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Overview of Child Sexual Abuse Laws of India

The term child usually includes the age group between 0-18 years of age. The United Nations Convention on the Rights of the Child defines a child as," A human being below the age of 18 years unless under the law applicable to the child, the majority is attained earlier."[1]

India at present has a total population of 1.39 billion which amounts to 17.5% of the total population of the world. Out of these 1.39 billion people, 42% are children that is under 18 years of age. India is home to 19% of the total children in the world. Even though being home to such a large population of children, India lags severely behind in terms of strict Child Sexual Abuse laws.

Child sexual abuse (CSA) is "the involvement of a child in sexual activity that he or she 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. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust, or power, the activity being intended to gratify or satisfy the needs of the other person.

This may include but is not limited to:
  • The inducement or coercion of a child to engage in any unlawful sexual activity.
  • The exploitative use of a child in prostitution or other unlawful sexual practices.
  • The exploitative use of children in pornographic performances and materials.[2]

Until recently, Child sexual abuse was not even majorly recognized as a criminal offense in India; rape was the main if not only, specific sexual offense recognized in India. In 1992, India ratified the United Nations Convention on the Rights of the Child. Under this convention, India promised to protect its children from all categories of sexual abuse and exploitation.

In 2012, the POCSO act was passed after rigorous efforts by several activists, non-governmental organizations, etc. Before 2012, India was in a state of vacuum in terms of laws related to dealing with child sexual abuse.

Laws Relating To Child Sexual Abuse Before 2012

  • United Nations Convention on the Rights of the Child
    The United Nations Convention on the Rights of the Child was adopted by United Nations General Assembly in 1989. The convention states the required guidelines to make the world a better place for children (under 18). It includes different essential rights including the right to education, right to sanitation, right to protection from mental and physical abuse, protection from rape and sexual exploitation, etc.

    The convention is ratified by 194 countries. The United Nations Convention was ratified by India in 1992 thereby binding itself to several regulations and norms. These norms also include measures against child sexual abuse which are applicable in India as well.
    1. Article 34 of the convention states to protect the children from:
      • Sexual exploitation
      • Inducement to engage in any unlawful sexual activity
      • Use of children in prostitution
      • Use of children in pornographic performances.[3]
         
    2. Article 19 of the convention states to take legislative, administrative, social and educational measures to protect from all forms of:
      • Injury Or Abuse
      • Neglect
      • Mal-Treatment Or Exploitation, Including Sexual Abuse.
      While in the care of parents or any other person who has the care of the child.[4]

IPC Sections Prosecuting Child Sexual Abuse

Before any act was enacted specifically for the prosecution and regulation of child sexual abuse cases, such cases were governed under IPC sec. 354, 375. However, all of these sections contained certain ambiguities or flaws as a result they could not provide effective protection to children.
  • Section 354: Assault or criminal force on woman with intent to outrage her modesty
    Section 354 of IPC deals with outraging the modesty of a woman by the use of criminal force or assault. The section although deals with 'outraging modesty' fails to define the word 'modesty', as well as only, mentions women and not men. This leaves men out of the spectrum of receiving justice.
     
  • Section 375: Rape
    Section 375 defines rape and provides circumstances falling under the act of rape. The major flaw with the section is that just like sec. 354 it also only mentions women and fails to mention men.

Goa Children's Act, 2003

Goa Children's Act was brought in 2003 with the motive to promote, protect and preserve the best interest of children in Goa. Goa emerged as the first state in India to bring a law specifically for the protection of children including provisions relating to sexual abuse.

The act extended to the whole of the state. It specified that 'The State shall ensure that children are protected from child abuse, sexual offenses, child trafficking, child prostitution and violation of their rights against exploitation and that they are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity.'[5]

Section 8 of the act deals with the prescription of punishment in case of sexual abuse against children. Clause 2 of sec. 8 provides:
  • Whoever commits any sexual assault as defined under the act, shall be punished with imprisonment for a term that may extend to 3 years and a fine of Rs. 1,00,000.
  • Whoever commits a grave sexual assault shall be liable for a punishment of at least 7 years which can be extended up to 10 years and a fine of Rs. 2,00,000.
  • Whoever commits incest shall be liable for a punishment of 1 year and a fine of Rs. 1,00,000.
Some other punishments for different instances were also included. The act even though might not have been as comprehensive as some of the laws present today but was definitely a major step in the right direction.

Pocso Act, 2012

Various efforts by different Non-Governmental Organisations and the Ministry of Women and Child Development created a lot of momentum regarding the absence of laws around child sexual abuse. This set-in motion the driving force for the acknowledgment of the concerned issues and media attention. Such efforts made by the Ministry of Women and Child development led to the drafting and implementation of POCSO (Protection of Children against Sexual Offences Act) in 2012.

POCSO act defines and criminalizes sexual assault, child pornography, sexual harassment, penetrative sexual assault, etc. involving a child i.e., someone below the age of 18 years. The act also mandates the setting up of special courts for the feasible proceeding of the cases under POCSO. POCSO has been a major step in protecting children from sexual abuse as it provides for harsh and rigorous punishments based on the severity of the crime. Punishments under the act range from simple to stringent including life imprisonment and even death sentence under certain circumstances.

Section 5 and section 9 of the act define 'aggravated' penetrative sexual assault and non-penetrative sexual assault, which when performed by people belonging to several different categories such as police officers, members of the armed forces or security forces, public servants, management staff of jails, hospitals, educational institutions, etc. and under various circumstances attract even more harsh punishments. This includes inflicting children with serious sexual assault thereby causing a child to become pregnant, causing grievous hurt or bodily injury, infecting the child with the HIV virus, etc. The definitions provided under the act are very elaborative and comprehensive in nature and cover most of the aspects of child sexual abuse.

Apart from this the act also covers a wide array of aspects related to the use of children for pornographic purposes and the storage of pornographic material including children. The instances covered under the act are extremely expansive in nature ranging from usage of the material on the internet or in electronic form to printed form as well. It also prescribes punishment whereby if a person fails to delete or destroy the pornographic material or stores it for the purpose of telecasting or dispersing it except for the purpose of reporting or for use as evidence in court, shall be subject to fine or imprisonment whichever might be appropriate under the circumstance.

The distinguishing feature of the POCSO act is that it not only punishes the attempt (sec.18) but also the abetment (sec.17) to commit an offense. Not only this but it also prescribes under sec. 29 that under certain circumstances the accused will be presumed guilty until proven innocent. The act also puts forward several guidelines keeping in mind the protection of children from being exposed to the strenuous proceedings of law.

Section 36 of the act specifies that the child shall not be brought before the accused at the time of providing evidence while keeping in check that the accused is capable of hearing the child's testimony and speaking with his defense attorney. In addition to this, sec.23 establishes that apart from certain circumstances the identity of the child has to be kept as a secret and not to be revealed. Such specifications are intended to reduce the trauma faced by the child and promote enjoying a normal life.

The setting up of Special Courts under sec.28 plays an important role in setting the act apart and making it more child friendly. In order to make it more favorable sec. 33 gives special courts the authority to allow the child to take frequent breaks during the proceedings, provide a child-friendly environment by allowing a family member or other trusted adult to be present in court, and ensuring that the child is not called to testify in front of the court on a regular basis or avoid aggressive questioning. For speedy trial, the POCSO act states that within 30 days of the special court receiving notice, the child's statement must be recorded. and complete the proceeding within a year as far as possible.

The POCSO act as a whole has been a major step towards safeguarding the rights of the children of the country and also the fact that it is gender neutral provides adequate attention to male children of the nation who have been side-lined and debarred of justice.

Major Impediments With The Pocso Act

Although the POCSO is highly progressive and acknowledged countrywide, there are still several problems with the implementation and functioning of the act. Therefore, certain complications and ambiguities with the act have been discussed below:
  1. Determination Of Age:
    A major problem associated with the functioning of the POCSO act has been the determination of the age of the minor. The act is silent on the fact that which documents should be preferred to determine the age of the victim even though it plays a crucial role in the outcome of the charges and trial proceedings. In Jarnail Singh v. State of Haryana: AIR 2013 SC 3467[6], the Supreme Court held that the age of a child, who is the victim, has to be determined on the basis of section 12 in The Juvenile Justice (Care and Protection of Children) Rules, 2007 which holds that preference should be given to the school documents of the child while determining the age.

    If other documents apart from the ones provided by the school are submitted, then the child has to undergo a bone ossification test, which in most cases provides a rough estimate of the age of the child. But the process of bone ossification is very complicated and at times time-consuming as well and the results aren't necessarily accurate. Therefore, the provisions of the POCSO act have to be much clearer regarding the documents which will be preferred to determine the age of the child and whether the accused can be given the benefit of the doubt if the medical testing can't make a proper determination.
     
  2. Mandatory Reporting:
    The POCSO act's Section 19 sets a need for reporting child sexual abuse to police and other law enforcement authorities in case someone has knowledge of such an act being committed or even when there is only an apprehension. This includes any citizen of the society and especially those working in close relation with children in education, social, health, and religious affairs. Punishments have also been prescribed when a failure to report such instances occurs. These punishments can range from six months to one year of imprisonment or fine or both.

    Although mandatory reporting has been included as a measure to help voice the children in need, it is resulting in more pitfalls and trauma for the victims. Most of the victims who were hesitant in coming forward and reporting the crime were the ones who described their surrounding society to be patriarchal or insensitive. They were also concerned about the stigma around sexual abuse and its reporting and the blame they would have to deal with if the offense was not proven. Also, in many a case, the assaulter is also the breadwinner of the family. Hence, the unwillingness is due to the reality of dealing with survival and sustaining the needs of the family in the absence of the sole breadwinner.

    Mandatory reporting also puts medical practitioners in a state of quandary. On one hand, they are bound to report any instances of child sexual abuse that they come to know of regardless of the consent of the victim, and on the other hand, mandated to maintain the confidentiality of the patient and their right to privacy. They are forced to violate the trust of the child even if the child does not want to report the abuse in case they want to avoid stigmatization and victimization.
     
  3. Age Of Consent:
    A major issue with the POCSO act is that it does not recognize the consent given by minors. Under the spectrum of POCSO, a lot of young couples involved in consensual sexual activities find themselves tangled in the criminal justice system. Since the consent of minors is considered invalid, consensual activities also come under the purview of rape or sexual abuse. In most of these cases, the male child/men are charged under various sections, while the females are treated as victims in spite of their consent.

    This strips teenagers of their bodily autonomy and treats them as property of the state and also creates a stigma around adolescent sexual relationships. Also, many times this practice can impose a lot of trauma and mental stress over the male child/man who has been falsely accused of rape even though it was consensual. It also impacts the justice delivery system of the country as courts get overburdened by such cases and divert the required attention from the investigation and prosecution of actual cases of child sexual abuse. Hence, a lot of times it is observed that the POCSO is not in sync with societal realities.

Pocso Amendment Act, 2019

The Protection of Children from Sexual Offences (Amendment) bill 2019 was first introduced in Rajya Sabha by the Minister of women and child development, Ms. Smriti Zubin Irani on July 18, 2019. On July 24, 2019, the Rajya Sabha approved it, and on August 1, 2019, the Lok Sabha did as well. The bill was brought to make the provisions under the POCSO act even more strict. The death penalty was added and some new offenses were also introduced such as child pornography. Along with this, the provisions for some older offenses were also widened.
  • Penetrative Sexual Assault:
    A person is considered to have committed penetrative sexual assault under Section 3 of the POCSO Act if they place their penis within the child's mouth, urethra, vagina, or anus; inserts any item into any area of the child's body; applies or places his tongue on any part of the child.

    Before the 2019 amendment, the punishment prescribed under the act was a minimum of 7 years and could be extended to life imprisonment and fine. The bill, however, increased the period of minimum punishment from 7 years to 10 years. In addition to this, the bill also stated that if a person commits penetrative sexual assault against someone who is under 16 years of age, such person shall be punished with a minimum imprisonment of 20 years and it could go up to life imprisonment.
     
  • Aggravated Penetrative Sexual Assault:
    Aggravated Sexual Assault is defined under section 5 of the act as the performance of penetrative sexual assault by a person of authority such as police officers, members of the armed forces, etc. resulting in the child getting pregnant or contracting the HIV virus and such. The amendment bill expanded the definition of aggravated penetrative sexual assault by including two additional reasons. These are:
    1. A sexual assault that results in the death of the child.
    2. A sexual assault committed during a natural calamity.
    The punishment for aggravated penetrative sexual assault which prior to the amendment was a minimum of 10 years to life imprisonment was increased to a minimum of 20 years which may extend up to the death penalty.
     
  • Aggravated Sexual Assault:
    Aggravated sexual assault is defined under the sec. 9 of the POCSO act. When someone makes sexually suggestive physical contact with the breast, penis, anus, or vagina without intending to penetrate, that behavior is referred to as "sexual assault.". Such actions when performed by people holding special authority are termed aggravated sexual assault. The definition of section 9 was further expanded by adding two more provisions:
    1. An assault committed against a child during a course of natural calamity.
    2. Whoever persuades a child to get administered or administer any sort of hormone or injects any chemical substance into the child with the intent that the child attains sexual maturity at an early stage.
       
  • Pornographic purposes:
    Sec. 13, 14, and 15 of the act deal with the use of children for pornographic purposes, punishment for the same, and punishment for the storage of pornographic material involving children. The provisions and the scope of definitions remained the same as it was in 2012 but the dimensions of the punishment were changed and made more stringent under certain circumstances. These are:
    1. The punishment for the use of children for pornographic purposes was 5 years. This has been increased to a minimum period of 5 years and the maximum period is upon the discretion of the court.
       
    2. The punishment for the use of children for pornographic purposes which results in the child facing aggravated penetrative sexual assault was life imprisonment with no minimum limit. The bill added a minimum limit of 20 years which can extend up to life imprisonment or the death penalty.
       
  • Storage of Pornographic material:
    The punishment for the storage of pornographic material has been prescribed under section 15 of the act. The act specified that the storage of pornographic material for displaying or transmitting shall be punished with imprisonment that may extend up to 3 years and fine with no minimum limit. The new amendment set up the limit for minimum imprisonment at 3 years which can be extended up to 5 years. Along with this, the bill also included two more offenses within the spectrum of storage of child pornographic material. These are:
    1. Failure of destruction, deletion, and reporting of pornographic material involving children.
    2. Sending, showing, or disseminating the content, unless it is for reporting purposes.
    The amendment bill puts forward a much more stringent framework to help prevent sexual abuse against children. It acts as a deterrent by putting forward much more strict punishments as compared to before and increasing the inclusivity of various sections.

    A major standout point of the bill is that it is gender-inclusive and does not discriminate between children belonging to any gender be it cis male, trans male, cis female, trans female, or any other gender. The bill also suggests the death penalty in cases of aggravated penetrative sexual assault.

    This step can help engrave fear of the law in the hearts of people and prevent them from committing such actions. Therefore, it can be said that the POCSO (amendment) act, 2019 has made tremendous efforts to make the act more in tune with the current requirements of society.

Important Related Cases
  • Attorney General for India v. Satish and another, AIR 2021:
    In the judgment of Attorney General for India v. Satish and another, the Hon'ble Supreme Court heard the appeals filed by the Attorney General of India, the National Commission for Women, and the State of Maharashtra against two judgments passed by the Bombay High Court. Under the judgments, the Bombay High Court ruled that skin-to-skin contact is essential for an offense of sexual assault to be established under the POCSO Act.

    Facts:
    To understand the rationale behind the decisions and judgments made by Supreme Court in the Attorney General for India v. Satish and another, we need to look at the factual matrix of the two Bombay High Court judgments.
    1. Satish v. State of Maharashtra (2021):
      In this case, the victim, aged 12 years old, had been lured by the accused to his house on the pretext of giving guava. The accused then pressed her breasts and tried to remove her salwar and when the victim started shouting, the accused pressed her mouth. The complaint was lodged against the accused by the mother of the victim. The special court convicted Satish under sec. 342, 354, and 363 of the Indian Penal Code, 1860, and sec. 8 of the POCSO Act, 2012.

      The accused filed an appeal against the said order under the Bombay High Court. Justice Ganediwala presiding over the case acquitted the accused under sec. 8 of the POCSO Act and charged him with minor offenses under sec. 342 and 354 of the IPC. The judgment was made on the grounds that whether the top was removed or whether the accused inserted his hands inside the top of the victim was not specific and in the absence of such facts the act would not fall under the purview of 'sexual assault'.
       
    2. Libnus v. State of Maharashtra (2021):
      In this case, the accused entered the house of the victim, aged 5 years, knowing that her mother and father were not present. The accused then caught her hands, moved her frock upward with one hand, and lowered his pants with the other hand. He, thereafter, unzipped his pants and showed his penis to the victim, and asked her to lay down on the wooden cot.

      The incident was reported by the mother of the victim. The convict was accused of the offenses punishable under sec. 448 and 354-A(1)(i) of IPC and sec. 8, 10, and 12 read with sec. 9(m) and 11 of the POCSO Act by the Special Court.

      The accused, Libnus, filed an appeal against the order under the Bombay High Court. High Court set aside the convictions charged under sec. 8 and 10 of the POCSO Act and maintained the ones under sec. 354(1)(i) and 448 of the IPC act read with sec. 12 of the POCSO Act.

      The High Court cited the ejusdem generis concept, which refers to any other act and includes the characteristics of acts that are identical to the conduct specifically listed under sec. 7. The acts of 'holding the hand of the victim' or 'opening up the zip of his pants', in the opinion of the court, do not fit under the purview of the definition of sexual assault.
    Decision:
    The Supreme Court quashed the judgments of the High court and both accused Satish and Libnus were directed to surrender themselves before the concerned special court. The Supreme court held that any act executed with sexual intent involving physical contact with no signs of penetration would amount to sexual assault under sec. 7 of the POCSO act and skin-to-skin contact is not essential for establishing the offense of sexual assault.
     
  • Alakh Alok Srivastava v. Union of India and Others, AIR 2018:
    The petition dealt with two issues. The first issue was related to an eight-month-old female child who had become a victim of a crime committed under the POCSO Act, 2012 and the second issue was regarding the speedy disposal of cases under the POCSO Act and that too in child-friendly ways as prescribed under the act. The issues were brought before the Supreme Court as a writ petition. Under the petition, Supreme Court ruled out the guidelines that had to be followed by special courts while dealing with cases under the POCSO Act.

    Facts:
    The first prayer dealt with the treatment of an eight months old female child who was the victim of a crime under the POCSO Act. A team of doctors belonging to the All-India Institute of Medical Sciences was sent to check up on the child. The examination revealed no abnormality and the child was stable. The consent of the family of the child was taken and she was transferred to AIIMS for further treatments and check-ups.

    The second prayer dealt with the speedy disposal of cases and the enormous number of cases pending before the court under the POCSO Act. A graphic report detailing the number of cases pending in various states was submitted by the petitioner. under the act and asked for the intervention of the Hon'ble Supreme Court and sensitivity in matters related to the legislation.

    Decision:
    The Supreme Court issued the following guidelines to be followed during the proceedings of cases under the POCSO Act:
    1. The High Courts must make sure that the Special Courts handle and decide the cases that are being handled under the POCSO Act and that the officers concerned with these cases are sensitive enough to deal with matters of child protection and psychological response.
       
    2. The Special Courts, if not already, should be established and ought to be charged with handling the cases brought under the POCSO Act.
    3. Instruction should be issued by higher courts to the Special Courts that proceedings should be handled in a fast-track manner without any unnecessary adjournments and in a time bound manner as laid down under the POCSO Act.
       
    4. The POCSO Act trials should be governed by a three-judge committee that will be created by the chief justice of the High Courts. In the event that three judges are not accessible, the chief justice should appoint a bench of one judge.
    5. The Director General of the Police or officers of the equivalent rank of each state should formulate a task force that shall inform that the investigation is being continued properly and the required witnesses are being presented before the courts on the dates fixed.
    6. In order to ensure that the spirit of the act is upheld, High Courts must take the necessary steps to make the Special Courts a child-friendly environment.
       
Conclusion:
The term 'sexual abuse' still holds a lot of taboo in our society but the POCSO Act has made tremendous efforts in tackling and reducing the extent of this thinking. Ever since the implementation of the act, the number of cases reported under the category of child sexual abuse has extensively increased representing an upward trend in the mentality of society.

The act has not only educated people but also sensitized them on the mentioned topic and has made reporting child sexual abuse not only admissible but also obligatory. POCSO as an act is extremely unique in terms of Indian society keeping in mind the vacuum faced under the category of child sexual abuse laws prior to 2012. It is also very comprehensive and inclusive in nature. The act does not discriminate between children of different genders be it cis male, cis female, trans male, trans female, etc., thereby eradicating the ideology that only females are the victims.

Although along with the several mentioned advantages, the act also deals with various impediments and loopholes. There is a major need for the effective enforcement of the act at different levels. A multidimensional approach is the requirement of the day which will necessitate the joint efforts of the government authorities both at the central and state level, police forces, judicial system, medical body, etc.

This will help in the implementation of the act in its true spirit and help eradicate certain loopholes. Speedy trials and child-friendly proceedings are imperative and guidelines put down by the Supreme Court under the Alakh Alok vs. Union of India, 2018 should be effectively imposed.

Apart from this, the above-mentioned impediments such as the age of consent, mandatory reporting, determination of age, etc. should also be dealt with. Also, POCSO should also try to acknowledge the aftermath of the trial and the trauma that is faced by the children. Efforts should be made to provide the much-needed psychological help to the children as well; especially in instances where the abuser is a relative or someone known to the victim.

Further police officers and officials dealing with the victims should be provided proper training. This will provide the children with the required emotional support and help them in opening up about the problems and abuse that they faced.

POCSO presents a mixed bag of results. On one hand, it is very progressive and inclusive in nature but on the other hand, presents some major problems. The need of the hour for POCSO is to keep evolving and matching its pace with the ever-changing society of India.

End-Notes:
  1. https://en.wikipedia.org/wiki/Laws_regarding_child_sexual_abuse
  2. WHO, Report of the consultation on child abuse prevention, Geneva, World Health Organization, 1999, p. 15
  3. https://nhrc.nic.in/sites/default/files/UNCRC_2020.pdf
  4. https://nhrc.nic.in/sites/default/files/UNCRC_2020.pdf
  5. https://citizen.goapolice.gov.in/documents/10184/1794152/childrens.pdf
  6.  https://www.livelaw.in/pdf_upload/2033000024220191watermark-402578.pdf

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