Worldwide, reports of child sexual abuse are becoming more and more common. Child sex abuse is an underreported crime in India, where it has reached epidemic proportions. Over the past 20 years, the number of sexually transmitted illnesses among youngsters has increased. Children who experience sexual abuse typically have some sort of connection to the perpetrator. As a result, more precise and more severe punishment is needed to address the problem of child sexual abuse.
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was developed to effectively manage the terrible crimes of child sexual abuse and exploitation. It is a thorough sexual abuse law that increases the range of sexual offenses that can be committed, requires reporting of abuse, and creates guidelines for the examination of victims.
While an exploited youngster may first become a victim before turning against them, a safeguarded child is a potential national resource. A child needs these things to grow up and realize its full potential: safety, security, harmony, love, and care. However, it is the duty of all parties involved to create an atmosphere that supports a child's overall growth.
We should view the child as the most essential and crucial component of the country as human values change and humanitarian ideas gain traction. It is our responsibility to cooperate to achieve the objective of ensuring the welfare of all children.
Child sexual abuse in India
The problem of child sexual abuse is prevalent throughout the world. According to the 2011 Census, India has 430 million children, and problems like poverty, a lack of access to necessities for a better standard of living, and a lack of education make the problem of child sexual abuse considerably worse.
The findings of the National Crime Records Bureau (2016) made it clear that 36,022 (34.4%) of the cases registered under the 2012 Protection of Children from Sexual Offenses Act involved child rape. The states of Uttar Pradesh, Maharashtra, and Madhya Pradesh recorded the highest percentages of child abuse cases (15.3%, 13.6%, and 13.1%, respectively).
In Kerala, 36% of boys and 35% of girls reported experiencing sexual abuse at some time in their life, according to a recent study on the prevalence of sexual abuse among teenagers. The Government of India conducted a similar poll on 17,220 children and adolescents to establish the prevalence of sexual abuse, and the shocking results showed that every second child in the nation had been sexually abused; among them, 52.94% of the boys and 47.06% of the girls. The most instances of sexual assault were reported in Assam (57.27%), next in Delhi (41%), Andhra Pradesh (33.87%), and Bihar (33.27%).
POCSO Act, 2012
To increase the legal protections for children from sexual abuse and exploitation, the Protection of Children from Sexual Offenses (POCSO) Act 2012 was drafted. A "child" is defined as a person who has not reached the age of 18 in the POCSO Act of 2012. Because of the act's gender neutrality, children of both sexes are protected.
Need of The POCSO Act, 2012
The Goa's Children's Act, 2003 and Rules, 2004 was the only piece of law in India before the implementation of the POCSO Act, 2012, that sought to safeguard a child's rights. Sections 375, 354, and 377 of the Indian Penal Code, 1860 define child sexual abuse as an offense.
These laws do not include the modesty of male youngsters or their protection from sexual abuse. Additionally, terms like "modesty" and "unnatural offense" are not defined in the Code. Because there was no pertinent legislation in place at the time, it was important to draught a statute that expressly addressed the issue of escalating child sexual abuse cases in the country. As a result of the efforts of several NGOs, activists, and the Ministry of Women and Child Development, the POCSO Act, 2012 was put into effect on November 14, 2012.
Scope of The POCSO Act, 2012
More laws in India address concerns of child sexual abuse in addition to the POCSO Act, of 2012. The POCSO Act cannot be regarded as a full code in and of itself because the provisions of the Code of Criminal Procedure, 1973, Indian Penal Code, 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap, contain the process, and specify the offenses.
Applicability of The POCSO Act, 2012
The POCSO Act of 2012 has 46 sections. The question of whether it relates to circumstances from before that date arises given that it was published in the official gazette on June 20, 2012, but it didn't take effect until November 14, 2012.
The Act stipulates the penalties for offenses against children. Section 2(1)(d) of the POCSO Act contains a definition of a child. "A child" is defined as "any person under the age of eighteen." This suggests that the POCSO Act applies to crimes committed against people under the age of eighteen.
Importance of The POCSO Act, 2012
- In response to a rise in child sex abuse cases, the POCSO Act of 2012 was passed. It offers guidelines for protecting minors from sexual abuse and pornography and details the procedure for putting these laws into effect.
- Because cases of sexual abuse against children occur in schools, churches, parks, hostels, and other public places, no site can ever be guaranteed to be safe for minors. A separate piece of law that might provide a strong foundation for lowering the incidence of such offenses and punishing those who commit them was necessary for light of these new risks.
- The Act played a significant role in developing a robust legal framework for victims of sexual abuse and in emphasizing the value of children's rights and protection. The reporting of incidents of child sexual abuse has grown as a result of greater awareness. Under the Act, both non-penetrative and aggravating penetrative sexual assault are crimes.
Salient Features of The POCSO Act
The following are some of the major features of the POCSO Act that are discussed:
- According to the Act, those under the age of 18 are considered "children." The Act is not gender-specific.
- The Act defines various types of sexual abuse, including but not limited to penetrative and non-penetrative assault, pornography, and sexual harassment.
- When a youngster is mentally ill, for example, sexual assault is considered to be "aggravated." Additionally, when someone in a position of trust—such as a doctor, teacher, police officer, or family member—commits the abuse.
- Ample measures are taken to prevent the child from becoming a victim of the legal system again. According to the Act, a police officer serves as the child's protector while an inquiry is being conducted.
- The Act mandates that certain actions must be made to ensure that the investigation process is as child-friendly as possible and that the case is resolved within a year of the day the infraction was reported.
- The Act calls for the creation of Special Courts to hear cases involving these offenses and things linked to them.
- The Act's Section 45 grants the federal government the authority to enact regulations. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been established as the designated authorities to oversee the Act's implementation. Both have legal status.
- The POCSO Act shall take precedence over any provisions of any other legislation, according to Section 42 A of the Act, in the event of a conflict.
- Sexual offenses must be reported according to the Act. According to the Act, it is illegal to file a false complaint to smear someone.
- The minimum sentence was increased from seven years to ten years by a 2019 amendment to the law. It further states that a person who engages in penetrative sexual assault on a kid under 16 will face a sentence of 20 years to life in jail and a fine.
- The Act defines child pornography as any visual representation of child sexual activity, including pictures, videos, digital images, or computer-generated representations indistinguishable from the actual child.
- The Act is significant because it defines child pornography properly and makes it illegal. The revisions also propose harmonizing it with the IT Act and penalizing the transmission of pornographic content to youngsters.
- By including the potential for the death penalty, the Act strengthens the penalties for sexual offenses against children.
What Does The POSCO Act Include?
The POCSO Act, 2012 is a thorough piece of legislation with 9 chapters that cover offenses, penalties, and procedures.
Penetrative Sexual Assault:
Penetrative sexual assault is defined in Section 3 of the POCSO Act, and Section 4 of the law specifies the sentence, which was toughened up by the 2019 amendment.
Aggravated Penetrative Sexual Assault:
The POCSO Act's Section 5 specifies the circumstances in which a penetrative sexual assault qualifies as an aggravating penetrative sexual assault. For instance, penetrative sexual assaults on children committed by law enforcement personnel near a police station, by members of the armed forces operating within their jurisdiction, and by civil servants working in jails, hospitals, or educational institutions are classified as aggravated penetrative sexual assault. They are punishable under Section 6 of the POCSO Act.
According to Section 7 of the POCSO Act, sexual assault is defined as any act with sexual intent involving physical contact without penetration, which involves touching the vagina, penis, anus, or breast of the child or causing the child to touch the vagina, penis, anus, or breast of such person or any other person.
Aggravated Sexual Assault:
The POCSO Act has provisions for aggravated sexual assault against a child under sections 9 and 10.
Sexual harassment is defined in Section 11 of the POCSO Act. It contains six instances of child sexual exploitation.
- First, if someone speaks, sounds, or displays anything to a child to be sexual.
- Second, if anybody forces a child to expose his/her body so that they or anyone else may see it.
- Third, if someone exposes a child to any type of pornographic media.
- Fourth, if someone persistently keeps an eye on or cyberstalks a child.
- Fifth, if anybody makes a threat to utilize an actual or contrived depiction of any portion of a child's body or to show a kid engaging in sexual activity through electronic, film, or digital media.
- Sixth, if someone lures a child into a pornographic situation.
Anyone who uses a child in actual or simulated sexual acts or portrays a child indecently or obscenely in programs or advertisements on television or the internet for pornographic purposes is guilty of the offense under this section, according to Section 13 of the POCSO Act, and is subject to punishment under Sections 14 and 15.
Punishments for Offences covered in the Act
- Penetrative sexual assault (Section 3) on a child: Minimum prison sentence of ten years, a maximum sentence of life in prison, and a fine (Section 4). A minimum of twenty years in prison and a maximum of life in prison, which implies that the offender will be imprisoned for the rest of their natural lives, as well as a fine, are the punishments for penetration sexual assault on a child under the age of sixteen.
- Aggravated Penetrative Sexual Assault (Section 5): Minimum sentence of twenty years, a maximum sentence of life in prison, and a fine (Section 6)
- Sexual assault (Section 7): Minimum sentence of three years, a maximum sentence of five years, and a fine. Sexual contact without penetration (Section 8).
- Aggravated sexual assault by a person in authority (Section 9): Minimum sentence of five years, a maximum sentence of seven years, and a fine (Section 10).
- Child Sexual Harassment (Section 11): Three years of imprisonment and a fine (Section 12).
- Use of a child for pornographic purposes (Section 14) — Not less than five years in prison and a fine, and seven years in prison and a fine in the event of a subsequent conviction Chapter 14 (1).
- A minimum of 10 years must pass after using a minor for pornographic purposes that resulted in penetrating sexual assault (in the case of a child below 16 years, not less than 20 years).
- A minimum of 20 years in prison and a fine are imposed for using a kid for pornographic purposes that result in severe penetrative sexual abuse.
- A minimum of three years, with a maximum of five years, must pass after a minor is used for pornographic purposes that result in sexual assault.
- If a kid is used for pornographic purposes that result in serious sexual assault, the sentence must be at least five years and may be as long as seven years.
- Anyone who stores or has access to child pornographic material in any form, with the intent to share or transmit it, and does not remove, destroy, or report it to the appropriate authority as may be required, faces a fine of at least Rs 5,000; for a second or subsequent offense, the fine is at least Rs 10,000.
- Except for reporting as may be required by law or for use as evidence in court, anyone who stores or has in their possession pornographic material involving children in any form to transmit, propagate, displaying, or distributing at any time shall be subject to one of the following penalties: Maximum prison sentence of three years, a fine, or both.
- Anyone who maintains or owns pornographic material featuring children in any way for commercial purposes may be penalized after being found guilty the first time: At least three years in prison, with a maximum sentence of five years; a fine; or both. Second or later conviction: minimum sentence of five years and a maximum sentence of seven years, as well as a fine.
General Principles of POCSO Act, 2012
When conducting the trial under the POCSO Act, there are a few rules that must be adhered to. These are listed below:
Right To Be Treated With Dignity:
The POCSO Act contains several elements that emphasize how important it is to treat children with respect and the greatest amount of compassion.
Right To Life and Survival:
Article 21 of the Indian Constitution recognizes the right to life as a basic right. It is crucial that a youngster be shielded from society's vices and could grow up in a safe atmosphere.
Right Against Discrimination:
According to the Indian Constitution, this is a further obligation as well as an essential fundamental right. A child should not be subjected to discrimination on the grounds of their gender, religion, culture, or any other factor, and the investigation and legal processes should be just and equitable.
Right to Preventive Measures:
Children, who are still developing and immature, should get the proper training to enable them to recognize right from wrong and prevent abuse against them.
Right to Information:
A child has the right to know how the judicial process is working to condemn the accused.
Right to Privacy:
The major goal of provisions like Section 23 is to safeguard the privacy rights of children who have been the victims of crimes under the POCSO Act to preserve the secrecy of the legal processes in the victim's best interests.
Challenges and Controversies
Child sexual abuse is a complex issue with ramifications in the legal, social, medical, and psychological spheres. The following legal provisions have some shortcomings:
If a child or teenager refuses to undergo a medical examination, but the family or the investigating officer insists, the POCSO Act is silent in this case and offers no specific direction. In these circumstances, the issue of consent needs to be established right away. Emergency care must be initiated, however, to save the child's life, regardless of any issues with legality or consent.
A female physician is required to undertake a medical evaluation of a female child or teen victim by Section 27(2) of the POCSO Act. However, the law mandates that the on-call medical officer provide emergency medical care. The Criminal Law Amendment Act and Section 166A of the Indian Penal Code, on the other hand, mandate that the Government medical officer on duty evaluate the rape victim without fail. Due to the lack of available female doctors, a murky legal scenario arises.
According to the legislation, survivors must get free medical care from the medical profession and institution. If there are insufficient facilities or if expensive treatments are required, the State should be liable for paying the expenditures; Otherwise, the hospital can provide subpar medical care or might refuse to offer the survivor comprehensive care.
Consented Sexual Intimacy:
The POCSO Act of 2012 considers sexual contact between adolescents or between an adolescent and an adult to be unlawful because no exception to the law's ban on sexual contact with anyone under the age of 18 has been made, regardless of consent, gender, marital status, or the age of the victim or the accused. It is advised that any consensual sexual behavior that could be construed as penetrative sexual assault should not be a crime when it takes place between two consenting children to prevent prosecution under the POCSO Behaviour of 2012. However, the most recent amendment to the Indian Penal Code regarding rape laws in 20138 states unequivocally that the age of consent for sex has been fixed at 18, and as a result, anyone who has consensual sex with a child under the age of 18 can be charged with rape, potentially increasing the number of rape cases. Another serious repercussion is that obstetricians and gynecologists are required to document every occurrence of MTP (medical termination of pregnancy) performed on children (below 18 years).
The POCSO Act of 2012 forbids child marriage and the consummation of child marriage. Even while child marriage is forbidden by secular law in India, it is authorized by some personal laws, which complicates matters. These issues must be taken care of while the law is being revised.
Medical, educational, judicial, legal, and law enforcement institutions must be quickly instructed on the POCSO Act, 2012. Finding information, keeping track of it, and increasing public awareness are the main challenges. Training all parties involved is one of the most important aspects of providing comprehensive care and justice. The teaching of child-friendly interviewing, systematic evaluations, evidence gathering, prophylaxis for HIV and STDs, family counseling, and regular follow-up is also urgently needed for all medical students and primary care providers.
Role of Mental Health Professional:
Genital trauma symptoms are rarely clearly visible in child sexual assault cases. Therefore, assessing a victim of child sexual abuse necessitates expertise in history gathering, forensic questioning, and medical examination. The child's mental health expert must be present when the child is questioned in court.
Child sexual abuse can have detrimental impacts on a person's mental health that can be both short-term and long-term. Mental health specialists must offer individual counseling, family therapy, and rehabilitation to the victim to provide follow-up care if psychiatric disorders emerge.
It is well known that the majority of child sexual abuse incidents go unreported. Furthermore, acknowledging and reporting child sexual abuse is a very challenging and very personal decision for many family members as well as survivors. As a result of the crime, survivors and family members feel remorse, fury, frustration, and emotional pain in addition to emotions of embarrassment and humiliation. For fear of becoming victims once more as a result of medical examinations, the criminal justice system, and uneducated society members, they are kept silent and exposed to protracted pain.
Amplification is the result of digital technologies
Child exploitation and abuse have escalated as a result of digital and mobile technology. A few of the more recent forms of child abuse that have emerged include online bullying, harassment, and child pornography.
The Protection of Children against Sexual Offences Act of 2012 (POCSO Act), which was passed by the Indian government, was ineffective in combating child sex abuse. Minimal conviction rate The rate of convictions under the POCSO statute is only about 32% on average over the past five years, and 90% of the cases are still pending.
Despite the POCSO Act explicitly requiring that the entire trial and conviction procedure be finished in one year, it took the Kathua Rape case 16 months for the chief accused to be declared guilty.
Unfriendly to children:
Having trouble estimating the child's age. Rules that favor biological age over mental age, in particular.
The 2012 POCSO Act is comprehensive legislation addressing every facet of child sexual abuse. The Protection of Children from Sexual Offences (Amendment) Act of 2019 was passed, which changed the Act and toughened the punishments for offenses.
Sensitizing the public to child sexual abuse is sorely needed so that there is no hesitation in reporting these crimes. To eliminate any possibility of carelessness on their side, the investigative authorities should be well-trained, and experts like medical practitioners involved in the phases of investigation and trial should be effective. The POCSO Act already makes the process child-friendly, and judicial officials, magistrates, and police officers should adopt this strategy for the child victims to have faith in them.
What is the Minimum Punishment that the POCSO Act of 2012 provides?
A 3-year sentence is a bare minimum under the POCSO Act of 2012. However, it is governed by the section that the offense falls under. For instance, under Section 4, the minimum penalty for sexually assaulting a child under the age of 16 is 20 years in prison and a fine as determined by the court.
What is the full form of the POCSO Act?
POCSO, or Protection of Children from Sexual Offences, is its full name. The Ministry of Women and Child Development introduced it in the year 2012, and changes were made to it in the following year, 2019.
What is Section 4 of the POCSO Act?
According to Section 4 of the POCSO Act, anyone found guilty of penetrating sexual assault on a child under the age of 16 faces a minimum sentence of 20 years in jail and a fine. However, if the same act is committed against a kid between the ages of 16 and 18, the accused will face a minimum of 10 years in prison and a court-determined fine.
What is the POCSO Act Age Limit?
The POCSO act's maximum age is 18, and anyone found guilty of sexually harassing, assaulting, or using child pornography against a minor under this age shall be penalized by the law's numerous parts.
What is the POCSO Act's Section 7?
A person who touches a minor's privates or engages in any other sexually explicit behavior is judged guilty under Section 7 of the POCSO Act 2012 and will receive a minimum sentence of three years.
Who is a child under POCSO Act 2012?
A person is considered a child under the POCSO Act of 2012 if they are under the age of 18. The remedies offered by this act apply to everyone, regardless of gender.
What offenses are covered by the POCSO Act?
The POCSO noted the offenses of child pornography, cyberbullying, and sexual harassment and assault. Since the law's passage, more sexual crimes against children have been reported. The offenses and cases covered by this act are not subject to bail.