§ The structure of the section

Section 9 opens each clause with a circumstance and ends it with the words commits sexual assault on a child. The offence is therefore sexual assault under Section 7, committed in one of the listed circumstances.

It is non-penetrative. Where the act involves penetration, the offence is under Section 5, not Section 9.

It is punished under Section 10, with a higher minimum and maximum than Section 8.

§ What the prosecution must establish

• Every ingredient of Section 7. The victim is a child; there was physical contact, either a specified touching or any other act involving contact; the contact was done with sexual intent; and there was no penetration.

• One aggravating circumstance from clauses (a) to (v). One is enough; where several are proved, they bear on the sentence within the Section 10 range.

• Proof of the circumstance itself. The position of the offender, the age of the child, the repetition or the group are facts to be proved like any other.

• The presumptions then operate. Section 29 names Section 9, so once the foundational facts are established, the offence is presumed; Section 30 presumes the culpable mental state.

(a)

A POLICE OFFICER, within the limits of his police station or premises of appointment, in any station house, in the course of his duties or otherwise, or where known or identified as a police officer

(b)

A member of the ARMED OR SECURITY FORCES, within the area of deployment or command, in the course of duties or otherwise, or where known or identified as such

(c)

A PUBLIC SERVANT

(d)

Management or staff of a JAIL, REMAND HOME, PROTECTION HOME, OBSERVATION HOME or other place of custody or care, on a child in that institution

(e)

Management or staff of a HOSPITAL, on a child in that hospital

(f)

Management or staff of an EDUCATIONAL OR RELIGIOUS INSTITUTION, on a child in that institution

(g)

GANG SEXUAL ASSAULT: sexual assault by one or more persons of a group in furtherance of their common intention

(h)

Using DEADLY WEAPONS, FIRE, HEATED SUBSTANCES OR CORROSIVE SUBSTANCES

(i)

Causing GRIEVOUS HURT

(j)

Consequences: physical incapacity or mental illness, or HIV or any other LIFE-THREATENING DISEASE or infection

(k)

Taking advantage of the child's MENTAL OR PHYSICAL DISABILITY

(l)

More than once or REPEATEDLY

(m)

On a child BELOW TWELVE YEARS

(n)

A RELATIVE through blood, adoption, marriage, guardianship or foster care, or a person in a domestic relationship with a parent, or living in the same or shared household

(o)

Owner, management or staff of an INSTITUTION PROVIDING SERVICES to the child

(p)

A person in a POSITION OF TRUST OR AUTHORITY over the child

(q)

Knowing the child is PREGNANT

(r)

Attempting to MURDER the child

(s)

In the course of COMMUNAL OR SECTARIAN VIOLENCE or, since 2019, a NATURAL CALAMITY or similar situation

(t)

Having been PREVIOUSLY CONVICTED of an offence under the Act or a sexual offence under any other law

(u)

Making the child STRIP or PARADING the child NAKED in public

(v)

Since 2019: persuading, administering, directing or helping in the administration of any DRUG, HORMONE OR CHEMICAL SUBSTANCE to a child with the intention that the child attains EARLY SEXUAL MATURITY

§ Clauses (a), (b) and (c)

The police officer clause is drawn widely. It covers the officer within his own station or place of appointment, in any station house, in the course of his duties or otherwise, and wherever he is known or identified as a police officer. The words or otherwise mean that the clause is not confined to acts done on duty.

The armed and security forces clause follows the same pattern for the area of deployment and command.

The public servant clause is general. Any public servant who commits sexual assault on a child commits aggravated sexual assault.

The reason for aggravation is the authority the State confers on these persons, which makes the child less able to resist and less likely to report.

§ Clauses (n) and (p)

• Clause (n): relatives and the household. It reaches a relative through blood, adoption, marriage, guardianship or foster care; a person in a domestic relationship with a parent of the child; and a person living in the same or a shared household. It captures the step-parent, the parent's partner and the lodger as well as the blood relative.

• Clause (p): trust or authority. A person in a position of trust or authority over the child commits the aggravated offence whether the act takes place in an institution, in the child's home, or anywhere else. Tutors, coaches, employers and religious teachers commonly fall within it.

• Why these clauses matter. A large proportion of offences against children are committed by persons known to them. Access, dependence and the difficulty of disclosure are all greater, and the law treats the breach of trust as part of the gravity of the offence.

§ Clauses (m) and (l)

Clause (m). Sexual assault on a child below twelve years is aggravated by age alone. No further circumstance is required; proof of the child's age is enough.

Clause (l). Sexual assault committed on the child more than once or repeatedly is aggravated. The clause recognises the pattern of sustained abuse, typically by a person with continuing access, and the cumulative harm it causes.

Proof of repetition rests largely on the child's account, which may be general rather than tied to precise dates. The courts do not require a child to give a date-by-date chronology of repeated abuse.

§ Clause (g)

Where a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of those persons is deemed to have committed gang sexual assault, and is liable as if the act had been done by him alone.

The deeming provision means that the prosecution need not prove which member of the group did which act. Participation in the group acting with a common intention is sufficient.

It parallels Section 5(g), gang penetrative sexual assault, and the same principles of common intention apply to both.

§ Clause (v), inserted in 2019

The offence. Whoever persuades, induces, entices or coerces a child to get administered, or administers, or directs anyone to administer, or helps in getting administered, any drug, hormone or chemical substance to a child with the intention that the child attains early sexual maturity.

No sexual contact is required. Unlike the other clauses, which aggravate an act of sexual assault, clause (v) makes the administration of the substance itself an aggravated sexual assault, because of the purpose it serves.

Its target is the practice, associated with trafficking for sexual exploitation, of giving children hormones to make them appear older.

It has no counterpart in Section 5, which is the principal difference between the two lists.

§ Section 10 (in substance)

Whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

The minimum is binding, and the court cannot impose less than five years once the offence is proved.

Under the Juvenile Justice Act, an offence punishable with five to seven years is a serious offence, not a heinous one, so a child in conflict with law accused under Section 9 is not liable to a preliminary assessment for trial as an adult.

Relationship

The basic offence

The basic offence plus one of the listed circumstances

What must be proved

The child, the contact, the sexual intent, and no penetration

All of that, and the aggravating circumstance

Punishment

Section 8: three to five years, and fine

Section 10: five to seven years, and fine

Clause (v)

No equivalent

Administering a drug, hormone or chemical substance for early sexual maturity, without any sexual contact

Section 29 presumption

Applies

Applies

JJ Act classification

Serious

Serious