Newly-enacted BNS makes sexual offenses gender neutral
Clause 63 of the BNS retains the marital rape exception, while, there are some changes made for crimes perpetrated against children
The newly enacted Bharatiya Nyaya Sanhita (BNS), replacing the British-era Indian Penal Code, has made sexual offenses ‘gender neutral’ for the victim and the perpetrator, according to the official documents.
“Both boys and girls could get procured for sexual exploitation. The word ‘minor girl’ in section 366A of the IPC has been replaced with the word ‘child’ in clause 96 of the BNS to cover both male and female children below the age of 18 years and the offense of procurement has been made punishable,” an explanatory note for the new criminal law said.
It said that “importation of girl or boy from a foreign country” has replaced the wording “importation of girl from a foreign country” in Section 366B of the IPC, making the section gender-neutral. Clause 141 of the BNS was enacted to address the offense of bringing into India any lady under the age of twenty-one or any boy under the age of eighteen to force or lure them into engaging in unlawful sexual actions with another individual.
On July 1, Bharatiya Nyaya Sanhita (BNS), Bharatiya Sakshya Adhiniyam (BSA), and Bharatiya Nagarik Suraksha Sanhita (BNSS) went into force. Clause 141 of the BNS has been added to address the offense of bringing into India any lady under the age of twenty-one or any boy under the age of eighteen to force or lure them into engaging in unlawful sexual actions with another individual. The documents also state that the BNS addresses sexual offenses in a new chapter called “Offenses Against Women and Children. “Similar IPC offenses were covered in the chapter on ‘Offences Affecting the Human Body’.
Furthermore, the bill (BNS) suggests modifying the clauses of the rape of females younger than eighteen. According to the papers, it renumbers current rape provisions and harmonizes how the Protection of Children from Sexual Offences Act (POCSO) handles gang rape of underage women.
“This new offence proposes that gang rape of all minor women be punishable with death or with whole life sentence. The IPC currently provides this sentencing option only for the gang rape of a woman under 12 years under section 376DB,” it said.
Additionally, it stated that the BNS has implemented age-based rape victim categorization from the IPC and POCSO and has prescribed several punishment choices for juveniles who have been raped between the ages of 18 and 16, and 12. The explanation states that the penalties for rape of kids of various ages are essentially the same under the IPC, POCSO, and BNS.
It went on to say that whereas Clause 64(2) punishes serious kinds of rape with 10 years to life imprisonment for the duration of a person’s natural life, Clause 64(1) punishes rape accused with 10 years to life imprisonment. Furthermore, gang rape of a woman under the age of eighteen is now considered a “new offense” according to Clause 70(2) of the BNS. This provision of the BNS eliminates the age-based qualifications for classifying gang rape of a minor lady as an aggravated offense and combines sections 376DA and 376DB of the IPC.
Another “significant change”, as per the explanatory statement, is that the age of consent for a married woman under the definition of rape (Clause 63 BNS and section 375 IPC) has been increased from 15 to 18 years.
“Exception 2 to section 375 IPC provides that sexual intercourse between a man and his own wife, wife not being under the age of 15, is not rape. The change in the age of consent seeks to give legislative effect to the Supreme Court’s judgment in Independent Thought vs Union of India (2017), where the marital rape exception was read down to the extent that it allowed sexual intercourse between a man and his minor wife over the age of 15 years,” it said.
Clause 63 of the BNS retains the marital rape exception, while, there are some changes made for crimes perpetrated against children.
“The newly added Clause 95 of the BNS punishes a person who hires, employs, or engages any person below the age of 18 years to commit an offense.
“The punishment will be the same as that provided for the offense committed by the child as if the offense has been committed by such person himself,” it said. Clause 95’s explanation says that utilizing a kid for pornography or sexual exploitation is under its purview. Furthermore, section 361 of the IPC is proposed to be modified under Clause 137 of the BNS. This provision of the IPC made kidnapping girls under the age of eighteen and abduction boys under the age of sixteen illegal.
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