Virtual Indecent Assault – Is it time for the Legislation to Dive Deep into the Digital Realm
Assault can be of any type i.e. the assault that was committed before committing the tort of battery or it can be a virtual indecent assault on the basis of technology that is at a leisurely pace becoming a part of our day-to-day lives. The term indecent has different meanings in various States and different punishments have also been given to the offenders for committing such assaults in different jurisdictions.
Few individuals consider indecent assault the same as sexual assault but they both have their different meanings and the gravity of these offenses is also different. Due to the development in the modern era in the field of technology, virtual reality is becoming the new medium of communication where an individual can interact with computers just as they do in the original world i.e., by talking with a virtual human in a vocal language, by writing a letter or by drawing a picture, without any difficulties or barriers.
Assault in law is commonly attributed to the term as an attempted battery in which, when any person by his/her intention causes someone to have an apprehension of the harm. The term assault has been defined under Section 351 of the Indian Penal Code. It provides that – Whoever makes any gesture, or any preparation intended or knowing. it is likely that such a gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force on that person, is said to commit an assault.
Indecent assault is contemplated to be a part of sexual assault. This can be illustrated as the unwanted touch by one person on the body of another person which includes ill-suited touching of the genital areas or bottom areas etc. All types of assault are non-consensual contact other than indecent assault which is not just a non-consensual contact but it is also sexual in nature which is generally done by violence or using force against another individual. However, Merriam Webster gives us the definition of indecent assault as an offensive sexual act or series of acts exclusive of rape that has been committed against another person without his/her consent.
As with any emerging technology in today’s world, the law must have to decide how to respond to these types of virtual forms of offenses. In present times technology is throwing into the scrutiny that what type of law will be considered to be real and in this article we are going to start it from a relatively clean slate. The main motive of this article is to consider the extent to which the criminal law must engage with virtual reality which is taking the form of virtual indecent assault at a very slow pace.
Understanding Virtual Reality
In the year 2016, there was a woman with the name of Jordan Belamire who was the victim of a virtual indecent assault. Her viral blog post elucidated the incident which brings our focus towards the legal and virtual reality communities to appraise the potential of such acts which are occurring virtually but cause real harm.
Then further we have the case of Tarkeshwar Sahu vs State of Bihar in which the Apex Court of India held that the offender is liable for indecent assault rather than rape and described that there is a thin line difference between both the terms and in this case, there was an absence of mens rea, the most essential element of crime, in committing the crime which is necessary for the act of committing a rape. The stories such as Belamire’s give us a view into the issues that must be dealt with in the dawn of virtual technology. The main aim of virtual reality is to trick the mind of users into thinking that their virtual happenings and encounters are real.
The term “cross reality” denotes the various forms of technology that manipulate and control a user’s reality. The different examples of mixed reality perch on what has been categorized as a reality-virtuality continuum. This perpetuity is a scale. On the one side of the coin, there is a technology that provides help to the users to interact with the real world. On the other side, there is a technology where users interact with an utterly virtual world. Sometimes virtual reality permits the user to encompass an avatar and then interrelate with their virtual surroundings. The Industry of virtual reality continues to grow at a speedy pace.
A notable event among it was the release of the Google Cardboard in the year 2014 when an inexpensive and attainable form of virtual reality named after what the product is primarily made of. The same cheap box, when integrated with a phone and 360-degree videos, permits for an acquiescent virtual reality experience. The year 2016, however, is considered as the breakthrough year for the cross reality sector with the release of four major virtual reality hardware platforms. Without any doubt, the gaming industry is the navigating force behind the expansion of virtual reality. However, the future of virtual reality does extend beyond gaming. It has the possibility and potential to act as an extension of everyday life. Shopping, job interviews, business meetings, schooling, medical training, and even psychotherapy could all occur in virtual environments.
Legal Provisions of Indecent Assault
Various countries have different provisions for describing and punishing the offenders of sexual assault which varies from jurisdiction to jurisdiction. But in India, this term has not been yet defined in any of the legal provisions of the country except in the definition of assault against women to outrage her modesty under Section 354 of the Indian Penal Code. In our country the elucidation of indecent assault has not been given under any Section; the Courts generally expounded this as a mere assault as under Section 354 of IPC or whether punishable as sexual assault under Section 376.
In countries like England and Wales, they have the act of Sexual Offences, 1956, in which the punishment given for indecent assault is a minimum of 30 months which can extend further and the provision of punishment is applicable for all individuals whether it is a male or female. It should be accentuated that indecent assault can arise through a wide range of forms of physical contact. Assault is the intentional act of applying or attempting to apply force to the person of another.
The slightest touching can be an assault as a matter of law, but it must be done intentionally. So, now it can be assumed that physical contact is not a necessary element for charges of indecent assault. An attempt or threat of applying force is sufficient. In T S v R, the defendant exposed himself to the complainant at her front porch while holding the door so she couldn’t close it and asked her to have sex with him. This was enough for any of the Courts to differentiate it as a threat that would have been carried out had the complainant not withstand by closing the door. It is clear that emotional and psychological effects arising from the threat are the central harms to which the offense responds.
In our country, the term indecent assault is generally considered the equivalent of the concepts of sexual assault and rape, and owing to this fact, sometimes the punishment which is imposed on the individual for indecent assault is equal to the punishment that is given to offenders for the offense of rape or sexual assault. Despite the fact that the accused of indecent assault is not at slighter fault, nevertheless, the gravity of the offense is somewhere less than rape.
In England and Wales, the Sexual Offences Act, 2003 replaced the Act of 1956 and indecent assault was amalgamated with other offenses, counting rape. Therefore in England and Wales, the accused who has perpetrated the crime of indecent assault can be penalized at par with the punishment of rape. The judiciary of India should play a vigorous part in the bonafide and proper interpretation of the offense and should impose punishment accordingly.
In 2019, a nationwide movement MeToo was witnessed in India, where many women came out and conversed about the parts of assault they have faced either at their workplace or in their families. However, some of these allegations were true and some allegations were false which have been inflicted mostly for defaming another person which sometimes resulted in the suicide of these individuals.
Therefore, this is the obligation and responsibility of the judiciary of India to penalize the accused, after thoroughly going through all the facts, circumstances, and the proper interpretation of that particular case. However, if the intensity of the assault is such that it has caused serious mental and physical harassment to the other person, then the punishments should create a deterrent effect so that no one can commit such offenses in the future.
Virtual reality is becoming a crucial aspect of and has a major impact on our day-to-day lives. This article explains the concept of virtual reality and how indecent assault can take place through the same. The author has also discussed certain legal provisions related to indecent assault, in India as well as in some other countries. The author has also explained the difference between indecent assault and rape or sexual assault. The author has concluded by saying that if the intensity of the assault is such that it has caused serious mental and physical harassment to the other person, then the punishments should create a deterrent effect so that no one can commit such offenses in the future.