CHILD SEXUAL ABUSE AND PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT

Child sexual abuse
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About the author:

Srishti Yadav is a law student in Amity University, Noida

Introduction:

Crimes like child sexual abuse shake the conscience of society at large and have an adverse impact on the growth of the child. It has terrible psychological and physical effects on the mind and body of children. It is for this specific need that      POCSO Act was enacted. It is meant to tackle the increasing cases of sexual abuse against children like pornography, rape, different kinds of penetration as well as modesty. Before the enactment of the POCSO Act, child sexual abuses were dealt with under sections 354, 375, 377 of IPC.

But the IPC was not sufficient enough to criminalize the non-conventional child sexual abuses such as pornography, sale of children, child trafficking, etc. The Act received the notification of the Gazette of India on 20th June 2012. The POCSO Act was enacted complying with section 15 of the Indian Constitution and United Nations Conventions on the Rights of Child. Also, the Act was amended in 2018 which made the punishment for penetrative sexual assault even more stringent, introduced the death penalty as the maximum punishment in the aggravated circumstances, and tightened the provisions to counter child pornography.

Child Sexual Abuse:

As per the World Health Organization, Child Sexual Abuse refers to:

  • Sexual behaving with a child in an inappropriate manner
  • Indulging in sexual activity with a child, which the child is not able to fully comprehend, or is not able to give his informed consent, or something which is violative of the social taboos or laws prevalent in the society.

Changes made to the Act:

The amendments were made to the POCSO Act in 2018 which made the punishments more stringent. Some of the major amendments are:

  • GENDER-NEUTRAL: the amendment provides the death penalty for all the cases of penetrative sexual assault done against children (both girls and boys), below 18 years of age, making it more gender-neutral.
  • DEFINITION: the definition of sexual assault provided under the act has undergone an amendment to include the administering of hormones to children to speed up their sexual maturity and then using them for sexual exploitation in a commercial manner.
  • The words ‘Communal or sectarian violence’ has been removed which had provision for punishing a person who sexually abused the child during the course of such violence. They have been replaced with ‘violence during any natural calamity or similar situation’.
  • LIST OF PERPETRATORS:  The child victims who have been subjected to sexual assault by a member of the armed or security forces, a police officer; or the staff of jail, remand home or protection home; or the staff of a hospital, education or religious institution have also been included.
  • MORE STRINGENT PUNISHMENT: the punishment for the aggravated penetrative sexual assault has been extended from a minimum of ten years to a minimum of 20 years, and maximum life imprisonment or even death penalty; as per section 6 of the POCSO Act.

The amended act also includes the gang rape of a child; or using deadly weapons at the time of the penetrative sexual assault. This kind of assault can incapacitate the child either physically or mentally; can cause the pregnancy to a girl child or inflict the child with HIV or some other life-taking disease. Also, the punishment of death will also be made applicable in cases where a victim is a child with physical or mental disabilities, in cases of rape, repeated offenders, attempt to murder, and rape during communal violence.

The list below clearly highlights the differences between the old and new law:

 2012  LAW2019 AMENDMENT
Penetrative sexual assault (PSA)Minimum 7 years and maximum: imprisonment for life.Minimum 10 years of imprisonment and maximum: life imprisonment and fine which should cover covering the medical expenses and rehabilitation of the victimIf the child is below the age of 16 years- then the minimum punishment is 20 years.
Aggravated  PSAMinimum 10 years and maximum: imprisonment for life.Minimum  20 years of imprisonment and Maximum: life imprisonment, with a fine to cover medical expenses or the death penalty
Child pornographyPunishment for storing child pornography for commercial purposes (3 years)Using a child for pornographic purposes (not less than 5 years or fine) or bothThe amended section also includes the punishment ( of 3-5 years or a fine or both)  for possessing pornographic material in any form, even if the accused person has failed to delete or destroy or report the same with an intention to share it.
Higher punishment to prevailIf a particular offense is punishable under POCSO Act, IPC, 1860; OR IT Act, 2000, the higher prescribed penalty will prevail

Provisions under the POCSO Act to prevent child abuse:

The preamble of the POCSO Act emphasizes that this kind of child protection legislation is imperative to ensure the proper development of children and to protect their right to privacy and confidentiality in all stages of the judicial process. As per the act, a child is a person under 18 years of age (though it is silent on mental age considerations of the child). Some of the important provisions under this act are:

  • There are certain circumstances under which the sexual assault is considered as ‘aggravated’; for Example, When a child is mentally ill or when the abuse is committed by a person who is in a position of trust such as a family member, teacher, or policeman.
  • There are provisions to avoid the victimization of the child during the judicial procedures. A policeman in the role of a child protector is assigned during the investigation process.
  • The act stipulates that steps have to be taken so that the investigation process could be made as child-friendly as possible and the case be completed within one year of the reporting of such an offense.
  • The Act provides for mandatory reporting of all sexual offenses. Also, the filing of a false complaint with the intent to defame the person is punishable under the act.

The establishment of special courts has been provided under the act for the trial of such cases. The statutory bodies namely the National and State Commissions for Protection of Child Rights (NCCR AND SCPCR’s) have been set up to look into the implementation aspect of the act. Also, the strength of the legislation could also be judged from the fact that whenever a case of inconsistency with the provisions of any other law arises, the POCSO Act shall override the other legislation.

Some of the penal provisions under the act are:

  • Seven years of punishment extended up to life imprisonment and fine for PREVENTIVE SEXUAL ASSUALT(section 4)
  • If the sexual assault is commited by a trusted [person or a police officer, then, punishment of not less than 10 years which could be extended to rigorous imprisonment and fine. (section 6)
  • Minimum 3 and maximum 5 years of imprisonment for non-penetrative sexual assault done with a criminal intent (section 10)
  • 3 years of imprisonment for Sexual harassment (section 12)

Case laws analysis:

Though the Act to prevent child sexual abuse came out in 2012, but there is a long history of case laws that necessitated the need for such legislation. Mention could be made of the 1978 Mathura Rape Case[1] which was a horrible incident of custodial rape in March 1972. A tribal girl named Mathura, who was a minor at that time, was allegedly raped by two policemen at Desai Ganj police station in Maharashtra. What was most shocking was that the Apex Court acquitted the accused, which led to widespread public dismay and protests. The results were the amendments in the Indian Rape law i.e. passing of the Criminal Law (2nd Amendment) Act 1983.

In the case of Harpal Singh v/s State of Himachal Pradesh[2], the Supreme Court severely condoned the filing of the FIR related to a rape case of a 16 years old girl. It was also mentioned that the family members took time to decide whether the intervention of the court is needed since the family honor was involved. The court also held that since the girl was below 16 years of age, her consent was immaterial. Further, it was ruled that delay in reporting the case will have no effect on the case provided a reasonable explanation is given.

There are certain important cases that emerged after the enactment of POSCO. For instance, in the case of Ganesan v. State represented by its inspector of Police[3], a 3- judge bench of the Apex Court held that a conviction is possible solely based on the testimony of the sexual assault victim if it is found to be trustworthy and reliable. The Court reiterated this while upholding the conviction of Ganesan for sexually assaulting a 13-year-old girl. In another case of Justin @ Renjith v. Union of India[4], the Constitutional validity of sections 29 & 30 of the POCSO Act was upheld creating a reverse burden of proof on the accused. 

Conclusion:

As per the compilation of Reports filed by the Delhi State Legal Service Legal Authority (DSLSA), the delay in the disposition of POCSO cases is a result of a ‘serious deficiency in the legal infrastructure’. Additionally, there is a rise in the reporting of cases. These two factors combined to give a picture that victims of these offenses are not getting proper justice. However, there are certain suggestions which could be followed at the level of family as well:

Parents, schools, NGOs and communities can play an effective role by educating children on appropriate relationships, through healthy boundaries and informing about sexual assault.

In case of one to one situation with adults, the child shouldn’t be left isolated, nor be encouraged to keep secrecy.

Open conversations should be initiated by families and their narratives be taken seriously.

From the text of the Act, it is quite clear that it focuses on giving paramount importance to the holistic development of children in emotional, intellectual, physical, and social dimensions. But the efficacy of the law largely depends on the officials responsible for its proper implementation and application. It must be remembered that child sexual abuse is also an adult issue and it’s our responsibility to protect our children as well as their rights.

References:


[1] 1979 AIR 185

[2] AIR 1981 SC 361

[3] CRIMINAL APPEAL No. 680 of 2020

[4] WRIT PETITION No. 4753 of 2020

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