Sexual Offence and Assault Against Woman and Child Under BNS, 2023

The Sexual Offence and Assault Against Woman and Child under BNS, 2023 represents a pivotal piece of legislation aimed at addressing and curbing the rampant issue of sexual violence against women and children. This legal framework is a comprehensive effort to define, penalize, and prevent various forms of sexual offenses, providing a protective shield for some of the most vulnerable groups in society. 

As societal awareness and intolerance towards sexual violence grow, the Bharatiya Nyaya Sanhita (BNS), 2023, stands as a testament to the legal system's evolution in recognizing and combating these heinous acts. Through stringent penalties, rehabilitative measures for victims, and preventive strategies, the legislation not only seeks to punish offenders but also to deter potential crimes. It underscores a significant shift towards ensuring safety, justice, and support for survivors, marking a critical step forward in the ongoing battle against sexual violence.

The detailed definition of rape as outlined in Section 63 to section 79 of the Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant approach to addressing sexual violence against women, emphasizing consent and the various conditions under which consent is invalidated. This legislative framework reflects a comprehensive understanding of the complexities surrounding the issue of consent and the myriad ways in which sexual assault can occur.

BNS, Section 63: Definition of Rape

Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, as described, outlines the legal definition of the crime of rape within this hypothetical or future legal code. The section categorically defines rape through specific actions that involve non-consensual penetration or sexual acts. Here's a breakdown of each part for clearer understanding:

Types of Actions Constituting Rape:

(a) Involves any form of penetration by the penis into the vagina, mouth, urethra, or anus of a woman, or compelling her to do so with him or another person.

(b) Includes the insertion of any object or a body part (other than the penis) into the vagina, urethra, or anus of a woman, or compelling her to do so with him or another person.

(c) Entails manipulating any part of a woman's body to cause penetration into her vagina, urethra, anus, or any body part, or making her do so with him or another person.

(d) Covers the act of applying one's mouth to the vagina, anus, or urethra of a woman, or making her do so with him or another person.

Circumstances Under Which Consent is Considered Invalid:

• (i) Against her will.
• (ii) Without her consent.
• (iii) Consent obtained through fear of death or harm.
• (iv) Consent given under the belief that the man is her husband or someone she is lawfully married to.
• (v) Consent given while unable to understand the nature and consequences of the act due to mental unsoundness, intoxication, or the influence of stupefying substances.
• (vi) Whether with or without her consent, if the woman is under eighteen years of age.
• (vii) When the woman is incapable of communicating consent.

This section comprehensively addresses various scenarios where an act can be legally categorized as rape, emphasizing the absence of consent or the invalidity of consent under specific conditions. The inclusion of scenarios involving manipulation, the use of objects, or intoxication broadens the traditional definition to cover a wider range of non-consensual sexual activities. This approach signifies an evolved understanding of sexual crimes, focusing on the protection of women's autonomy and consent.

Definition of Consent

Explanation - 02 of Section 63 of Bharatiya Nyaya Sanhita (BNS), 2023 Says

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

Explanation

In simple terms, consent means that a woman clearly agrees to take part in a sexual activity. This agreement can be shown through words, actions, or any other way of communicating, like nodding yes or verbally saying "I agree." It's important to know that just because a woman doesn't say "no" or doesn't fight back, it doesn't mean she's okay with what's happening. Consent must be clear and given freely; silence or not being able to say "no" doesn't count as agreeing to the sexual activity.

Exceptions

A medical procedure or intervention shall not constitute rape.

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

Explanation:

A medical procedure or intervention shall not constitute rape: This means if a doctor or healthcare professional performs a medical treatment or procedure that involves touching private parts of the body, it's not considered rape. This is because such actions are done for health reasons, not for sexual reasons, and are part of the treatment.

Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape: This statement says that if a husband and wife, where the wife is 18 years or older, have consensual sexual relations, it's not considered rape. This is based on the assumption that within a marriage, sexual activities are part of the relationship. However, it's important to note that this view on marital relations and consent can vary greatly and is subject to legal and societal debate.

BNS, Section 64: Punishment For Committing Rape

This legal provision outlines the punishment for committing rape, distinguishing between general circumstances and specific, more aggravated situations that warrant harsher penalties. Here's a breakdown:

General Circumstance:

Sub-section (1): It states that anyone who commits rape, outside of the exceptions listed in sub-section (2), faces a minimum of ten years in rigorous imprisonment, which may extend to a life term, in addition to being liable for a fine.

Aggravated Circumstances:

Sub-section (2): This outlines specific conditions under which the crime of rape is considered even more serious, leading to a minimum of ten years to life imprisonment, which in this context means imprisonment for the remainder of the perpetrator's natural life, along with a potential fine. These conditions include when the perpetrator is:

(a) A police officer committing the crime within their jurisdiction, station, or while the woman is in their custody.

(b) A public servant committing rape on a woman in their or their subordinate's custody.

(c) A member of the armed forces committing rape in an area they are deployed.

(d) Part of the management or staff of a jail, remand home, or a women’s/children's institution, committing rape on an inmate.

(e) On the management or staff of a hospital, committing rape on a woman in the hospital.

(f) A relative, guardian, teacher, or someone in a position of trust or authority towards the woman.

(g-l) Various other specific situations including during communal or sectarian violence, on a pregnant woman, on a woman incapable of giving consent, and so on.

Explanation:

This section further defines terms used in sub-section (2) like "armed forces," "hospital," "police officer," and "women’s or children’s institution" to ensure clarity in the law's application.

This provision is designed to address not just the crime of rape, but also the abuse of power, trust, or authority in committing such an act, highlighting the law's emphasis on protecting the vulnerable from those in positions that could be exploited to commit crimes.

BNS, Section 65: Rape of Minor

This legal provision outlines the specific punishments for committing rape on young girls under the age of sixteen and twelve, emphasizing the severity of the crime when perpetrated against minors.

Rape on a Woman Under Sixteen Years of Age:

Sub-section (1): Anyone who commits rape on a girl under the age of sixteen faces a minimum sentence of twenty years in rigorous imprisonment, which may extend to imprisonment for life (defined as imprisonment for the offender's natural life). Additionally, the offender is liable to a fine.

Medical Expenses and Rehabilitation: The fine imposed must be sufficient to cover the medical expenses and rehabilitation of the victim. The law specifies that the fine collected from the perpetrator must be directed to the victim to aid in their recovery and rehabilitation process.

Rape on a Woman Under Twelve Years of Age:

Sub-section (2): The punishment for raping a girl under the age of twelve is even more stringent. The minimum sentence is again twenty years of rigorous imprisonment, but it may also include the death penalty, reflecting the heinous nature of the crime against very young children. Similar to sub-section (1), the perpetrator is also liable to a fine.

Medical Expenses and Rehabilitation: The provision for fines is identical to that in sub-section (1), emphasizing the importance of the fine being just and reasonable to support the victim's medical and rehabilitation needs. The fine is to be paid directly to the victim.

These provisions underline the law's attempt to address not only the punitive aspects of such crimes but also the restorative aspect for the victims by ensuring their needs are considered in the sentencing, especially focusing on their rehabilitation and recovery.

BNS, Section 66: Injury on the victim

This provision deals with severe consequences for an offender who, during the commission of a rape (as described in subsections (1) and (2) of section 64, which detail punishments for raping women under sixteen and twelve years of age respectively), inflicts an injury on the victim that either results in the victim's death or leaves the victim in a persistent vegetative state.

Simply, If someone commits a crime that is already punishable with serious consequences and, while doing so, hurts a woman so badly that she either dies or ends up in a state where she can't interact with the world around her, the law says that person can be put in jail for at least twenty years. The jail time could be for their entire life or, in the most extreme cases, they could face the death penalty. This rule is meant to severely punish those who cause such tragic outcomes when committing these crimes.

BNS, Section 67: Sexual Relations with his Separated Wife

If a man has sexual relations with his wife from whom he is separated—this could be because of a legal separation order or any other reason—without her agreement, he can be sent to jail. The jail time can be for a period ranging from two years up to seven years. He might also have to pay a fine. This rule specifies that it's a crime to force sexual relations in such circumstances, explaining that "sexual intercourse" refers to clauses (a) to (d) of section 63.

BNS, Section 68: Position of Power

This section states that anyone who holds a position of power, trust, or authority—including public servants, jail or remand home managers, staff at women's or children's institutions, and hospital management or staff—and uses their position to coerce or persuade a woman in their care or on the premises to engage in sexual intercourse with them, will face legal consequences. This applies even if the act doesn't meet the legal definition of rape. The punishment for such abuse of power is severe, with a mandatory prison sentence ranging from five to ten years, in addition to a possible fine.

The section further clarifies what counts as "sexual intercourse" for the purposes of this law, referring to specific acts outlined in another section of the legal code. It also expands on who is considered a "superintendent" or person in authority within jails, remand homes, or institutions, indicating that it includes anyone who has a role that allows them to exert control over the people in these institutions. Additionally, the definitions provided for "hospital" and "women's or children's institution" are intended to ensure clarity about the settings to which this law applies.

BNS, Section 69: Falsely promising to marry

This law addresses situations where an individual engages in sexual intercourse with a woman by using deceitful methods or by falsely promising to marry her without any real intention of fulfilling that promise. In these cases, even though the act does not meet the legal definition of rape, it is still considered a serious offense due to the deceit involved. The punishment for such an act includes imprisonment for up to ten years and may also include a monetary fine.

The term "deceitful means" is further explained to encompass various forms of dishonesty, such as offering false inducements related to employment, promotion opportunities, or marriage, including hiding one's true identity to convince someone to consent to sexual intercourse. This provision aims to protect individuals from being exploited under false pretenses that lead them to consent to sexual acts they might not have agreed to if they were aware of the truth.

BNS, Section 70: Punishment for Gang Rape

This Section specifies the punishment for gang rape, defining it as a situation where a woman is raped by multiple individuals acting together with a common purpose. It distinguishes between two scenarios based on the age of the victim:

For adult victims: If a woman is raped by a group, each member involved in the act is considered to have committed the offense of rape. They face a severe penalty of rigorous imprisonment for a minimum of twenty years, potentially extending to imprisonment for the remainder of their lives. Additionally, a monetary fine is imposed, which must be substantial enough to cover the victim's medical expenses and rehabilitation. This fine is to be paid directly to the victim.

For victims under eighteen years of age: In cases where the victim is a minor, the law is even stricter. Anyone involved in the rape of a minor as part of a group or with a common intention faces life imprisonment (imprisonment for the rest of their life) or the death penalty. Similar to the first scenario, a fine is imposed to cover the victim's medical and rehabilitation costs, which must be paid to the victim.

These provisions aim to deter the heinous crime of gang rape by imposing severe punishments on all participants. The inclusion of financial compensation highlights the recognition of the long-term impact of such a crime on the victim's life and the need for their support in recovery.

BNS, Section 71: Found guilty in Past offenses

This Section states that if a person has already been found guilty in the past of certain serious offenses (as listed in sections 64, 65, 66, or 70) and then is found guilty again of any of these offenses, the punishment will be very severe. The person can be sentenced to spend the rest of their life in prison without the possibility of release, or they could face the death penalty. This rule is meant to impose harsher penalties on repeat offenders of these serious crimes.

BNS, Section 72: Protection of the identity of victims of sexual crimes

This law pertains to the protection of the identity of victims of sexual crimes. It outlines the consequences for anyone who prints or publishes information that could reveal the identity of a victim of certain sexual offenses (as listed in sections 64, 65, 66, 67, 68, 69, 70, or 71).

Key Points:

Punishment for Unauthorized Disclosure: Anyone who unlawfully discloses the identity of a victim of the specified sexual crimes can be punished with imprisonment for up to two years and may also be fined.

Exceptions to the Rule: The prohibition does not apply in specific circumstances where the disclosure of the victim's identity is authorized or deemed necessary:

For Investigative Purposes: If the officer in charge of the police station or the investigating officer authorizes the disclosure in writing, believing it necessary for the investigation.

With Victim's Consent: If the victim themselves authorizes the disclosure in writing.

Next of Kin Authorization: In cases where the victim is deceased, a minor, or of unsound mind, the next of kin may authorize the disclosure. However, this authorization is specifically limited to the chairman or secretary of a recognized welfare institution or organization.

Protection Aim: The primary aim of this law is to protect the privacy and dignity of victims of sexual crimes by preventing unnecessary disclosure of their identity, which could lead to further trauma and social stigma. It balances this protective aim with allowances for disclosure under controlled and necessary circumstances, such as for the purpose of investigation or with the consent of the victim or their next of kin.

BNS, Section 72: Share of Information 

This section states that if anyone prints or shares any information about legal proceedings related to certain offenses without getting prior approval from the court, they can be punished. The punishment can be imprisonment for up to two years and/or a monetary fine. However, it clarifies that publishing the judgment or decision of a High Court or the Supreme Court is not considered an offense under this law.

Criminal Force and Assault Against Woman

Sections 74 to 79 of the Bharatiya Nyaya Sanhita pertain to offenses involving the use of criminal force and assault against women. Criminal force and assault against women encompass a range of actions from physical violence, sexual harassment, and intimidation to more covert forms of coercion and abuse. These acts not only inflict immediate harm but also have long-lasting impacts on the psychological, emotional, and physical well-being of survivors.

BNS, Section 74: Outrage the Modesty

This section states that if someone physically assaults or uses force against a woman, with the intention of dishonoring her or knowing that such actions are likely to dishonor her, the person committing this act will be punished. The penalty for this offense is imprisonment for a period of not less than one year, which can go up to five years. In addition to imprisonment, the offender will also be required to pay a monetary fine.

BNS, Section 75: Sexual Harassment

This section defines sexual harassment as a man committing any of the following actions against a woman:

• Making physical contact or advances that are unwelcome and sexually explicit.
• Asking for sexual favors in a demanding or requesting manner.
• Showing pornography to a woman against her will.
• Making comments with a sexual tone that are unwelcome.

For actions listed in points 1 to 3, the punishment for the offender can be rigorous imprisonment up to three years, a fine, or both. For making sexually colored remarks, as mentioned in point 4, the punishment can be imprisonment of up to one year, a fine, or both.

BNS, Section 76: Attacks or Forcefully handles a woman

This section states that anyone who attacks or forcefully handles a woman, or encourages such behavior, with the intention of stripping her or forcing her to undress, will face serious legal consequences. The offender can be sentenced to a prison term of not less than three years, which could extend up to seven years. Additionally, the offender will also be required to pay a monetary fine. This law is designed to protect the dignity and privacy of women and impose strict penalties on those who attempt to violate it.

BNS, Section 77: Watch or capture images of a woman

This section makes it illegal to watch or capture images of a woman in private situations where she expects privacy, such as when she is undressed, using the bathroom, or engaged in sexual activities that are typically done in private. It also covers situations where someone might consent to being recorded or photographed but does not agree to have those images shared with others. If someone is found guilty of this for the first time, they can be sentenced to prison for a period ranging from one to three years, along with a fine. For any further convictions, the prison term increases to a minimum of three years and can go up to seven years, plus a fine. This law aims to protect individuals' privacy and penalize those who violate it.

BNS, Section 78: Monitoring a women

This section addresses the crime of stalking, which involves unwanted and repeated attempts to establish personal interaction with a woman, despite her clear lack of interest. It includes following the woman or monitoring her use of the internet, email, or other electronic communications.

However, there are exceptions to what constitutes stalking:

If the man can prove his actions were part of efforts to prevent or detect crime, and he was officially assigned this responsibility by the State.

If the actions were carried out in compliance with a law or to fulfill a legal obligation.

If, under specific circumstances, the behavior was considered reasonable and justified.

Penalties for stalking are as follows:

• On the first conviction, the offender can be sentenced to imprisonment for up to three years and may also be fined.
• For a second or subsequent conviction, the imprisonment can extend to up to five years, along with a fine.
• This law aims to protect women from being harassed and to ensure that their disinterest in any form of personal interaction is respected.

BNS, Section 79: Insulting a woman's modesty

This law pertains to the act of insulting a woman's modesty through verbal, auditory, or visual means, or by invading her privacy. It criminalizes:

• Saying something with the intention of insulting a woman's modesty.
• Producing sounds intended to insult a woman's modesty.
• Making gestures with the intention of them being seen by a woman, thereby insulting her modesty.
• Showing objects with the intention of them being seen by a woman to insult her modesty.
• Physically invading a woman's personal space or privacy with the same intent.

The punishment for such actions is simple imprisonment, which can be for a term extending up to three years, accompanied by a fine. The law aims to protect women from actions intended to demean their dignity or invade their personal space, ensuring respect for their modesty and privacy.