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Child Sexual Abuse Laws: An Analytical Study

"Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul"- Dave Pelzer, A Child Called "It".

India's child sexual abuse laws were enacted as part of the country's child protection policies.

On May 22, 2012, India's Parliament enacted the 'Protection of Children against Sexual Offences Bill (POCSO), 2011' into law, which addresses child sexual abuse. The Act was passed to protect children from sexual assault, sexual harassment, and pornography, as well as to establish Special Courts for the trial of such crimes and matters related to or incidental to them.

The state's protection of children is guaranteed to Indian citizens under an expansive interpretation of Article 21 of the Indian constitution, as well as mandated by India's status as a signatory to the United Nations Convention on the Rights of the Child.

Significance Of The Pocso Act

Before the introduction of the POCSO Act, offences reported were mostly governed by the Indian Penal Code, 1860. There was no specific law under which offenders could be prosecuted.The Protection of Children from Sexual Offenses Act, 2012 (POCSO Act) and its implementing rules were enacted with the goal of safeguarding children from a range of sexual offences and establishing child-friendly judicial systems to deal with such offences.
  1. Gender Neutral Law

    The POCSO Act establishes a gender-neutral legal framework for child sexual assault victims. It acknowledges that boys can also be victims of sexual violence.
     
  2. Child Friendly Procedures

    It established policies to make the criminal justice system more child-friendly and to prevent re-traumatization. Everything from how the child's statement should be documented to the medical examination to the designation ofspecial child-friendly courts is covered.
     
  3. Wide Scope

    The Act further broadened the definition of what constitutes a sexual offence against a child. It broadened the definition of sexual assault to cover both non-penetrative and aggravated penetrative sexual assault (sections 310), as well as penalties for those in positions of trust, such as public employees, educators, and police officers.
     
  4. No Time Limit For Reporting Abuse

    A victim has the right to report an offence at any time, even years after it has occurred. The POCSO Act has no time or age limits for reporting sexual offences. It was stated in the case of State of Punjab V. Gurmeet Singh, 1996 SC, that in rape cases, there is no need to justify the delay because the nature of the crime and the stigma linked to it fully explains the delay in filing the F.I.R.
     
  5. Maintaining Confidentialty Of The Victim's Identity

    The POCSO Legislation prevents the victim's identify from being revealed in any form of media unless the special courts formed by the act allow it. Regardless of whether such disclosures are made in good faith, a violation of this section might result in legal consequences.


Loopholes Of The Pocso Act, 2012

Criminal law is the handmade of justice. Althoughthe POCSO Act qualifies as the ideal legislation to protect children from sexual offences, still the Act contains several limitations to it, which are as follows:
  1. Gender Biasness
    Despite the fact that, unlike rape, the victim of the POCSO Act can be any child of any gender, the accused can only be a male, and females are provided a protective shield.
     
  2. Age Factor
    The Act solely examines the child's biological age, not his or her mental age. The POCSO Act defines a child as a person under the age of 18, but it is silent on which document should be used to determine the child's age.
     
  3. Training
    The most difficult challenges are research, information, monitoring, and public awareness. All medical undergraduates and primary health care practitioners must be trained in delivering child-friendly interviews, organised assessments, evidence collection, family counselling, and regular follow-up.
     
  4. Child Marriage
    For the purposes of POCSO, child marriage and its consummation are considered illegal. Even though child marriage is illegal under secular law in India, it is legal under certain personal laws, resulting in a conflict between secular and personal laws.
     
  5. Reporting
    The majority of incidences of child sexual abuse go unreported. For many family members as well as survivors, reporting child sexual abuse is a tough and personal decision. They remain silent for extended periods of time because they are afraid of re-victimization as a result of medical examinations, the criminal justice system, and a poorly informed society.

Landmark Judgements Under The Pocso Act, 2012

The significance of sex education imparted at the school level and the positive influence that it has on young children is of utmost importance. It lets the child differentiate between 'good touch' and 'bad touch'.

Under various circumstances, children don't understand sexual offences, and thus there is a need to educate them about such offences, while safeguarding their interests at every stage of the judicial process.

'Sexual assault' is a common crime in our culture that has long-term consequences for people from all walks of life. By assisting with education, community skill building, and engaging with community and non-profit partners, law enforcement can help prevent sexual assault.

The term "Sexual Assault" is defined under section 7 of the POCSO Act, 2012 as:
"Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

Satish Ragade V. State Of Maharashtra (2021)

Coram: Nagpur bench of Bombay High Court
Facts:
  • In the present case, the mother of the girl lodged a report at police station asserting that the appellant took her minor daughter on the excuse of giving her guava in the house and groped her breast and tried to remove her salwar.
     
  • The special court convicted the appellant and sentenced him for three years for the offenses punishable under the provisions of sections 354, 363, 342 of Indian Penal Code (IPC) and section 8 of the Prevention of Children from Sexual Offences Act (POCSO Act).

Issue:
  • The Issue raised was:
    Whether the accused is liable for the punishment provided under sections 354, 342, 363 of IPC and section 8 of the POCSO Act?

Judgement
  • The Bombay High Court held that, groping a minor's breast without skin to skin contact cannot be referred to as sexual harassment, and acquitted the accused under section 7 of the POCSO Act, and convicted him under the above mentioned provisions of the IPC, hereby reducing his sentence.

Attorney General For India V. Satish And Anr. (2021)

Coram: Supreme Court of India

Facts:
  • In the present case, appeals were filed before the Supreme Court by the appellants- Attorney General for India, National Commission for Women, State of Maharashtra and the appellant against the judgement passed by the Bombay High Court in the case of Satish Ragade v. The State of Maharashtra.
Issue:
  • The issue raised relates to the interpretation of Section 7 of the POCSO Act, 2012.

Judgement:
  • The Supreme Court set aside the judgement of Bombay High Court, and held that the most important essential for constituting the offence of sexual assault under section 7 of the POCSO Act is 'sexual intent', and not skin to skin contact.

In the case of APARNA BHAT V. STATE OF MADHYA PRADESH (2021), the Supreme Court laid down the guidelines to be taken into consideration by the courts while granting bails and anticipatory bails:
  1. The court has mandated a module as a part of fundamental training of every judge to ensure the sensitivity while hearing cases related to sexual offence and to eliminate entrenched social bias and misogyny.
     
  2. Similarly, Bar Council of India was directed to include gender sensitization in the curriculum of LL.B. and as a compulsory topic in All India Bar Examination Syllabus.
     
  3. Any kind of suggestion for compromise to the accused and victim such as to get married or to mandate mediation should not be entertained as this is outside the jurisdiction of the courts.
     
  4. The judgement granting bail should limit itself to the Code of Criminal Procedure (CrPC) and should not reflect any stereotype or biasness of the judge and no comments on the conduct, dressing choice, morals or behaviour of the complainant should be made.
     
  5. The bail conditions must strictly abide to the provisions of CrPC, and the contact between the accused and complainant should not be permitted under any circumstance as a condition of bail.
     
Under section 23 of the POCSO Act, 2012, the procedure for reporting of the cases by Media is stated. If the provisions of section 23 of the POCSO Act are infringed, the publisher or owner of the media, studio, or photography facility is held jointly and severally accountable for his employee's act/omission. The Supreme Court in the case of Nipun Saxena V. Union of India (2019),released a set of guidelines in relation to the aforementioned provisions, which are stated as under:
  1. All the authorities to whom the victim's name is provided by the investigating agency or the court are obligated to keep the victim's name and identity secret and it should not be divulged in any way except in the report, which should be delivered to the investigating agency or the court in a sealed envelope.
     
  2. No one may broadcast the victim's name in print, electronic, or social media, or divulge any details that might lead to the victim's identification and should make her identity known to the general public.
     
  3. In cases where the victim is deceased or mentally ill, the victim's name or identity should not be revealed, even with the consent of the next kin, unless circumstances exist which justifies the disclosure of her identity, which must be decided by the competent authority.
     
  4. In the case of juvenile victims under the POCSO Act, 2012, the Special Court can only allow their identity to be revealed if it is in the best interest of the child.
     
  5. All the states and union territories are requested to set up at least one 'One Stop Centre' in every district within one year from the date of the judgement of the present case.

Justice Verma Committee

In the aftermath of the 2012 gang rape in Delhi, A committee led by Justice Verma was formed to recommend changes to the criminal code that would allow for faster trials and harsher penalties for people accused of sexual assault against women. The panel presented proposals on rape, sexual harassment, human trafficking, child sexual abuse, victim medical examinations, police, electoral, and educational reforms.
  • In relation to child sexual abuse, the committee recommended that the terms 'harm' and 'health' be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.
     
  • A rape crisis cell should be set up, which must provide legal assistance to the victim. The cell should be immediately notified when an FIR in relation to sexual assault is made.
     
  • The committee recommended education reforms, and suggested that children's experiences should not be gendered, and sexuality education should be imparted to children. Also, adult literacy programs are necessary for gender empowerment.

The committee's report has identified failure of governance as the root cause for sexual crime, which eventually led to the passing of the Criminal Law (Amendment) Act, 2013. This act recognised certain new offences like acid attack, sexual harassment, voyeurism, stalking, etc.

The most significant modification is in the definition of rape in the IPC. Despite the fact that the Ordinance attempted to replace the term rape to sexual assault, the word 'rape' was preserved in Section 375 of the Act and was expanded to include acts other than vaginal penetration.

The definition of sexual assault has been expanded to include penetration of the penis into the vagina, urethra, anus, or mouth; or any object or any part of the body, to any extent, into the vagina, urethra, or anus of another woman, or forcing another person to do so; and the use of the mouth or touching private parts.

The 2019 Amendment Act

There was a surge in the commission of crimes related to children, which called for an immediate need to make punishment under the POCSO Act stringent, so that it acts as deterrence for the offenders. Deterrence creates fear in the society so that the offender refrains from committing criminal acts in the future. The amendment act mainly contains provisions for increased punishments.
  • The amendment act allows for the fine imposed on the convict to be just and reasonable and must be paid to the victim to meet the medical expenses and rehabilitation of such victim. Earlier, in most cases the victim didn't have resources to get back from mental and physical trauma.
     
  • The punishment for penetrative sexual assault has been increased from seven to ten years, and where the sexual assault has been committed on a child below sixteen years of age, the imprisonment shall not be less than twenty years and may extend to the imprisonment for the remainder of the natural life of that person.
     
  • By adding a subsection to section 9, administering any drug, hormone, or chemical substance to a child with the goal that such child attains early sexual maturity has been included in the definition of aggravated sexual assault.
     
  • Amendment act puts rigorous punishment for using a child for pornographic purposes. Earlier, the punishment was for a maximum of five years for the first time convict, and for a maximum of seven years in the event of second and subsequent conviction. After the amendment, it amends to a minimum of five years in case of first time convict, whereas for a minimum of seven years in the event of second conviction.
     
  • The act punishes for the storage of pornographic materials containing child for commercial purposes or for the storage or for the negligence in reporting it to the designated authority. The accused shall be liable for a fine of Rupees five thousand, and an imprisonment which may extend to three years, and in subsequent reporting of offences, a fine of Rupees ten thousand, and an imprisonment which shall not be less than five years.

Statutes are necessary to be amended when the time demands so, to meet the pace of the present. Taking into consideration the present scenario, there was an utmost need to amend this legislation, and thus this present legislation came into force.

Conclusion
India is a diverse country with different sects, cultures, beliefs with the largest number of children in the world. The present legislation for criminalizing sexual offences against children was a much needed piece of legislation. Creating awareness amongst the children is of utmost importance, majorly for them to be vigilant about their rights and to exercise them effectively.

In rural areas, the victims of parents do not know what their rights are and that there is a specific legislation named POCSO to meet the special needs of the victim. There is a need to sensitize all the stakeholders involved, ranging from the victim and the parents to the police officials handling the complaints.

The adjudication process should be made more transparent and the role of police in such offences should be much more prompt, so that people can sense a feeling of contention and credibility in the whole process. The deterrent effect which this act renders is of significant value, but to overcome and eradicate this issue from grassroots level, the collective consciousness among the masses should be pure and must include the feelings of love and care.

Various awareness drives must be carried out in the economically lower strata of the society.Sex education classes that talk about both the biological as well as social aspects of sex should be conducted.Small beginnings in the direction of a safer, more inclusive society include discussions about consent and coercion, deconstructing rape culture, and how sexual violence is utilised as a tool of power for students. Counsellings should be made available for the child to recover from the post trauma disorder.

The act of 2012 is social, gender neutral legislation in the field of criminal law which can be used by the courts to apply and interpret the provisions of the said act in cases falling within the ambit of the statute. The legislature must take all the loopholes and shortcomings into consideration, and must welcome all the amendments time to time, as per the changing dynamics of the society.

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