Penetrative Sexual Assault and Its Aggravated Form
Chapter Ninety-Four
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter II of the Act.
Pages 645 to 651 of 699
In one line
Section 3 defines the core offence in four ways, section 4 punishes it, section 5 lists twenty-one circumstances that aggravate it, and section 6 punishes that.
In exam wording: sections 3 to 6 of the Protection of Children from Sexual Offences Act, 2012 define and punish penetrative sexual assault and aggravated penetrative sexual assault.
Why the law has this at all
The offence of rape in the Indian Penal Code was drafted around a woman's body and a man's act, and neither half fitted a child.
The victim. A boy could not be raped in law. POCSO's section 3 begins "A person is said to commit penetrative sexual assault if" and never names a gender on either side.
The act. The Code's definition turned on penetration of the vagina. A child may be assaulted in ways that do not answer that description at all, and section 3 therefore has four clauses: penetration by the penis into the vagina, mouth, urethra or anus; insertion of any object or part of the body other than the penis into the vagina, urethra or anus; manipulation of any part of the child's body so as to cause penetration; and the application of the mouth to the penis, vagina, anus or urethra.
Each of the four also carries the words "or makes the child to do so with him or any other person", which is the provision that catches the offender who does not touch the child himself but makes the child perform the act.
And there is no reference to consent anywhere in section 3. A child cannot consent, so the section does not ask.
Section 5 then does what the Code never did: it makes the identity of the offender an aggravating circumstance in its own right. A police officer, a member of the armed forces, a public servant, the staff of a jail or a hospital or a school, a relative, anybody in a position of trust or authority. That is because the great majority of these offences are committed by somebody the child knows and cannot refuse.
Some words this chapter uses
Gang penetrative sexual assault is defined by the Explanation to section 5(g).
Position of trust or authority, section 5(p), is not defined, and is deliberately wide: it operates in an institution or home of the child or anywhere else.
Imprisonment for the remainder of natural life is the Act's own formula in sections 4(2) and 6(1).
Section 3: the definition
A person is said to commit "penetrative sexual assault" if:
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child, or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child, or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child, or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus or urethra of the child, or makes the child to do so to such person or any other person.
Penetrative Sexual Assault and Its Aggravated Form
Two drafting points that are asked. The words "to any extent" in clauses (a) and (b) mean that the degree of penetration is irrelevant. And clause (b) lists the vagina, urethra and anus but not the mouth, while clause (a) does include the mouth: the lists are not identical and should not be recited as if they were.
Section 4: punishment
Sub-section (1). Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
"ten years" was substituted for "seven years" by Act 25 of 2019, section 3, with effect from 16 August 2019.
Sub-section (2), inserted in 2019. Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.
Sub-section (3), inserted in 2019. The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of the victim.
Sub-section (2) creates a second threshold inside the offence. Below sixteen, the minimum doubles from ten years to twenty, and life means the remainder of natural life. That is separate from clause (m) of section 5, which aggravates the offence where the child is below twelve.
Section 5: the twenty-one aggravating circumstances
Read them in three groups; that is how they are remembered and how they should be written out.
Group one: who the offender is.
(a) a police officer, where the assault is (i) within the limits of the police station or premises at which he is appointed, (ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed, (iii) in the course of his duties or otherwise, or (iv) where he is known as, or identified as, a police officer; (b) a member of the armed forces or security forces, where the assault is (i) within the limits of the area to which the person is deployed, (ii) in any area under the command of the forces, (iii) in the course of his duties or otherwise, or (iv) where he is known or identified as such a member; (c) a public servant; (d) a person on the management or staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law, where the child is an inmate; (e) a person on the management or staff of a hospital, whether Government or private, where the assault is in that hospital; (f) a person on the management or staff of an educational institution or religious institution, where the assault is in that institution; (n) a relative of the child through blood or adoption or marriage or guardianship or in foster care, or a person having a domestic relationship with a parent of the child, or one living in the same or shared household with the child; (o) a person in the ownership, management or staff of any institution providing services to the child; (p) a person in a position of trust or authority of a child, committing the assault in an institution or home of the child or anywhere else.
Penetrative Sexual Assault and Its Aggravated Form
Group two: what was done.
(g) gang penetrative sexual assault. Explanation: where a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each is deemed to have committed gang penetrative sexual assault and is liable for that act in the same manner as if it were done by him alone; (h) assault using deadly weapons, fire, heated substance or corrosive substance; (i) assault causing grievous hurt, or bodily harm and injury, or injury to the sexual organs of the child; (l) assault more than once or repeatedly; (r) assault where the offender attempts to murder the child; (s) assault in the course of communal or sectarian violence, or during any natural calamity, or in similar situations; (u) assault where the offender makes the child strip or parade naked in public.
Penetrative Sexual Assault and Its Aggravated Form
Group three: who the child is, or what befell him.
(j) assault which (i) physically incapacitates the child, or causes him to become mentally ill as defined in clause (l) of section 2 of the Mental Health Act, 1987, or causes impairment of any kind rendering him unable to perform regular tasks, temporarily or permanently; (ii) in the case of a female child, makes the child pregnant; (iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may temporarily or permanently impair him; or (iv) causes death of the child; (k) assault taking advantage of a child's mental or physical disability; (m) assault on a child below twelve years; (q) assault knowing the child is pregnant; (t) assault by a person previously convicted of any offence under this Act or of any sexual offence punishable under any other law.
Clause (j)(iv), "causes death of the child", was inserted by Act 25 of 2019 with effect from 16 August 2019, and it is the clause that most often carries the death sentence under section 6.
Section 6: punishment for the aggravated offence
Sub-section (1). Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.
Sub-section (2). The fine shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of the victim.
Section 6 was substituted by Act 25 of 2019 with effect from 16 August 2019, and that substitution introduced death as a punishment for this offence.
A worked example
A man commits penetrative sexual assault on a child of fourteen.
What is the offence? Section 3, and the punishment is under section 4.
Which sub-section? The child is below sixteen, so section 4(2): not less than twenty years, extending to imprisonment for the remainder of natural life, and fine.
Change the child's age to seventeen. Then section 4(1): not less than ten years, extending to life, and fine.
What happens to the fine? It shall be just and reasonable and paid to the victim to meet his medical expenses and rehabilitation, section 4(3).
The offender is a constable, and the assault happened at his home while off duty. That is still clause (a) of section 5, because sub-clause (iii) covers the course of his duties or otherwise and sub-clause (iv) covers where he is known as, or identified as, a police officer.
Penetrative Sexual Assault and Its Aggravated Form
Change him to the child's uncle. Clause (n): a relative through blood, and, if he lives with the child, one living in the same or shared household.
Change him to a schoolteacher, the assault taking place at the child's home. Clause (f) requires the assault to be in that institution, so it does not apply; but clause (p), a person in a position of trust or authority, expressly covers an assault in an institution or home of the child or anywhere else.
Two men act together in furtherance of a common intention. Clause (g) and its Explanation: each is deemed to have committed gang penetrative sexual assault and is liable as if he had done it alone.
The child is eleven. Clause (m), a child below twelve.
The child is left permanently unable to perform regular tasks. Clause (j)(i).
The child dies. Clause (j)(iv), inserted in 2019.
What is the punishment in any of these cases? Section 6(1): rigorous imprisonment not less than twenty years, extending to imprisonment for the remainder of natural life, and fine, or death; and the fine is paid to the victim, sub-section (2).
Distinctions
| Offence | Minimum | Maximum | Section |
|---|---|---|---|
| Penetrative sexual assault | Ten years (raised from seven in 2019) | Life, and fine | 4(1) |
| The same, on a child below sixteen | Twenty years | Imprisonment for the remainder of natural life, and fine | 4(2) |
| Aggravated penetrative sexual assault | Twenty years rigorous | Imprisonment for the remainder of natural life, and fine, or death | 6(1) |
| The four limbs of section 3 | The act |
|---|---|
| (a) | Penetration by the penis, to any extent, into the vagina, mouth, urethra or anus |
| (b) | Insertion of any object or part of the body, not the penis, into the vagina, urethra or anus |
| (c) | Manipulation of any part of the child's body so as to cause penetration |
| (d) | Application of the mouth to the penis, vagina, anus or urethra |
| All four | Or makes the child to do so with him or any other person |
| Group | Section 5 clauses |
|---|---|
| Who the offender is | (a) police, (b) armed or security forces, (c) public servant, (d) custodial staff, (e) hospital, (f) educational or religious institution, (n) relative or household member, (o) institution serving the child, (p) position of trust or authority |
| What was done | (g) gang, (h) weapons, fire, heated or corrosive substance, (i) grievous hurt or injury to sexual organs, (l) more than once or repeatedly, (r) attempted murder, (s) communal or sectarian violence or natural calamity, (u) stripping or parading naked |
| Who the child is, or what befell him | (j) incapacity, mental illness, pregnancy, HIV or life threatening infection, death; (k) disability; (m) below twelve; (q) known to be pregnant; (t) previously convicted offender |
Penetrative Sexual Assault and Its Aggravated Form
What this does NOT mean
Section 3 is not gendered. It speaks of a person and a child, and the child is any person below eighteen.
It does not require full penetration. Clauses (a) and (b) say to any extent.
It does not require the offender to touch the child. Every clause covers making the child do it with him or any other person.
Consent is irrelevant. Section 3 does not mention it.
And the two age thresholds are different things. Below sixteen raises the punishment under section 4(2); below twelve makes the offence aggravated under section 5(m).
Quick revision
- 3: penetration by the penis into the vagina, mouth, urethra or anus; insertion of any object or body part other than the penis into the vagina, urethra or anus; manipulation causing penetration; application of the mouth; each to any extent and each including making the child do it with him or another.
- 4: not less than ten years to life, and fine; not less than twenty years to the remainder of natural life where the child is below sixteen; the fine just and reasonable and paid to the victim for medical expenses and rehabilitation.
- 5: twenty-one clauses, (a) to (u), grouped as who the offender is, what was done, and who the child is or what befell him; the Explanation to (g) deems each member of a group acting in furtherance of a common intention to have committed gang penetrative sexual assault.
- 6: rigorous imprisonment not less than twenty years, up to imprisonment for the remainder of natural life, and fine, or death; the fine paid to the victim.
- The 2019 amendment, Act 25 of 2019 with effect from 16 August 2019: raised s.4(1) from seven to ten years, inserted s.4(2) and s.4(3), inserted s.5(j)(iv), and substituted s.6 to introduce death.
Test yourself
1. Define penetrative sexual assault. A person commits it if he penetrates his penis to any extent into the vagina, mouth, urethra or anus of a child; or inserts to any extent any object or part of the body other than the penis into the vagina, urethra or anus; or manipulates any part of the child's body so as to cause penetration; or applies his mouth to the penis, vagina, anus or urethra of the child; in each case including making the child do so with him or any other person, section 3.
Penetrative Sexual Assault and Its Aggravated Form
2. What is the punishment? Imprisonment of either description for not less than ten years, extending to life, and fine; and where the child is below sixteen years of age, not less than twenty years extending to imprisonment for the remainder of natural life, and fine, section 4.
3. What happens to the fine? It shall be just and reasonable and paid to the victim to meet his medical expenses and rehabilitation, sections 4(3) and 6(2).
4. Give five circumstances that make the offence aggravated. Commission by a police officer; by a member of the armed or security forces; by a public servant; gang penetrative sexual assault; and assault on a child below twelve years. Others include assault causing death, assault by a relative or a person in a position of trust or authority, and assault taking advantage of a child's disability, section 5.
5. What is gang penetrative sexual assault? Where a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of them is deemed to have committed gang penetrative sexual assault and is liable for that act as if it were done by him alone, Explanation to section 5(g).
6. What is the punishment for the aggravated offence? Rigorous imprisonment for not less than twenty years, extending to imprisonment for life, which shall mean imprisonment for the remainder of the offender's natural life, and fine, or with death, section 6(1).
7. Does the extent of penetration matter? No. Clauses (a) and (b) of section 3 both use the words "to any extent".
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.