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Protection Of Children From Sexual Abuses: Decoding The POCSO Act

"Safety and security don't just happen, they are the result of collective consensus and public investment. We owe our children, the most vulnerable citizens in our society, a life free of violence and fear." - - Nelson Mandela

Child sexual abuse (CSA) is a broad term that refers to a kind of child abuse in which an adult or older adolescent exploits a child for sexual purposes. In several situations, such as the home, school, or public locations, it can be either touching or non-touching. The CSA is one of our society's most ubiquitous societal issues. It has a significant impact due to the regularity with which it occurs and the trauma that a child encounters.

The WHO considers CSA as sexual activity between a child and an adult or another child, in which a child "does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society" (WHO, 2003). While the Indian Penal Code (IPC) does not classify child maltreatment as a sexual offence, it does punish a child sex offender under specific provisions.

For example, rape (Section 375), outraging a woman's modesty (Section 354), 'unnatural offences' (Section 377), and procuring minor girls by enticement or force to seduce or have illicit intercourse (Section 378) are all crimes (Section 366-A). However, none of the above sections represents that CSA is constituted of what legal terms (Belur & Singh, 2015).

A study on child abuse in India by the Ministry of Women and Child Development in 2007 founds that only 53.22% of children reported sexual abuse. There were 52.94% boys and 47.06% girls among them. The states with the greatest rates of sexual abuse and assault were Andhra Pradesh, Assam, Bihar, and Delhi. 21.90% of children who responded said they had experienced serious sexual abuse, 5.69% said they had been sexually assaulted, and 50.76% said they had experienced other types of sexual abuse (GOI, 2010).

The 'Protection of Children Against Sexual Offences (POCSO) Bill, 2011' was enacted by the Indian parliament on May 22, 2012, and went into effect on November 14, 2012, after years of lack of any special CSA laws in India that treated children different from adults in the instance of a sexual offence (NDTV, 2012).

Objectives Of Topic
Broadly, the main objective of this issue is to grasp the terminologies and meanings connected to child sexual abuse, decode socio-cultural perspectives of abuse and reporting, describe the legal limits, and finally, offer possible suggestions for improvements. Let's understand each one of them extensively
  • To conceptualise a more exhaustive and comprehensive or holistic definition of child sexual abuse in all its forms as experienced by children. Also, understanding how CSA can be suspected.
  • To assess the causative factors of the wide prevalence of this sexual abuse and socio-cultural perceptions in society particularly children's status in society. Further, relating it to the impact of reporting a CSA on a child.
  • To identify features and the constraints under the existing legislation and especially the POCSO act and the reasons for its limited relevance in curbing the same.
  • To document the testimony, of the plight of a child experiencing sexual abuse and about the conditions, and entitlements.
  • To suggest possible workable measures for empowerment of children facing sexual abuse and support mechanisms.
Now, let's decode each of the above-mentioned objectives in the following sub-categories.
  1. Comprehensive Understanding and Holistic Definition of Child Sexual Abuse
    Definition Child Sexual Abuse and its Forms:

    All forms of sexual victimisation of children are covered under the CSA, including penetrative and non-penetrative sexual intercourse, pornography, sexual harassment, commercial sexual exploitation, sex tourism, and online exploitation (Bhave & Saxena, 2013). The (POCSO Act, 2012) in India defines numerous types of sexual offences, which are listed below.

    Forms of Sexual Abuse:
    The perpetrator and the victim seemed to have physical contact in this case, which included penetrative intercourse, fondling of the victim's genitals, and so on (Bhatnagar, n.d.).
    Non-Physical: Abuse can occur even if there is no physical touch. Showing pornographic content or utilising a minor for the same, stalking, sexting, playing sexualized games, and so on are examples.

    If a kid commits an offence, the POCSO Act will still apply, but the procedure will be governed by the Juvenile Justice (Care and Protection of Children) Act, 2015. (ibid).
    Incest: The term means a prohibited sexual relationship between close relatives in a family (Section 5(n) of POSCO Act). In this case, as per Section 6 of the POCSO Act, the assaulter is susceptible to no less than ten years of imprisonment and also a fine.

    Commercial Sexual Exploitation of Children:
    This can be characterised as when an adult sexually abuses a child for monetary gain or when the child is treated as a commercial or sexual item. Child prostitution, child sex tourism, and child trafficking are the three types of child trafficking. Child sexual abuse imagery is defined as any visual depiction of sexually explicit conduct involving a minor, as defined by section 67 (b) of the IT Act, 2000, and sections 13 and 14 of POCSO, 2012.

    Online Sexual Abuse:
    This is a type of online sexual abuse that occurs over the internet. Cyberbullying, grooming, sexual exploitation, and emotional abuse are all common among teenagers.

    However, the lack of particular legislation for recognising a wide range of objectionable CSA behaviour, including harassment, fondling, exhibitionism, voyeurism, and pornographic exploitation, has never been legally sanctioned. Until 2012, the only not specific to children-sexual offences covered by three sections of the IPC were rape (Section 375), outraging a woman's modesty (Section 354), and unnatural acts (Section 377). As a result, crimes such as non-penetrative sexual assault, harassment, and exploitation went unpunished (Patil, 2021).

    Furthermore, after sufficient pressure was created by NGOs and the Ministry of Women and Child Development, new legislation (related to earlier arguments) was enacted, namely POCSO, 2012. It is gender-neutral and also recognises boys as sexual abuse victims. It criminalises child sexual assault, harassment, and pornography, as well as additionally mandates the establishment of special courts to expedite trials (ibid).

    How can we suspect a CSA?
    In general, healthcare practitioners play an important role in identifying children who have been sexually abused. Visible symptoms of sexual assault are frequently minimal, with less than 5% of victims displaying physical signs of abuse (Hornor, 2011). Adolescents frequently exhibit behavioural indications such as breaking laws and engaging in inappropriate social behaviour, as well as poor academic performance and absenteeism (Krug et al., 2002). Healthcare personnel must respond correctly to behavioural, verbal, or nonverbal communication such as sign language or a series of motions that may reveal a history of abuse because physical indicators are not always present during the evaluation (ibid).

    Nevertheless, no single health professional can be regarded to be responsible for detecting these clues; rather, a multidisciplinary strategy involving experts can improve the possibility of detection.
  2. Causative Factors of the Prevalence of this Sexual Abuse and Socio-Cultural Perceptions in Society.
    Factors responsible for the prevalence of CSA:
    CSA happens in all societies around the world and the causes vary greatly. Some of the probable causative factors could be (Bhatnagar, n.d.):
    Sex education and sexuality are stereotypes in India: In our society, there is a hesitation and cultural aversion to addressing sex and sexuality, especially with children. Adolescents remain ignorant and in danger due to a lack of instruction and proper understanding, as well as misconceptions and myths about sexuality.

    Forbearance to Gender‐Based Violence:
    We presume that if women and children break the "line of morality" established by our patriarchal culture, certain things will happen to them. Women's representation in popular media, as well as prejudices propagated by popular films also contribute to our population's desensitisation to gender-based violence against women and young girls.

    A Culture that Believes and Values Adults Over Children:
    Children are seen as citizens who are not yet completely matured. Without even the slightest critical engagement, they are taught to 'respect' the full authority of adults. As a result, a kid who has been sexually abused is frequently unaware that an adult could do such a thing to him or her.

    Impact of Reporting Child Sexual Abuse
    Victim Blaming: In numerous situations of sexual attacks against women and children, the media and society at large have been quick to blame the victim, particularly if the child is a girl, with regressive sentiments indicating that the victim "brought it on to herself." Amid the moment, it's easy to lose sight of who is the victim and who is the perpetrator (Follette et al., 1996).

    Real and Perceived Threat to Victim and Family: There is always the worry of being ostracised by the community. The real or perceived loss of "honour" and humiliation may also imprison victims and their families in a vicious circle of extortion and additional abuse. In a civilisation that prides on conventional notions of masculinity, boys are afraid that they will be tagged 'unmanly' and mocked if they reveal the abuse (ibid).
  3. Features and the Constraints under the Existing Legislation and Especially the POCSO Act, 2012.
    Before discussing the contentions around the existing legislation and especially the POCSO act, let's understand its distinctive features;

    Distinctive features of the POCSO Act, 2012
    The POCSO Act, which is based on Article 15(3) of the Indian Constitution, allows the government to take special measures for children (NCPCR, 2017). It considers everybody under the age of 18 to be a "child." The IPC does not recognise boys as sexual assault victims; however, the POCSO Act is gender-neutral and recognises that boys can be sexual violence victims.

    The act has established the principle of "guilty until proven innocent" rather than the general principle of "innocent until proven guilty" (Section 29). (Patil, 2021).
    Penetrative sex is defined in the POCSO Act to include not just penile penetration, but also oral sex and the insertion of any item into the anus, mouth, or genital (Section 3).

    The Delhi High Court refused to prosecute the accused of rape in the case of State vs Pankaj Chaudhary (2011) because digital penetration of the anus, vagina of a 5 or 6-year-old girl was not recognised as an offence under the IPC. As a result of the POCSO Act and the 2013 Amendment, the breadth of the definition of rape has been expanded, increasing the protection of children (ibid).

    To prevent information from being misused, the law also specifies penalties for false complaints or information given with hostile intent. The Act requires that the case be reported and recorded. In all incidents of CSA, the police officer must file a First Information Report (FIR) (Section 21, 22).

    Contention around the Implementation of the POCSO Act, 2012.
    Definition of Child:
    A child is defined as someone under the age of 18 in the Act. This definition, however, is solely biological and does not account for persons who have intellectual and psychosocial problems. A recent instance in Supreme Court had been filed where a woman who was raped at the age of 38 years but just 6 years mentally. "Failure to evaluate the mental age will be an attack on the core aim of the statute," the victim's advocate contended.

    The Supreme Court ruled that Parliament deemed it reasonable to define the term "age" by chronological or biological age as the safest yardstick, rather than referring to someone who is mentally retarded. While awarding maximum compensation to a rape victim who is 38 years old and has a mental maturity of 6 to 8 years, the court rejected the argument that the victim's age should be considered not only in physical terms but also in mental terms. Cerebral palsy was the victim's condition (Belur & Singh, 2015).

    Contradiction with the Medical Termination of Pregnancy Act, 1971:
    The Protection of Children from Sexual Offenses Act was enacted to increase legal protections for children under the age of 18 against sexual exploitation and abuse. If a girl under the age of 18 seeks an abortion, the service provider is required by law to file a sexual assault complaint with the police. However, the identity of the person seeking an abortion is not required to be disclosed under the Medical Termination of Pregnancy Act. As a result, providers are cautious to provide abortion services to girls under the age of 18. (ibid).

    Mandatory Reporting:
    The Act mandates that every case of child sexual abuse be reported. If a person with knowledge of abuse fails to disclose it, they could face up to six months in prison, a fine, or both. This provision has been criticised by several child and women's rights organisations. According to experts, this clause deprives children of their agency of choice. Many survivors may not want to go through the agony of the criminal justice system, but this clause does not make that distinction. Mandatory reporting may also obstruct access to medical assistance and psychosocial support. It goes against the right to privacy when it comes to medical and psychiatric care (ibid).

    Legal Aid:
    Victims can get legal help under Section 40 of the Act. However, the Code of Criminal Procedure controls this. To put it another way, a child's lawyer can only assist the Public Prosecutor, and the file is only written final arguments if the judge allows it. As a result, the victim's interests are frequently ignored (Singh & Kumar, 2019).

    Administrative Pitfalls: When it comes to POCSO, there are two major administrative mistakes to avoid. To begin with, despite their best efforts, police officers encounter numerous obstacles in completing a thorough investigation into POCSO incidents. It all starts with the filing of the First Information Report (FIR). The police must ensure that the FIR is registered quickly and that the Medico-Legal Case is handled efficiently.

    The second issue is that, under Section 43-44 and Rule 6 of the POCSO Act, institutions such as the National and State Commissions for the Protection of Child Rights are mandated to routinely monitor and review the Act's implementation, as well as raise public knowledge about its provisions. The operation of such departments, as well as their monitoring and assessment mechanisms, have not, however, been made public. To this end, it's critical to examine the procedures created by such organisations and assess how effective they are at producing tangible results (Agnihotri & Das, 2015).
  4.  Documenting the Case of a Child's Murder after Sexual Abuse and her Entitlements according to Legislation.
    Infamous Delta Meghwal Rape Case, 2016
    Delta Meghwal, a 17-year-old Dalit girl, was found dead in a college water tank. Meghwal's parents filed an FIR alleging rape and murder. They claimed that she called his father the day before the murder to inform him of the rape. Her father also stated that the college attempted to cover up the occurrence under the excuse of suicide, alleging that it compelled Meghwal and Singh to sign a written apology indicating consensual intercourse. Singh and the other two were detained and taken to prison by Bikaner police after the complaint was filed. Meghwal was raped and drowned, according to the forensic report. Belatedly, the victim's father demanded intervention by the CBI (TOI, 2021).

    Then, at the Police Station, a written report with these allegations was submitted, and an FIR was filed for the offences of rape and 305 IPC (abetment of child suicide) and Sections 3 (2)(V) and 3(2)(VI) of the SC/ST (Prevention of Atrocities) Act, as well as Sections 5, 6 i.e. sexual assault and Section 21 of the POCSO Act. The case was first tried by the Special Court under the Prevention of Atrocities (Scheduled Caste and Scheduled Tribes) Act 1989, and the three were later found guilty and sentenced to life in prison by the POCSO court.

Identification Of Socio-Legal Instruments And Legal Analysis

Children are the country's future, so the government must ensure their appropriate development. A country's development index is also influenced by the quality of its human resources. The Goa Children's Act, 2003 (Shirvoikar & Shirvoikar, 2017) was the only explicit piece of child abuse legislation before the 2012 POCSO Act. CSA, on the other hand, was prosecuted under IPC 375 ("Rape"), IPC 354 ("Outraging the modesty of a woman"), and IPC 377 ("Unnatural offences") of the Indian Penal Code (IPC), 1860. The IPC, on the other hand, was unable to properly protect the child due to several flaws, including:

Other than "conventional" peno-vaginal intercourse, IPC 375 does not protect male victims or anybody else against sexual acts of penetration.

There is no statutory definition of "modesty" in IPC 354. It has a light penalty and is a repeatable offence. Furthermore, it does not safeguard a male child's "modesty."

The phrase "unnatural offences" is not defined in IPC 377. It only applies to victims who have been penetrated by their attacker's sex act, and it is not intended to make child sexual abuse illegal.

Punishment for Offences covered in the Act are:
  • Penetrative Sexual Assault (Section3)- Not less than seven years which may extend to imprisonment for life, and a fine (Section 4).
  • Aggravated Penetrative Sexual Assault (Section 5)- Not less than ten years which may lead to imprisonment for life, and a fine (Section 6).
  • Sexual Assault (Section 7)- Not less than three years which may extend to five years, and fine (Section 8).
  • Sexual Harassment of the Child (Section 11)- Three years and a fine (Section 12).
  • Use of Child for Pornographic Purposes (Section 13)- Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1) ).

Reporting of a Child Sexual Abuse Case
'Reporting of offences' by an individual, including children, is now required under Section 19 of the POCSO Act. Failure to disclose or document a case of child sexual abuse is punishable under Section 21 of the Act (NCPCR, 2017). The consequences imposed in the law are also rigorous and are commensurate with the nature of the offence.
Fig. (NCPCR, 2017)

Important Judgements And Case Laws Around Child Sexual Abuse.

Sakshi v. Union Of India AIR 2004 (5) SCC 518
Sakshi, an NGO focused on violence against women, filed a PIL in India's Supreme Court to declare that "rape" under India's criminal rape law Section 375 of the IPC includes all forms of forcible penetration. Sakshi stated that the current interpretation of the legislation violated both the Indian Constitution and India's international obligations under agreements like the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). At the same trial, the Special Court established under the POCSO Act will have jurisdiction to try offences under the POCSO Act and other Acts with which the accused may be charged.

Independent Thought v. Union of India, (2017) 10 SCC 800
In this case, the Supreme Court read down Section 375, Exception 2, IPC to reconcile a discrepancy between Section 375, IPC and the POCSO Act, 2012. (Sections 5 and 41, 42). As a result of this change, the provisions of the POCSO Act will take precedence over any other legislation (including the IPC) to the extent of any discrepancy (paras 48 & 49).

Sabari v. Inspector of Police, 2019 (3) MLJ Crl 110
The Madras High Court ruled that the concept of "Child" in Section 2(d) of the POCSO Act can be amended to 16 years old rather than 18. Any consenting intercourse after the age of 16, as well as body contact and allied activities, may be exempt from the POCSO Act's restrictions.

Though not a perfect solution to the problem, legislation to protect children from sexual offences is critical in guaranteeing a secure and carefree future for them. Although now it is high time for such legislation to take effect, it is not without its restrictions. It requires the establishment of a restitution process for incidents of sexual offences, but it does not alter society's moral foundation. Furthermore, whatever laws are enacted to protect the interests and welfare of children, the outcome is determined by the spirit in which they are implemented.

Identification Of International Legal Instruments, Conventions And Other Regional Rights.

The United Nations Convention on the Rights of the Child (CRC) was an international convention that required countries to respect the rights of children. States are required under Articles 34 and 35 of the CRC to safeguard minors from all forms of sexual exploitation and abuse. The convention has been ratified by 196 nations as of 2015.

In chronological order, UNICEF (Newell, 2008) compiled a few advancements in the area of child rights against sexual abuse. The CRC, which was established in 1989, is based on the International Bill of Rights. It has explicit protective rights against all sorts of abuse and exploitation, including sexual exploitation.

Many additional international agreements, such as the International Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights, and the Convention to End All Forms of Discrimination Against Women, are crucial to addressing and eliminating child sexual exploitation. The international legal framework includes terminology and definitions for various kinds and manifestations of child sexual exploitation, including the CRC and its Optional Protocol on the sale of children, child prostitution, and child pornography.

Other key human rights instruments also play an important role in monitoring the development and implementation of legislation related to child sexual exploitation protection. For example, the Palermo Protocol, which has been ratified by 123 countries, prohibits and punishes human trafficking, particularly of women and children. Convention 182 of the International Labour Organization (ILO) mandates states to prohibit and abolish "as a matter of urgency" the worst kinds of child labour, which are defined to encompass various forms of sexual exploitation. Furthermore, the International Criminal Court's Rome Statute codified significant breaches against children, particularly widespread and systemic sexual abuse, as crimes against humanity and war crimes, providing an important instrument for combating impunity.

New international instruments, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was ratified by 39 countries in 2008, have prohibited them from being held in slavery or servitude or subjected to forced labour, which includes forms of sexual exploitation of children, since 2001. Finally, successive UN General Assembly and Commission on Human Rights resolutions on the rights of the child have given depth to these promises to prohibit and abolish all types of sexual exploitation of children and to protect children from all forms of abuse.

Few of the workable measures for empowerment of children facing sexual abuse and support mechanisms according to our analysis of the above findings are hereunder (World Health Organization, 2017, 18):
  • To improve the availability and quality of data, adopt standard definitions and metrics of child sexual abuse.
  • Develop and install real-time surveillance technologies to measure recent and lifetime exposure to child sexual abuse perpetration and victimisation.
  • To expand our understanding of all facets of child sexual abuse, collect data on victimisation and perpetration of all forms of child sexual abuse.
  • Identify individual, relationship, community, and societal risk and protective factors for child sexual abuse at different levels of impact.
  • To guide primary prevention efforts, examine and distinguish between different types of child sexual abuse perpetration.
  • To better prevent all forms of violence, figure out how risk and protective factors for child sexual abuse interact with other forms of violence.
  • Strengthen and develop policies, programmes, and practises that are evidence-based. Examine evidence-based strategies across a variety of people, communities, and environments.
  • Identify, design, and evaluate programmes and practises that reduce CSA perpetrated by juveniles and adults. The information needed for effective primary prevention initiatives must be available to youth, local organisations, government agencies, and others.

Observations And Conclusion
Sexual harassment lawsuits involving children have far-reaching consequences for the victims throughout their lives. After conducting extensive research in this area, it has been determined that there is clear evidence demonstrating a direct link between child sexual abuse and the victim's mental, physical, social, sexual, and behavioural health.

Child sexual abuse has previously been connected to severe personality disorders such as post-traumatic depression and anxiety, as well as substance misuse and alcohol usage among victims. In both males and females, there is an increased risk of re-victimization of the child if proper attention is not provided to the issue. According to some recent studies, there is a link between suicides, suicidal behaviour, and child sexual abuse. Numerous defects in the institutional structure exacerbate child sexual abuse situations, and these incidents have a significant impact on the child's personality, as we have already described.

Sexual abuse of children, our society's most vulnerable element, is a sad reality today. In India, such topics are rarely discussed openly and are frequently seen as a societal taboo. Most families seek to keep such situations hidden, maybe to protect the child's interests. To prevent the trials, all elements of society must be made aware of the situation, and the court system must be overhauled.

In addition to the recent legislation providing an effective framework for dealing with child-related sexual offences, there is an urgent need to implement specific preventive measures to ensure that the risks of sexual exploitation of children are kept to a minimum. Aside from that, better application and enforcement of existing rules are essential. Finally, children are our country's future, and the threat they face must be combated on all fronts and at all levels.

  1. Agnihotri, S., & Das, M. (2015). Reviewing India's protection of children from sexual offences acts three years on. South Asia@ LSE.
  2. Belur, J., & Singh, B. B. (2015). Child sexual abuse and the law in India: a commentary. Crime Science, 4(1), 1-6
  3. Bhatnagar, I. (n.d.). Child Sexual Abuse In India. Legal Sevice India.
  4. Bhave, S. Y., & Saxena, A. (2013). Child sexual abuse in India. Child abuse and neglect: Challenges and opportunities. India: Jaypee Brothers Medical Publishers.
  5. World Health Organization. (2003). Guidelines for medico-legal care of victims of sexual violence.
  6. Delta Meghwal case: Life term for teacher, six-year jail for principal, warden | Jaipur News. (2021, October 13). Times of India.
  7. Follette, V. M., Polusny, M. A., Bechtle, A. E., & Naugle, A. E. (1996). Cumulative trauma: The impact of child sexual abuse, adult sexual assault, and spouse abuse. Journal of traumatic stress, 9(1), 25-35.
  8. Hornor, G. (2011). Medical evaluation for child sexual abuse: What the PNP needs to know. Journal of Pediatric Health Care, 25(4), 250-256
  9. Krug, E. G., Mercy, J. A., Dahlberg, L. L., & Zwi, A. B. (2002). The world report on violence and health. The lancet, 360(9339), 1083-1088
  10. NCPCR. (2017). User Handbook On Protection Of Children From Sexual Offences Act, 2012.
  11. Newell, P. (2008). Legal frameworks for combating sexual exploitation of children. UNICEF Innocenti Research Centre.
  12. Parliament passes bill to protect children from sexual abuse. NDTV. May 22, 2012.
  13. Patil, D. (2021). Child sexual abuse in India : where does the law lack. iPleaders.
  14. Sakshi v India and ors, Final Decision on Writ Petition, Writ Petition [Crl] No 33/1997, SLP [Crl] No 1672/2000, SLP [Crl] No 1673/2000, 2004 (5) SCC 518, 2004 Indlaw SC 466, ILDC 868 (IN 2004), 26th May 2004, India; Supreme Court
  15. Shirvoikar, S., & Shirvoiker, S. (2017). A Study on Child Abuse in the State Of Goa. International Journal for Advance Research and Development, 2(4)
  16. Singh, S., & Kumar, A. (2019). Sexual violence in Indian public sphere: Counter-public creation and deferral. Space and Culture, India, 6(5), 8-28
  17. Study on Child Abuse: India 2007 (PDF). Published by the Government of India, (Ministry of Women and Child Development). Archived from the original (PDF) on 2010-03-26.
  18. The Protection of Children from Sexual Offences Act 2012. Available protection 31072012.pdf.
  19. World Health Organization. (2017). Responding to Children and Adolescents who Have Been Sexually Abused: WHO Clinical Guidelines. World Health Organization

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