CHILD ACT TO BE REFERRED TO DOMESTIC VIOLENCE: POCSO

July 21, 2022

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012.

INTRODUCTION

India has a wide range of laws to protect children and child protection is increasingly accepted as a core component of social development. The challenge is in implementing the laws due to inadequate human resource capacity on the ground and quality prevention and rehabilitation services. As a result, millions of children are prone to violence, abuse, and exploitation.

Violence takes place in all settings: at home, school, childcare institutions, work, and in the community. Often violence is perpetrated by someone known to the child.

Violence against children is widespread and remains a harsh reality for millions of children from all socio-economic groups in India. Both girls and boys in India face early marriage, domestic abuse, sexual violence, violence at home and in school, trafficking, online violence, child labor, and bullying. All forms of violence, abuse, and exploitation have lifelong consequences on children’s lives.

Exact data on violence, abuse, and exploitation is not sufficient, but overall the nation is becoming increasingly aware of violence against children, especially sexual abuse. Several cases that may have earlier gone unnoticed, are now being reported.

Anger and shock at child sexual abuse and violence against children are not enough. We all need to come together to #ENDviolence against children.

In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Act has been enacted to protect children from offenses of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offenses and related matters and incidents.

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

WHAT IS POCSO ACT?

The POCSO Act, 2012 came into force with effect on November 14, 2012, along with the Rules framed thereafter. The Act is a comprehensive law enacted with the objective of protecting children from a slew of sexual offenses like sexual assault, sexual harassment, and pornography while safeguarding the interests of the child at every stage of the judicial process by introducing a child-friendly mechanism for reporting, recording of evidence, investigation and speedy trial of offenses through special courts.

This law defines a child as any person below the age of 18 years. It defines different forms of sexual offenses including penetrative and non-penetrative assault, and even sexual harassment and pornography.

The Act deems a sexual assault to be ‘aggravated’ under certain circumstances such as when the abuse is committed by someone who is a family member or someone in a position of trust or authority like a teacher, doctor, or even police officer.

It prescribes stringent punishment as per the gravity of the offense. The maximum term of rigorous imprisonment for life and a fine. Indian Penal Code’s (IPC) Section 44 (1) of the special children’s law provides that the National Commission for Protection of Child Rights (NCPCR) along with the State Commission for Protection of Child Rights (SCPCR) monitor the implementation of the provisions of the Act.

The Act sets a gender-neutral tone for the legal process for any child victims. It is also mandatory to report the obligation imposed under Section 19. Last year, the government introduced a fresh set of POCSO Rules.

NEED FOR POCSO ACT, 2012

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a special enactment that provides punishment for penetrative, touch, and non-touch-based sexual offenses against children and also mandates the establishment of Special Courts and procedures for the trial of offenses involving children as the statute was enacted to protect children from offenses arising out of sexual assault, sexual harassment, and pornography and provides for the establishment of Special Courts for the trial of such offenses and for matters connected therewith or incidental thereto.

The Act is applicable to the whole of India. The POCSO Act 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from sexual abuse. It also intends to protect the child through all stages of the judicial process and gives paramount importance to the principle of “best interest of the child”.

The objective of enacting the POCSO Act, 2012 is to protect children from various types of sexual offenses and to establish Special Court for providing speedy disposal of cases.
Before this Act, most sexual offenses were covered under IPC, 1860. But IPC provisions were general in nature and it was felt that they were inadequate to deal with

sexual offenses against children.

Sexual offense against a boy is also covered under POCSO Act. The Act is gender-neutral as it does not distinguish between boys and girls.
Provisions of the Indian penal code, 1860 were not gender-neutral, for eg: Section 376 is only concerned with the female, and the male child was left out.
Failure to curb the crime of child sexual abuse and less efficacy of the previous provision. The need for the POCSO Act was reflected by different surveys conducted by the government of India. In 2007, the survey conducted by the Ministry of Women and Child development in which 12,500 children participated across 13 states, showed that 53% of the children said that they have been subjected to one or more forms of sexual abuse.
Increase in the number of child abuse cases: A total of 33,098 cases of CSA were reported in the nation during the year 2011 when compared to 26,694 reported in 2010 which increased by 24%.
When the abuser is a family member itself, the question of child safety and protection remains unanswered. The first study on CSA in India was conducted by Recovery and Healing from Incest, an Indian non-government organization (NGO) in 1998. The majority (76%) of the participants reported being abused during childhood or adolescence.
Despite provisions in the Information and Technology Act, 2000 that deal with child pornography were not enough to stop online child abuse.

POCSO ACT DEFINES A CHILD AS ANY PERSON BELOW 18 YEARS OF AGE. (SECTION 2)

HOW TO ASSESS THE AGE OF A CHILD VICTIM?

Jurisdiction of the Special Court turns on the age of the victim’s child. It does not matter whether the victim belongs to SC or ST category and the offense also comes under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act,1989), if he or she is a child under 18 years of age. The power of age determination has therefore been vested in the Special Court under Section 34 of the Act.

A parent may walk in with a child to lodge an FIR alleging sexual abuse. A child victim of a brutal sexual assault may be found abandoned on the roadside by a patrolling police vehicle. After the institution of FIR and receipt of the same in the court for the purpose of trial as well as for the purpose of disposal of other interlocutory applications including bail applications involving the issues relating to the age of the victim, the court may have to prima facie determine the age of the child, particularly to determine whether the victim is indeed a child under the POCSO Act, 2012, or other relevant laws. There is no doubt that when the age of the victim is to be assessed or ascertained the provisions of Section 94 of the JJ Act are applicable.

The provisions of the Juvenile Justice Act become relevant and are to be read along with the provisions of the POCSO Act so far as the determination of the age of the victim too is concerned. This is crucial because certain child-friendly procedures need to be followed and legal provisions applied if the victim is a child. For instance, if the child is a victim of penetrative sexual assault or sexual assault and is below 12 years, the offense will be aggravated under the POCSO Act and the relevant provisions will have to be mentioned in the FIR.

It may be difficult to assess the age when the child appears to be on the borderline. Erring on the side of caution, the police may treat such a person as a child and produce him/her before the CWC or the Special Court under the POCSO Act, as the case may be. This is because these bodies have the authority under the JJ Act, 2015 Section 94 and the POCSO Act Section 34(2)., respectively, to determine age.

IMPORTANT CASE LAWS ON THE DETERMINATION OF AGE.

Jarnail Singh v. the State of Haryana, (AIR 2013)

The Supreme Court held that Rule 12 of the erstwhile Juvenile Justice (Care and Protection of Children) Rules, 2007, which detailed the age determination process for children in conflict with the law should be applied to determine the age of a child victim.

It was held that:

“Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of the minority is concerned, between a child in conflict with the law, and a child who is a victim of crime.”

Shah Nawaz v. State of Uttar Pradesh,(2011)

The Supreme Court observed that in accordance with the erstwhile JJ Model Rules, 2007 “…the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available.”

THE SEXUAL OFFENSES WHICH ARE RECOGNIZED UNDER THE POCSO ACT AND PUNISHMENTS FOR THOSE OFFENSES

Penetrative and aggravated penetrative sexual assault, sexual and aggravated sexual assault, sexual harassment, and child harassment including using of the child for pornographic purposes are the five offenses against children that are covered by this act. This act envisages punishing even for abetment or for an attempt to commit the offenses defined in the act. It recognizes that the intent to commit an offense, even when unsuccessful needs to be penalized.

The punishment for the attempt to commit is up to half the punishment prescribed for the commission of the offense and the various penal provisions in the act may be summarised in a tabular form for easy reference as below:-

SILENT FEATURE OF POCSO ACT AND ITS AMENDMENTS

The Act is gender-neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual, and social development of the child.
The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual, and social development of the child.
It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor.
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 offense, with a maximum term of rigorous imprisonment for life, and a fine.
It defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appears to depict a child.

PROTECTION OF CHILD VICTIM

On reasonable grounds Special Juvenile Police Unit or Local Police, after recording in writing, such child shall be provided with care and protection homes within 24 hours of the report [Section 29(5)].
The court shall create a child-friendly atmosphere by allowing a family, member, a guardian, a friend, or a relative in whom the child has trust.
Note: In case a child is abused or likely to be abused by a family member, then he/she must be taken out of the custody of his/her family (Rule 4 of POCSO Rules).

RECENT DEVELOPMENT IN THE POCSO ACT

The Criminal Law Amendment (CLA) Act, 2013
After receiving the President’s assent on 2nd April 2013, the CLA Act amended the Section 42 and inserted a new Section 42A in the POCSO Act. Section 42A provides that the provisions of the POCSO Act shall be in addition to and not in derogation with the provisions of any other law, and in case of inconsistency, the provisions of the POCSO Act shall have an overriding effect to the extent of the inconsistency.

The Criminal Law (Amendment) Ordinance, No. 2 of 2018
An Ordinance further to amend the Indian Penal Code, 1860; Indian Evidence Act, 1872; The Code of Criminal Procedure, 1973; and the POCSO Act, 2012 was introduced by the President. It amends Section 42 of the POCSO Act by inserting the Section 376DA, 376DB of the Indian Penal Code, 1860
Section 376DA – Where a woman under 16 years of age is raped by one or more persons, then each (acting in furtherance of common intention) of them shall be imprisoned for the remainder of that person’s natural life, and with a fine.

Section 367DB. Where a woman under 12 years of age is raped by one or more persons, then each (acting in furtherance of common intention) of them shall be punished with life imprisonment, and fine, or death.

CASE STUDIES

In State vs. Shaheed Ali, the allegations against the accused were “of taking away physically challenged girl, who could not hear or speak, in a public park for committing a sexual assault upon her”.

The girl by nodding her head and gestures confirmed that she was taken by the accused and was apprehended by the security guard.” The accused was convicted under Section 10 of the POCSO Act.
May 15th, 2018, Minor raped in Pune, case registered beneath POCSO Act, Pune (Maharashtra) India, could five (ANI): A three-year-old girl was allegedly raped by a 20-year-old man in Bhosari in Pune earlier on.
July 12th, 2018, A high school boy was sexually assaulted and traumatized for about 10 months by five of his classmates in a school in north Bengaluru. Victor developed extreme fear and began to display abnormal behavior. He would throw himself about, punch and scratch himself. He also became aggressive, beating up his parents and running away from home time and again.
Aug 28, 2015: Delhi University Girl Sues Mother For Domestic Violence And Sexual Abuse. “Prerna cited a number of instances of her mother’s questionable behavior.
” One morning, my mother entered my room while I was sleeping and groped me. When she started feeling me up, I resisted and pushed her away. She insisted that I should not resist and accused me of sleeping around with men.”
July 5th, 2018 A two-year-old boy was allegedly sexually assaulted inside the premises of a playschool in Kolkata’s Behala area. The parents of the toddler have filed a police complaint and an FIR has been registered under the POCSO (Protection of Children from Sexual Offences) Act. The child’s mother said that he was crying uncontrollably when she picked him up from school that day. She thought he was unwell but raised an alarm when she noticed he was bleeding from his private parts.
March 16th, 2018, Mohali: A 35-year-old man abducted the seven-year-old daughter of the neighbor and kept her in a small carton for 24 hours. The accused heavily sedated her and also taped her mouth.

REFERENCE

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July 21, 2022