Protection of Children from Sexual Offences

“Crime against children is increasing at an alarming rate. They are confronting more of sexual violence against them.”

ABSTRACT

As the world is developing rapidly, sexual offences against humans is increasing too. The scope of sexual offences in current world, is not only restricted to adults irrespective of their age or gender but it has extended to minors who are below the age of 18 years.

Nowadays, sexual abuse of children (sexually, physically or mentally) is very common around the world, but it is increasing and reported at an alarming rate in India. In spite of the fact that sexual offences is considered as an offense under the Indian Penal Code yet the law was insufficient in perceiving and rebuffing other sexual offenses, i.e., child sexual abuse, grave sexual offences, and child pornography therefore POCSO(Protection of Children from Sexual Offences) Act was introduced in 2012.

Measurements discharged by National Crime Records Bureau uncover that there has been unfaltering increment in sexual violations against children. As stated in the report on crimes in India for 2016, released by Home Minister Rajnath Singh in Delhi, 106,958 cases of crimes against children were recorded in 2016. Of these, 36,022 cases were recorded under POCSO (Protection of Children from Sexual Offences) Act. In India, a child is sexually abused every 15 minutes,

Even after introducing many precautionary and preventive measures in forms of laws, amendments and bills the offence related to child sexual abuse still exist and is increasing with each passing day and many of the offences related to children sexual abuse is ignored, covered or not even reported due to variety of reasons like corruption, the slow action of the executives and the lengthy process of judiciary.

RESEARCH METHODOLOGY

The methodology adopted is largely qualitative, descriptive and analytical in nature. Reliance has been placed largely on sources (books, articles, POCSO Act, recent information and matters related to child abuse, etc.) that have been rich with valuable pointers and gave direction to the research.

 STUDY OBJECTIVES

The author and co-author did an adequate and comprehensive analysis of the POCSO (protection of children from sexual offences) Act, along with the crimes related to child sexual abuse and aims to create awareness towards the laws implemented for child care and protection.

The paper aims to:-

  • Explain the concept of “child abuse” and its different elements and evolution of POCSO Act, 2012.
  • Condition of laws related to child sexual abuse after POCSO Act, 2012
  • To explain the crucial problems related to child abuse and to provide the relative solution required.
  • Roles and responsibilities of society and its members, concerning with matters of child protection, safety, etc.
  • Analyzing and discussing loopholes in laws made for child abuse along with the POCSO Act, 2012.
  • Aims at giving suggestions to improve and implement stricter laws concerning protection of children.

LITERATURE REVIEW

REVIEW RESEARCH PAPER -THE PROBLEM OF CHILD SEXUAL ABUSE IN INDIA,- LAWS, LEGAL LACUNA AND THE BILL – PCSOB-2011 (Indian Acad. Forensic Med. April-June 2012, Vol. 34, No. 2 ISSN 0971-0973)

In the following article the authors interpreted and defined the term ‘child abuse’ together with the causes, statistics and shocking facts related to it. Authors have also analyzed the Indian scenario in this matter along with the prevailing laws related to it as well as the legal loopholes related to child sexual abuse. The POCSO bill has been discussed as well as recommendations are given for the improvement of the laws related to child abuse.

 REVIEWING INDIA’S PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT THREE YEARS ON – by Srishti Agnihotri and Minakshi Das  (blogs.lse.ac.uk/southasia/2015/12/18/reviewing-indias-protection-of-children-from-sexual-offences-act-threeyears-on).

In this research paper, the authors assess the effectiveness of the act, identify the implementation gaps, and suggest policy recommendations to fill these gaps by providing a three pronged analysis of the progress of the POCSO Act so far from legislative, judicial and administrative perspective.

 CHILD SEXUAL ABUSE: THE UNHEARD HUE AND CRY OF A CHILD (WITH SPECIAL REFERENCE TO POCSO ACT) by- Dakshitaa Khanna & Wagisha [ISSN:-2394-5044]  [THE WORLD JOURNAL ON JURISTIC POLITY, MAY 2017]

The authors in the present article have defined the meaning of child abuse, its elements, and laws before and after the enactment of POCSO Act, its introduction and evolution, etc. Authors have also analyzed the guidelines and laws established under the act with further scope of studies and its improvement.

 INTRODUCTION

Child sexual abuse has been defined as “the involvement of dependent and immature children in sexual activities they do not fully comprehend, to which they are unable to give informed consent.”[1] Children are innocent beings. They are the future of this world. We being the responsible adults are supposed to make the world a better and safer place for them to live in but unfortunately this is not happening, rather these innocent souls are becoming the easy victims of crime in today’s era.

Even after 70 years of independence of this country, children are prone to become the victims of heinous sexual offences committed every day. Though this problem of emotional, physical, mental and sexual abuse on children in India is increasing at an alarming rate, this has failed miserably to capture the attention required from the government and the people of the country.

EVOLUTION OF THE POCSO ACT, 2012

In 2007, a survey was directed by MWCD, in which 53% of total child population had been the sufferers of child abuse. At the end of inquiry, 99.6% people agreed to have legislation against child abuse. The POCSO bill was presented and later approved by both houses of parliament on 22nd may, 2012 and came into effect from Children’s day[2]POCSO Act, 2012 was passed to protect children from sexual offences while also keeping in mind to secure the interest of child at every stage of judicial process.

INTRODUCTION OF THE POCSO ACT, 2012

In order to handle the obnoxious crimes of sexual nature against children through strict legal provisions, the Ministry of women and child development promoted the Introduction of the Protection of Children from Sexual Offences Act, 2012.  “The act defines a child as any person below the age of 18 years, and regards the best interests and welfare 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, penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems such sexual assault to be “aggravated” under certain circumstances, such as when the abuse child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis a child, like a family member, police officer, etc. People involved in child trafficking for sexual purposes are also punishable under the provision relating to abetment in the act.[3]

Section 44 of POCSO Act, 2012 allows the NCPCR and the SCPCR to make laws. In fulfilling of its duties NCPCR has been taking up the matter in respect of following aspects:-

  • Designation of special courts;
  • Appointment of special public prosecutors;
  • Formulation of guidelines under section 39 of POCSO Act for various stakeholders;
  • Designation and implementation of modules for training of various stakeholders;
  • Measures taken for spreading awareness on the provisions of the POCSO Act;
  • Establishment of Child Welfare Committees, District Child Protection Units and Special Juvenile Police Units;
  • The number of FIRs file under the act, cases in which charge-sheet filed, compensation awarded to the victims, number of cases in which accused convicted or acquitted, number of cases in which witness turned hostile, cases in which appeal has been filed etc.
  • Number of trial of sexual abuse cases which have been pending with special or sessions court for more than a period of one year;
  • Number of applications for compensation received by the district legal services authority, number of cases pending for receiving the amount of compensation for more than 30 days etc.[4]

ANALYSIS AND DISCUSSION

In the absence of public and government interest in the problem of child abuse, studies are conducted by various organizations like the UNICEF, the Ministry of Women and Child Development, etc. The study regarding the sexual abuse of children revealed that:

  • 22 % reported having faced sexual abuse.
  • Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse.
  • 90 % respondents reported facing severe forms of sexual abuse and 50.76 % other forms of sexual abuse.
  • Out of the child respondents, 5.69 % reported being sexually assaulted.
  • Children on street, work and in institutional care reported the highest incidence of sexual assault.
  • 50 % abusers are persons known to the child or in a position of trust and responsibility.

MEDICAL CARE AND FACILITY TO THE SURVIVOR

POCSO Act is a way to accord with issues of children protection, but it still needs to cover a long way. POCSO Act not only makes provisions for protection of children from sexual abuses but also for medical examination of children in convenient manner. Moreover, it states that a doctor should not ask for any legal document or records to be completed before the commencement of process of examination. It also authorizes that doctor must register medico legal case in all cases of child sexual abuse. Declining to do so will penalize the doctor under Section 21 of POCSO Act, 2012.

The registered medical practitioner shall

  • Gather evidence after a proper medical examination,
  • Treat physical and genital injuries,
  • Supervise age assessment of the victim,
  • Offer prophylaxis for STDs including HIV,
  • Discuss emergency contraceptives with pubertal child and her parent,
  • Do baseline evaluation for mental health issues,
  • Monthly check up for at least for six months to look for development of psychiatric disorders,
  • Do family counseling and
  • Assist the court in interviewing the child and testifying in the court[5].

One more crucial provision made under this law is that no hospital under the jurisdiction of Indian Constitution can refuse the admission and treatment of the victim of child sexual abuse. This issue has been re-affirmed in Section 23 of the Criminal Law Amendment Act, which inserts Section 357C into the Code of Criminal Procedure, 1973[6]. Furthermore, this section says that hospital should facilitate first aid or medical treatment to the sexual abuse victims for free. It has been acknowledged in the amended Act Section 166B of Indian Penal Code that no hospital can refuse the treatment of rape victim and it should be immediate and without any charges. There is provision of imprisonment of hospital staff for seven years if found involved in rape.

The POCSO Act mentions clearly under Section 27(2) that in case of medical examination of female child/adolescent victim, it should be operated by female doctor only. However, in case of emergency medical treatment, any medical officer must be present. At the same time, The Criminal Amendment Act, Section 166A of Indian Penal Code mandates that the government medical officer must be present on duty to examine rape victim without fail.

CONSENT OF PARENT OR CONSENT OF ADOLESCENT

POCSO Act is totally mute and doesn’t define any direction when the question comes to child/adolescent’s consent to undergo medical examination especially when there is disapproval from his/her side but the family members or investigating officer instigate for the medical examination. However, it will be a prudent step to take approval of parent when the child is below 12 years of age and taking the assent  of the victim who is adolescent i.e., between the age group of 12-18 years. But in cases of immediate treatment, the confirmation or legality to protect life of a child shouldn’t be taken into consideration.

 CHILD MARRIAGE AND POCSO ACT

Law should be made with the practicality instead of imagining and keeping in mind the integrity of the society where it is intended to be incorporated.

Child Marriage is banned in India and therefore legal age of marriage for male is 21 and for female is 18. Then also the practice still prevails in some parts of India. Therefore, in India, POCSO Act in agreement with Child Marriage Act, 2006 is intended to forbid minor girls to be forced into early marriages. However this is a beneficial goal to achieve but cultural and social norms in supporting child marriages in India creates a big obstruction in attaining this goal and will lead to breakdown of justice. Hence, it is very problematic and may create hurdles in the path of justice.

CONSENTED SEXUAL INTIMACY

If the ‘sufferer’ is below the age of 18 years then all the sexual acts with him/her under POCSO Act will be considered as criminal offence. For example, The Act does not give any room to the idea of consent given by person under 18. This would mean that if a 17 year old boy or girl had a 19 year old sexual partner, the partner would be liable to be booked under the provisions of the POCSO Act. The act also doesn’t provide any clarity on what happens when two minors engage in any kind of sexual activity.[7]

Further, POCSO always criminalize a juvenile committing child sexual abuse to be handled under the Juvenile Justice Act, 2000 [Section 34(i)]. There is a pressure between the letter of law and its execution in real scenes i.e., the spirit of law with which it was created. The determining factor for the accusation for underage sex was forced or consensual will greatly depend on an individual’s explanation of the circumstances. The law is either very restrictive of children’s freedom or very tolerant of child sexual abuse.[8]

CONCLUSION

Although, Parliament enacted the POCSO Act, 2012, this unique legislation for prevention of children from sexual offences remains an unused law mostly, unknown to most. Author cannot deny the fact that this enactment is beyond the knowledge of those who need to apply it. One would be surprised to know that in the unfortunate rape case of Delhi, the Delhi Police included the provisions of POCSO to the FIR reportedly after two days of the filing of FIR on 15th April 2013.

Child sexual abuse is a dull reality that routinely inflicts our everyday lives however in a larger part of cases it goes unnoticed and unreported by virtue of the purity of the sufferer; shame connected to the demonstration, strictness and harshness of the examining and the law authorization offices, etc.

Establishment of enactment isn’t enough unless followed by rigorous applicability of the law with obligations defined. Furthermore, parents, guardians, teachers, etc. in the society have an essential role to protect children from sexual exploitation and abuse. Children are the innocent human beings and the future of nation’s social development lies in wellness of its children as children are the pioneers of future.

SCOPE FOR FURTHER STUDY

  • State should take the responsibility of recompensing the costs to provide proper facilities so that hospitals in case of expensive procedure will not provide substandard facilities.
  • Efficient guidance should be provided to advocates, doctors, teachers and law enforcing departments to face the challenges of research, information, observing and sensitizing the public. This will cater extensive care and justice.
  • Doctors and hospital crew should also be trained efficiently to provide child friendly interview, systematic assessment, collecting evidence, family counseling and regular check up, etc. Doctors need to be vigilant in dealing with children and ought to report all reasonable degree of suspicion in child sexual abuse to the legal authorities[9].
  • There must be immediate registration of FIR and proper conduct by the police. They should be well acquainted with the efficient methods for collecting forensic evidences.[10]
  • Routine study should be conducted on the procedures established by NCPCR and SCPCR and evaluation should be done on the same to generate an effective result.[11]
  • The POCSO Act has tried hard to discover every known form of sexual abuse against children as punishable offence but few challenges still exist and now, the major concern should lie with appropriate execution. A multi-dimensional, multi-organization group and multi-level approach including access to psychosocial guidance is to be made accessible to provide thorough care under one rooftop for casualties of child sexual abuse.[12]

This Article is written by Bahnidipa Roy & Arpit Oza ,Law Student, Symbiosis LAW School,Hyderabad.
The manuscript was submitted for the National Seminar on Protection of Children from Sexual Offences Organised by Bengal Law College in association with RostrumLegal on February 17th & 18th, 2018.


References

[1] Kempe and Kempe, 1978: 127

[2] DECODING POCSO The Protection of Children against Sexual Offences Act easily explained available at https://www.satyamevjayate.in/sitemap.aspx last seen on 30/01/2018.

[3] National commission for protection of child rights government of India, introduction to POCSO available at https://www.ncpcr.gov.in/index1.php?lang=1&level=1&&sublinkid=14&lid=607  last seen on 30/01/2018.

[4] Press information Bureau government of India ministry of women and child development under Protection of Children from Sexual Offences (POCSO) Act, 2012 on 19/12/2014  available at https://pib.nic.in/newsite/PrintRelease.aspx?relid=113750 last seen on 31/01/2018.

[5] S. Moirangthem, N. C. Kumar, and S. B. Math, Child sexual abuse: Issues & concerns, Indian J Med Res. 2015 Jul; 142(1): 1–3. doi: 10.4103/0971-5916.162084 Indian journal of medical research As available on

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/  last seen on 31/01/2018.

[6] The Criminal Law  (Amendment), 2013. [Accessed on October 10, 2014]. Available from:

https://indiacode.nic.in/acts-in-pdf/132013.pdf available on https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/ last seen   on 31/01/2018.

[7] S. Agnihotri & M. Das, Reviewing India’s Protection of Children from Sexual Offences Act three years on,LSE blog, https://blogs.lse.ac.uk/southasia/2015/12/18/reviewing-indias-protection-of-children-from-sexual-offences-act-three-years-on/ ,last seen on 31/01/2018.

[8] J. Belur and B. B. Singh, Child sexual abuse and the law in India: a commentary, Springer Open, 2015

https://crimesciencejournal.springeropen.com/articles/10.1186/s40163-015-0037-2 last  seen on 31/01/2018.

[9] S. Rao TS, M. Nagpal, C. Andrade, Sexual coercion: time to rise to the challenge, Indian J Psychiatry. 2013;55:211–3.https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/  last seen on 31/01/2018.

[10] Supra  7.

[11] Supra 7.

[12] V. Harbishettar , SB. Math, Violence against women in India: comprehensive care for survivors, Indian j Med Res. 2014;140:111–3. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/ last seen on 31/01/2018.

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