Author: Sonia Attri, University of Delhi, Faculty of Law
Abstract
Sexual abuse of minors is an overlooked issue often leading to underreporting. Prior to specific legislation, judicial processes in India lacked clear guidelines for handling such cases. The POCSO Act of 2012 addressed this gap by emphasizing victim protection and the admissibility of victim statements in court. This Act criminalizes various offenses, including pornography, sexual abuse, and harassment, defining actionable conduct and specifying judicial procedures. This paper explores the efficacy of the POCSO Act through case analyses, comparing it with legal frameworks in other countries to enhance the judicial response to sexual offenses against children. This research critically examines the judicial handling of sexual offenses against children, reviewing sections of the Indian Penal Code and the Indian Evidence Act. It highlights the POCSO Act’s impact as a crucial reform, including a comparative analysis of international laws dealing with similar offenses.
Historical Background of Child Protection Laws in India
India, with a significant child population of 444 million, faces substantial challenges in protecting children from various forms of exploitation, including trafficking, malnutrition, drug abuse, forced labour, and sexual abuse. A national survey by the Ministry of Women and Child Development found that 53% of participants reported experiencing sexual abuse. The National Crime Records Bureau (NCRB) also reported increasing cases of child rape.
The establishment of the National Commission for the Protection of Child Rights (NCPCR) ensures compliance with constitutional obligations and the UN Convention on the Rights of the Child. The NCPCR oversees the implementation of the POCSO Act and promotes child welfare through various policies and programs.
### Child Abuse
Sexual abuse and trafficking are severe issues in India. A study on adolescents in Kerala found that 36% of boys and 35% of girls experienced sexual abuse. Another government study involving 17,220 children and adolescents revealed that every second child in India faced sexual abuse. Assam reported the highest sexual abuse rate at 57.27%, followed by Delhi at 41%.
Uttar Pradesh has the highest number of reported sexual abuse cases. Notably, 50% of the abusers were known to the child, often in positions of trust and responsibility.
### Need for Separate Laws on Child Abuse
Before 2012, sexual offenses against children were addressed under the Indian Penal Code, 1860 (IPC), Immoral Traffic (Prevention) Act, 1956 (ITPA), and Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act). These laws had significant limitations:
– *Indian Penal Code (IPC)*: The IPC was gender-specific, allowing only women or girls to file complaints of rape or sexual assault against men. It did not distinguish between consensual intercourse and forced intercourse “against the order of nature” for men and boys.
– *Immoral Traffic (Prevention) Act (ITPA)*: This Act focused solely on child prostitution cases.
– *Juvenile Justice (Care and Protection of Children) Act (JJ Act) *: The JJ Act lacked explicit penal provisions for the sexual abuse of children.
The Protection of Children from Sexual Offences (POCSO) Act, 2012: –
It was enacted to provide a comprehensive framework for protecting children from sexual abuse and exploitation. Here are the key provisions in detail:
The Act defines a “child” as any person below the age of 18 years and covers a range of sexual offences against children, including penetrative sexual assault, trafficking for sexual abuse, aggravated penetrative sexual assault, sexual assault, and using a child for pornographic purposes.
*Special Courts*: Special courts are designated under the Act to handle cases of child sexual abuse. These courts ensure a child-friendly atmosphere throughout the judicial process, from reporting to trial, to minimize the trauma experienced by the child.
*Child-Friendly Procedures*: The Act mandates child-friendly procedures for recording statements and collecting evidence. Statements must be recorded in the presence of a person trusted by the child, and police officers must wear civilian clothes to avoid intimidating the child. Medical examinations for forensic evidence are conducted by female doctors in the presence of a trusted person.
. *Confidentiality and Protection*: Special courts ensure that the identity of the child is protected throughout the legal proceedings. Testimonies can be recorded via video to avoid repeated questioning, and cases are disposed of within one year to expedite justice and minimize further trauma to the child.
*Compensation and Support*: The Act provides for compensation to be awarded to the child for medical treatment, rehabilitation, and counselling expenses. If needed, interpreters, translators, special educators, or other experts are also provided to assist the child during legal proceedings.
. *Mandatory Reporting*: Police officers are required to promptly report cases of child sexual abuse to the Child Welfare Committee within 24 hours of receiving the report. This ensures immediate attention and support for the child victim.
Overall, the POCSO Act, 2012 establishes a robust legal framework aimed at ensuring the protection and well-being of children who are victims of sexual offences, while also prioritizing their best interests throughout the entire judicial process.
punishments prescribed under the POCSO Act, 2012:
1. *Penetrative Sexual Assault (Section 4) *:
– Minimum punishment of 7 years of imprisonment, extendable to life imprisonment.
– In addition, a fine may be imposed.
2. *Aggravated Penetrative Sexual Assault (Section 6) *:
– Minimum punishment of 10 years of imprisonment, extendable to life imprisonment.
– A fine may also be imposed as part of the sentence.
3. *Aggravated Non-Penetrative Sexual Assault by Person in Authority (Section 10) *:
– Minimum punishment of 5 years of imprisonment, extendable to 7 years.
– The court may also impose a fine as deemed appropriate.
4. *Non-Penetrative Sexual Assault with Sexual Intent (Section 10) *:
– Minimum punishment of 3 years of imprisonment, extendable to 5 years.
– A fine may be levied in addition to the prison term.
5. *Sexual Harassment (Section 12) *:
– The punishment is imprisonment for a term of 3 years.
– The offender may also be fined as per the court’s discretion.
6. *Using a Minor for Pornographic Purposes (Section 14(1)) *:
– For the first conviction, the punishment is imprisonment for 5 years and a fine.
– For subsequent convictions, the imprisonment term increases to 7 years, along with a fine.
7. *Attempt to Commit Offence (Section 18) *:
– Punishment involves imprisonment for a term of 1 year.
– The court may also impose a fine on the offender.
8. *Failure to Report Offence (Section 21) *:
– The punishment includes imprisonment for a term of 6 months.
– A fine may also be imposed as part of the penalty.
These punishments are structured to ensure severe consequences for perpetrators of child sexual abuse and to act as a deterrent against such offences. They reflect the seriousness with which the legal system addresses crimes against children under the POCSO Act, prioritizing the protection and welfare of minors.
Under the POCSO Act, 2012:
1. *Who can complain? *:
– Any person, including the child victim, who suspects or has knowledge of a likely or committed offence must report to the Special Juvenile Police Unit or local police.
2. *Specific Obligations*:
– Media personnel, and staff from establishments like hotels, lodges, hospitals, clubs, studios, or photographic facilities, must report any instance of child pornography to the Special Juvenile Police Unit or local police.
3. *False Complaints*:
– Making false complaints with intent to defame, extort, or humiliate is punishable under the Act. However, those reporting sexual offences in good faith are protected from liability.
1. *Against whom can a complaint be filed? *:
– Complaints can be filed against both men and women offenders. However, cases of penetrative sexual assault can only be filed against men.
2. *Burden of Proof*:
– The burden of proof regarding the sexual offence lies with the accused.
– The child’s testimony must be recorded within 30 days of the special court taking cognizance, with reasons for any delay recorded in writing.
– The Special Court aims to complete the trial within one year of taking cognizance of the case.
3. *Consent*:
– The consent of the victim or a legally competent person is necessary for any action concerning the sexual assault.
1. *Medical Examination*:
– For girl children, the medical examination must be conducted by a female doctor.
– The examination should take place in the presence of the child’s parent or a trusted individual.
– If the parent or trusted individual cannot be present, a woman nominated by the head of the medical institution must be present during the examination.
The State Commission for Protection of Child Rights under the POCSO Act, 2012:
1. *Role*:
– The Commission provides recommendations but does not have authority to pass orders or interfere in court proceedings.
– It reviews safeguards for child rights and recommends protective measures.
– Monitors the establishment of Special Courts and appointment of Public Prosecutors by State Governments.
– Oversees the formulation and application of guidelines for NGOs, professionals, and experts involved in assisting children during pre-trial and trial stages.
– Monitors training modules for police personnel and other relevant individuals to ensure effective implementation of the Act.
– Supports governments in disseminating information about the Act through media to raise public awareness.
– Collects and analyses data on reported offences to influence policy and practice.
– Ensures the child is not exposed to the accused during legal proceedings.
challenges under the POCSO Act, 2012:
1. *Underreporting*:
– *Reasons*: Families often choose not to report cases due to shame, fear of social stigma, or reluctance to face the emotional turmoil associated with reporting. Victims, especially minors, may also fear not being believed or may not fully understand what has happened to them.
– *Solutions*: Addressing underreporting requires comprehensive education and awareness campaigns aimed at both children and their families. Mandatory counselling provisions for parents of victims can help alleviate fears and encourage reporting. Creating a supportive environment where children feel safe to disclose abuse is crucial.
2. *Medical Examination*:
– *Consent Issues*: The Act is unclear on how to proceed if a child refuses medical examination while their family insists. Clear guidelines are needed regarding consent requirements, particularly distinguishing between younger children (where family consent may suffice) and adolescents (where the child’s consent is also crucial).
– *Availability of Female Doctors*: Section 27(2) mandates that medical examinations of female child victims be conducted by female doctors. However, practical challenges arise when a female doctor is unavailable. There is a need to ensure consistent availability of female medical professionals or provide clear alternative procedures in such cases.
3. *Age Determination*:
– *Importance*: Proper age determination is crucial for applying the provisions of the POCSO Act, as it applies specifically to children under 18 years old.
– *Procedure Clarity*: The Act relies on procedures outlined in the Juvenile Justice Act for age determination. However, there is ambiguity regarding whether Special Courts under POCSO must adhere strictly to these procedures.
– *Transparency*: There is a need for transparent and consistent procedures, especially in cases where no documents exist to verify a child’s age. Clear guidelines should ensure that age determination procedures are fair, accurate, and legally sound.
cases under the Protection of Children from Sexual Offences (POCSO) Act –
1. *Attorney General for India vs. Satish and Another*: This case gained attention due to a controversial ruling by the Nagpur Bench of the Bombay High Court regarding what constitutes molestation under the POCSO Act of 2012. The court deliberated on the definition of physical contact and its implications for sexual offences involving children, leading to appeals and debates on legal interpretation and child protection.
2. *Jar nail Singh vs. State of Haryana [2013] *: In this case, the Supreme Court of India addressed the abduction and rape of a minor girl, invoking provisions under the POCSO Act and the Juvenile Justice Act to establish guilt. The judgment underscored the need for strict enforcement of laws protecting minors from sexual exploitation and set precedents for handling similar cases under stringent legal scrutiny.
3. *Libnus vs. The State of Maharashtra*: This case raised significant questions about the interpretation of sexual harassment versus sexual assault under the POCSO Act. The court’s decision on actions perceived as sexual harassment vis-à-vis aggravated sexual assault set benchmarks for legal categorization and sentencing in cases involving minors.
4. *Satish Ragde vs. The State of Maharashtra*: A district court case that highlighted the role of testimonies and statements by child victims in securing convictions under various sections of the POCSO Act. The case emphasized the importance of protecting child witnesses and ensuring their testimonies are integral to judicial proceedings.
5. *Avinash vs. State of Karnataka*: This case involved the abduction and sexual exploitation of a minor, focusing on age determination and evidence under IPC Section 366 and POCSO Section 4. It underscored challenges in evidence collection and the need for sensitivity in handling cases involving minors.
analysis of child sexual abuse laws in different countries, focusing on the essential legal frameworks:
*South Africa*:
– High prevalence of child sexual abuse.
– Criminal (Sexual Offences and Related Matters) Act, 2007 addresses various offences including statutory rape, sexual exploitation, and grooming of children.
*United Kingdom*:
– Significant legislative coverage under the Sexual Offences Act 2003.
– Addresses offences like child trafficking, sexual exploitation via prostitution, and pornography.
*Netherlands*:
– Low incidence of child abuse attributed to robust policies.
– Establishes Advice and Reporting Centres on Domestic Violence and Child Abuse (AMHK) for reporting and investigating cases.
*US Federal Law*:
– Each state has specific laws; federal laws like 18 U.S.C. Sections 2241-2243 cover aggravated sexual abuse, sexual abuse, and abuse of minors.
– Strict penalties for child pornography and international distribution.
*Canada*:
– Criminal Code covers a range of offences including sexual exploitation, indecent acts, and sexual assault.
– Special provisions for child victims’ testimony protection and legal safeguards against consent arguments.
*Germany*:
– Strong protections under Sections 176 and 174 of the German Criminal Code.
– Children under 14 are considered incapable of consent; penalties for sexual activities with minors under certain conditions.
*Pakistan*:
– High incidence of child abuse; significant cases reported among street children.
– Issues with drug abuse among street children exacerbating vulnerability to sexual exploitation.
*Philippines*:
– Cybercrime Prevention Act of 2012 criminalizes cybersex, child pornography, and related activities.
– Focus on combating cybersex trafficking and exploitation through digital platforms.
*Kyrgyzstan*:
– Ala kachuu (bride kidnapping) remains prevalent, affecting a significant number of brides.
– Varied circumstances from consensual elopements to forced kidnappings.
The summary report on the implementation of the Protection of Children from Sexual Offences (POCSO) Act
:- in Assam, Delhi, and Haryana, compiled by HAQ: Centre for Child Rights and CivicDataLab, identifies trends and challenges from 2012 to April 2020.
Key findings indicate a significant increase in sexual crimes against children, with Delhi recording the highest number of cases, followed by Assam and Haryana. The analysis of 19,783 cases revealed yearly rises in both new and pending cases. Specific districts and police stations with the highest and lowest case volumes were identified for each state.
In Haryana, sentencing trends showed a prevalence of minimum mandatory sentences, although disparities existed where minimum sentences were not applied. Fines varied widely without regard to the financial status of the convicts, and victim compensation protocols were inconsistently applied.
Conclusion
The Protection of Children from Sexual Offences Act, 2012, is a critical piece of legislation aimed at safeguarding children from sexual offences. While the Act provides a robust legal framework, challenges in its implementation necessitate continuous evaluation and reforms. Addressing issues such as underreporting, judicial delays, and the need for trained personnel can significantly enhance the effectiveness of the Act. Ultimately, the success of the POCSO Act hinges on a collective effort to create a safe and supportive environment for children.
BIBLOGRAPHY
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FREQUENTLY ASKED QUESTIONS
Certainly! Here are some frequently asked questions (FAQs) regarding the Protection of Children from Sexual Offences (POCSO) Act in India:
1 Who does the POCSO Act protect?
The POCSO Act protects all children under the age of 18 years from sexual offences, including sexual assault, sexual harassment, and pornography.
2. What are the penalties for offences under the POCSO Act?
The Act prescribes stringent penalties, including imprisonment ranging from three years to life, depending on the severity of the offence. Fines and mandatory compensation to victims are also mandated.
3. What are the challenges in implementing the POCSO Act?
Challenges include delays in trials, inadequate infrastructure for child-friendly courts, societal stigma affecting reporting, and variations in implementation across different states and districts.
4. How can someone report an offence under the POCSO Act?
Offences under the POCSO Act can be reported to the police or the special juvenile police unit, or through child helplines and NGOs. It’s crucial to ensure the child’s safety and confidentiality during the reporting process.
5. What rights do child victims have under the POCSO Act?
Child victims have the right to protection, privacy, legal assistance, compensation, and rehabilitation under the Act. Their testimony is considered crucial evidence, and measures are in place to support their recovery.
