Section 354C - Voyeurism

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1. Introduction

In spite of so many strict and stringent legislation for the safety of women to curb the vulnerable and deteriorating condition, the cases related to violence against women, outraging her modesty, sexual harassment, rape etc. are increasing day by day at a very high pace.

There are many legal provisions which punish the culprits committing offences against women. The Indian Penal Code though, provides provisions for women as a victim of many crimes such as murder, robbery, theft, etc. but there are certain crimes which are diametrically characterised against the women known as ‘Offences Against Women’. With the need of the hour, many new socio-economic offences have been enacted accompanied by various amendments in the existing laws with an objective to combat these crimes effectually.In 2013, various amendments were made in Indian Penal Code,1860.Under the Criminal Law Amendment of 2013, Indian Penal Code ,1860 introduced series of new offences specifically impacting women.

A ‘voyeur’ is generally defined as "a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities. A ‘Voyeur’ is generally defined as “a person, who observes something without participating; one who gain pleasure by secretly observing another’s sexual acts

Voyeurism has surfaced in recent times with the advent of internet and social media sites.Thus, the 153 year old Indian Penal Code (IPC) now recognizes stalking, sexual harassment and voyeurism (watching a woman engaging in a private act, where she would have expected not be observed) as crimes. Section 354C of the Criminal Law Amendment Act, 2013 states that Sexual Voyeurism is one of the type of Sexual Harassment that has been identified under the Act. The section clearly states that who have been watched, or recorded, without their consent and under circumstances where the victim could reasonably expect privacy, and where the victim’s genitals, buttocks or breast have been exposed

Voyeurism, in a broader perspective implies the act of gaining sexual pleasure from watching other people while they engage in sexual activities or are naked. “Voyeurism is a paraphilia that involves sexual pleasure from viewing unsuspecting individuals undressing, already nude, or involved in sexual activity”.It can also be defined as the habit of spying on people doing actions that are generally regarded as private, such as engaging in sexual activity or undressing. In voyeurism, the person being observed may have no connection with the voyeur in any way.

Voyeurism under the Indian Penal Code, 1860, section-354C describes the act as, “Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her is a crime. This includes a woman, using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.” Private act under this provision describes an act of watching carried out in a place, where in the circumstances would reasonably be expected to provide privacy. Any other person at the behest of the perpetrator or distributing such image shall be punished on first conviction with the imprisonment of either description for a term not less than one year, but which may extend to three years, and shall also be liable for fines and punishable on a second or subsequent conviction with the imprisonment of any description for a term not to be imposed.


2. The Concept of Voyeurism

Voyeurism may be considered in two ways.The Canadian Oxford Dictionary defines a voyeur as "a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activity."

Voyeurism may also refer to a sexual disorder or paraphilia. Voyeurism paraphilia is characterized by :

   • a), recurrent, intense sexually arousing fantasies, sexual urges or behaviours involving voyeuristic activity, and
     
   • b), the fantasies, sexual urges, or behaviours cause clinically significant distress or impairment in social, occupational, or other important areas of functioning…
     

Many individuals include voyeuristic fantasy or behaviour in a repertoire of sexual fantasies. It is only when these fantasies become a focus for an extended period of time (six months or more) and cause distress or impairment in one's life that this would be diagnosable as a paraphilia.The voyeurism paraphilia often accompanies other personality disorders such as exhibitionism.[2] According to some psychiatric studies, 20% of people involved in voyeurism will go on to commit more serious sexual assault offences


2.1 Defining voyeurism


Voyeurism is defined as an interest in observing unsuspecting people while they undress, are naked, or engage in sexual activities. The interest is usually more in the act of watching, rather than in the person being watched.

The person doing the watching is called a voyeur, but you might hear them casually referred to as a peeping Tom.

A key element of voyeurism is that the person being watched doesn’t know they’re being observed. The person is typically in a place where they have a reasonable expectation of privacy, such as their home or other private area.


2.2 Voyeurism vs. voyeuristic disorder


Voyeurism refers to an interest in watching others. It might never progress beyond a fantasy. For example, someone might masturbate while fantasizing about watching someone from afar. In other cases, voyeurism can become a paraphilic disorder known as voyeuristic disorder. Paraphilic disorders involve having sexual fantasies or urges that cause distress. They may involve inanimate objects, children, or unconsenting adults.


2.3 Voyeurism under Indian laws and Indian Penal Code


Voyeurism [Section 354C]

This offence came into existence after Nirbhaya Rape Case, 2012. It is mentioned under Section 354C, IPC. The word ‘voyeurism’ means appeasement derived from observing the genital or sexual acts of others usually secretly. This provision is divided in two different parts. Firstly, when a person watches or captures image of a woman engaging in some private act and secondly, when the person disseminate or spread such image.

The first offence is punishable with imprisonment of not less than one year which may extend upto three years with fine. The second offence is punishable with imprisonment of not less than three years which may extend upto seven years with fine.

Ingredients

   1. The accused must be a male.
      
   2. He must watch or capture the image.
      
   3. The woman whose images are captured must be engaged in some private act.
      
   4. The circumstances must be such that she has the expectations of not being. observed by the perpetrator; or
      
   5. The accused disseminates that image.
      


3. Legislative Aspect


3.1 Voyeurism and its introduction in Indian Law

The term Voyeurism has its roots in French. Voyeur means “the one who looks”. It was introduced in the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013 which relates to sexual offences. The Amendment came following the outrage in the nation at that time regarding the brutal gang-rape in 2012 in Delhi. Previously, under IPC there was no specific offence. Under the Information Technology Act 2000, however, men and women were covered, and penalty was up to 3 years and/or fine up to Rs. 2 lakh for the act.

A bit of research on Voyeurism has been published.Nonetheless, the word voyeur is socially accepted as a person who spies on other people's intimate lives which could exclude sexual content. Reality television shows can therefore be related to voyeurism for the viewing of other people's personal lives. This differs from the meanings of history which define a specific individual. The modern version vaguely describes the population at large.


3.2 Need for the provision in the Indian regime

The Criminal Law (Amendment) Bill, 2013 was introduced to amend the existing provisions in criminal law with regard to improve the safety of women. There was a huge outrage across the nation following the brutal gang-rape incident in 2012 in Delhi. Previously, there was no clear definition and scope for' intrusion into privacy.' The offense is usually combined with other forms of harassment or violence, and is not considered a separate offence. This section's provisions require the criminal to have the' intention to insult a woman's modesty.' It may or may not be an act that physically endangers an in dividual's security; however, it may cause the victim mental trauma and fear. It is a blatant intrusion into the privacy of an individual, where the stalker tries to establish relations with his victim without his consent. An individual would expect that a private space for example his/her home, a place where he/she can assume they are not being watched or observed. A fair presumption of privacy includes both public and private areas where the victim is reasonably expected not to be detected to engage in private activities such as disrobing or sexual acts Crimes against Women under the Indian Penal Code, 1860 (IPC) The Indian Penal Code, 1860,lays down the provisions to penalise the culprit for the heinous offences against women. Various sections under IPC specifically deals with such crimes.


   1. Acid Attack (Sections 326A and 326B)
      
   2. Rape (Sections 375, 376, 376A, 376B, 376C, 376D and 376E) 
      
   3. Attempt to commit rape (Section 376/511)
      
   4. Kidnapping and abduction for different purposes (Sections 363–373)
      
   5. Murder, Dowry death, Abetment of Suicide, etc. (Sections 302, 304B and 306)
      
   6. Cruelty by husband or his relatives (Section 498A)
      
   7. Outraging the modesty of women (Section 354)
      
   8. Sexual harassment (Section 354A)
      
   9. Assault on women with intent to disrobe a woman (Section 354B)
      
   10. Voyeurism (Section 354C)
      
   11. Stalking (Section 354D)
   12. Importation of girls upto 21 years of age (Section 366B)
      
   13. Word, gesture or act intended to insult the modesty of a woman (Section 509)
      

3.3.Voyeurism under the Indian Penal Code,1860 (IPC)

354C Voyeurism. – Any man who watches, or captures the image of, a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liabkle to fine.


Explanation 1. – For the purpose of this section, “ private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy, and where the victim’s genitals,posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.


Explanation 2. – Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.]


Voyeurism is derived from the French word voyeur which literally means “one who looks”.However, this term is usually conjoined to any male who observes a woman secretly. This section’s explanation takes the definition further to an instance where though the capturing of image can be with consent but it’s dissemination is not with consent.

So in first explanation Voyeurism in practiced when the woman is doing some activity in private like a taking a bath, feeding a baby, engaged in sexual act, urinating, changing clothes etc. A man secretly watches that act or captures images of that. Trial rooms and public restrooms are often said to have secret cameras installed by accused. Peeping tom is often how such people are referred.


And in the second explanation may involve intimacy between the accused and the woman, in which he captures photographs or videos of the woman during the intimate act and subsequently disseminates it to third party or on web or any other medium against the will or consent of that woman. Revenge Porn is one of such instancewhich is covered under this section.


Punishment: Any person found guilty of this offence shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but whch may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.


Please note that the second of subsequent conviction is not second accusation of offence. Only after the accused has been punished once for the act, the second or subsequent offence commences thereafter.


This offence is bailable and is triable by any magistrate of first class.

Note: If a man captures any image or video and has not disseminated it, but is blackmailing or threatening the woman of dissemination, it is not a crime under this section. It is a separate crime of extortion which is applicable.


4.Electronic Voyeurism under the Criminal Law Amendment Act, 2013


Voyeurism is the act of a person who, usually for sexual gratification, observes, captures or distributes the images of another person without their consent or knowledge [4]. With the development in video and image capturing technologies, observation of individuals engaged in private acts in both public and private places, through surreptitious means, has become both easier and more common. Cameras or viewing holes may be placed in changing rooms or public toilets, which are public spaces where individuals generally expect a reasonable degree of privacy, and where their body may be exposed. Voyeurism is an act which blatantly defies reasonable expectations of privacy that individuals have about their bodies, such as controlling its exposure to others. Voyeurism is an offence to both the privacy as well as the dignity of a person, by infringing upon the right of individuals to control the exposure of their bodies without their consent or knowledge, either through unwarranted observation of the individual, or through distribution of images or videos against the wishes or without the knowledge of the victim

4.1 Electronic Voyeurism under Information Technology Act, 2008

This concept has been deeply influenced and based on Section 1801 of ‘‘Video Voyeurism Prevention Act of 2004’’ a Federal Law of USA dealing with the felonious act of video voyeurism. The section has been introduced in the Information Technology Act, 2000 by IT Amendment Act, 2008 in view of the dramatic advances in the field of video technology aiding covert clicking of photos without the subject even have a hint about it. The insertion of the said section is a specific attempt to prohibit voyeuristic conduct and by corollary, to protect individual privacy. Video Voyeurism is one of the most portentous of the crime that confront us today. Security in the cyber world is one of the most sensitive issues in the gamut of cyber laws. As the internet rapidly enters the home of the common man, through computers, television, cell phones, and so on, it emerges that violation of privacy is not a threat to dot coms and experts, but also the internet community at large. While in many other countries, there are now a variety of statutes to deal with voyeuristic conduct in place that seeks to protect these inviolable rights, India is not legging behind to check this new form of felony due to the advancement in the technology, the legislature introduced Section 66E vide the Information Technology Amendment Act, 2008 which came into force on 27 October, 2009


5.Significant Judgements:

5.1 Case of R v Jarvis

On February, 2019, in case of R v Jarvis, the Supreme Court of Canada made a landmark decision and gave its interpretation of meaning of “reasonable expectation of privacy” in the context of section 162(1) of the Criminal Code of Canada involving a criminal offence of voyeurism.

Facts: Ryan Jarvis (Jarvis) was a high school teacher with the Thames Valley District School Board (School Board) at Beal Secondary School (School) in London, Ontario. He taught and supervised many pupils, between the ages of 14 and 18. He was at the school in good standing and had no allegations against him concerning his teaching abilities or his dealings with the students.

It turned out that Jarvis was recording female students through a pen which had camera fitted inside and the videos were made without the consent of the students. He recorded students at various locations in the school and the CCTV cameras were also highlighting this fact. Neither the school nor the school board gave Jarvis to record these videos and he also told nobody about the act that he was doing.

A coworker informed the principal and he further informed the police and the pen was taken away from Jarvis. In total, there were 17 active videos of 30 different individuals – 27 were female students at the School. The focus of the audio and video footage was on females’ chest areas. To that end, Jarvis was charged under section 162(1) (c) of the Criminal Code of Canada for committing the offence of voyeurism. The section states, “Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if  the observation or recording is done for a sexual purpose”

Courts observations: The trial judge concluded that Jarvis’ behavior was morally repugnant and professionally objectionable in breach of his obligation to his profession. Since the third element i.e. recording done for a sexual purpose of the test could not be met, Jarvis was found to be not guilty of the offence and was acquitted.

The Court of Appeal's majority said there was evidence beyond reasonable doubt that Mr. Jarvis had made the videos for a sexual purpose. But at the time, it didn't feel the students had a reasonable expectation of privacy. It has also said that Mr. Jarvis is not guilty.

One question has had to be decided by the Supreme Court. It was whether the students should reasonably have clearly anticipated protection, privacy from the sort of secret recording Mr. Jarvis did in their school's common areas. All the remaining elements were proved beyond reasonable doubt.

Verdict of the Canadian Supreme Court: All Supreme Court judges agreed Mr. Jarvis should be found guilty. They said that the students reasonably expected that a teacher's hidden camera at school would not record them. In order to determine when someone should be able to reasonably expect privacy, the majority said courts need to look at the whole situation. This might include where it was to watch or document, how it was done and if any rules or policies were in place. It could also include whether the person was just watching or recording (because a recording can capture more data, is permanent, and is easily viewable, editable, and shared). The majority noted that in this case the students had been recorded in a school. The recording violated the policy of the school board, and the relationship of trust between a teacher and a student. The videos targeted specific female students, often with a focus on their breasts. The students would never expect their school to be recorded in such a manner, by a teacher. Apparently they had a reasonable expectation about privacy


6.Conclusion

Notwithstanding the number of laws to protect and safeguard the rights and interest of the women, the rate of crime against women and victimization is mushrooming day by day. Privacy, crime and safety of women are intricately linked in any legal system. An essential part of the security of citizens is the safety of their privacy and personal information. If any legal system does not protect the privacy both of body and information of its people, there will always be insecurity in such a system. With the recent debates on women’s safety, several crucial privacy and security issues have been raised, such as the criminalization of voyeurism and stalking, which is a huge boost for privacy rights of citizen in India, and it is hopeful that the government will continue the trend of considering privacy issues along when addressing security concerns for the state. By and large instances are occurring in India because of the inherent defect the existing law of India. One of the biggest tragedies as far as the legislations in independent India is concerned, is that India does not have dedicated law to protect privacy. Possibly a need for a same never across earlier.Thought, the judge- made law in India has made some advances in this regard.It is important to note that the terms “privacy” and “Video Voyeurism” has still not been defined under the amended Information Technology Act, 2008. Thus it can be concluded that the sending of an MMS capturing the private area of any person thereby violating of his privacy under the parameters detailed under Section 66E of the IT Amended Act, 2008, would also be now brought within the ambit of penalty and punished with imprisonment as per law. The suppression of evil eyes on women and inculcation of social ethics, morals and values, respect and honor in every human being towards women is the need of the hour and is a supplement factor that can equally contribute in reducing the number of crimes against women.There is an exigency of more strict and stringent laws so that any person intending to commit such crimes couldn’t screw up the courage to act in furtherance of his intention.However with the introduction of Voyeurism as offences in the Indian Penal code,1860 under section 354C and certain changes in information technology ,such act can be brought within the purview of law and violater of privacy can be punished thereby ensuring better standard of saftey for women.


7. References

1 https://www.healthline.com/health/what-is-voyeurism(Understanding Voyeurism - Medically reviewed by Timothy J. Legg, PhD, PsyD on April 24, 2018 — Written by Kimberly Holland)

2.https://www.merriam-webster.com/dictionary/voyeurism

3.http://www.lawjournals.org/download/141/3-3-48-214.pdf ( Law relating to Electronic voyeurism in India: Eyes behind the mirror – by Atin Kumar Das Assistant Professor in Law, Haldia Law College, West Bengal, India. International Journal of Law ISSN: 2455-2194, RJIF 5.12 www.lawjournals.org Volume 3; Issue 3; May 2017; Page No. 154-157 )

4.https://www.soolegal.com/roar/voyeurism-concept-and-punishment-under-the-indian-penal-code ( Voyeurism: Concept and Punishment under the Indian Penal Code - by Team SoOLEGAL)

5. https://www.shoneekapoor.com/ipc-354c-voyeurism/

6. https://blog.ipleaders.in/cyber-stalking/ (Laws Punishing Cyber Stalking and Online Harassment By Anubhav Pandey, In this article, Chandrima Khare of Rajiv Gandhi National University of Law, Punjab discusses laws Punishing Cyber Stalking and Online Harassment. )

7.https://blog.ipleaders.in/offences-against-women/ (Offences Against Women - By Diva Rai.The article is written by Neha Gururani)

8.https://blog.ipleaders.in/landmark-judgments-on-sexual-harassment/ (Sexual Harassment: 5 Landmark Judgments by Supreme court of India - By Divya Sharma).