Protecting Children from Sexual Offences: Insights and Loopholes in the POCSO Act 2012

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This article has been written by Khushi Mishra from Deen Dayal Upadhyay Gorakhpur University.

Table of Contents

INTRODUCTION

The POSCO (Protection of Children from Sexual Offences) Act, 2012, came into force with effect from 14^th November,2012. It is applicable to the total of India which seeks to give for strict punishment to those crimes which are engaged in sexual crimes against children, or we can say this act has been passed to address offences of sexual abuse of children. Any person who is below the age of 18 is a child under this act, and it provides discipline according to the offence.

Further it was amended in 2019, to make provisions or to introduce extra strict punishment including the death penalty for committing this type of crimes on children, with a view to ensure safety, security and dignified childhood for a child and to help children with such crimes.

The Government of India introduced the POCSO Rules,2020 which provides that the Special Court may pass an order for interim compensation which means temporary expenditure to meet the needs of the child can seek help at any time after the FIR if filed.

SCOPE OF POCSO ACT, 2012

The Act consists of the provisions of the CrPC 1973 (now Bhartiya Nagrik Suraksha Sanhita 2023), IPC 1860 (now Bhartiya Nyaya Sanhita 2023), Juvenile Justice Act, and Informative Technology Act, also because all these deals with child sexual abuse cases.

NEED FOR POCSO ACT, 2012

The laws CrPC, IPC, JJ ACT, IT ACT, were not enough for these crimes. Till 2012, there was no specific law which governs child sexual abuse.

The enhancing incidents of the sexual offences against Children. There were no specific provisions or laws for dealing with the sexual abuse of male children. The IPC recognizes only certain types of sexual violence against children.

IMPORTANCE OF THE POCSO ACT ,2012

The act increased the scope of reporting sexual crimes against children. It also included punishment for public retainers, staff of educational institutes, police, etc.

This POCSO Act law recognises sexual harassment of a child which involves touch, stalking, making a child expose themselves. Incidents of sexual abuse against children do occur at academy, religious places, parks, premises, caravansaries, hospitals, etc and the security of children is not guaranteed anywhere, so it was very important to introduce separate law which could give a power system for the offences and punishing the offender. The act provides punishment for both non-penetrative sexual and penetrative sexual assault.

FEATURES OF THIS ACT:

Neutral Gender: Out of the 100 child sexually assaulted cases studied, 43% were male child and 57% were female child. It consummate the significance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child.

Age: Minimum age of victim was 2 years and maximum age of victim was 17 years, but it actually consists of the child of as any personal below 18 years of age.

Sexual abuse cases: It defines different forms of sexual abuse, including but not limited to penetrative and non-penetrative assault, pornography, and sexual harassment. All these offences are treated as “irritated” when the child is mentally ill and when the abuse is committed by a person in a position of trust or authority.

People who involve children for sexual purposes are also punishable under the provisions relating to abetment in the act, also strict measures are taken to help the child from becoming a victim of the legal system again. The act introduces harsh punishment as per the nature of the offence, with imprisonment of life or forfeiture. When the inquiry is being conducted the police officer serves a protection to the child.

Section 3- Penetrative Sexual Assault with the punishment of minimum 7 years and maximum life imprisonment and fine as mentioned in Section 4.
Section 5- Aggravated Penetrative Sexual Assault with the punishment of minimum 10 years and maximum life imprisonment and fine as mentioned in Section 6.
Section 7- Sexual Assault with the punishment of minimum 3 years and maximum 5 years and fine as mentioned in Section 8.
Section 9- Aggravated Sexual Assault with the punishment of minimum 5 years and maximum 7 years and forfeiture as mentioned in Section 10.
Section 11- Sexual Harassment with the punishment of minimum a term and may extend to 3 years and forfeiture as mentioned in Section 12.
Section 13- Use of Child for Pornographic Purposes with the punishment of imprisonment not lower than 5 years and forfeiture, and in the alternate conviction with imprisonment not less than 7 years and fine as mentioned in Section 14(1).
Section 14(2)- Penetrative Sexual Assault with the punishment of minimum 10 years and maximum life imprisonment and forfeiture.
Section 14(3)- Aggravated Penetrative Assault with the punishment of life imprisonment which is rigorous and fine.
Section 14(4)- Sexual Assault with the punishment of minimum 6 years and maximum of 8 years and fine.
Section 14(5)- Aggravated Sexual Assault with the punishment of minimum 8 years and maximum 10 years.

Child friendly disquisition and trial- Section 24,26 and 33 of the POCSO Act been formulated to know the requirements of a child during the procedure of disquisition and trial.

It includes-

Recording of the statement of the child should be done at his or her residence or at the place of their own choice, by a woman police officer not below Sub-Inspector.
At the time of recording the statement the police officer should not be in uniform.
A child should not be detained in the police station at night.
The identity of the child should not be revealed.
The statement should be recorded as spoken in the form of audio or videotape electronic means.
The presence of trusted person of the child is necessary during the recording of the statement.
The child should be given frequent breaks during the trial.
A trusted adult must be with the child when their statement is recorded, incase the victim is a girl child the examination to be conducted by a female doctor.
The child not to be called repeatedly for the testify.
Courts to conduct trial in-camera without the child identity.
The media asked not to disclose the identity of the child without the permission of the special court, if done they will be punished for 6 six months or a year.

GENERAL PRINCIPLES:

Right to life and personal liberty- A fundamental right of Article 21 in the Indian Constitution. A child must be protected from the sinfulness society and should be given a secure environment.
Right to be treated with dignity- It is very important to treat a child with respect and care sensitive manner during the justice process.
Right against discrimination- The child shouldn’t be treated unfairly because of their religion, caste, or etc.
Right to preventive measures- Children should be well trained in their growing age by which are they learn how to protect themselves according to the situation.
Right to be informed- All the legal proceedings should be well informed.
Right to privacy- It is in Section 23 to protect the privacy and identity of the child against whom any offence has been committed.
Right to safety- The child must be protected before, during and after the justice process.

ABETMENT OF CHILD SEXUAL ABUSE

Section 16 defines abetment of the offence under the POCSO Act:

Inspiring any person to commit crime.
Being involve in any conspiracy with one or further person to commit any illegal act which takes place in consequence of that conspiracy.
Committing the offence designedly or with planning.

Section 17 describes the punishment for the abetment of the offence according to which a person who abets the offence is to be penalized with the punishment which has been handed for that offence under POCSO Act.

Section 18 describes the attempt to commit any offence under the POCSO Act,2012 with the punishment of imprisonment of one-half year to life imprisonment, with or without forfeiture.

PROSECUTION OF OFFENCES UNDER THE POCSO ACT, 2012

The POCSO Act specifies the provisions of the trial of a reported offence under Section 33 to 38.

Provisions under the POCSO Act concerning the trial procedures:

Deposition of the victim:

Section 33 describes that the offence without the indicted being committed to the trial. Section 36 mentions that the child identity should not be exposed to the accused at the time of giving evidence.

The Time Limit for Disposal of Cases:

Duration of recording of the evidence: 30 days
For completing the trial: 1 year.

Medical and Forensic evidence:

The child sexual abuse is infrequently diagnosed simply on the basis of physical examination. Numerous time the scars or bruises on the external body of the victim.

Duties of a medical examiner:

The medical examination of the child is conducted with very care and precaution. Section 27 describes certain laws regarding the conduct of medical examinations. These are follows:

The medical examination is conducted according to Section 164A of the CrPC.
The medical examination of a girl is to be done by a female doctor.
The presence of a person on whom the child has trust should be present at the time of examination.

The Supreme Court said that parliament should seriously consider an amendment to the POCSO Act rather of naming it “child pornography” , so the term shall not be used in any judicial order or judgement, ‘child sexual exploitative and abuse material’ (CSEAM) should be supported on addition with that watching and downloading child pornography are offences under POCSO Act and IT Act.

BURDEN OF EVIDENCE:

The burden of evidence is recognised by

Nature of the case
Statutory objectives
Government responsibility to protect innocents,

For the protection of child sex abuse the burden of proof is reversed than completely justified.

JUDICIAL ACTIVISM

The bar has secured the rights of children who suffer from sexual abuse, the children are most sensitive group in society. This allows justice for the children who have suffered or been victims of sexual abuse. A child-friendly atmosphere means that the child’s guardian can be present in the court.

Crimes committed against children were observed as 20.1 per one lakh population of children of minor age in India. The act is gender biased like it focuses more on girl child rather than boy child. Sexual abuse can be of both the child as it has been increased rapidly, also there is number of cases of sexual abuse where children doesn’t tell to their parents.

CASE LAWS:

GURUCHARAN SINGH vs STATE OF HARYANA

Fact:

A girl under 16 years was forcibly taken by the accused to his fields, outside the village and committed rape on her. The medical examination showed that there was sexual assault but no marks of violence on the victim’s body. The court also ruled that the victim cannot be considered as an accomplice to the Act.

IMRAN SHAMIM vs STATE OF MAHARASHTRA (2019)

A girl told her grandmother that someone had hurt her, and a medical check confirmed it. But her mother told to ignore it. The statement of the child victim and her grandmother were recorded under section 164 of the CrPC, that the girl was in 3^rd class at the time of the incident and complained that she was sexually assaulted by Imran, who was living near the house of her grandmother. She also said that Imran used to threaten her if she told this to anyone. The medical examination of the victim shows clearly showed that her hymen was broken. The Bombay High Court observed this case by stating that, indeed if a minor in a sexual assault case turns hostile, this is due to pressure of family member before the trial, the accused would have to prove that they are innocent. Most of the time, a child is sexually abused by someone close to them, like a family member. It is easy to say that the accused failed to prove the guilt of the indicted.

SUNDERLAL vs THE STATE OF M.P. AND Others. (2017)

A key court decision involved a father of a minor rape victim who requested permission to end her pregnancy under Article 226 of the Indian Constitution.

The petitioner filed a police report about his minor daughter being abducted. The state investigated and arrested the accused.

On behalf of this, the petitioner contended that the victim is a consent for terminating the pregnancy. The petitioner was a guardian and has given his consent for terminating the pregnancy.

The DNA sample of the foetus is kept in a packed cover if the termination of the pregnancy takes place.

LOOPHOLES OF POCSO ACT,2012

UNWELLED INVESTIGATION MACHINERY: The investigation machinery in these case are not well maintained for the procedure which leads to a wrong investigation.

PENDING CASES: The number of pending cases is rising which results huge problem in performing justice.

CONCLUSION:

The government should make the punishment more sever harsh and scary so that the people get scared before performing this crime. Every child should know how to save themselves and to protect their rights by not being afraid to speal up in incidents like this. The laws should be revised urgently for various developments of child sexual abuses.

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