Protection of Children from Sexual Offenses Act

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Child sexual abuse laws in India have been enacted as part of the child protection policies of India. The Parliament of India passed the 'Protection of Children Against Sexual Offences Bill (POCSO), 2011' regarding child sexual abuse on 22 May 2012, making it an Act. [1] [2] [3] [4] A guideline was passed by the Ministry of Women and Child Development, India. The rules formulated by the government in accordance with the law had also been notified on the November 2012 and the law had become ready for implementation. [5] There have been many calls for more stringent laws. [6] [7]

Contents

India has one of the largest population of children in the world. Census data from 2011 shows that India has a population of 472 million children below the age of eighteen. [8] [9] Protection of children by the state is guaranteed to Indian citizens by an expansive reading of Article 21 of the Indian constitution, [10] [11] and also mandated given India's status as signatory to the UN Convention on the Rights of the Child.

Laws before POCSO

Goa Children's Act, 2003, [12] was the only specific piece of child abuse legislation before the 2012 Act. Child sexual abuse was prosecuted under the following sections of Indian Penal Code:

However, the IPC could not effectively protect the child due to various loopholes like:[ citation needed ]

The Protection of Children from Sexual Offences Act, 2012

Offences under the Act on 14 November 2012

The Protection of Children from Sexual Offences Act (POCSO), 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. [1]

The POCSO Act specifies a variety of offences under which an accused can be punished. It recognizes forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too. Offences under the act include:

The act is gender-neutral, both for children and for the accused. With respect to pornography, the act also criminalizes watching or collection of pornographic content involving children. The Act makes abetment (encouragement) of child sexual abuse an offence. In 2019, the POCSO Act was amended and made more stringent, the amendment raised minimum punishment for penetrative assault from 7 to 10 years and 20 years if the victim was below 16 years in age, with a maximum punishment of life imprisonment with a provision for the death penalty for aggravated penetrative assault. [17] [18] [19]

Child-friendly process

It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The child friendly process aims to minimize trauma felt by the victim, eliminate the possibility of revictimization and to protect against intimidation. [20]

A Victim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age. [21]

Child Welfare Committee

A sexually abused child is considered as "child in need of care and protection" under Juvenile Justice (Care and Protection of Children) Act, 2015. [22] Police officer should therefore inform the Child Welfare Committee about every case under the Act within 24 hours. [23] CWC can appoint a support person for the child who will be responsible for psycho-social well-being of the child. This support person will also liaise with the police, and keep the child and child's family informed about progress in the case. Reporting can be done through the toll free number 1098. [24]

Contention around implementation of POCSO

Definition of child

The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability.

A recent case in SC had been filed where a woman, whose biological age was 38 years but her mental age was 6 years, was raped. The victim's advocate argued that "failure to consider the mental age will be an attack on the very purpose of act." SC held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick, rather than referring to a person having mental retardation. The court said while awarding maximum compensation to a rape victim who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well. The victim suffered from cerebral palsy. [25] [26]

Contradiction with the Medical Termination of Pregnancy Act, 1971

The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.

Mandatory reporting

According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both. [27] Many child rights and women rights organizations have criticized this provision. [28] According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.

Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim is often unrepresented. [29]

Criminalization of consensual relationships

The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual act will also be punished under this law, this coupled with the need for mandatory reporting has led to the criminalization of consensual relationships between adolescents. [30] This is especially a concern where an adolescent is in a relationship with someone from a different caste, or religion. Parents have filed cases under this Act to 'punish' relationships they do not approve of. [31] In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalize consenting relationships at the request of the parents of the girl. [32]

In contrast to the 2011 act, an earlier draft of the bill in 2001 did not punish consensual sex if at least one of the partners were above the age of 16, as did section 375 of the Indian Penal Code. The change from this to the age of 18 in the final act was criticized at the time as it was feared that this would allow and encourage unjustified complaints aimed at penalizing consensual relationships. [33]

Landmark Judgments under POCSO Act, 2012

Supreme Court of India

Cases in news

Organisations working with victims of child sexual abuse

See also

Related Research Articles

Sexual assault is an act in which one intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence that includes child sexual abuse, groping, rape, drug facilitated sexual assault, and the torture of the person in a sexual manner.

Some victims of rape or other sexual violence incidents are male. It is estimated that approximately one in six men experienced sexual abuse during childhood. Historically, rape was thought to be, and defined as, a crime committed solely against females. This belief is still held in some parts of the world, but rape of males is now commonly criminalized and has been subject to more discussion than in the past.

Sexual grooming is the action or behavior used to establish an emotional connection with a minor, and sometimes the child's family, to lower the child's inhibitions with the objective of sexual abuse. It can occur in various settings, including online, in person, and through other means of communication. Children who are groomed may experience mental health issues, including "anxiety, depression, post-traumatic stress, and suicidal thoughts."

The precise definitions of and punishments for aggravated sexual assault and aggravated rape vary by country and by legislature within a country.

The legal age of consent for sexual activity varies by jurisdiction across Asia. The specific activity engaged in or the gender of participants can also be relevant factors. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, such as homosexual relations or close in age exceptions, may exist, and are noted when relevant.

The ages of consent vary by jurisdiction across Europe. The ages of consent – hereby meaning the age from which one is deemed able to consent to having sex with anyone else of consenting age or above – are between 14 and 18. The vast majority of countries set their ages in the range of 14 to 16; only four countries, Cyprus (17), Ireland (17), Turkey (18), and the Vatican City (18), set an age of consent higher than 16.

<span class="mw-page-title-main">Ages of consent in North America</span> Age of consent for sexual activity in countries in North America

In North America, the legal age of consent relating to sexual activity varies by jurisdiction.

<span class="mw-page-title-main">Ages of consent in Africa</span> Ages of consent for sexual activity in the countries of Africa

The age of consent in Africa for sexual activity varies by jurisdiction across the continent, codified in laws which may also stipulate the specific activities that are permitted or the gender of participants for different ages. Other variables may exist, such as close-in-age exemptions.

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.

Laws against child sexual abuse vary by country based on the local definition of who a child is and what constitutes child sexual abuse. Most countries in the world employ some form of age of consent, with sexual contact with an underage person being criminally penalized. As the age of consent to sexual behaviour varies from country to country, so too do definitions of child sexual abuse. An adult's sexual intercourse with a minor below the legal age of consent may sometimes be referred to as statutory rape, based on the principle that any apparent consent by a minor could not be considered legal consent.

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.

<span class="mw-page-title-main">Sexual offences in the United Kingdom</span>

There are a number of sexual offences under the law of England and Wales, the law of Scotland, and the law of Northern Ireland.

<span class="mw-page-title-main">Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007</span>

The Criminal Law Amendment Act, 2007 is an act of the Parliament of South Africa that reformed and codified the law relating to sex offences. It repealed various common law crimes and replaced them with statutory crimes defined on a gender-neutral basis. It expanded the definition of rape, previously limited to vaginal sex, to include all non-consensual penetration; and it equalised the age of consent for heterosexual and homosexual sex at 16. The act provides various services to the victims of sexual offences, including free post-exposure prophylaxis for HIV, and the ability to obtain a court order to compel HIV testing of the alleged offender. It also created the National Register for Sex Offenders, which records the details of those convicted of sexual offences against children or people who are mentally disabled.

<span class="mw-page-title-main">Domestic violence in India</span>

Domestic violence in India includes any form of violence suffered by a person from a biological relative but typically is the violence suffered by a woman by male members of her family or relatives. Although Men also suffer Domestic violence, the law under IPC 498A specifically protects only women. Specifically only a woman can file a case of domestic violence. According to a National Family and Health Survey in 2005, total lifetime prevalence of domestic violence was 33.5% and 8.5% for sexual violence among women aged 15–49. A 2014 study in The Lancet reports that although the reported sexual violence rate in India is among the lowest in the world, the large population of India means that the violence affects 27.5 million women over their lifetimes. However, an opinion survey among experts carried out by the Thomson Reuters Foundation ranked India as the most dangerous country in the world for women.

Rape is the fourth most common crime against women in India. According to the 2021 annual report of the National Crime Records Bureau (NCRB), 31,677 rape cases were registered across the country, or an average of 86 cases daily, a rise from 2020 with 28,046 cases, while in 2019, 32,033 cases were registered. Of the total 31,677 rape cases, 28,147 of the rapes were committed by persons known to the victim. The share of victims who were minors or below 18 – the legal age of consent – stood at 10%.

<span class="mw-page-title-main">Criminal Law (Amendment) Act, 2013</span> Indian legislation

The Criminal Law (Amendment) Act, 2013 is an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, which provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. The Bill received Presidential assent on 2 April 2013 and was deemed to be effective from 3 February 2013. It was originally an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang rape case.

Child sexual abuse in Nigeria is an offence under several sections of chapter 21 of the country's criminal code. The age of consent is 18.

Aarambh India is a non-profit initiative working in Mumbai, India. It focuses on child protection and issues related to child sexual abuse and exploitation. The organization was established in 2012. It partners with other organizations and stakeholders and works across levels from implementing the Protection of Children against Sexual Offences (POCSO) Act 2011 on the ground for organizing trainings and workshops, providing care and support to the victims and engage in research on child sexual abuse, public education and advocacy.

Bharati Harish Dangre is a sitting judge of the Bombay High Court in Maharashtra, India. Dangre has adjudicated in several significant cases concerning constitutional law, including the validity of affirmative action in the form of reservations for the Maratha caste in Maharashtra, the interpretation of child sexual abuse laws in India, and the implementation of the Goods and Services Tax in India.

Pushpa Virendra Ganediwala is an Indian lawyer. She was previously an additional judge of the Bombay High Court, but resigned in 2022, after the Supreme Court of India took the unusual step of refusing to confirm her appointment to the High Court as permanent, after she delivered several controversial judgments concerning cases of sexual assaults against women and children.

References

  1. 1 2 Protection of Children Against Sexual Offences Bill (POCSO), 2011 Archived October 5, 2023, at the Wayback Machine
  2. ↑ "Child Sexual abuse and law". ChildLineIndia. Dr.Asha Bajpai. Archived from the original on 8 April 2019. Retrieved 17 July 2019.
  3. ↑ "Parliament passes bill to protect children from sexual abuse". NDTV. 22 May 2012. Archived from the original on 1 October 2014. Retrieved 23 May 2012.
  4. ↑ The Protection of Children from Sexual Offences Act, 2012 Archived 9 October 2020 at the Wayback Machine Kerala Medico-legal Society website
  5. ↑ "Law for Protecting Children from Sexual Offences". Archived from the original on 3 January 2014. Retrieved 3 January 2014.
  6. ↑ Taneja, Richa (13 November 2010). "Activists bemoan lack of laws to deal with child sexual abuse". DNA India . Archived from the original on 16 May 2012. Retrieved 14 May 2012.
  7. ↑ "Need stricter laws to deal with child abuse cases: Court". The Indian Express. 12 April 2011. Retrieved 14 May 2012.
  8. ↑ "Census of India Website : Office of the Registrar General & Census Commissioner, India". www.censusindia.gov.in. Archived from the original on 22 May 2016. Retrieved 28 September 2018.
  9. ↑ Punj, Shweta (3 November 2017). "Human trafficking for sex: Thousands of girls live in slavery while society remains silent". India Today. Archived from the original on 15 December 2018. Retrieved 13 December 2018.
  10. ↑ "Article 21, Protection Of Life and Personal Liberty". Constitution Of India, CLPR. Archived from the original on 13 August 2022. Retrieved 29 July 2022.
  11. ↑ "Article 21 in The Constitution Of India 1949". indiankanoon.org. Archived from the original on 27 September 2018. Retrieved 28 September 2018.
  12. ↑ "Childline India Foundation : Documents – Cause ViewPoint – Child Sexual Abuse – The Law and the Lacuna". Childlineindia.org.in. 19 January 2010. Archived from the original on 15 May 2012. Retrieved 14 May 2012.
  13. ↑ IPC 375 Archived June 13, 2021, at the Wayback Machine
  14. ↑ IPC 354 Archived December 12, 2023, at the Wayback Machine
  15. ↑ IPC 377 Archived November 7, 2023, at the Wayback Machine
  16. ↑ Ajeet, Kumar. "What is the POCSO Act? | Key Provisions, Challenges" . Retrieved 16 August 2023.
  17. ↑ "Explained: How the POCSO Act has been amended". The Indian Express. 10 August 2019. Retrieved 12 August 2023.
  18. ↑ "Child abuse: More death penalty, longer jail terms". The Indian Express. 29 December 2018. Retrieved 12 August 2023.
  19. ↑ "Government approves changes in POCSO Act, includes death penalty for sexual offences against children". The Economic Times. 10 July 2019. ISSN   0013-0389 . Retrieved 12 August 2023.
  20. ↑ Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 (PDF). Ministry of Women and Child development. September 2013. pp. 64, 65.
  21. ↑ "Press Information Bureau". Archived from the original on 9 April 2022. Retrieved 9 April 2022.
  22. ↑ http://cara.nic.in/PDF/JJ%20act%202015.pdf Archived 2 April 2019 at the Wayback Machine , Section 2(14)
  23. ↑ Section 19
  24. ↑ http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=284&lid=722 Archived 4 March 2019 at the Wayback Machine Rule 4(7)
  25. ↑ Mahapatra, Dhananjay (3 March 2017). "POCSO: Is a 40-year-old woman with mental age of six entitled to compensation under POCSO?". The Times of India. Archived from the original on 9 March 2017. Retrieved 6 June 2019.
  26. ↑ "Does 'age' encompass mental age?". The Hindu. 10 March 2017. Archived from the original on 6 July 2022. Retrieved 6 June 2019.
  27. ↑ Section 20
  28. ↑ JILSblog. "Mandatory Reporting Under POCSO: Are We Ready?". www.legallyindia.com. Archived from the original on 23 March 2019. Retrieved 20 August 2019.
  29. ↑ Priyangee (18 May 2018). "India's justice system hardly cares about what the victim wants, and this must change". Law| Human rights| Education. Archived from the original on 27 August 2018. Retrieved 20 August 2019.
  30. ↑ Jain, Mahima. "The law that criminalises sex between young people in India". Scroll.in. Archived from the original on 2 March 2022. Retrieved 2 March 2022.
  31. ↑ "Love and Sex in the Time of the POCSO Act, 2012 • In Plainspeak". In Plainspeak. 1 June 2014. Archived from the original on 28 June 2019. Retrieved 20 August 2019.
  32. ↑ S, Rukmini (22 December 2015). "Why the FIR doesn't tell you the whole story". The Hindu. ISSN   0971-751X. Archived from the original on 26 January 2022. Retrieved 2 March 2022.
  33. ↑ "Good act, bad provision". The Hindu . 26 May 2012. Archived from the original on 5 May 2021. Retrieved 9 September 2014.
  34. ↑ "Sakshi v. Union of India". Lexpeeps. 6 December 2020. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
  35. ↑ barelawindia (3 July 2021). "Sakshi vs Union of India". BareLaw.in. Archived from the original on 20 August 2022. Retrieved 29 July 2022.
  36. ↑ "Independent Thought vs. Union of India and Anr". privacylibrary.ccgnlud.org. Archived from the original on 4 July 2022. Retrieved 29 July 2022.
  37. ↑ "Skin To Skin Touch Not Essential For Offence Of Sexual Assault Under POCSO Act – Supreme Court - Trials & Appeals & Compensation - India". www.mondaq.com. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
  38. ↑ "Alakh Alok Srivastava v Union of India and Others on 31 January 2018 - Judgement - LawyerServices". www.lawyerservices.in. Archived from the original on 29 July 2022. Retrieved 29 July 2022.
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