Criminalising romance

And other intended, and unintended, consequences of the sexual assault ordinance

The Criminal Law (Amendment) Ordinance, 2013, modifies provisions of the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act that relate to issues of sexual violence. In its hurry to act in the aftermath of the public outrage that followed the Delhi gangrape, the government has produced a shoddily drafted ordinance that contains major lacunae and problematic provisions. I highlight a few other problematic aspects: first, equating penetrative and non-penetrative sexual acts and the consequent creation of a disproportionate sentencing regime; second, the creation of overlapping offences; and third, increasing the age of sexual consent.

Sexual assault (or rape) might consist of penetrative or non-penetrative acts. Various legal systems make a distinction between penetrative and non-penetrative acts, and treat the former as more serious than the latter. For instance, the UK Sexual Offences Act, 2003, distinguishes between rape, assault by penetration and sexual assault. Under this act, rape involves penile penetration of the vagina, anus or mouth; assault by penetration involves penetration of the same orifices by a body part or object; sexual assault involves "sexual touching". Life imprisonment is provided as the maximum sentence for rape and penetrative assault. Non-consensual sexual touching results in a maximum imprisonment of ten years, based on a recognition that it is a less serious offence relative to penetrative acts. This formulation follows sentencing theory, which postulates that punishment should be proportional to the crime.

The ordinance, however, ignores this distinction between penetrative and non-penetrative acts. Section 375 (earlier rape, now rechristened "sexual assault") covers a range of both penetrative and non-penetrative acts, without gradation. The punishment for all the proscribed acts is the same a minimum term of seven years, which may extend to life. The lack of gradation is problematic, since it considers non-penetrative acts to be as serious as penetrative acts. Although both involve a violation of sexual autonomy, penetration is a more egregious violation of bodily integrity. Equating the two is akin to equating slapping a person with stabbing him.

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