Sexual Assault and Sexual Harassment

Three points on section 7 that are asked. It is gender neutral on both sides. It covers the offender making the child touch somebody else, not only himself. And the third limb is residuary, so the four named body parts are not exhaustive of the offence; what is required is physical contact without penetration, done with sexual intent.

Sections 9 and 10: aggravated sexual assault

Section 9 mirrors section 5, clause for clause, with the words "sexual assault" in place of "penetrative sexual assault", and with two differences noted below. The circumstances are:

(a) a police officer, in the four situations of section 5(a); (b) a member of the armed forces or security forces, in the four situations of section 5(b); (c) a public servant; (d) management or staff of a jail, remand home, protection home, observation home or other place of custody or care and protection, where the child is an inmate; (e) management or staff of a hospital, Government or private, in that hospital; (f) management or staff of an educational or religious institution, in that institution; (g) gang sexual assault, with the same Explanation: each person of a group acting in furtherance of their common intention is deemed to have committed it and is liable as if he had done it alone; (h) using deadly weapons, fire, heated substance or corrosive substance; (i) causing grievous hurt, or bodily harm and injury, or injury to the sexual organs of the child; (j) assault which (i) physically incapacitates the child, or causes mental illness as defined in section 2(l) of the Mental Health Act, 1987, or causes impairment rendering him unable to perform regular tasks, or (ii) inflicts the child with HIV or any other life threatening disease or infection impairing him; (k) taking advantage of a child's mental or physical disability; (l) assault more than once or repeatedly; (m) assault on a child below twelve years; (n) by a relative through blood, adoption, marriage, guardianship or foster care, a person having a domestic relationship with a parent, or one living in the same or shared household; (o) by a person in the ownership, management or staff of any institution providing services to the child, in that institution; (p) by a person in a position of trust or authority, in an institution or home of the child or anywhere else; (q) knowing the child is pregnant; (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 any similar situations; (t) by a person previously convicted of any offence under this Act or any sexual offence under any other law; (u) where the offender makes the child strip or parade naked in public; (v), inserted by Act 25 of 2019 with effect from 16 August 2019, whoever persuades, induces, entices or coerces a child to get administered, or administers, or directs anyone to administer, or helps in getting administered, any drug or hormone or any chemical substance to a child, with the intent that the child attains early sexual maturity.

Section 10, punishment. Imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and fine.

Two differences from section 5 are worth stating. Section 9 has no clause corresponding to section 5(j)(iv), causing the death of the child, since a non-penetrative assault causing death would be dealt with elsewhere. And section 9 has the extra clause (v), the early sexual maturity drug clause, which has no counterpart in section 5.

Sections 11 and 12: sexual harassment

Section 11. A person is said to commit sexual harassment upon a child when, with sexual intent, he:

(i) utters any word or makes any sound, or makes any gesture, or exhibits any object or part of the body, with the intention that such word or sound shall be heard, or such gesture or object or part of the body shall be seen, by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child, either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction, through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefor.

Explanation. Any question which involves "sexual intent" shall be a question of fact.

Section 12, punishment. Imprisonment of either description for a term which may extend to three years, and fine.

Note what section 12 does not contain: a minimum. Every other punishment section in Chapter II has one; section 12 does not.

A worked example

A man touches a girl of ten over her clothing, with sexual intent.

Which offence? Sexual assault, section 7. Nothing in the section requires contact with the skin; the first limb is the touching of the vagina, penis, anus or breast of the child, and the third limb covers any other act with sexual intent which involves physical contact without penetration.

How is sexual intent proved? It is a question of fact, Explanation to section 11, and is drawn from the whole of the circumstances.

What is the punishment? Not less than three years, up to five, and fine, section 8.

Change the offender to the girl's schoolteacher, and the place to the school. Section 9(f): management or staff of an educational institution, committing the assault in that institution; and the punishment becomes not less than five years, up to seven, and fine, section 10.

Change the place to the girl's home. Clause (f) needs the assault to be in that institution, so it does not apply; but clause (p) covers a person in a position of trust or authority, committing it in an institution or home of the child or anywhere else.

The girl is eleven. Clause (m), a child below twelve, aggravates it independently.

Two men act together in furtherance of a common intention. Clause (g): gang sexual assault, each liable as if he had done it alone.

A different man gives the girl hormone injections so that she reaches puberty early. That is clause (v), inserted in 2019: administering, or getting administered, any drug, hormone or chemical substance with the intent that the child attains early sexual maturity.

Change the facts again: no contact at all. A man repeatedly follows the girl and messages her online. That is section 11(iv), repeatedly or constantly following, watching or contacting a child, directly or through electronic, digital or any other means, punishable under section 12 with up to three years and fine.

He then threatens to circulate a morphed photograph. Section 11(v): threatening to use, in any form of media, a real or fabricated depiction of any part of the child's body or of the child's involvement in a sexual act. The section covers a fabricated depiction expressly.

He shows her pornographic images. Section 11(iii); and if he entices her for pornographic purposes or gives gratification for it, clause (vi).

Distinctions

What this does NOT mean

Section 7 does not require skin to skin contact. It requires a touching of the named parts, or any other act with sexual intent involving physical contact without penetration.

Sexual intent is not presumed from the act. The Explanation to section 11 makes it a question of fact, decided on the evidence.

Sexual harassment does not require contact. Every clause of section 11 is satisfied without any touching.

Section 9 is not identical to section 5. It has no clause on causing death, and it has the extra clause (v) on drugs and hormones.

And section 12 has no minimum sentence, which distinguishes it from sections 4, 6, 8 and 10.

Quick revision

• 7: touching the vagina, penis, anus or breast of the child, or making the child touch those of the offender or another, with sexual intent; or any other act with sexual intent involving physical contact without penetration.
• 8: not less than three years, up to five, and fine.
• 9: twenty-two clauses, the section 5 list without the death clause and with the added clause (v) on drugs, hormones or chemical substances administered with the intent that the child attains early sexual maturity; the Explanation to (g) deems each member of a group acting in furtherance of a common intention to have committed gang sexual assault.
• 10: not less than five years, up to seven, and fine.
• 11: six clauses, from words, sounds, gestures or exhibition through making the child exhibit his body, showing pornographic objects, stalking, threatening a real or fabricated depiction, to enticing for pornographic purposes; and sexual intent is a question of fact.
• 12: up to three years, and fine, with no minimum.

Test yourself

1. Define sexual assault. Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child, or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration, is said to commit sexual assault, section 7.

2. Is skin to skin contact required? No. The section requires a touching of the named parts, or any other act with sexual intent involving physical contact without penetration; the third limb is residuary and does not depend on how the contact occurred.

3. How is sexual intent established? It is a question of fact, per the Explanation to section 11, and is drawn from the circumstances of the case.

4. What is the punishment for sexual assault and for its aggravated form? Sexual assault, imprisonment of either description for not less than three years, extending to five, and fine, section 8; aggravated sexual assault, not less than five years, extending to seven, and fine, section 10.

5. Which clause of section 9 has no counterpart in section 5? Clause (v), inserted by Act 25 of 2019, which covers persuading, inducing, enticing or coercing a child to get administered, or administering or directing or helping in the administering of, any drug, hormone or chemical substance with the intent that the child attains early sexual maturity.

6. Give three instances of sexual harassment. Uttering a word or making a sound or gesture intended to be heard or seen by the child; repeatedly or constantly following, watching or contacting the child directly or through electronic or digital means; and threatening to use, in any form of media, a real or fabricated depiction of any part of the child's body or of his involvement in a sexual act, section 11.

7. What is the punishment for sexual harassment? Imprisonment of either description which may extend to three years, and fine, section 12. There is no minimum sentence.