Sexual Abuse

Posted on by user

Introduction

Sexual abuse is a legally and socially loaded concept: it encompasses a spectrum of non‑consensual sexual conduct — from unwanted touching and insulting gestures to forced sexual intercourse and the use of sexualised material to humiliate or control. In India, sexual abuse is simultaneously a criminal wrong, a recognised form of domestic violence, a workplace offence and (where the victim is a child) a distinct statutory crime. For practitioners, the term is polyvalent: the choice of forum, cause of action, supporting evidence and remedial strategy will all turn on precise facts (relationship between parties, age of the survivor, place of occurrence, existence of injuries or forensic traces, digital evidence, and delay). This article consolidates the controlling legal provisions, practical courtroom uses, key authorities and tactical advice you need when handling matters involving sexual abuse.

Core Legal Framework

Primary statutes and provisions governing sexual abuse in India:

  • Protection of Women from Domestic Violence Act, 2005 (PWDVA)
  • Section 3 — definition of “domestic violence” and, within it, the definition of “sexual abuse”. (PWDVA expressly recognises sexual abuse as a form of domestic violence, including forcing the aggrieved person to engage in sexual activity without consent and forcing the person to watch pornography or perform sexual acts.)

  • Remedies under PWDVA: civil and protective reliefs (protection orders, residence orders, maintenance/monetary relief, custody, compensation and interim orders) are available to an “aggrieved person” in domestic contexts.

  • Indian Penal Code, 1860 (relevant sections)

  • Section 375 — definition of “rape” (post‑2013 amendments) — lists penetrative acts (including penile penetration of vagina, mouth or anus; insertion of object/part of body; or use of any body part/thing to cause penetration), and includes coercive and non‑consensual acts. (Note: Exception 2 to Section 375 exempts sexual intercourse by a husband with his wife (where wife is above 18) — the narrow marital rape exception remains a practical constraint; see Independent Thought below.)
  • Section 376 — punishment for rape.
  • Section 354 — assault or criminal force to a woman with intent to outrage her modesty.
  • Sections 354A to 354D — sexual harassment (354A), assault or use of criminal force to disrobe (354B), voyeurism (354C), stalking (354D) — introduced / expanded by the Criminal Law (Amendment) Act, 2013.
  • Section 509 — word, gesture or act intended to insult the modesty of a woman.
  • Section 498A — cruelty by husband/relatives (where sexual abuse occurs in marital/domestic context as part of cruelty).

  • Section 377 — unnatural offences (note: post‑Navtej Singh Johar (2018) consensual sexual acts among adults were decriminalised; non‑consensual and exploitative acts remain punishable).

  • Protection of Children from Sexual Offences Act, 2012 (POCSO)

  • Sections 3–9 (and related provisions) create specific offences for penetrative sexual assault, sexual assault, sexual harassment and aggravated forms when the victim is a child. POCSO is mandatory and strictly procedural; reporting and special procedures apply.

  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)

  • Covers sexual harassment in the workplace; internal complaints committees and statutory timelines.

  • Information Technology Act, 2000

  • Section 66E — punishment for violation of privacy (capturing/distribution of images of private parts).
  • Section 67 / 67A / 67B — publishing or transmitting obscene material; child pornography (67B).

  • Criminal and civil remedies under IT Act and intermediary liability rules may assist in digital‑evidence preservation and takedown.

  • Criminal Procedure Code, 1973 (CrPC)

  • Section 154 — FIR; immediate lodging of complaint for cognizable sexual offences.
  • Section 164 — statement before magistrate (important for recording version).
  • Procedural provisions enabling medico‑legal examination, investigation and charge sheets (Section 173).

Practical Application and Nuances

How sexual abuse is addressed day‑to‑day in courts and police stations:

  1. Choosing the correct cause of action
  2. Domestic context (husband/partner/relative): PWDVA complaint for civil relief + concurrent criminal complaint (IPC offences such as 375/354/509/498A) where facts permit. PWDVA gives quicker interim remedies (protection orders, residence orders, interim maintenance) that can be obtained even when criminal proceedings are pending.
  3. Workplace: POSH Act complaint to internal committee and/or criminal complaint under IPC (354A/509).
  4. Child victim: POCSO is mandatory — the prosecution proceeds under POCSO rules; police are duty‑bound to register and the special court hears the case.

  5. Digital abuse (non‑consensual sharing of images/videos, forced consumption): IT Act offences (66E/67), IPC sections for harassment/insulting modesty, and PWDVA when perpetrator is in a domestic relationship.

  6. Essential evidence and medico‑legal aspects

  7. Medico‑Legal Certificate (MLC) and timely medical exam: even if there are no obvious injuries, medical records documenting complainant’s state, swabs, injuries, pregnancy or STIs are crucial.
  8. Forensic/DNA evidence: where available (semen, touch DNA), it is powerful; preserve chain of custody, obtain special DNA testing and ensure sampling protocols were followed.
  9. Victim’s statement (Section 164 CrPC): an early, recorded statement before a magistrate can be decisive; courts treat uncorroborated testimony of a victim as admissible if reliable.
  10. Digital evidence: WhatsApp/Instagram messages, videos, metadata, cloud backups, screenshots with timestamps; use forensic examiners to extract deleted content and prove origin. Preserve devices and obtain preservation orders from courts or police.

  11. Witnesses: family members, neighbours, medical staff, NGOs, and co‑workers who can corroborate harassment patterns or incidents.

  12. Framing charges and chargesheet drafting

  13. Draft charges in parallel: do not limit to a single section. Where facts show penetration or oral/anal sex without consent, charge under Section 375/376 (subject to marital exception), and additionally under 354/509/354A/354C as applicable.
  14. In marital contexts where Section 375 cannot be invoked due to marital exception, deploy alternative criminal provisions (498A/cruelty, 354/509/354A, stalking) and simultaneously pursue robust PWDVA remedies (protection/residence/maintenance/compensation).

  15. For repeated sexual harassment or stalking, document pattern and file complaints under 354D (stalking) and 354A(2)(b) (repeated gestures/messages causing harassment).

  16. Use of PWDVA in practice

  17. Quick interim reliefs: magistrates can grant immediate protection orders and direct police to assist in execution. PWDVA enables quicker, survivor-focused interim reliefs that criminal law alone may not provide.
  18. Reliefs that matter: residence orders (to evict the respondent from shared household), protection orders (restricting contact), monetary relief (medical costs, loss of earnings), custody orders for children, and compensation. These are obtained by application to the magistrate (and enforced like civil orders).

  19. Parallel proceedings: PWDVA remedies coexist with criminal prosecutions — courts have allowed both routes to run simultaneously; drafting of reliefs should anticipate criminal timelines.

  20. Procedural safeguards and special procedures

  21. Privacy of proceedings: courts protect the identity of sexual assault survivors; press reporting restrictions apply.
  22. Special courts/POSCO courts: when POCSO applies, cases go to designated courts with child‑friendly procedures.
  23. Recording of testimony: magistrates and courts must avoid traumatizing the survivor; use support persons and ensure in-camera proceedings where appropriate.

Landmark Judgments

  • Vishaka v. State of Rajasthan, (1997) 6 SCC 241

  • Laid down fundamental‑rights based guidelines for prevention and redressal of sexual harassment at workplace in absence of statutory machinery. Though subsequently replaced by the POSH Act, Vishaka remains foundational for the proposition that sexual harassment violates Articles 14, 15 and 21.

  • Velusamy v. D. Patchaiammal, (2010) 10 SCC 469

  • Interpreted scope of “domestic relationship” and “shared household” under the PWDVA; clarified who can claim relief and stressed that a long‑term live‑in relationship may bring the aggrieved person within the Act’s ambit. Useful when sexual abuse arises in non‑marital domestic settings.

  • Independent Thought v. Union of India, (2017) 10 SCC 800

  • The Court declared that sexual intercourse by a man with his wife who is a minor (below 18 years) is an offence under Section 375; i.e., marital rape immunity does not apply where the wife is a minor. The decision emphasises child protection in sexual abuse jurisprudence and narrows the marital exemption.

Strategic Considerations for Practitioners

How to leverage the law, and common pitfalls to avoid:

  1. Tactical intake and early steps
  2. First 48–72 hours are critical: ensure medical examination (MLC), collect clothes, preserve devices, seek immediate protection/residence orders under PWDVA if domestic relationship exists, and file FIR where offence is cognizable.

  3. Document contemporaneous complaints — to police, family members, NGOs, helplines — and obtain copies; Courts view prompt complaints as enhancing credence.

  4. Parallel civil and criminal routes

  5. Use PWDVA for urgent protective relief and monetary support; reserve criminal prosecution for long‑term accountability. Draft PWDVA applications with crisp facts, reliefs sought and interim relief reasons. Seek interim maintenance and residence orders at the earliest.

  6. Coordinate with prosecution: ensure investigation reaches the special/POCSO court if applicable; insist on forensic testing and medical record production.

  7. Drafting and framing charges

  8. Be comprehensive and avoid constraining charges to a single section: state the facts first and map them to multiple applicable sections.

  9. Where marital exemption blocks Section 375, do not abandon criminal remedies — deploy 354/509/498A and robust PWDVA claims; explore technical offences under IT Act where digital abuse is present.

  10. Evidence management

  11. Preserve digital evidence through legal notice, court preservation orders, and seizure by police. Obtain expert forensic extraction and chain‑of‑custody documentation.

  12. For MLCs and DNA, insist on certified reports, retention receipts and laboratory authentication. If delay prevents biological proof, prepare to rely on consistent victim testimony and circumstantial evidence — courts accept uncorroborated testimony where reliable.

  13. Handling cross‑examination and hostile witnesses

  14. Anticipate attack lines: delay, consensual inference, previous sexual history (rape shield principles limit this), and inconsistencies. Prepare explanations for delay and reconcile inconsistencies by anchoring on contemporaneous records and medical evidence.

  15. Use Section 146 CrPC procedures? (avoid experimental tactics). Seek protective orders to avoid intimidation of witnesses.

  16. Confidentiality and trauma‑sensitivity

  17. Apply for in‑camera proceedings and anonymity orders where beneficial. Advise clients on social media restraint: public posting can be used against the complainant and hamper relief; seek interim injunctions to restrain publication.

  18. Avoiding misuse and ethical concerns

  19. While countering claims of malicious prosecution, ensure pleadings are fact‑based and not inflammatory. Courts have caution: while false complaints must be discouraged, genuine survivors must not be deterred by fear of counterclaims.

Common pitfalls to avoid
– Treating PWDVA as only a “domestic/civil” remedy and not pursuing criminal accountability where available.
– Failing to secure or preserve digital evidence (deleted messages, cloud backups).
– Delay in medical examination; losing opportunity for forensic samples.
– Overreliance on a single form of evidence; neglecting to obtain corroborative contemporaneous documents or witnesses.
– Framing charges without considering marital exemption issues — leading to weak charges that the court may quash.

Conclusion

“Sexual abuse” in India is dealt with through overlapping criminal, civil (PWDVA), workplace (POSH) and child‑protection (POCSO) regimes. Practitioners must be adept at selecting the correct forum(s), preserving medical and digital evidence early, and combining immediate protective relief (PWDVA) with criminal accountability where facts permit. Important tactical themes are: early MLC/forensic steps; parallel, non‑exclusive charge framing; effective use of PWDVA for interim protection and monetary relief; and sensitivity to the survivor’s trauma and privacy. Landmark rulings (Vishaka, Velusamy, Independent Thought) and the 2013 criminal law amendments must guide pleading, charging and relief strategies; but the persistent marital exemption in Section 375 requires creative and robust use of alternative criminal provisions together with statutory domestic remedies.