In this article, Shagun Bahl discusses the fundamental provisions of the Protection Of Children From Sexual Offences Act, (The POCSO Act, 2012). A short guide to The POCSO Act.
Sexual abuses on children are a big blot on society at large as it shook’s the human consciousness of the society and retard the normal healthy growth of children. It leads to grave physical and psychological effects on the body and mind of a child and dismantles the normal growth of a child. It does not leave only physical injuries on the body but also leaves an everlasting scar on the child’s mind at a very nascent age. POCSO ACT has been birthed out of the very need to enact a specific legislation to tackle with the increasing sexual abuse against children in form of abuses like rape, pornography, various forms of penetration and criminiliases acts of immodesty against children too.
Child Sex Abuse is considered as the most heinous crime which can be done to a child as the offender of these crimes knows that the forced sex which they are doing with the child is by leashing child’s vulnerability and trust and is exposing to child under grave trauma which is not just a physical attack on its body and private parts but also disturbing a child’s mind so blatantly that it can take a lifetime for the child to feel normal ever after that abuse.
What is Child Sexual Abuse?
World Health Organization (WHO) defines child sexual abuse as, ‘inappropriate sexual behavior with a child’ and ‘involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.
In Short, following actions are considered as Child Sexual Abuse
(According to a report by WHO)
- Fondling a child’s genitals
- Making the child fondle the adult’s genitals
- Intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation
- Inducement or coercion of child in unlawful activity.
- The exploitative use of child in prostitution or other unlawful sexual practices
- The exploitative use of children in pornographic performances and materials.
The effects of child sexual abuse can include:
- Depression
- Post traumatic stress disorder
- Anxiety
- low self esteem
- propensity to further victimization in adulthood
- physical injury to child
- Psychological trauma
Law before POCSO Act, 2012
Child sex abuse crimes before the enactment of POCSO Act were dealt under Indian Penal code. Child Sexual abuses were prosecuted under Indian Penal Code under following sections
- P.C (1860) – Sec 375 Rape
- P.C (1860) – Sec 354 Outraging the modesty of women
- P.C (1860) – Sec 377 Unnatural Offences
The I.P.C. was not adequate enough to protect the children and criminalize non- conventional sexual abuses which are different from above mentioned conventional crimes in form of child trafficking, pornography , sale of children.
There were several loopholes in the IPC which could not effectively protect the child due to various loopholes like:
- IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
- IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
- In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse of children.
The Protection of Children from Sexual Offenses Act, 2012
Reasons for Enactment of POCSO Act, 2012
The very inadequacy of Indian Penal Code and absence of any stringent legislation for effectively addressing and tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of POCSO ACT as the very intention of Government establishments was to protect the children from offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal machinery by establishing special courts for trial of such offences and matters incidental connected with child sexual abuse crimes. This was in due compliance of Article 15 of Constitution of India which mandates the states to protect the children of this nation and in lieu of United Nations Conventions on the Rights of the Child which prescribes the set of standards to be followed by state parties in securing the best interest of the child.
Commencement of POCSO ACT, 2012
The Protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June, 2012.
The preamble of POCSO Act emphasis that child protection legislation like POSCA is necessary for proper development of child so that his or her right to privacy and confidentiality will be protected and respected by every person by all means and through all stages of judicial process involving a child.
POCSO ACT makes it imperative that child protection is given paramount importance to ensure holistic development of child’s physical, emotional, intellectual and social faculties.
POCSO ACT mandates the state parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent –
- The inducement or coercion of a child to engage in any unlawful sexual activity;
- The exploitative use of children in prostitution or other unlawful sexual practices;
- The exploitative use of children in pornographic performances and materials;
Seven most important features of The POCSO Act, 2012
- POCSO ACT defines a child as a person under the age of 18 year. It encompasses the biological age of the child and remains silent on the mental age considerations.
- It recognizes all forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too.
- With respect to pornography, this act criminalizes even watching or collecting pornographic content involving children under Sec 15 of the Act and shall be punished with imprisonment of either description which may extend to three years or with fine or both.
- This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and is punishable under Section 18 of the act with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.
- It also provides for various procedural reforms under Sec 19-22 of the Chapter V under the Act making the tiring process of trial in India considerably easier for children. The procedural formalities of reporting the case to Special Juvenile Police has made it easier to report child sexual abuse cases in a prompt and hassle free manner.
- Under Sec 20 of the act under chapter V makes it obligatory for media personnel’s and personnel employed by hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police so that such sex abuse offenders’ can be tracked down by police immediately.
- However, This Act also has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18 and take the personal liberty of adolescents to indulge in consensual sex and youngsters who indulge in sexual activities will be prone to further harassment from family members, police and society. This new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent.
THE STATISTICS OVERVIEW BY SAVE THE CHILD ORGANISATION BIG PICTURE OF POCSO ACT ACROSS INDIA
As per the data collected by Save the Children, India it has shown that recently, the new child protection legislation like the Protection of Children Against Sexual Offences Act (2012) has given more teeth to fighting child rights violation.
The number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act. Sexual offences and kidnapping account for 81% of the crimes against the minor as preventive measures designed to ward off strangers (installing CCTV cameras and providing self-defense training) will be ineffective, as children do not know how to ward off unwanted sexual advances from their known relatives, acquaintances or workplace seniors they trust.
POSCO – State wise cases –
- Uttar Pradesh led the highest number of child abuse cases (3,078)
- Madhya Pradesh (1,687 cases)
- Tamil Nadu (1,544 cases)
- Karnataka (1,480 cases)
- Gujarat(1,416cases).
REVIEW OF POCS0 2012
POST ANALYSIS of POCSO ACT,2012 byhttp://www.satyamevjayate.in/child-sexual-abuse/reviewing-pocso.aspx has concluded in its review that most states have not yet notified special courts or appointed special public prosecutors. Cases of offences against children are therefore still being brought before regular criminal courts, thus denying children their right to a child-friendly system and structure.
Moreover, the act has raised the age of consent from 16 to 18 years without considering scientific evidence on adolescent sexuality. Children involved in sexual activity will be treated as juveniles in conflict with the law. In cases of consensual sexual relationships between those in the age group of 16 and 18 years, how can we distinguish between the victim and the perpetrator.
Implementation of The POCSO Act, 2012
The effectiveness of a law depends largely on the people responsible for its implementation and application. State governments will have to ensure that all the requirements specified under the law are in place and all key stakeholders will have to internalize the core principles of child rights in order for the law to work.
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