Recently China had prohibited sex with under aged persons and also incorporated penal provisions for sexual assault on male by another person. India, the neighbour country still lacks the courage to implement reasonable provisions in sexual assault laws to incorporate gender neutrality and prohibition of sex with under aged. A neutral overview on the present position of law relating to sexual crime is posted here.

Sex with under aged persons
This is a crime in India as per Section 376 of the Indian Penal Code. Under age limit is eighteen years after the Criminal Law Amendment Act, 2013. A man is said to commit rape when he has sexual intercourse with a woman who is under eighteen years of age even if it was done with her consent. But there is an exception for having intercourse with under aged wife. Sexual intercourse by a man with his wife is not rape if she is not under fifteen years of age. In India the age of majority is eighteen years as per Indian Majority Act and the age of getting married is twenty one for male and eighteen for female as per Prohibition of Child Marriage Act. But for the offence of rape the exception to one's own wife is fifteen years age limit. This is under challenge in the honourable Supreme Court of India on the question of constitutional validity on a public interest litigation filed by NGO named 'Independent Thought'. Actually there is no logic to think that a girl under sixteen or eighteen years of age undergoing intrusive sexual intercourse from her husband is no offence under the law because she is married to that person. The Protection of Children from Sexual Offences Act, 2012 was also referred by the petitioner as contrary to exception granted in Indian Penal Code. It is pertinent to note that no exclusion for intercourse with married girl below eighteen years is given in the above Act. Interestingly and also devoid of any reasoning, there is yet another exception in the Criminal Procedure Code which states that no court shall take cognizance of an offence of rape which consist of sexual intercourse by a man with his own wife who is under eighteen years of age, if more than one year has elapsed from the date of commencement of the offence.
At present the age factor can be summarised as follows:
Man can have sexual intercourse with a girl of fifteen years of age, if she is his wife.
Man can have sexual intercourse with a girl not being his wife, if she is at least eighteen years of age.
An offence of rape of wife having age of below eighteen years will be condoned if more than one year has elapsed from the date of commencement of the offence.
Altogether the above law looks confusing and without any logic. There were millions of child brides in India at the time of making of such laws which will justify such age-classifications. But the times have changed. Now such laws has to be logically redrafted to incorporate all details by clearing the anomalies.

Gender Neutrality
Laws should be modified to be gender-neutral
In the Indian Penal Code, the word rape is not defined, but merely goes on saying that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. So it is evidently clear that the Code does not deal with any act of sexual assault by a female to a male. It is more clear with the opening words of the section of the offence (Section 375) :"A man is said to commit rape...". There is yet another section which prohibits carnal intercourse where gender is not explicitly mentioned. But it says that penetration is necessary. It is felt that two words "rape" and "intercourse"/"penetration" should have to be clearly defined under the Code. We may feel that the offence of rape is typically a male act. But there should have been enough clear gender-neutral provision in the Code for sexual assaults including penetration.
The issue of restrictive meaning of the word "penetration" or "intercourse" was raised in a Writ Petition by a social organisation 'Sakshi' in the year 1999 in the honourable Supreme Court of India. Law Commission of India was asked to submit answers to various questions including the following: Having regard to the widespread prevalence of child sexual abuse, would it not be appropriate to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal  penetration within the meaning of the expression "penetration" in the Explanation to section 375 of the IPC. By the Criminal Law Amendment Act in 1983, raping of a woman less than twelve years of age was made punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life in addition to fine. In such a situation, the petitioner submitted that, it would be appropriate to broaden the meaning of penetration to include not only vaginal penetration but also anal and oral penetration as well as penetration by any part of the body or by any object. There was another suggestion to replace or create a new section to incorporate the term "sexual assault" in the Code. Since the Court ordered the Commission to study these things, a draft proposal of amendments was made by the Commission to add various offences like 'sexual assault' to any person and thereby make it gender neutral. Penetration was to be explained to mean penetration to any extent as it may not be possible to complete the same in case of children. Forced sex with wife was also to be made an offence.
Various times, the Commission discussed rape and allied offences in its reports and recommendations. It is sorry to note that no clear and substantive law or provision was enacted to make the offence of sexual assault a gender neutral one. But lawmakers only should not be blamed for lacking of such a law as laws are made taking into consideration the existing social set up and growing crime events (reported or complained). Males may deter from raising complaints about a woman sexually assaulting them. This may be due to shame-factor or other things.

Filling lacunae in law
Law must be explicitly made to cover offences committed by both genders and also to include transgenders. The term "man" in Section 375 to be appropriately modified to include transgender-males. The term "whoever" mentioned in Sections 376 to 377 of the Indian Penal Code may be deleted and term "person" may be incorporated in its place and that word may be defined separately to include all the genders, in which husband and wife are included. At present there is no single exclusive provision to cover sexual harassment undergone by males from any genders. The word penetration to be defined to include forced act of penetration from all genders and it should be made to cover any extent of depth. Some may defend that there was a penetration but no sexual assault. There shall be strict definition to cover this aspect also. Here the age factor plays a major role. There was a news item which stated that minimum age of marriage will be shortened. If so, the age factor for penal provisions will be crucial. However we feel that it is high time the law makers revisit the sexual assault laws of India.
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