The laws governing sexual violence in India have been debated, reformed and reenacted time and again, but incidents of sexual violence continue to rise. According to the National Crime Records Bureau there was a 7% increase in male crimes against women from 2018–2019, which rose from 3,78,236 registered cases to 4,05,861.

Given the social context there remain gaps in the efficacy and adequacy of laws addressing sexual violence. The severity of assault in certain cases leads to public outrage and kneejerk reactions from our legislatures in response. Such incidents tend to reinvigorate the debate on more stringent punishment for aggravated forms of assault. Here we argue that our legal definitions of aggravated sexual assault need to recognise the socioeconomic reality, and the power dynamics of these crimes.

While aggravated sexual assault is defined in various Indian statutes, the recent verdict by the Bombay High Court in a case of sexual assault of a minor shows the ambiguity in the definition of sexual assault and aggravated sexual assault in the Protection of Children from Sexual Offences Act 2013.

In January 2021 a man was sentenced to five years’ rigorous imprisonment after he was alleged to have led a minor girl into a room with the zipper of his trousers open. As the victim was a minor under the age of 12, the assault was aggravated as per Section 9 of the POCSO Act. On appeal however, the high court held that the case could not be considered sexual assault at all, as there had been no physical contact between private parts ‘with sexual intent without penetration’. It set aside the conviction under sections of the POCSO Act, reducing the man’s sentence to time already served, just five months at the time of hearing.

There is no standard definition of aggravated sexual assault, but it can be understood as accounting for the harm caused over and above the harm of sexual assault. It is understood differently in various jurisdictions and legal instruments: for instance the Council of Europe Convention on preventing and combating violence against women and domestic violence lays down eight circumstances as aggravating factors of assault, which include repeated offence, extreme violence, and the use of a weapon to threaten the victim or survivor.

Other jurisdictions, without specifically defining aggravated sexual assault, provide for increased sentencing for cases such as assault against a minor, or by someone in a position of authority, or against someone suffering from disability, or physical torture, or gang rape.

Besides these common factors, there are also differences in various jurisdictions. Marital rape for instance is considered aggravated sexual assault in the Netherlands and France, while in most other jurisdictions it is not even considered an offence.

In India the POSCO Act and the Indian Penal Code contain provisions to address ASA. POCSO, which defines an aggravated sexual offence against children, lays down circumstances for ASA and aggravated penetrative sexual assault, which include assault by someone in a position of authority, by police officers or members of the armed forces, by staff in a place of custody or care, by repeat offenders, or assault using deadly weapons, causing grievous injury or bodily harm.

The penal code prescribes graded sentencing for different circumstances under Section 376 (punishment for rape). The aggravating circumstances listed in this section are similar to those in POCSO, being based on the victim-perpetrator relationship, the age of the victim, severity of the harm caused, the number of people involved in committing the crime, etc. The section also stipulates greater punishment for a repeat offender, or when the crime causes the victim’s death or results in a persistent vegetative state, or when the victim is under twelve years of age, among other sections (Criminal Law Amendment Act 2018).

Despite this comprehensive list differentiating sexual assault from aggravated sexual assault, the Indian framework does not clearly lay down a rationale or definition of ASA under the POCSO Act. Nor is there a separate provision for ASA or aggravated rape in the Indian Penal Code: the aggravating circumstances are included in the provision to punish rape.

The Indian framework of sexual assault laws does not account for the varying degrees of vulnerability of certain groups. For instance, the penal code treats sexual assault and rape as sex-specific crimes, recognising only adult (cis)women as victims of rape. It excludes transgender individuals from its purview.

While the Transgender Persons (Protection of Rights) Act 2019 penalises sexual abuse against trans people with six months to two years’ imprisonment and a fine, more serious forms of sexual abuse perpetrated on transgender persons can be punished by considering provisions under both the IPC and the Trans Act. But the IPC does not recognise an assault on a trans person, a marginalised group, as an aggravating circumstance.

Neither the IPC nor POCSO recognises sexual violence against women from marginalised social groups as aggravated offences. A recent report analysing 40 cases of sexual violence in Haryana found that 80% of sexual violence cases against women from Dalit castes are perpetrated by men from dominant castes.

In July last year, two young girls from Sonipat, Haryana were arrested in connection with the murder of two policemen. The same day one of the girls, who was a minor at the time, was allegedly raped multiple times by a group of 10-12 policemen while in custody, while the other, her first cousin, was brutally beaten and sexually harassed.

The mothers of these two girls told reporters that the police officials also “used casteist slurs against their daughters and verbally abused them”. Three of the 10-12 policemen named by the girls have been charged under the POCSO Act and Sections 376-2a (rape by a police officer) and 376D (gang rape) of the IPC, and relevant sections of the Scheduled Castes and Tribes (Prevention of Atrocities) Act.

Recognising that women from Dalit, Adivasi and Muslim families face multiple forms of oppression, on the basis of gender and also on caste and religion, Oxford Pro Bono Publico made a recommendation to the Indian state to include in its definition of rape and sexual assault a separate offence of “aggravated rape or sexual assault”.

There is a similar silence on marital rape. Despite suggestions by the Justice Verma Committee in 2013 to include non-consensual sex between married couples in the purview of statutory rape, no such changes were made in the Criminal Law (Amendment) Act of 2019.

Section 375 of the IPC makes the exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

In the Netherlands by contrast, marital rape can become an aggravating circumstance depending on the merit of the case. The rationale is that rape in the home or bed of the victim, by a perpetrator who is an intimate partner or spouse, is an aggravated form of the crime, because this is where the victim is supposed to be especially safe.

In a relationship like that of a married couple, wherein there is a personal and close connection between two people, the violation of space, bodily autonomy and consent of one by the other is a crime much more grievous than the same crime committed by a stranger.

Moreover, given how the patriarchal family dynamic puts the man in a position of authority over his wife, in principle it would make sense to recognise marital rape as an aggravated form of rape.

The argument against a separate, inclusive provision for ASA is made that by distinguishing between more or less serious forms of sexual assault, we end up acknowledging that an individual can be sexually assaulted “a little”, which may prove counterproductive in a society that already mistrusts victims of sexual violence. Grading the severity of sexual assault may lead to courts devaluing “less severe” cases (where the survivors don’t have serious injuries to show) or even failing to recognise them as crimes.

It is not easy to define aggravated sexual assault, the circumstances that constitute it, or how such situations should be addressed. Perhaps the implicit nature of the offence and its consequences is why jurisdictions internationally do not explicitly define it.

Yet given that the Indian legal framework categorically describes what constitutes ASA, it becomes imperative that the law also recognise the socioeconomic realities of our country, and include marginalised communities, whom perpetrators of sexual violence target disproportionately.

We must also recognise that there is something wrong with the way we have approached the issue of sexual violence, since no amount of legal reforms have been able to bring down its incidence. Our suggestion is to consider the less popular, but more beneficial route of rehabilitating sex offenders, and to revisit how we understand the issue.

Oindrilla Sinha is Research Associate, Centre for Advanced Studies in Social Sciences, Graphic Era (Deemed to be) University, Dehradun

Aishwarya Singh is a final year student at the National Law School of India University, Bangalore

Vjay Paul is Assistant Professor, Department of Humanities and Social Sciences, Graphic Era (Deemed to be) University, Dehradun