Prior to the introduction of the Protection of Children from Sexual Offences Act in India, sexual offenses have been prevalent. It was estimated that more than 24 million children were abused. This accounts for almost 24% of the population.
Child marriage which is marrying a girl-child under the age of 18 years does not account as an offense as no law defines it as such. Consequently, sexual offenses in a minor (person under the age of eighteen) were committed by persons of trust.
A person of trust is a family member, a relation, a guardian, a domestic parent, a person of authority whom the child ordinarily trust or have a firm belief that he or she can protect him or her. Offenses pertaining to children are often committed by these persons of trust who hamper on a child’s innocence to commit the atrocity.
Prior Laws and Acts
There were laws put in place protecting individuals from sexual offenses. The prior Acts muddled all sexual offenses committed against all genders into one.
- Male, and
Including the age bracket such as:
- Mental capacity
Are not defined or characterized in the Acts.
Passage of the POCSO Act-
In 2012, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was created and passed to offer protection to children that may have suffered from sexual violence.
Such sexual violence encompasses:
- Sexual assault, and
- Sexual harassment.
The POCSO Act aims to provide and safeguard the interest and well-being of every child during the judicial process. The judicial process includes the provision of a Special Court for the trial of such enumerated offenses and its related kind.
The Act draws its powers from the Constitution and the Convention on the Rights of the Child. Under the Indian Constitution, Article 15 Clause (3) stipulates that the State is empowered to make special provisions for children in India. The Convention on the Rights of Child (CRC), 1989 was created by the General Assembly of the United Nations and it was acceded and adopted by India on the 11th December 1992.
The CRC defines a child under Article 1 to mean every human being below the age of 18 years. The only exception is when the State party provides for an earlier majority attainment. No provision is made as to whether the eighteen years pertains to legal age, or mental age, or physical age.
Also, there is the Optional Protocol to the Convention on the Rights of the Child on the sale of Children, Child Prostitution and Child Pornography, 2000 which is an offshoot of the CRC. Article 1 of the Protocol stipulates that children shall not be sold, pushed to prostitution or used for pornography. Article 2 defines among others Child Prostitution and Child Pornography. The former means using children in sexual activities for any form of consideration including remuneration. The latter means representing, engaging or stimulating children solely for sexual purposes.
Section 2 (d) of the POCSO Act defines a Child as any person below the age of 18 years. There are certain terms which were not defined by the Act. The meaning of such terms can be drawn from other laws and made applicable to the issue at hand. For instance, one may rely on the laws enumerated below for definitions:
- Indian Penal Code,
- Code of Criminal Procedure 1973,
- The Juvenile Justice (Care and Protection of Children) Act 2000, and
- The Information Technology Act 2000.
Definitions and Punishment for Offences Under The POCSO Act-
Chapter II and Chapter III of the POCSO Act focuses on the definitions and punishment for offenses.
Sections 3 – 4 defined Penetrative Sexual Assault and prescribed the punishment of not less than seven (7) years to life imprisonment and a fine for offenders. The definition of Penetrative Sexual Assault was not limited to girls but also does not focus on one traditional sexual act of penovaginal intercourse. It defined that assault to include all forms of sexual acts either in existence or envisaged to be later.
Sections 5 – 6 defined Aggravated penetrative sexual assault and prescribed an imprisonment of not less than ten (10) years to life imprisonment and a fine for offenders.
Sections 7 – 8 defined Sexual assault and proscribed not less than three (3) years to a maximum of five (5) years and fine for offenders.
Sections 9 – 10 defines Aggravated sexual assault with not less than five (5) years to not more than seven (7) years, and fine prescribed to offenders.
Sections 11 – 12 provides for the sexual harassment of a child, including a punishment of three (3) years imprisonment and fine for offenders.
Sections 13 – 14 covers for the use of a child for pornographic purpose or purposes and stipulates a term of five (5) years or seven (7) years and a fine as punishment for the offender.
The key point in the punishment is the exact amount or the amount of money attributed as a fine was not defined or stated. As such, the sum to be fined is left at the discretion of the court.
Procedure for a Case Report-
The POCSO Act made provision for a special court which shall try and determine cases of sexual violence. The special court shall determine all cases brought before it within thirty (30) days except in extreme cases, it may exceed the numbers of days stipulated.
Prior to the trial, there are steps or procedure required such as filing a case report. To do so, sections 19 – 20 provides that:
- The report should be made to:
- Special Juvenile Police Unit or,
- Local Police
- The Report once made shall be:
- Recorded in writing
- Given an entry number
- Read over to the informant in a clear and understandable language
- Entered in a Book to be kept by the Police Unit.
The information provided by the informant can be any person including a child who has knowledge of the offense, who the offense has been committed on or who has knowledge that such offense is likely to be committed. But there is a caveat to this.
If it is discovered that the information provided is false or there is a false accusation or information of an offense against another solely with the intent to threaten, tarnish, extort, humiliation, defame or otherwise is punishable with six (6) months or a fine or both (Section 22 POCSO Act, 2012). The purpose of the punishment is to serve as a deterrent to miscreants but not necessarily to scare people away. Also, this section is not applicable to children because they are the main objective of the Act.
- If the informant is a child, there must the provision of special care and protection within 24 hours by the Special Juvenile Police Unit or Local Police. Such care and protection may include an admission in a near hospital or shelter home. Thereafter, the matter should be reported to the Child Welfare Committee and the Special Court. There are no provisions for what might happen when nothing is done to provide special care and protection to the child after the 24 hours have elapsed.
But, section 21 provides that failure to report or record the offence by a person or institution is liable to a fine and imprisonment ranging from six (6) months to one (1) year excluding a child while it recommends a six (6) months imprisonment as a punishment to a police officer that fails or does not record a sexual offense complaint by a child victim.
Case Report by a Child-
There is the provision of what a police officer ought to do when the report is coming from a child. The procedure for a child’s report include
- Child friendliness,
- The recording of the child’s statement at the child’s residence or place of choice, preferably by a female officer, with a rank not lower than a sub Inspector,
- Interpretation and translation of the child’s statement to ensure that it is clear and understandable,
- An assistance of special instructors or educators for communication with disabled children,
- Recording of evidence such as medical examination of the child in the presence of the parents and preferably a female document where the child victim is a girl,
- Investigation of the offense, and
- The trial of the offense.
Information to Parents or Guardians-
Rule 4 (12) of the POCSO Rules, 2012 provides that the police must inform the parents or guardians about:
- The availability of medical services provided to the child,
- The Procedural steps are taken or to be taken by the police in the criminal prosecution,
- The availability of compensation for the child victim,
- The arrest of the sexual offender,
- The filing of the Charge particularly First Information Report (FIR) against the sexual offender,
- The dates of the proceedings of the court,
- The bail or release of the sexual offender,
- The rendering of the court verdict, and
- The sentencing of the sexual offender.
There is no provision for bail in the POCSO Act. This simply means that offenses under the Act are non-bailable. Generally, it is presumed that all suspects are innocent until proven guilty but there is an exception. All offenses that are not bailable consider suspects or offenders as guilty until proven innocent and this is applicable to sexual offenders.
Therefore, for a suspect or an offender to prove his or her innocence, it must be done by the court or determined in the course of the investigation. But for an offender to be bailed under the POCSO Act, the following factors may be considered:
- The gravity of the crime committed and its antecedent effect on society.
- The likely chance that the offender may be a repeat offender if released on bail.
- The establishment of a prima facie case against the offender.
- The position of the offender or accused in the family such as breadwinner, income provider, etc.
- For a female, whether she is pregnant or have children below the age of twelve (12) in her care.
- The likely opportunity of the offender or accused to prepare a defense.
- The offender’s antecedent in society.
These considerations are not all-encompassing but they provide the guidelines or factors the court may look into before granting or denying bail to the case at hand. Bail cannot be applied for at the police station but only in court after the charge sheet has been completed and filed.
The POCSO Act was passed into law to help penetrate the offenders of sexual violence on both gender types of children. This is to correct the errors or omissions of previous laws which either failed to define and punish sexual violence on children or failed to consider all types of sexual assaults.
A cursory look at the POCSO Act shows that more efforts need to be made to equip and train the police officers to handle these cases, remove the condemnation of consensual intercourse between minors, allow medical practitioners to treat and attend to girls under 18 years that are pregnant and seeking for abortion, etc. While the lawmakers work on its amendment, we must encourage the steps taken to curb sexual violence on children in India.