According to reports by UNICEF, about 1 in 10 girls under the age of 20 have been forced to engage in sex or perform other sexual acts. Around 90% of female victims who report forced sex say that their perpetrator was someone they knew. In order to deal with the child abuse cases, The Protection of Children from Sexual Offences (POCSO) Act, 2012 was introduced by the Ministry of Women and Child Development. The act came into effect from 14th November 2012. It is a comprehensive law to provide protection to children below 18 years of age from offences relating to sexual harassment, sexual assault and pornography, along with protecting the interests of the child during the justice delivery process by incorporating child-friendly mechanisms of reporting, recording of evidence and investigation and speedy trial of crimes through the assigned special courts.
The act mentions different forms of sexual abuses: penetrative sexual abuse, aggravated penetrative sexual abuse, sexual assault, aggravated sexual assault, sexual harassment, child pornography and trafficking of children for sexual purposes. Sexual abuse is deemed to be “aggravated” when the child victim is mentally ill or when the abuse is committed by a person in a position of authority or trust, like a family member, teacher, police officer, or doctor.
The Act also mandates reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the crime. In case of failure to do so, the person may be punished with six months imprisonment and/ or a fine. A false complaint with intent to defame, humiliate, extort or threaten a person is punishable for a term which may extend to six months and/ or a fine. When such false reports are provided against a child, imprisonment may extend to one year.
The said act states that the police personnel receiving a report of sexual abuse of a child are required to make urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and arranging a shelter home, should the need arise. Additionally, the police are required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so that the committee may then make further arrangements for the safety and security of the child. In respect of the medical examination of the child victim, the act prescribes that it is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, examination should be conducted by a female doctor.
Moreover, the Act provides for Special Courts that conduct the trial in-camera and without exposing the identity of the child, in a child-friendly manner. Hence, a parent or any other trusted person may accompany the child at the time of testifying and can call for assistance from a special educator, interpreter, or other professional while giving evidence. Furthermore, the child may testify through video-link rather than being called repeatedly to testify in court. Above all, the said Act states that a case of child sexual abuse must be disposed of within one year from the date the offence is reported. It also provides for the Special Court to determine the amount of compensation to be paid to a child who has been sexually abused, so that it can then be used for their medical treatment and rehabilitation.
POCSO Act, 2012 was introduced as a Multi- Sectoral Intervention, that it, it deals with issues related to and beyond child abuse as well.. When children are sexually abused, they are not only upset due to their experience, but are also more vulnerable to further and repeated abuse and at risk of secondary victimisation during the justice delivery process. For example, this problem can arise when a case of a child victim is handled by unspecialized police personnel, prosecutors and judges who are not trained in justice for children, children’s rights or how to deal and communicate with victims and their families. Due to the lack of clear guidelines on how to deal with the victim and their families, the child is subject to repeated questioning, which makes them relive the traumatic incident numerous times. Another issue is that child victims do not receive proper medical support and counselling, causing physical as well as mental distress to them and their family, hampering the healing process of the child. There was also no system for checking the welfare and well-being of child victims during and after the court process, particularly when the offender is the parent or guardian of the child.
Child sexual abuse was prosecuted in India under IPC section 375, section 354 and section 377, protecting against rape, outraging the modesty of women and unnatural offences respectively. But they had some flaws due to which they were unable to protect the interests of children. Section 375 did not protect male victims or anyone from sexual abuse other than the traditional “penovaginal intercourse”. Section 354 does not define “modesty” and provides a weak penalty for such a compoundable offence. Additionally, it does not protect the modesty of male victims. Section 377 does not define “Unnatural offences” and it only applies to victims who are affected by the offender’s sex act and does not criminalize child sexual abuse.
POCSO Act, 2012 had its own flaws. In order to resolve the same “The Protection of Children from Sexual Offences (Amendment) Act, 2019” was passed, making the act gender-neutral. It provides stringent punishment for crimes against children including death penalty for aggravated sexual assault of children. The amendment also defines “Child Pornography” and provides for fine and imprisonment to curb the same.
Protection of Children from Sexual Offences Rules, 2020 was notified by the Union Government, enabling the implementation of the amendment from 9th March, 2020. The rules made some significant additions which included provision for mandatory police verification of staff in any institution housing children or coming in regular contact with children, incorporating schools, creches, sports academics or any other facility of children. Additionally, it involves imparting age appropriate child rights education by preparing age- appropriate educational material and curriculum for children, informing them numerous aspects of personal safety, including measures to protect their physical and virtual identity.
The step taken by the government is one of utmost significance, but it is too soon to declare it a complete success. Even now, around 80% of the FIRs do not result in conviction of the offender. Additionally, there are difficulties associated with the reporting and investigation of offences mentioned under child pornography which leads to loss of evidence, thereby leading to perpetrator not only going free but also being emboldened to commit the crime again. In order to ensure success of this flagship legislation for children, it has to be ensured that the investigating agencies function efficiently by convicting the offenders and effectively by recording genuine cases and performing proper and systematic investigation for all kinds of offences mentioned under the POCSO Act. This would not only reduce the backlog of cases but would also reduce crimes by creating a sense of fear among the criminals out there, who are the real sleeper cells living a fearless life in our India.
Written by Raunak Agrawal, second year B.Com Hons. student at Shri Ram College of Commerce