POCSO (Protection of Children from Sexual Offences Act 2012)

As much as it is depressing to see the increase in the number of sexual assault cases against children in India, the stronger the need is felt to deliver justice to the victims at the earliest. In our country, the legislation governing sexual offences with children in the POCSO Act which provides stringent punishment for the offenders.

         As per the government report, around 23% of girls in India are sexually abused or harassed before 18 years of age. In most cases, the parents do not complain because the abuser is known to them.

         The POCSO Act was enacted in consequence to India’s ratification of the UN convention on the Right of the child in 1992 came into effect on November 14,2012. The aim of this special low is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or in adequately penalized. 

It is defined as “an Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of special courts for the trial of such offences and matters connected therewith or incidental thereto.”

         It was passed in 2012 under the Ministry of Women and child development.

         The Act was amended in 2019, to make provisions for enhancement of punishments for various offences so as to defer the perpetrators and ensure safety , security and dignified childhood for a child .

         Amidst the debate on the poor conviction sale under POCSO and a lowering of the age of consent from 18 years to 16 years (though rejected by the central government), it is worth evaluating its impact on the ground.

 

2.1 Punishment and offences covered under the POCSO Act 2012:

         The POCSO act was enacted to protect children aged less than 18 from sexual assault sexual harassment and pornography.

1.      The Act defines a child as any person below eighteen years of age.
2.      It prescribes rigorous imprisonment for a term which shall not be less than ten years but which extend to imprisonment for life and also fine as punishment for aggravated penetrative sexual assault.
3.      It also prescribes punishment who traffic children for sexual purposes.
4.      The Act also provides for punishment against false complains or untrue information.
5.      The act was amended in 2019 to increase the minimum punishment from seven years to ten years. If further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punishable with imprisonment between 20 years to life, with a fine.
6.      Aggravated penetrative sexual assault under POCSO Act 2012, is the equivalent provision for aggravated rape.
7.      A person can be charged with this offence on certain aggravating circumstances, such as if the rape occurs with a relationship of trust or authority, or if it leads to pregnancy, among others. 

2.2 Offences under the act:

The New POCSO Act provides for a variety of offences under which an accused can be punished. It recognizes forms of penetration other then penile-vaginal penetration and criminalize acts of immodesty against children too. Offences under the act include.

1. Penetrative sexual assault: - Insertion of penis / object /another body part in child’s vagina/urethra /anus / mouth, or asking the child to do so with them or some other person.
2. Sexual Assault: When a person touches the child with sexual intent, or makes the child touch them or someone else.
3. Sexual Harassment: Passing sexually colored remark, sexual gesture/noise, repeatedly following flashing etc. 
4. Child pornography: With respect to pornography, the Act criminalizes watching or collection of pornographic content involving children also.

       People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life and fine.
       Under POCSO, the consent of a person under the age of 18 is irrelevant, regardless of the nature and circumstance of the sexual interaction, or the particulars of the person with whom it takes place. This means that any sex with a minor is rape.

 

2.3 Silent features of POCSO Act:

1) It is a gender -neutral law: -

         By defining a child as any person below the age of 18 years, the POCSO Act sets a gender-neutral tone for the legal framework available to child sexual abuse victims. The act also does not distinguish between perpetrators of child sexual abuse on the grounds of gender and there have been instances where the courts have convicted women for such abuse.

2) It is an offence to not report an abuse: -

         The act not only punishes the perpetrator of sexual abuse, but also penalizes those who have failed to report the offence with either charge of a company or an institution who fails to report the commission of a sexual offence relating to a subordinate under their control is liable to be punished with imprisonment and a fine under the act.

3) No time limit for reporting abuse: -

         A victim can report an offence at any time, even several years after the abuse has been committed. Therefore, organization dealing with children in India cannot deny child sexual abuse complaints filed against their employees on the pretext of lapse of time.

4) Maintaining confidentiality of the Victim’s identity: -

         Section 23 of the POCSO Act prohibits disclosure of the Victim identity in any form of media, except when permitted by the special courts established under the act. A violation of this section can attract punishments under the act.

5) New obligations under the POCSO Rules: -

         Last year the government introduces a fresh set of POCSO Rules. There are three chief take away from these rules for any organization dealing with children in India.

         Firstly, any institution housing children, or coming in regular contact with them, is required to conduct a periodic police verification and background check of every employee who might interact with a child.

         Secondly, such an institution must impact regular training to sensitize its employees on child safety and protection.

         Thirdly, and most importantly, it has to adopt a child protection policy based on the principle of zero tolerance to violence against children. This policy must mirror the child protection policy of the stat5e government in which the organization operates.

2.4 Global laws to prevent children from sexual Harassment:

         The united nation convention on the Right of the child (CRC) is an international treaty that legally obligates nations to protect children’s rights.

         Articles 34 &35 of the CRC require states to protect children from all forms of sexual exploitation and sexual abuse. This includes outlawing the coercion of a child to perform sexual acts, the prostitution of children, and the exploitation of children in creating pornography. States are also required to prevent the abduction. Sale or trafficking of children.

 

2.5 Conclusion:

         A child’s psyche is scarred by sexual abuse, which causes depression, emotional anguish and mental impairment, POCSO Act unquestionably includes protection against child pornography and sexual assault. The penalties for sexual offences, against children have grown more severe as a result of the change in 2019. However, India still needs to do for more to reduce child sex crimes. 

— Team Yuva Aaveg

(Praveen Kumar Maurya)

 

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