Theme: Crimes & Violence

Medico-Legal Guide for Survivors of Sexual Assault

How can the guide help you?

The Nyaaya Guide on Medico Legal Examination for Sexual Assault helps survivors by providing a summary of the process along with some things to be kept in mind if a person is sexually assaulted. The guide helps in understanding the procedure of the forensic medical exams that survivors go through to preserve possible evidence, including DNA, and to get important medical attention. It gives an overview of the survivor’s rights and dispels various myths. While dealing with sexual assault, health workers play a dual role – one, providing medical treatment and psychological support and two, collecting evidence and ensuring good quality documentation of evidence. In 2014, the Ministry of Health and Family Welfare put out guidelines and protocols for medico-legal care for survivors of sexual violence.

What are the laws being discussed in the guide?

The guide discusses the legal aspects of the medico legal guidelines by the Ministry of Health and Family Welfare in 2014. The guidelines are based on various requirements outlined in the Criminal Law Amendment Act, 2013, the Indian Penal Code,1860 the Protection of Children from Sexual Offences (POCSO), 2012 and the Code of Criminal Procedure,1973.

First Steps

MEDICAL AID & EXAMINATION

Medical examinations play an important role in corroborating the survivor’s statement, which is why it is important to get yourself examined by a registered medical practitioner as soon as possible.

If possible avoid brushing, bathing, urinating, defecating, changing clothes, combing hair, rinsing mouth or cleaning the genital area prior to the medical examination. It may assist in collection of evidence.

Anyone can accompany the survivor during the exam.

A relative, friend or person of their choosing can accompany the survivor during the medical exam.
The facility may even provide them with a trained professional for support.

Medical Exam

OVERVIEW

What are the objectives of a medical exam?

The medical exam has two objectives.

1. The first is to give medical care, which can mean anything from looking after any sexual health needs by testing for pregnancy or STIs, to providing prescriptions.

2. The second is forensic, which means the medical practitioner will use their medical skills to help the police investigation, taking DNA swabs, identifying, and photographing injuries, describing the subject’s emotional state, finding foreign material and running toxicology tests.

The medical exam can take 2-4 hours.

Under what circumstances does a survivor undergo a medical exam?

There are three circumstances under which a survivor can undergo a medical exam:

1. When the survivor approaches the hospital/clinic for treatment for the effects of assault.

2. When there is a police requisition after police complaint; or

3. After a court directive or on the order of the Court.

Is an FIR mandatory for a medical exam?

An FIR is not mandatory for the medical exam. Further, the survivor can choose not to file a complaint. It is advisable to undergo a medical examination as soon as possible. The medical professionals will also inform the survivor of their right to file a complaint against the assault. In case the survivor does not want to file a complaint, the medical personnel should document the survivor’s informed refusal. However, they are duty bound to report the incident to the police.

Who conducts the medical exam?

A registered medical practitioner with the Medical Council of India can conduct the exam. The consent of the survivor must be taken for each stage of the exam. The medical practitioner has to skip a particular step, if the survivor does not consent to it. It is advised that a female doctor conducts the exam. If a female doctor is not available, a male doctor can conduct the exam, with the survivor’s consent. The survivor can choose to have a male doctor conduct the exam.

Is the medical exam free of cost?

Doctors are required to give first aid or medical treatment, free of cost, to survivors who approach them and disclose sexual assault at both private and government hospitals.

Remember….
The survivor can choose to stop, pause, or skip a step at any time during the exam.

Medical Exam

PROCEDURE

What is the procedure of a medical exam?

1. An exam begins with treating any injuries that need immediate care.

2. Then, a survivor’s medical history is taken down by the medical practitioner.

3. Details of what happened, including identifying places on their body or clothes that may show evidence is collected.

4. Next, the medical professional may give a head-to-toe examination, which may include internal examinations of the mouth, vagina, and anus.

5. Blood, urine, body, and hair samples are collected for evidence from the survivor.

6. The healthcare provider may also take photos of the survivor’s body to document injuries.

7. STI prevention treatment or an emergency contraceptive is provided to the survivor if necessary.

8. Additionally, in cases where the survivor was the drugged, the healthcare provider may conduct a drug-facilitated kit, which involves taking blood and urine samples for testing.

9. The survivor will also undergo testing for pregnancy as well as for sexually transmitted infections (STI), HIV, Hepatitis B.

What medical history is collected?

Post assault, the medical practitioner collects information on the activities of the survivors like:

1. changing of clothes, cleaning of clothes

2. bathing/ showering

3. washing genitals, menstrual cycle, urinating, defecating

4. rinsing mouth, drinking, eating

5. vaccinations, recent sexual activity T

his information would have a bearing on the evidence collected from the survivor. However, information on the number of sexual partners or past sexual experiences is not necessary unless it is relevant to the assault in any way.

Is the Two-Finger test legal?

The two-finger test, also known as PV (Per Vaginal) examination or ‘virginity test’, is a practice where the examining doctor notes the presence or absence of the hymen and so-called laxity of the vagina of the rape survivor by putting his or her two fingers inside the woman’s vagina.

Medical practitioners cannot carry out the two-finger test in India as per the Medico Legal guidelines issued by the Ministry of Health and Family Welfare.

This is different from the internal examination of the survivor’s vagina to test for injuries and infection, and is a part of medical treatment extended to them.

Medical Exam
FORENSIC EVIDENCE

How is forensic evidence collected?

1. Semen, saliva, hair, and fingernail scrapings are studied for DNA. These can identify a suspect and link them to the survivor or crime scene.

2. An examination of internal and external injuries also takes place. Injuries can indicate use of force or violence from an attacker and resistance from the survivor.

3. Blood and urine can show whether a survivor was under the influence of alcohol or drugs and could not consent.

4. And foreign material like clothing fibres, foliage and soil can link a suspect to the offence. This is done to gather as much evidence as possible to support and corroborate a version of events.

The collected evidence is stored in a clean dry sanitized pack which is sealed with a sticker to ensure the evidence is not contaminated or tampered with.

What happens if the survivor has cleaned away evidence?

Medical examinations are still possible even if the survivor has showered or cleaned themselves. However, if it is possible to avoid showering, combing hair, brushing teeth, rinsing mouth, urinating, defecating, changing clothes and cleaning up the genital area or other areas of assault as it may assist in collecting the evidence. The likelihood of finding evidence reduces after 72 hours (3 days). Usually evidence is collected up to 96 hours in case of unclear timelines.

What happens in cases where there is no forensic evidence?

A medical examination cannot ascertain the presence or absence of consent. That’s something only the survivor can really testify to. Consent is the most important aspect in determining whether an act was rape or not. If little to no evidence is found, this does not mean that the crime has not taken place. The police will still continue their investigation.

Is semen the only form of forensic evidence?

While finding semen is still a primary focus of any exam, advances in DNA technology mean that other genetic evidence is collected and used as well.

Swabs from areas of the body the attacker may have touched, kissed, or bitten, fingernail clippings in case the survivor has any DNA under their nails, and the collection of scalp and pubic hair are all potential sources of evidence that may help identify and convict a rapist.

Legal Process

AT THE HEALTHCARE PROVIDER

The health professionals (Doctors, Nurses, and other Medical Personnel) have the following duties when a survivor come to hospitals/clinics for medical or other forms of support:

1. Explain to the survivor in simple and understandable language the rationale for various procedures and their respective steps

2. Follow special steps when dealing with a survivor from marginalized groups such as children, persons with disability, LGBTI persons, sex workers or persons from a minority community.

3. Ensure confidentiality and explain to the survivor that they must reveal the entire history to health professionals without fear. At this stage, survivors are encouraged not to hide any existing medical history or information.

4. Explain to the survivor that genital examination may be uncomfortable but is necessary for legal purposes.

5. Inform the survivor about the need to carry out additional procedures such as x-rays, etc which may require them to visit other departments in a medical facility

What are the duties of hospitals?

Every hospital must have a Standard Operating Procedure (SOP) for management of cases of sexual violence:

1. The absence of a female doctor should not deny or delay the examination. If a male doctor is examining, it must be in the presence of a female attendant. For minors/persons with disability his/her parent/guardian/any other person with whom the survivor is comfortable may be present.

2. In the case of a transgender/intersex person, the survivor has the choice whether they want to be examined by a female doctor, or a male doctor in the presence of a female attendant.

3. Police personnel cannot be in the examination room during the consultation with the survivor. If the survivor requests, her relative may be present during the examination.

4. There must be no delay in conducting an examination and collecting evidence.

5. Providing treatment and necessary medical investigations is the prime responsibility of the examining doctor. Admission, evidence collection or filing a police complaint is not mandatory for providing treatment.

6. The history taking & examination should be carried out in complete privacy in a private room set up in the hospital for examination of sexual violence survivor.

7. After the examination is complete the survivor should be permitted to wash up, using the toiletries and the clothing given by the hospital if her own clothing is taken as evidence. The hospital is obliged to give such clothing at no charge.

8. Admission is unnecessary unless the survivor requires indoor stay for observation or treatment.

Remember…

Survivors of sexual violence should receive all services completely free of cost.
The survivor can get a copy of all documentation (including that pertaining to medico-legal examination and treatment), free of cost.

Guidelines for when a survivor reports to the hospital without first going to the police.

Given below are some guidelines the health professionals need to keep in mind in such situations:

1. If the survivor has come to the hospital without the police, the hospital is bound to give treatment and conduct a medical examination with consent of the survivor/ parent/guardian (depending on age).

2. The hospital must treat the patient immediately without delay, irrespective of whether the police has arrived or not. Collection of medical evidence must take place as early as possible.

3. If a person has come on their own without FIR, they may or may not want to lodge a complaint but require a medical examination and treatment. Even in such cases the doctor is bound to inform the police as per law.

4. Neither court nor police can force the survivor to undergo a medical examination. Only in situations, where it is life threatening the doctor may initiate treatment without consent as per section 92 of IPC.

5. In case the survivor does not want to pursue a police case, a medico-legal case (MLC) is registered. The police or the medical professional should inform the survivor about the survivor’s right to refuse to file FIR. An informed refusal must be documented in such cases.

6. The police should record the medico-legal case and provide its case number to the survivor along with the details of the police station where the complaint can be registered. This Medico-legal case number is useful in case the survivor has a police requisition or wishes to lodge a complaint later.

7. In all three circumstances, it is mandatory to seek an informed on sent/refusal for examination and evidence collection. Consent should be taken for the following purposes: examination, sample collection for clinical and forensic examination, treatment, and police intimation. The consent form must be signed by the survivor, a witness, and the examining doctor.

Rights of a Survivor and Duties of their Caregivers

Given below are the rights of a survivor and duties of caregivers during investigation and trial of sexual offences committed against the survivor:

01. Right to Privacy of the Victim
No person can disclose the name of the rape survivor. If anybody discloses the name, the punishment is a term which may extend to two years and along with a fine. Further, there should be an incamera trial for all rape survivors. For instance, the media cannot release the name of the survivor. (Section 228 A IPC & Section 327(2) CrPC)

02. Right to Free Medical Treatment /Duty of Medical Institutions
This law fixes liability on medical institutions, both public or private to give medical treatment free of cost to survivors of sexual assault, together with a duty to inform the police of such incident. Failure to comply with the above provision is a punishable offence. (Section 357C CrPC & Section 166B IPC)

03. Right to Examination by a Female Doctor
Only a registered female medical practitioner can conduct the examination of a female survivor. Unless, there is no female practitioner available and the survivor consents otherwise to an examination by a male registered practitioner. (Section 53A[5] CrPC)

04. Right to a Detailed Examination of the Perpetrator
Legally, the perpetrator can be ordered to undergo a detailed medical examination by any registered medical practitioner, preferably employed in a hospital run by the Government or a local authority. This examination is done to gather other physical evidence that can corroborate the story of the survivor. (Section 53A CrPc)

05. Right to a Speedy Trial
Investigation should start and end within two months from the date on which the police officer recorded the information in charge of the Police Station. Special fast track courts have been set up for this purpose. (Section 173A CrPC)

06. Duty of a Public Servant
This law ensures failure of a public servant to record any information of such offences as a punishable offence, prescribing both rigorous imprisonment and fine for the guilty. (Section 166A IPC, Section 154 [1] CrPC)

07. Duty of Court to Presume Absence of Consent
The court during any trial for rape will presume the absence of consent by the survivor. (Section 114-A, Indian Evidence Act)

Resources

Contact Information 

Women’s Helpline – 1091 

Women’s helpline gives 24/7 immediate and emergency response to women affected by the violence, both in private and public spaces. They give assistance to file complaints. They can guide the survivor towards a hospital for a medical examination etc.

Police – 100

Police will arrive in case of an emergency.

Checklist

1. Collect copy of entire medical report free of cost

2. Collect copy of FIR for free.

3. Carry a change of clothes when you go for the medical examination.

4. If possible avoid brushing, bathing, urinating, defecating, changing clothes, combing hair, rinsing mouth or cleaning the genital area prior to the examination.

5. Registering an FIR is not mandatory for thee examination.

6. The examination is conducted free of cost and as soon as possible to preserve forensic evidence.

7. The survivor can skip any part of the process if desired, all aspects of the procedure must take place with the consent of the survivor.

8. The survivor can take a person along with them for the medical examination for emotional support.

9. A female doctor should carry out the examination unless the survivor consents otherwise.

10. Request for medical tests for pregnancy and sexually transmitted illnesses.

 

Sources of Information

Guidelines 

  1. Towards victim friendly responses and procedures – Partners for Law and Development, Department of Justice (Ministry of Law and Justice) and United Nations Development Program accessed at <https://doj.gov.in/sites/default/files/PLD%20report.pdf>
  2. National Commission of Women – Rape accessed at <http://ncw.nic.in/sites/default/files/Chapter02.pdf>
  3. Guidelines and Protocols, Medico-Legal Care for survivors/victims of Sexual Violence, Ministry of Health and Family Welfare (2014) accessed at <http://www.mati.gov.in/docs/GG%20cell%20materials/womens%20rights/Guidelines%20and%20Protocols_MOHFW%20(1).pdf>

Legislation

  1. The Criminal Law Amendment Act, 2013
  2. Section 357C of the Code of Criminal Procedure, 1973
  3. Section 166B of the Indian Penal Code, 1860
  4. Protection of Children from Sexual Offences (POCSO), 2012

Sample Forms

  1. Form to be filled by medical personnel conducting an examination: http://www.mati.gov.in/docs/GG%20cell%20materials/womens%20rights/Guidelines%20and%20Protocols_MOHFW%20(1).pdf

Glossary

Forensic Evidence – Forensic evidence is evidence obtained by scientific methods such as ballistics, blood test, and DNA test and used in court. Forensic evidence often helps to establish the guilt or innocence of possible suspects.

Genital Examination – Visual and Manual examination of genital area by a doctor. A speculum may be used to check for DNA on the vaginal wall and cervix. The doctor does a “bimanual” examination, meaning that he or she uses his or her hands to examine the internal reproductive organs. The examiner’s hands will be gloved for the bimanual exam, and may have lubricating jelly on them causing them to feel cold.

DNA – Hereditary material in humans and almost all other organisms. Nearly every cell in a person’s body has the same DNA. It is used to identify individuals and link them to crimes.

STI – An infection transmitted through sexual contact, caused by bacteria, viruses or parasites. These infections are usually passed from person to person through vaginal intercourse. They can also be passed through anal sex, oral sex, or skin-to-skin contact. STIs caused by viruses include hepatitis B, herpes, HIV, and the human papilloma virus (HPV).

Medico – Legal Case – Medico-legal case (MLC) refers to a case of injury or illness that indicates investigation by law enforcement agencies to establish and fix the criminal responsibility for the case according to the law of the country

FIR – Stands for first information report. It is a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Its is a written document prepared by the police when they receive information about the commission of a cognizable offence

Consent – Consent occurs when one person voluntarily agrees to the proposal or desires of another.

Two – Finger test – A doctor performs the test by inserting a finger into the female’s vagina to check the level of vaginal laxity and recent sexual intercourse. This test is illegal.

 

What is a Domestic Relationship?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

In order to seek relief for domestic violence under the law, you need to prove that you have a domestic relationship with the harasser. A domestic relationship means that you are related in any of the following ways with your harasser:

  • Related by blood. For example, any relative, like your uncle, your sister, your father, etc.
  • Related by marriage. For example, your husband, your sister-in law, your brother-in law, etc.
  • Relationship that is similar to the nature of marriage, like your live-in partner.
  • Related by adoption. For example, your step-father, your step-brother, etc.
  • Related by virtue of living together as a joint family. For example, in a joint family, you can complaint against all members of the family such as your father, brother/sister-in-law, uncle/aunt, grandmother/father etc.

To go to Court, you also have to prove that you and the harasser currently live, or have lived in the past, in a shared household.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence and how to file a complaint to seek protection against domestic violence. For example, see this handbook published for ASHA in Chattisgarh, Delhi, Jharkhand, Madhya Pradesh and Uttarakhand.

What is domestic violence?

Domestic violence refers to violent or abusive behavior in a household that causes harm and may put the health and safety of a woman or any child under her custody in danger. With the help of the law(( Form IV, The Protection of Women from Domestic Violence Rules, 2006.)), you can:

  • Prevent further violence by getting immediate protection. To get immediate protection, you can approach different authorities, such as the police, protection officer, etc.
  • Go to Court for:

Kinds of Domestic Violence 

The kind of violence you face does not always have to be physical. The law also recognizes other kinds of domestic violence such as sexual violence, verbal abuse, emotional or mental abuse and monetary abuse. For example, if your brother-in-law threatens to throw you out of the house every day, this is a form of emotional abuse.

Frequency of Domestic Violence

Even a single act of violence can constitute domestic violence(( Section 3, The Protection of Women from Domestic Violence Act 2005.)). You don’t have to endure domestic violence for a prolonged period of time to go to Court or seek help.

What is sex selection?

Sex selection includes any procedure, technique, test or administration or prescription or provision of anything to ensure or increase the probability that an embryo will be of a particular sex.(( Section 2(o), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

Sex selection is illegal in India and any prenatal diagnostic procedures are only allowed in limited circumstances where a doctor would require the woman’s written consent.

Read this Government handbook by the National Health Systems Resource Centre to understand more on the law on pre-conception and pre-natal diagnostic techniques in India.

What is Dowry?

Dowry is anything which has value (such as cash and property) which is given by the bride’s family to the groom’s family as a condition of marriage.(( Section 2, Dowry Prohibition Act, 1961.))

The law does not stop the exchange of gifts with the fiance’s family during the wedding. The purpose of this law is to prohibit coercion during the gift exchange.

Gifts from the bride’s side should be according to custom and as per financial capacity of her family. For example, in marriages in certain societies, sarees and jewellery are given to women relatives of both the bride and groom, by the other side. This is done as per custom and therefore would not be considered as dowry. There may be other customs of giving certain gifts.

However, it is important to note that the groom’s family cannot force a bride to give the gifts per the custom as this would be demanding dowry. Generally, gifts given should be of a value which do not create an extraordinary financial burden to the person giving them.(( Provision to Section 3, Dowry Prohibition Act, 1961)) For example, if the bride’s father has to take a loan of a significant amount to buy gifts for the groom’s side, then it cannot be said that the gift has been given as per financial capacity of the person. This could be a case of an excessive financial burden on him and could be seen as a case of dowry.

What is Theft?

Theft is when someone takes away your property without your consent. Theft is a crime in India and the person committing theft is punished with jail time of up to 3 years and/or a fine.(( Section 379, Indian Penal Code, 1860.)) Theft is a cognizable and non-bailable offence.

It is theft when(( Section 378, Indian Penal Code, 1860.)):

You have a dishonest intention to take away property

There is an intention to take away property dishonestly i.e. one intended to cause illegal gains to oneself while causing someone else illegal losses(( K.N. Mehra v. State of Rajasthan (1957) SCR 623.)). For example, if Shyam breaks into Ram’s house and steals his money with the intention to cause illegal gains to himself while causing Ram illegal losses.

You have not taken consent to move the property

The property has been taken away without consent(( K.N. Mehra v. State of Rajasthan (1957) SCR 623.)). For example, if Ram’s dog is chained up in his yard, and Shyam takes it away without asking Ram. However, there are certain conditions in place, such as:

  • The consent can be given by the person who owns the property, or by any other person who has authority over that property
  • The consent can be explicit or implicit

You move property 

It is theft when some movable property i.e. it is tangible and is not attached to the earth, has been moved. Some examples are:

  • Any property has been detached from the earth. For example, one steals pipe fittings which were connected to a borewell.
  • Some obstacles have been removed which allowed removing some property. For example, if a bicycle’s lock is removed and the bicycle is taken away.
  • An animal has been used to remove some property. For example, if a donkey is attached to a cart of goods, and to steal those goods, the donkey is taken away.
  • It involves the actual act of taking away property(( State of Maharashtra v. Vishwanath Tukuram Umale & Ors., (1979) 4 SCC 23.)).

Theft is not just a crime if personal items are stolen. Many other forms of theft are there and the law punishes people who commit theft based on:

  • The item stolen
  • The situation of theft
  • The person who commits theft.

What is Ragging?

Ragging is(( Section 2, the Curbing the menace of Ragging in Higher Educational Institutions (third amendment), Regulations, 2016.)) any physical, verbal or mental abuse committed by one student against another student belonging to an educational institute. The seniority of the student who rags or is ragged does not matter.

Ragging is a crime and it can happen for any reason. Ragging has been known to happen on the basis of appearance or colour of the skin, race, religion, caste, ethnicity, gender, sexual orientation, appearance, nationality, regional origins, spoken language, place of birth, place of residence or economic background. It can take many different forms. For example, bullying a student into doing assignments or excluding a student from campus activities. The law punishes different forms of ragging against students including psychological harm, physical abuse, etc. Read more here.

What is Acid Attack?

[Trigger Warning: The following content contains information on physical violence which some readers may find disturbing.] 

An acid attack is the crime of hurting a person by throwing acid on them, administering acid(( Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes 2018, National Legal Services Authority, accessed at https://wcd.nic.in/sites/default/files/Final%20VC%20Sheme_0.pdf.)) to that person or doing anything with acid with the intention or knowledge that it would harm the person. An acid attack may result in injuries to a person, in any part of the body, including(( The Scheme for Relief and Rehabilitation of Offences (by Acids) on Women and Children, 2009 National Commission for Women, accessed at http://ncwapps.nic.in/PDFFiles/Scheme_ACID_Attack.pdf.)):

  • Permanent or partial damage or deformity to a person
  • Burns on any body parts
  • Maiming, dis-figuration or any form of disability of a person.

Even though the main definition of acid attack is given in the Indian Penal Code, 1860, the Law Commission of India has also defined an acid attack, as a form of violence against women where the perpetrator splashes a person or object with acid in order to deface or kill them.(( Proposal for the Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code and a Law for Compensation for Victims of Crime, Law Commission of India No 226, 2008, accessed at https://lawcommissionofindia.nic.in/reports/report226.pdf.))

An acid attack can happen anywhere. Incidents of acid attack have frequently taken place at home, on the streets and even at work places.

Types of Child Sexual Abuse

Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.

Indian law classifies types of child sexual abuse into different types of crimes, regardless of the child’s gender . Given below are some of the punishable crimes:

Non-Physical Behaviour

  • Any non-physical sexual behaviour through gestures, speech, and visuals. For example, gesturing to a child’s private parts or showing naked pictures(( Section 11, The Protection of Children from Sexual Offences Act, 2012.))
  • Any act related to child pornography, including its creation, distribution, transmission, publication, etc.(( Section 13, The Protection of Children from Sexual Offences Act, 2012.))
  • Administering any drug, hormone or any chemical substance to a child so that the child attains early sexual maturity.(( Section 9(v), The Protection of Children from Sexual Offences Act, 2012; Protection of Children from Sexual Offences (Amendment) Act, 2019.))

Physical Behaviour

  • Touching a child in a sexually inappropriate way. For example, touching the private parts of a child.(( Section 7, The Protection of Children from Sexual Offences Act, 2012; Section 9, The Protection of Children from Sexual Offences Act, 2012.))
  • Sexually abusing a child through penetration – either with a penis or any other object.(( Section 3, The Protection of Children from Sexual Offences Act, 2012; Section 5, The Protection of Children from Sexual Offences Act, 2012.))

Attempt of sexual abuse

If a person tries to commit(( Section 18, The Protection of Children from Sexual Offences Act, 2012.)) any sexual crime against a child, this is also a crime. It does not matter if the offender fails to actually commit  the crime , the attempt itself will hold them liable.

Further, the law also makes a distinction based on the person committing the offence. For example, if any sexual abuse done by a person in a position of trust or authority to the child like a teacher or police officer, the punishment is higher.(( Section 5, The Protection of Children from Sexual Offences Act, 2012; Section 9, The Protection of Children from Sexual Offences Act, 2012.)) The law defines these kinds of abuse as “aggravated” to highlight the fiduciary relationship between the harasser and the child. Read more in our explainer here.

What is Rape?

[Trigger Warning: The following content contains information on physical violence and sexual violence which some readers may find disturbing.]

Rape is a crime that occurs when a man has sexual intercourse with a woman against her will or without her consent.

A man commits rape on an non-consenting woman if he:((Section 63, Bharatiya Nyaya Sanhita, 2023))

  • penetrates his penis or inserts any other part of his body (to any extent) into the woman’s vagina, mouth, urethra, or anus, or forces her to do this with him or another person; or
  • inserts any object into the woman’s vagina, mouth, urethra, or anus, or forces her to do this with him or another person; or
  • manipulates any part of the body of a woman to cause penetration into the woman’s vagina, urethra, anus, or any part of the body or makes her to do so with him or any other person; or
  • applies his mouth to the woman’s vagina, anus, or urethra, or makes her do this with him or any other person.

A medical procedure or intervention is not considered as rape. For example, if a doctor examines the private parts of a patient as part of a medical procedure, this is not rape.

Reporting Online Abuse

If you are a victim of online abuse or know someone being victimised, you must report it to the authorities. You can report online abuse in any of the following ways:

Approaching the Police Station

When you go to the police station to complain about a case of online abuse that you have faced, they will ask you to file an FIR. You should make sure you give all the information you know about the incident and abuse that you have faced.

Cyber Cell

Cyber Cells are present in every state and some police stations may have a unit designated to work on cyber crimes. These cells or units will look into and help you out in cases of online violence such as online stalking, hacking, etc. In many states, you can file a complaint online through the website of the cyber cell. For instance, for Delhi, you can file an online complaint here.

If you want to file a complaint, you will have to either:

  • File a complaint online with your respective state’s Cyber Cell website or
  • Approach the police station where you will have to file an FIR which will be forwarded to the Cyber Cell.

Complaint Portals

Online Crime Reporting Portal

You can also lodge a complaint by using the Ministry of Home Affairs’ Online Crime Reporting Portal. You may be redirected to a specific State Government’s website to register a complaint.

Register a complaint in the section “Services for Citizen”, and click on “Report a Cyber Crime ”. Here, you can provide information about the offender, the victim, and the incident along with any supporting evidence, such as screenshots. You can report anonymously or with identification, and you can track your complaint as well. 

Cyber Crime Reporting Portal

You can also directly file a complaint on the Cyber Crime Reporting Portal. Complaints can also be made anonymously.  You can complain against various cybercrimes by selecting the option ‘Report Cyber Crime Related to Women/Child’ or ‘Report Other Cyber Crime’. You must login and create an account and select “Report and Track” if you wish to track your complaint.

What is Sexual Harassment?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

Sexual harassment can happen in several ways. Actions such as following a person on the streets or in any public space, peeping into their bedroom, making sexual gestures at them while they are at work or in the classroom, singing lewd songs – all of this is sexual harassment. Under the law, only a man can be punished for the crime.(( Section 354A and 354, Indian Penal Code, 1860.))

There are many ways to reach out to an authority that will help, and anyone can file a complaint on a survivor’s behalf. A survivor can file a complaint of sexual harassment, irrespective of the place where it has happened. An FIR can be filed at any police station. The fact that the crime may not have been committed in that police station’s jurisdiction has no consequence to the filing of the complaint. It is mandatory for the police to record the information provided, and then transfer it to the police station in whose area/jurisdiction the offence took place. For instance, if a crime was committed in North Delhi, the information can even be registered with a police station in South Delhi.

The law deals with four categories of sexual harassment(( Section 354A, Indian Penal Code, 1860.)):

The punishment for inappropriately touching, demanding or requesting sexual favours and making sexual coloured remarks is jail time up to three years with a fine. For showing pornography, the jail time is up to one year along with a fine.1

Recourse against the Perpetrator

A survivor can go to the police and file an FIR after which the police will investigate and file charges before the court. The court will then decide whether the person is guilty or not. If the person is found to be guilty, they will be fined and punished with jail time depending on the kind of crime committed.

To explore more on complaining against the perpetrator, you can read our explainer on ‘How do you complain against sexual crimes’.

When a child has been harassed

If a child (below the age of 18) has been sexually harassed by anyone, including someone they know, relatives, friends, etc., anyone including the parents or teachers can report the crime on behalf of the child. It is illegal to not report the crime and a person can face criminal consequences for knowing about the crime and not reporting it.(( Juvenile Justice Act (Care and Protection of Children), 2015; The Protection of Children from Sexual Offences (POCSO) Act, 2012.)) To explore more on sexual abuse against children, you can read our explainer on Sexual Abuse of Children.

  1. Section 354A (2) and (3), Indian Penal Code, 1860. [↩]

Love and Relationships for LGBTQ+

Anyone above the age of 18, has the right to love and have consensual sexual relationships with anyone that they wish to(( Shafin Jahan v. Asokan K.M. and Ors. (2018)16 SCC 368; Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1; National Legal Services Authority v. Union of India (UOI) and Ors.  (2014)5SCC438.)) irrespective of their gender. Previously, consensual sexual acts between adults of the same gender were punishable under the law with jail time and a fine.(( Section 377, Indian Penal Code, 1860.)) After 2018, such sexual acts are not punishable anymore under Indian law.(( Navtej Singh Johar and Ors. v. Union of India (UOI) and Ors. (2018)10 SCC 1.))

No one can harass you, hurt you, complain to the police and you cannot be sent to jail or face harassment or violence for:

Your sexual orientation

This means that you cannot face any violence being sexually attracted to a person of any gender, including that of the same gender or a transgender person. You can:

  • Be in a relationship and love a partner of any gender.
  • Have consensual sexual intercourse with a partner of any gender.
  • Move freely in any public space with your partner without any fear.

Your gender Identity

You also have a right to identify which gender you wish to be identified with. After 2014(( National Legal Services Authority v. Union of India (UOI) and Ors., (2014) 5 SCC 438.)), Courts have held that apart from “male”and “female”, you also have the right to identify and recognize yourself under the category of “third gender” (transgender).  As per the law, you don’t have to undergo Gender Affirmative Therapy to fall under the category of third gender. For instance, if you were born in a female body but feel that you actually identify with being a male then you can choose to identify with this gender.

To identify yourself under the 3 categories, you can change your name and get identification documents which denote the gender you want to be identified with.

You should file a complaint against anyone who harasses you as it is your right to live your life without any interference from the police, your parents etc. or any other person.

What is a Shared Household ?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

You live in a shared household with your harasser if you:

Have lived with the harasser 

In order to seek protection and relief, you must live, or have lived at some point of time, with your harasser in the household. However, it is not necessary that you are residing with your husband at the time of filing a complaint for domestic violence(( Sejal Dharmesh Ved v. The State of Maharashtra and Ors 2014 ALL MR (Cri) 636; Rupali Devi v. State of Uttar Pradesh & Ors.  (2019) 5 SCC 384.)), or that you are residing with him when the violence took place.(( Lalita Toppo v. State of Jharkhand & Anr.  2018 (4) RCR (Criminal) 976.)) You just need to have shared a household with the harasser at some point of time.

Have a domestic relationship with the harasser

In order to seek relief and protection from domestic violence, you need to have a domestic relationship with your abuser, in addition to having a shared household with them. For example, if you have lived with your mother-in-law in the same house, and you are being subjected to domestic violence, you can seek relief and protection, as it means that you had a domestic relationship with the harasser and lived with her in a shared household.

However, if you have merely lived in a shared household, but did not share a domestic relationship with the harasser, you cannot file a complaint against domestic violence. For example, if you have a servant who resides in your house, and he beats you up, you cannot file a complaint under this law against him, as you do not have a domestic relationship with him.

Have/do not have a legal share in the house

To claim relief and protection, it does not matter if you have a legal share in the house. This household can be owned/leased by either you, the harasser , or the both of you, and also includes households that belong to the joint family of which the harasser is a part, even if you do not have a legal right in it.

However, if the property is the exclusive, personal property of the parents-in-law, or any other relative of the harasser, you do not have a right to claim any share in that house, as that is not a shared household.(( S.R. Batra v. Taruna Batra (2007) 3 SCC 169.))  However, the Court will ultimately decide whether or not to allow you to reside in a particular house according to the facts of the case, so you may be allowed to reside in a house owned by your mother-in-law in some cases.  See here for more details on residence orders.

Please note that it is not necessary that the violence has taken place only in the house where you reside; it can take place anywhere.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence, where it can happen and how to file a complaint to seek protection against domestic violence. For example, see this handbook published for ASHA in Chattisgarh, Delhi, Jharkhand, Madhya Pradesh and Uttarakhand.

What are prenatal diagnostic procedures?

Prenatal diagnostic procedures include any gynaecological, obstetrical or medical procedures such as ultrasonography, taking or removing samples of amniotic fluid, blood or any other tissue or fluid of a person, in order to conduct any prenatal diagnostic tests for sex selection, before or after conception.(( Section 2(i), Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.))

The purpose of these procedures is to obtain material to conduct prenatal diagnostic tests to increase the chances of getting an embryo of a particular sex.

Types of Theft

Theft is not just a crime if personal items are stolen. Many other forms of theft are there and the law punishes people who commit theft based on the situation as well as depending on who they are. Some examples of the different types of theft are given below:

Acts considered as Ragging

Many actions taken by students are considered to be ragging under the law. Some of the acts considered as ragging are:(( Section 3, the UGC Regulations On Curbing The Menace Of Ragging In Higher Educational Institutions, 2009.))

Psychological Harm 

Causing psychological harm to a student is considered to be ragging under the law. This may include:

  • Any written, verbal or behavioural actions by a student including teasing a student, speaking rudely, etc. For example, calling a student derogatory names.
  • Rowdy or undisciplined behaviour which may annoy the student, cause hardship or psychological harm to any student. For example, stealing and throwing away the notebooks that belong to a student or threatening a student constantly.
  • Asking a student to do an act which he would not ordinarily do. Such incidents may cause a sense of shame, torment or embarrassment to the student thereby affecting his psychological wellbeing. For example, making a student dance in front of the class.
  • Any act that affects the mental health and self-confidence of any student. For example, making a student dance in front of the class and ridiculing him for it.
  • An act or abuse, whether written, verbal or online (emails, posts, etc.), which would result in making a student uncomfortable. For example, spreading rumours on online platforms about a student or ragging for the sake of deriving pleasure out of it.

Disturbing Academic Activity 

Ragging can take the form of disturbing a student’s academics. If any student prevents, disrupts or disturbs the regular academic activity of  another student, it is ragging. For example, a senior student harassing a junior student into not attending classes.

Using or Exploiting a Student

Ragging can take the form of exploitation of another student. This includes:

  • Exploiting the services of any student for completing the academic tasks assigned to an individual/group. For example, making a student do some other student’s homework assignments.
  • Financial extortion or forceful expenditure put on any student.  For example, making a student pay for another student’s expenses.

Physical Abuse 

Ragging can take the form of physical abuse and violence. Ragging includes:

  • Rowdy behaviour or indiscipline which is likely to cause physical harm  to any student, or any act which makes one fearful/apprehensive of physical harm. For example, threatening to beat up a student.
  • Asking a student to do an act which he would not ordinarily do, and which causes him a sense of shame, torment or embarrassment so as to adversely affect his physical well-being. For example, beating up a student because he did not comply with the orders of a senior to perform a task.
  • Sexual abuse, including assaults, stripping, forcing obscene and lewd acts or gestures, etc. For example, asking a female student to strip.
  • Any act which causes bodily harm or any other danger to a student. For example, mixing laxatives in a student’s food.

Discriminating against Another Student

Ragging can take the form of discrimination and prejudice against another student. Any abuse based on the colour of your skin, race, religion, caste, ethnicity, gender, sexual orientation, appearance, nationality, regional origins, linguistic identity, place of birth, place of residence or economic background, is considered as ragging. For example, if a student is constantly teased and called names based on her regional origins, or is ridiculed because she belongs to a lower socioeconomic status than other students, it can be considered as ragging.

The intent behind ragging does not matter. For example, to derive pleasure, for fun, to show off authority or superiority – the very act of ragging is a crime under Indian law.

If you are being ragged, you can complain to college authorities or the police.

Who does the law protect?

[Trigger Warning: The following content contains information on physical violence which some readers may find disturbing.] 

The law on acid attack protects all persons, regardless of their gender. Further, there are no specifications in the law in terms of the age of the survivor. Therefore, an acid attack, whether carried out on a person of any age is punishable under the law.(( Sections 326A and 326B, Indian Penal Code, 1860.)) The law also protects foreigners who are survivors of acid attack if it happens in India.(( Section 2, Indian Penal Code, 1860.))

Consent to Have Sex

Trigger Warning: The following content contains information on sexual and physical violence which some readers may find disturbing.

No. The law does not recognize a child’s ability to give consent to have sex. This means that if an adult (above the age of 18) asks a child (below 18 years) to engage in any kind of sexual activity, and the child says yes explicitly or implies that they consent, this activity will still be considered as child sexual abuse or rape under the law.(( Independent Thought v. Union of India and Another (2017) 10 SCC 800.))

Consent Between Children

If two children engage in sexual activities willingly, it is still considered illegal. The age of consent for girls and boys is 18 years.(( Section 2(d), The Protection of Children from Sexual Offences Act, 2012; Independent Thought v Union of India and Another (2017) 10 SCC 800.)) Read more information in our explainer “Children Accused of Crimes”.

What is Consent?

Consent is a voluntary, clear, and unmistakable agreement by a person who expresses their willingness to take part in a specific sexual act. A woman should understand what she is agreeing to and what the consequences will be if she agrees to the sexual activity. Even if she doesn’t physically resist the act of penetration, this does not automatically mean that she has consented to the sexual activity.

Under the following circumstances, a man is said to commit rape even if the woman has given her consent:

  • If her consent has been forcibly obtained by threatening to hurt her or making her fear for her life or the lives of her dear ones.
  • If the man knows that he is not a woman’s husband and that she has given her consent only because she thinks that the man is her husband.
  • If the woman is unable to understand the nature and consequences of the act to which she gives consent, due to unsoundness of mind or intoxication or because the man has given her an unwholesome substance.
  • If the woman is under eighteen years of age.

Cyber Safety

To be safe and free from abuse on the online platforms that we use in our day-to-day lives, you can follow the following tips based on the kind of user you are and the use of the online platform:

How is Invasion of Privacy a Sexual Crime?

[Trigger Warning: This explainer contains information on physical violence, sexual violence, abuse and slurs which some readers may find disturbing.]

Everyone has a right to privacy.(( Article 21, Constitution of India, 1950.)) This means that anyone can do anything, sexual or not, thinking that no one is watching them (provided that it shouldn’t be illegal). Under the law, only a man can be punished for the crime.

Being Watched by Someone

If a person tries to watch someone while they are doing any private act, which they would do only if they thought(( Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism])) they were either completely alone or with a particular person they gave consent to, then it is a crime under the law. This crime is commonly known as voyeurism. Some examples are in cases where:

  • A person is being watched by someone when they are alone. For example, while they are using the toilet.(( State v. Shailesh, Delhi District Court, Criminal Appeal No.33/2016.))
  • Someone has illegally installed a camera in a person’s bedroom or hacked into their webcam to watch them in their private space.

Capturing Private Images 

If pictures, video or audio recordings of a person are without their permission, then it is a crime.

The punishment for capturing or watching someone without their knowledge or consent, is jail time of at least three years or a maximum of seven years along with a fine.(( Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism].))

Distribution of Private Pictures and Videos(( Section 354C, Explanation II, Indian Penal Code, 1860; Section 67 of Information technology Act, 2000.)) 

No one can record or distribute private pictures or videos of a person, unless they give consent. For example, if a person gives consent to only recording a sexual act with their loved one but has not given permission to distribute it to other people, and that recording is distributed, then it is a crime.

The punishment for distribution of private pictures, images or audio is jail time of at least three years or a maximum of seven years along with a fine.1

  1. Section 354C, Indian Penal Code, 1860 [Commonly known as Voyeurism]. [↩]

Facing Harassment and Violence

You may face harassment or violence on the basis of:

  • Your gender identity where you are being targeted specifically for identifying differently than the gender assigned to you at birth. For example, anti-beggary laws are used very commonly used by the police to arrest and harass transgender persons.
  • Your sexual orientation where you are being targeted for your choice of partners or sexual preference. For example, a lot of queer persons may not be comfortable with being public about their sexual orientation and they may blackmailed for money in exchange for keeping this a secret.

If you face targeted harassment or violence, you have a right to complain and get protection from anyone, including a family member, teacher, etc. who is harassing or hurting you. For immediate protection, you can call government helplines who will advise you on steps to take and assist you by sending the police to your location.

The kinds of violence that can happen to you may be in the form of:

If you decide to go to the police station to file an FIR (First Information Report), it is important to be confident and prepared with the law before you go, since there may be situations where you may get harassed by the police officers themselves. For example, the police officers may refuse to listen to you because you are a transgender person, so it is important to know the law under which you are filing the complaint.

Are Live In Relationships covered under Domestic Violence law?

[Trigger Warning: The following content contains information on domestic violence which some readers may find disturbing.]

You are in a live-in-relationship if you cohabit, i.e.  share a house with your partner without marrying him or her. It is considered a domestic relationship between an unmarried adult woman and an unmarried adult male who live or, at any point of time lived together in a shared household(( Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.)). Unlike a marriage, a live-in relationship is not legally regulated.. For example, you do not have to register the relationship, and  to end a live-in relationship, a divorce is not required, and you may end it in any manner you see fit.

A live-in relationships are considered valid under the law only if it is in the “nature of marriage” i.e. the relationship has some essential characteristics of a marriage, even if it is not legally recognized as a marriage. The courts, while pronouncing judgments on live-in relationships, compare them to marriages to  determine whether the relationship has the characteristics of a regular marriage(( Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.)).

Courts, through various cases(( Revanasiddappa v. Mallikarjun (2011) 11 SCC 1.)), have laid down the conditions for live-in relationships to  be considered as relationships in the “nature of marriage”(( Badri Prasad v. Director of Consolidation  (1978) 3 SCC 527.)). These are:

Duration of the Relationship

You and your partner must have voluntarily cohabited for a significant period of time, like months or years in a shared household. A few weeks,a weekend or a one night stand,  does not count as a live-in relationship.

Socialisation in Public

You and your partner should be socialising publicly with friends, relatives and others, as if you and your partner are husband and wife .

Age and Marital Status 

You and your partner should be able to qualify to enter into marriage i.e.neither  of you should have a spouse at the time of entering into the relationship, and both of you should be above the legally valid age of marriage i.e. 18 years.

Sexual Relationship

You and your partner must have a sexual relationship that includes emotional and intimate support2.

Financial Arrangement 

You and your partner have a financial arrangement similar to that of a husband and wife. For example, you have pooled in your resources together or financially support each other, such as through shared bank accounts, assets in joint names, long term business investments, etc.

Domestic Arrangement

If one of you, especially the woman, is entrusted with the responsibility to run the household and do domestic work – cleaning, cooking, upkeep of the house, etc. then this is a domestic arrangement similar to a marriage.

Intention and conduct of the parties

Common intention of the parties as to what their relationship is and their respective roles and responsibilities, primarily determines the nature of that relationship.

Children

Having children is a strong indication that the nature of the relationship is similar to that of a marriage, and that the participants have a long-term orientation towards the relationship.

If the criteria given above are not met, then your relationship will not be a live-in relationship recognized by Courts.

Some states provide handbooks for ASHA workers where you can find more information on forms on violence, where it can happen and how to file a complaint to seek protection against domestic violence. For example, see this handbook published for ASHA in Chattisgarh, Delhi, Jharkhand, Madhya Pradesh and Uttarakhand.