Sexual Offences — BNS Sections, Medical Examination of the Survivor and Evidence Collection

Sexual offences are acts of non-consensual sexual contact, penetration, exposure or harassment that the criminal law punishes. The Bharatiya Nyaya Sanhita, 2023 (BNS) is Act 45 of 2023, and its section 358 states that the Indian Penal Code is repealed. The rape provisions therefore now sit in BNS sections 63 to 73, and the offences against a woman's modesty in sections 74 to 79. Old IPC numbers are still quoted in many books, so learn the BNS number and the offence together.

The BNS text contains no section on 'unnatural offences'; the heading that older books carried under the Indian Penal Code has no counterpart in the sections covered here. The offences below are written with a woman as the victim, so exam questions on rape, gang rape and harassment are really questions on the wording of these sections.

Section 63 says a man commits rape if he performs any of four acts on a woman, under any of seven descriptions. The acts are broader than penile-vaginal penetration.

• (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman, or makes her do so with him or another person;
• (b) inserts, to any extent, an object or a part of the body other than the penis into the vagina, urethra or anus;
• (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of her body;
• (d) applies his mouth to the vagina, anus or urethra of a woman, or makes her do so with him or another person.

Two explanations are favourite exam material. Explanation 1: 'vagina' includes the labia majora, so full penetration is not needed. Explanation 2: consent is an unequivocal voluntary agreement communicated by words, gestures or any other verbal or non-verbal communication, and a woman who does not physically resist is not regarded as consenting merely for that reason.

Section 64(1) is the basic punishment: rigorous imprisonment of not less than ten years, which may extend to imprisonment for life, and fine. Section 64(2) lists aggravated forms with the same band of punishment, but with 'life' defined as the remainder of the person's natural life.

• A police officer (in the police station limits, a station house, or on a woman in custody).
• A public servant on a woman in custody; a member of the armed forces deployed in an area.
• Jail, remand home or women's/children's institution management or staff, on an inmate; hospital management or staff, on a woman in that hospital.
• A relative, guardian, teacher or person in a position of trust, authority or control.
• Rape during communal or sectarian violence; on a woman known to be pregnant; on a woman incapable of giving consent; on a woman with mental or physical disability.
• Rape that causes grievous bodily harm, maims, disfigures or endangers life; rape committed repeatedly on the same woman.

Several sections add that the fine must be just and reasonable to meet the medical expenses and rehabilitation of the victim and is paid to the victim. Section 72 punishes anyone who prints or publishes the victim's name or any matter that may reveal identity (up to two years and fine), with exceptions for police investigation, the victim's written authorisation, or next of kin of a dead, child or unsound-minded victim through a recognised welfare institution. Section 73 punishes publishing court proceedings on these offences without the court's prior permission; publishing a High Court or Supreme Court judgment is not an offence.

Stalking has built-in defences: it is not stalking if the man proves it was done to prevent or detect crime (when entrusted by the State), under a law or to comply with a legal requirement, or that it was reasonable and justified in the circumstances. In voyeurism, consent to capturing an image does not extend to dissemination (Explanation 2 to section 77).

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) section 184 governs medical examination of a woman alleged to have been raped. When the police propose such an examination during investigation, it is done by a registered medical practitioner employed in a hospital run by the Government or a local authority (or, in their absence, any other registered medical practitioner), with the consent of the woman or of a person competent to consent for her. She must be sent within twenty-four hours of the police receiving the information.

BNSS section 176(1) adds that, in rape investigations, the statement of the victim is recorded at her residence or a place of her choice, as far as practicable by a woman police officer in the presence of her parents, guardian, near relatives or a social worker, and it may also be recorded through audio-video electronic means including a mobile phone.

StatPearls stresses that medical management comes first: ensure safety and treat acute trauma such as lacerations, head injury or intoxication before evidence collection. Hospital medical records and the forensic record are kept separate; the sexual assault evidence collection kit has its own structured guide.

• Timing: ideally evidence collection within 72 hours of the assault, though many jurisdictions allow collection up to 5 days.
• Before the examination: ask whether the patient has bathed, urinated, defecated, douched or changed clothes, and record it, because this can alter the forensic analysis. The patient should not change clothes, urinate, defecate, eat or drink before the exam if avoidable.
• Clothing and debris: for a forensic examination the patient undresses over clean table paper so debris is collected; any debris, wet secretions or crusted dry secretions are noted, photographed and collected. Nearly two-thirds of forensic evidence can be found on clothing or linens.
• Examination: complete skin examination with documentation of injuries; external genitalia checked for abrasions, lacerations, bruises, bleeding, tenderness and secretions. Wear non-powdered gloves and avoid a Foley catheter.
• Drug-facilitated assault: history and sampling should address alcohol or drug facilitation.
• Consent and trauma-informed approach: use structured interviews to avoid repeated questioning, and avoid 'why' questions, which can imply blame.

Clinical care follows evidence rules: emergency contraception (ulipristal or levonorgestrel) should be taken as soon as possible or within 5 days; a copper intrauterine device inserted within 5 days (120 hours) is 99% effective; a pregnancy test is suggested 14 days after the assault. STI and exposure prophylaxis are offered where appropriate.

Forensic medicine covers sexual perversions (paraphilias), of which voyeurism and frotteurism link most directly to the offences above. The DSM-5 separates a paraphilia (the interest) from a paraphilic disorder, which causes clinically significant distress or impairment, or involves harm or risk to others while gaining sexual gratification. Frotteurism is one of the eight paraphilic disorders listed in DSM-5.

• Section numbers: rape is 63, its punishment 64, gang rape 70, not the old IPC numbers.
• Age cut-offs: 12, 16 and 18 each change the section: under 12 (death possible), under 16 (minimum 20 years), under 18 (consent irrelevant for rape under 63(vi); gang rape 70(2)).
• Consent is not 'lack of resistance': Explanation 2 says non-resistance is not consent.
• Medical procedure exception: a lawful medical procedure is not rape; hospital staff misusing their position fall under 64(2)(e).
• 'Within 24 hours' applies to sending the woman for examination after the police information; the report goes to the investigating officer in 7 days.
• Press restrictions: identity disclosure (section 72) and court-proceedings publication (section 73) are separate offences, each with up to two years.

For revision across the subject, see IPC/BNS sections in forensic medicine and medical ethics, negligence and consent.