual Harassment at workplace and named the act as, The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Section 354 of Indian Penal Code (IPC) deals with Assault or criminal force to woman with intent to outrage her modesty.

Under section 354A of Indian Penal Code(IPC) a man who commits following acts:

i) Physical contact and advances involving unwelcome and explicit sexual overtures;

ii) Making a demand or request for sexual favours;

iii) Showing pornography against the will of the woman;

iv) Making sexually coloured remarks,

Shall be guilty of committing the offence of sexual harassment.



Case Laws :
Vishakha v. State of Rajasthan
In Bhateri (Rajasthan), a woman named Bhanwari Devi used to work as a social worker for Women’ Development Programme working on a campaign to end child marriages. And as a part of her job, she directly worked with the families for preventing the child marriages and cases which required immediate follow-up were reported to the police. Bhanwari, during the course of work, reported a gujjar family, who were arranging the marriage of a one-year old infant, to the police. The gujjar family, upset with the intervention, rebelled against Bhanwari and five men gang-raped her. Bhanwari went to the police for help but was asked to leave. And when she reported the case in the jaipur trial court, all the five men were acquitted by the court as she didn’t had any solid evidences, she also lacked medical evidences.


In support of Bhanwari, Vishakha, a Group of Women’s Education and Research along with four other women organisations filed a petition in the Supreme Court of India. The issue for the petition filed was sexual harassment at workplace.


The court, after its analysis, concluded that the sexual harassment at the workplace is the violation of the women’s human rights, including:


Constitution of India


Article 14: Equality before law


Article 15: Prohibition of Discrimination on the grounds of religion, race, caste, sex or place of birth


Article 19(1)(g): Right to practice one’s profession, or to carry on any occupation, trade or business


Article 21: Right to life and personal liberty


The court recognised sexual harassment in the workplace as “social problem of considerable magnitude” and discriminatory form of violence against women (VAW).


Conclusion

Sexual assault is a serious social and public health issue all over the world. Women are the victims whereas men are nearly always the perpetrators. A majority of women are sexually assaulted by men they are well acquainted with, which makes it difficult for the women to report such a case. People don’t have a clear image of what sexual assault is. When a group of people was given different situations and were asked to decide which of the situations contained sexual assault, it was revealed that people doesn’t have an accurate knowledge of sexual assault. In large number of cases, incidents that met all the legal essentials of sexual assault were not reported only because the women victim do not perceive it to be sexual assault. Heightened awareness and education can reduce the cases of sexual assaults.