Protection of Children from Sexual Offences Act, 2012

"Protection of Children from Sexual Offenses Act, 2012" is the title of this blog post. It seeks to give the students a thorough awareness of the problem of child sexual abuse and the most recent legislation in India to address such offenses. It also aims to give the learner the foundational skills needed to serve as a functionary for children's rights. The student will be able to comprehend how to take action in situations of child sex abuse.

Content

Introduction
Defining Sexual Offences
Punishment for Sexual Offences
Abetment of and Attempt to Commit Offences
Procedure for Reporting of Offence
Establishment of Special Courts
Onus of Proof
Restrictions on Media
Relief and rehabilitation of the child
The Issue of Consensual Sex by Minors
Conclusions

Introduction

A national study on child abuse titled ‘Child Abuse in India – 2007’ conducted by Prayas Institute of Juvenile Justice (Delhi), in collaboration with Ministry of Women & Child Development Supported by UNICEF and Save the Children Fund (UK) revealed that 53.22 percent of children in India faced one or more forms of sexual abuse (Sivadas, 2007).

Before the "Protection of Minors from Sexual Offences (POCSO) Act, 2012," there was no explicit legislation of an all-Indian type that covered sexual offenses against children. Up to that point, the only particular law against child abuse was the "Goa Children's Act, 2003." Child sex abuse cases were prosecuted as offenses under the Indian Penal Code because there was no specific statute prohibiting it (IPC). In the absence of a better choice, IPC sections 375 (Rape), 354 (Outraging the modesty of a woman), 377 (Unnatural offences), and 511 (Attempt) were utilized in cases involving child sexual abuse as well. The IPC does not include all of the current forms of sexual offenses committed against minors, and more crucially, it does not make a distinction between victims who are adults and those who are children. According to Sections 23 to 26 of the Juvenile Justice Act, "Special Offenses Against Children" are classified as such. However, it did not expressly encompass crimes involving sexual contact with children.

By taking advantage of legal gaps in the current rules, sex offenders frequently got away with low punishments or acquittals since there was no reliable institutional or legal structure in place for the victims of child sexual abuse.

Social anxiety was sparked by the persistent failures to secure conviction in the majority of child sex abuse cases. There has been a sharp rise in sexual offenses against children nationwide, according to news sources. The National Crime Records Bureau also reported a rise in the number of cases involving sexual offenses against children. This raised a tremendous deal of alarm. To combat the rising number of sex crimes committed against children, there was an increasing need for a law that was more effective. Additionally, there was a need to alter how young people were exposed to sexual crime cases. In 2011, the Union Government launched the "Protection of Children from Sexual Offenses Bill" against this backdrop. The Bill was approved by both the Rajya Sabha and the Lok Sabha on May 10, 2012, and May 22, respectively.

The sole goal of the Protection of Children from Sexual Offenses (POCSO) Act of 2012 was to make the legal protections for children against sexual abuse and exploitation stronger. To properly address the issue of sexual offenses against children in India, a new law has been passed for the first time. Along with the rules created under the Act, it became effective as of the Gazette notification dated November 14, 2012. Children in India now have a new law that will improve their protection thanks to the POCSO Act.

The POCSO Act protected children against crimes including sexual assault, sexual harassment, and pornography by defining a child as any individual under the age of 18. First time in Indian law, these offenses have a definite definition. The Act stipulates severe penalties that are ranked according to how serious the offense was. Simple to stern incarceration for various lengths of time were among the available penalties. There is also a clause for a fine, which the court will decide. The Act also considers an offense to be "aggravated" if it is done by someone who has authority over the victim-child, such as a member of the security forces, a police officer, a public employee, a blood family, or someone else of a similar caliber. In addition, the Act provided a gender-neutral law for sexual offenses for the first time, replacing the "female centric" rape provisions of the Indian Penal Code.

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) were designated by the POCSO Act as the bodies responsible for overseeing its implementation. The POCSO Rules, 2012 were announced by the Ministry of Women and Child Development on November 14.

Defining Sexual Offences

If sexual offenses against children as described by the Act were examined more closely, it would become clear that the definition of sexual abuse had expanded beyond the traditional definition of rape as penile-vaginal penetration. By broadening the definition, it improved protection against numerous additional types of sexual offenses against children.

The Act categorizes offenses into two groups:

Sexual harassment:This would encompass behaviors like looking, making remarks, and displaying pornographic content. The key distinction between harassment and assault is the absence of any physical contact or interaction on the part of the accused with the victim who is the harassment of the conduct.
Sexual assault: Physical contact with the crime victim would be necessary for this to happen. There are two types of sexual assault: penetrative and non-penetrative. The concept of penetrative sexual assault includes additional objects as well as penetration of a child's mouth, urethra, vagina, or anus with a penis. The Act also covers child sexual abuse that takes place orally. While committing such crimes against a child's body is illegal, forcing a child to commit such crimes against anyone else is also illegal. Therefore, the term provided by this Act is broad enough to include actions that violate a child's body or person in a variety of other ways. Previously, no other legislation's provisions could be used to punish such behavior. This gap was the reason why many accused people were previously exonerated.

Numerous reports have shown that adults in positions of trust and authority, such as the police, administrators in institutions, teachers, dads, brothers, and other close relatives, frequently abuse children. Furthermore, the fact that the laws have not taken into account the sexual abuse of male children makes it challenging to bring the accused to justice under any of the existing laws. By redefining sexual offenses against children, the POSCO Act makes a significant effort to close legal gaps and increase the severity of punishment for offenses perpetrated by those in positions of authority. It is undoubtedly a blessing for the children of India, where the rate of child sexual exploitation is alarmingly high and lax legal protections have prevented perpetrators from being brought to justice (Rajul Jain - http://nlrd.org/resources-childs-rights/sexual-offencesagainst-children).

Chapter II and Chapter III of the POCSO Act has categorized sexual offences against children into the following six broad types (Rajul Jain ibid):

Penetrative Sexual Assault (Section 3). The definition of penetrative sexual assault includes not only penetration of vagina, urethra, mouth or anus of a child by penis but also with other objects.
Aggravated Penetrative Sexual Assault (Section 5).
Sexual Assault (Section 7). It defines sexual assault to include the act of touching the private parts of a child or making him touch the private parts of any other person or any act which entails physical contact with the child even without penetration. Such acts are punishable with an imprisonment of a term not less than 3 years which may extend to 5 years, and fine.
Aggravated Sexual Assault (Section 9). The Act further provides a provision similar to that of Section 376 IPC, in terms of aggravated sexual assault. An act will amount to aggravated sexual assault when it is committed by a person in whom the duty of care and protection of child is reposed either by virtue of being in a position of responsibility like police officer, doctor etc or that who is in relation to the child. Also the consequences of the offence committed on the child for example in incapacitating the child or use of deadly weapons etc will cause the act to fall in the category of aggravated sexual assault.
Sexual Harassment (Section 11). Sexual harassment of a child includes the act of any person with sexual intent of uttering any word, making any sound or gesture, or exhibiting any object or part of body, or making a child to exhibit any part of his/her body to be seen by such person, or showing pornographic material, or following or watching or contacting a child through any electronic, film or digital or any other medium. The Act also for the first time provides for the inclusion of using a child for pornographic purposes as an offence.
Using Child for Pornographic Purposes (Section 13). This section includes storing materials which involve child pornography for commercial purposes. It is an offence which is punishable with imprisonment which may extend to three years or fine or both. It also provides for situations where using the child for pornographic purposes coincides with sexual assault and other offences as provided for under the Act.

It is observed that there are further provisions of the Act which draw reference to the Child Welfare Committees and entrust them with certain functions. There is therefore, a relationship between this Act and the Juvenile Justice Act 2000. Specifically, in case the abuse of the child is by any family member, then the power is given to CWC to adjudicate within 3 days whether the child should stay with the family or not (Rajul Jain ibid).

Rule 3 of the Act provides that the District Child Protection Unit shall maintain special register with names of experts who should be approached for providing necessary support. Rule 4 highlights the intervention of the CWC in case of a child who is in need of care and protection. Rule 7 makes provision for facilitating compensation by special courts for the benefit of the victim which can be granted at any stage after filing of the FIR, meaning thereby that an interim compensation can be granted as well. In addition to this, there are other forums from where compensation can be provided to the victim like through District Legal Services Authority under Victim Compensation Scheme or even under the scheme for compensation under ICPS (Integrated Child Protection Scheme).

Punishment for Sexual Offences

The POCSO Act's Chapters II and III provide the following penalties for sexual offenses against minors:

Punishment for Penetrative Sexual Assault – Not less than seven years which may extend to imprisonment for life, and fine (Section 4).
Punishment for Aggravated Penetrative Sexual Assault – Not less than ten years which may extend to imprisonment for life, and fine (Section 6).
Punishment for Sexual Assault – Not less than three years which may extend to five years, and fine (Section 8).
Punishment for Aggravated Sexual Assault – Not less than five years which may extend to seven years, and fine (Section 10).
Punishment for Using Child for Pornographic Purposes – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14).

Abetment of and Attempt to Commit Offences

Abetment of and attempts to commit any crime are covered in Chapter IV of the Act. The Act acknowledges the necessity to punish even those who attempt to commit an offense but are unsuccessful for whatever reason. A penalty of up to half the punishment set forth for the conduct of the offense may be imposed for an attempt to commit an offense under the Act. The Act also specifies a penalty for aiding in the commission of the crime, which carries the same penalty as the crime itself. This would also include the trafficking of kids for sex.

Procedure for Reporting of Offences

The Act's Chapter V covers the process for reporting offenses. The Act contains processes for reporting, documenting evidence, investigating, and trying offenders that are kid-friendly. The following are these practices:

recording the child's statement at his or her home or another location of their choosing, preferably by a female police officer with at least sub-inspector rank.
No child shall be held overnight in the police station for any reason.
While taking the child's statement, the police officer must be dressed casually, not in uniform.
The statement made by the youngster that will be recorded in its entirety.
Depending on the needs of the kid, assistance from an interpreter, translator, or expert may be given.
If the youngster is impaired, assistance from a special educator or another individual who is familiar with the child's communication style.
The child's medical examination must be done in front of their parent(s) or another adult they feel comfortable confiding in.
Only a female doctor may do the medical examination if the victim is a young girl.

The Act also institutes a special provision for mandatory reporting. Under section 21of the Act anybody who fails in reporting or recording commission of an offence shall be liable to be imprisoned or fined or both. While the former part of the provision is applicable to anyone and everyone with knowledge of an offence being committed under the Act, the latter part can be made applicable to the police officials who deny or fail to record such complaints (Rajul Jain ibid).

Establishment of Special Courts

The Act calls for the creation of Special Courts to hear cases involving Act violations while maintaining the best interests of children.

Frequent breaks to be given for the child during trial.
Child not to be called repeatedly to testify.
No aggressive questioning or character assassination of the child.
The trial of cases should be in-camera (no public trials).
The trial should be in the presence of parents of child or any other person in whom the child has trust or confidence.
The child may be examined at a place other than the court if necessary.
Non-government organizations, professionals and experts may be associated with the pre-trial and trial stage to assist the child.
The state government shall appoint a Special Public Prosecutor for every Special Court for conducting cases.

According to the Act, the child's testimony must be documented within 30 days in order to expedite the trial. The Act also mandates that, to the extent practicable, the Special Court must conclude the trial within a year.

Onus of Proof

For the more egregious offenses of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault, and Aggravated Sexual Assault, the burden of proof is placed on the accused. The greater fragility and innocence of youngsters have been taken into consideration when creating this provision. However, in order to prevent the law from being abused, it is now illegal to file a fake complaint or present false evidence with malicious intent. To encourage reporting, such a punishment has been maintained relatively short (six months). If a youngster is falsely accused, the penalty is more severe (one year).

Restrictions on Media

Media Restrictions The media has been prohibited from revealing the child's identity without the Special Court's consent in order to protect it and prevent any potential stigmatization (Section 23). A period of six months to a year in prison is the penalty for media who violate this rule.

Relief and rehabilitation of the child

The Special Juvenile Police Unit (SJPU) or local police will make immediate arrangements to give the child care and protection, such as admitting the child into a shelter home or to the closest hospital within twenty-four hours of the report, in order to provide for relief and rehabilitation of the child. For the child's long-term rehabilitation, the SJPU or local police must also report the incident to the Child Welfare Committee and the Special Court (or Court of Sessions if Special Court is not established) within 24 hours of recording the complaint (Section 19). According to Rule 5, if a youngster is in need of emergency medical care, the police must take them to a hospital or another type of medical facility. No hospital or medical professional providing this type of emergency care may require a magisterial requisition or other paperwork before providing it. Additionally, it mandates that counseling for mental or psychological health or other issues should always be recommended or sought out as appropriate.

According to Rule 7, the Special Court may, at any time following the filing of the FIR, issue an order for interim compensation to cover the child's immediate requirements for relief or rehabilitation. The state government must pay the court's awarded compensation out of the Victims Compensation Fund, any fund created under Section 357A of the Code of Criminal Procedure, or any other applicable fund.

The Issue of Consensual Sex by Minor

This is a complex problem with numerous facets. According to a judgment issued by a court in Delhi, "Consensual intercourse with a minor aged below 18 years does not constitute an offence under POCSO Act," according to the Times of India, Nagpur. According to the Act, no offense can be claimed to have been committed when a physical relationship that is not in the nature of an attack occurs with the minor girl's consent (of her own free will) and when the consent was not obtained unlawfully. The Delhi Commission for Women and the police argued that the Act forbids minors from engaging in sexual relations, but the court rejected their argument, stating that "if that interpretation is allowed, it would mean that every person under the age of 18 is the property of the state and minors cannot be allowed to have pleasures associated with one's body. Instead, the court asked policymakers to raise awareness about risky sex

Conclusions

The Act includes stringent safeguards to protect kids from sexual abuse. It provides for several offenses and provides a broad definition of sexual abuse, giving sexual assault a whole new meaning. Thus, it includes robust protections against sexual assault for children. The general public, children, as well as their parents and guardians, must be made aware of the requirements of this Act by the Central and State Governments on a regular basis through media, including television, radio, and print. Additionally, authorities have been designated to oversee the Act's implementation, including the State Commissions for the Protection of Child Rights (SCPCRs) and the National Commission for the Protection of Child Rights (NCPCR). One may say that all acts committed against children with sexual intent or that forced children to commit such acts have been punished. Most crimes carry both a fine and a jail sentence. Therefore, it has been carefully considered how important it is to punish any behavior that has a negative effect on a child's development. The Act has the ability to reduce offenses of child sexual abuse with increased knowledge among parents, kids, and the implementing agencies.