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Provisions for Protection of Children from Sexual Offenses

Protection of Children from Sexual Offenses Act, 2012, strengthens the legal provisions for protection of children from sexual exploitation and abuse. In May, 2012, Rajya Sabha gave its nod for this Act. Before understanding the Act there is need to first look at the statistics of children in India and what their rights are.
Introduction

The law defines a child as anyone below the age of 18 years and does not differentiate between a boy and a girl child victim. The United Nations Convention on the Rights of Child (UNCRC) came into force in 1990 having 54 articles where 195 countries signed for it. It states that it is the duty of the state to give Rights of the child and responsibility is of the parents to take care of their children.

In India 40 percent of the population is below 18 years of age. Over 53 percent of the children surveyed in 2007 stated that they had experienced one or more forms of sexual abuse.

Child Rights

  • Right to Life and Survival

This right is given to the child after 20 weeks from the time mother conceives the child. It has been a debatable issue whether it should be considered from the time the mother conceives the child but in consideration of the health of the mother, it is from 20 weeks.

The survival here means right to live a healthy life. If after 20 weeks, there is a need for the termination of the child then the mother has to go to the High Court judge who will verify from three separate doctors that there is complication during pregnancy.

  • Right to Development

Development here refers to the mental, social, emotional and physical development. The child should develop and should have a stable mental, emotional, social and physical state.

  • Right to Participation

The child has a right to participate in the decision making of his future. If the child is too small to take this decision then it is the duty of his/her parents to take that decision for the benefit of that child.

  • Right to Protection

This right protects the child from all the activities which can hamper the growth of mental and emotional state of the child’s mind. It has three stages.

  1. Prevention – The child should be prevented from all those activities or persons who can be harmful for the child. This stage has be precautious and needs to be taken care that the child should not be exposed to such people of places or things which can be harmful for his/her development.
  2. Intervention – Even if there is prevention, there is no guarantee that the child is in safe hands. So then there is a call for intervention. If there is some harm to the child, intervention is necessary and then steps are taken according to the situation like taking a child to shelter home.
  3. Rehabilitate the Child – After the abuse or exploitation has taken place, there is dire need for the normal growth of the child. For this the child needs to be rehabilitated. This can include steps like classes with the psychologists.
  • Right to free and compulsory education

In 2010, Government of India passed a law stating that all the children in between 6-14 years have right to free and compulsory education. No child can be denied this free education from any school.

 

POCSO Act, 2012

 Definition of Child

Section 2 defines a “child” as any person who is below the age of 18 years.

Penetrative Sexual Assault

Section 3 talks about the penetrative sexual assault and Section 4 deals with its punishments. If the wrong does inserts his pennies or any other part of his/her body (Eg- Finger, tongue, toes etc.) partly or wholly into the vagina, urethra or anus of  child or makes the child do the same into his/ her body then the person who is doing so is the wrongdoer and the act is penetrative sexual assault. Also if any object is inserted or makes the child insert any object into his/her body then also the act is penetrative sexual assault. Section 4 states the punishment of minimum of 7 years and maximum to be imprisoned for the remaining life of the wrongdoer. Also the wrong doer is liable to pay a fine.

 

Aggravated Penetrative Sexual Assault

Section 5 states that penetrative sexual assault is treated as aggravated penetrative sexual assault if (i) the wrongdoer committing sexual assault olds a position of responsibility or trust vis-à-vis the victim, or (ii) where the acts are severe and/or cause/are likely to cause a lot of damage to the child physically or mentally, or (iii) where the wrongdoer is a repeat offender.

For example the wrongdoer can be a police officer, a member of the armed forces or security forces or a public servant or manager of jail or hospital or a relative of the child or a caretaker whom the child trusts.

Section 6 states the punishment of the aggravated penetrative sexual assault which is rigorous imprisonment for at least 10 years and which may extend to lifetime of the wrong doer.

 Sexual Assault

Section 7 states that if a wrongdoer touches the body of the child or makes the child touch the body of the wrongdoer or any other person with a sexual intent but does not involve penetration, shall amount to sexual assault.

Section 8 states the punishment that is 3 to 5 years jail term and the wrongdoer is also liable for fine.

 

Aggravated Sexual Assault

Section 9 states that sexual assault is treated as aggravated sexual assault if (i) the wrongdoer committing sexual assault olds a position of responsibility or trust vis-à-vis the victim, or (ii) where the acts are severe and/or cause/are likely to cause a lot of damage to the child physically or mentally, or (iii) where the wrongdoer is a repeat offender.

For example the wrongdoer can be a police officer, a member of the armed forces or security forces or a public servant or manager of jail or hospital or a relative of the child or a caretaker whom the child trusts.

Section 10 states the punishment for this that is 5 to 7 years jail term along with the wrongdoer is liable to fine.

 

Sexual Harassment

Section 11 defines sexual harassment as, if the wrongdoer says or does anything in presence of the child which includes the showing of the objects or the part of body. Or if the wrongdoer makes a child show any part of his/her body or if shows the child any pornographic material. It also amounts to sexual harassment if the wrongdoer constantly watches or follows the child.

The punishment for sexual gratification is given in Section 12 as jail upto 3 years and also the wrongdoer is liable to pay fine.

 

Procedure for reporting of cases

Section 19 to Section 23 deals with the procedure for the reporting of the cases. It states that every person (including a child) who has the information is obliged to report the incident and provide information to either Special Juvenile Police or Local Police Station.

Whatever is recorded by the police must be read out to the person providing the information and thereafter be entered in a book which is to be kept with the police unit.

If there is a need for immediate care and protection then arrangements should be made within 24 hours of the matter being reported like the child should be admitted into a shelter home or the nearest hospital if required. Also within 24 hours the matter must be immediately reported to the Child Welfare Committee or the special Court or the Court of Sessions.

 Procedure for recording statement of the child

Section 24 to Section 27 refers to the procedure for the recording of the statement of the child. The few points which need to be taken care of are –

  • The complaint has to be recorded from a child, a place at where child is comfortable like the child’s residence or the place where child usually stays or any other place of preference of the child.
  • While recording the statement the police officer should be a woman and should not be in uniform.
  • This Act prohibits the detention of the child in the Police Station overnight.
  • The name and identity of the child should not be revealed. It can be publicized to the media with the exception of a situation where the Special Court thinks that such publicity is in interest of the child.
  • The statement of the child should be recorded only in presence of his/her parents or any other person the child trusts.
  • During the medical examination, it should be done in presence of the parents. If the child is a girl then the doctor should be a woman. If parents are not present or trusted person of child is not present then the head of medical institution will nominate a woman to be present during the examination.

 

Conclusion

The provisions of this Act are highly beneficial for the child. It has stringent punishments for the wrongdoer. The mandatory reporting makes it very effective as anyone who has the information of the child abuse is bound to report it and if the person does not do it, then 6 months jail term is the punishment.

Also the burden of proof lies on the accused that is the wrongdoer. It is the wrongdoer who has to prove that he/she is innocent. This is the only Act where the burden of proof is on defense that is the wrongdoer.

Additionally the provision for setting up of Special Courts helps in effective judicial imparting system. These provisions make this Act highly effective. If this is implemented properly then this law will help eradicate the child abuse.

A child abuse free country will help in yielding a productive economy. Children are the future of the country and when they are open minded, devoid of any trauma or guilt then they will help in becoming a prosperous country.

By:

Manasi Bhushan, Research Associate

Student, Govt. Law College, Mumbai

Legal Desire

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