When working on the Issue of sexual harm and violence, it is important to know Laws that aim to protects various vulnerable groups. An important act is the Protection of Children from Sexual Offences Act (POCSO Act) 2012, which focuses on children as a vulnerable group.
Understanding the POCSO act becomes even more relevant given the recent debate and discussion surrounding the successive judgments made in recent past in POCSO cases. In this series of articles, we will take an in depth look at the POCSO act of 2012.
Provisions of the Act
The POCSO Act has been formulated with the intention to protect children drawing from international conventions such as United Nations Convention of Rights of Children (UNCRC) and Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes, 2005. It also prescribes child friendly methods of engaging with children through the judicial process and focuses on preventing the revictimization of the child through the process.
We have laid out the Key provisions of the Act in this section.
- Scope: The Act extends to the whole of India
- Definition of Child: The Act defines a child as any person below 18 years of age. It is a gender neutral act, recognising the vulnerability of other genders to Child Sexual Abuse.
- Other Definitions: This act also clearly defines various forms of sexual abuse, both in terms of physical contact and otherwise.
Penetrative Sexual Assault: When a person penetrates any object or any part of his body, to an extent, into vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person. When he manipulates any part of the body of the child so as to cause penetration or apply his mouth and makes the child do so with such person or any other person. (Chapter II, Section 3)
Sexual Assault: 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. (Chapter II, section 7)
The Act also defines the Aggravated forms of harm against a child as:
- Aggravated Penetrative Sexual Assault (Chapter II, Section 5)
- Aggravated Sexual Assault (Chapter II, Section 9)
The term ‘aggravated’ for the purpose of this act largely covers acts committed by a relative, police officer, public servant, armed personnel, or member of security forces or various other custodians of care thereby recognising child sexual abuse at the hands of those who are meant to provide care and protection to the child. This is in addition to covering other nuances like action that cause: medical and psychological impact to / death of the child, repeat offences and taking advantage of a child’s mental or physical disability.
In this definition (Chapter II section 11), the act covers all other aspects of sexual harm including non-contact behaviours like
- Stalking or constantly watching a child either directly or through electronic, digital or any other means,
- Depiction of pornography or pornographic material/objects to a child,
- Exposing a child’s body or body parts,
- Making sexual comments or sounds, gestures or flashing
- Threatening to use any explicit depiction of the body or body parts of the child or the child in any compromising position or sexual act
- Enticing a child for pornographic purposes or giving gratification for the same purpose
In addition to this, the Act also specifically highlights and expands on the definition of ‘Using Child for Pornographic Purposes’ (Chapter III, Section 13) in any form of media including programmes or advertisements telecast by television channels or any other form including print, whether or not intended for personal use. The acts described under the same also include the obscene representation of a child.
- Punishment: The Act also lays down stringent punishment for any of the aforementioned offences and also includes terms of punishment in the case where a person stores or possesses pornographic material in any form involving a child, for any purpose failing to destroy, delete or report the same.
- Mandatory reporting: The law makes it mandatory for a person to report to the Special Juvenile Police Unit or to the Local Police, any sexual crimes against children even if even if there is an apprehension that an offence under the Act has been committed or is likely to be committed (Chapter V, Section 19)
The act also highlights the obligations of media, studio and photographic facilities to report cases to report any cases when any material or object that may be sexually exploitative of the child is found.
The act also describes penalties for failure to report such cases and in doing so tasks the community with being vigilant in this regard as well.
- Protection through Child friendly procedures: The Act also prescribes child friendly methods of engaging with children and preventing revictimization throughout the proceedings should a case be registered under the Act by:
- Special provision for recording the statement of the victim (Chapter VI, Section 24), which asserts that the place of recording of the statement will be of child’s choice and comfort. Moreover, the Act states that the police officer while recording statement must not be in uniform and should make sure that at no point of time child come in contact in any way with the offender. The Act also states that no child shall be detained in the night for any reason.
- Provision for Special courts (Chapter VII, Section 28). The act places the responsibility to establish a court of session to be a special court for the purpose of the speedy trial and to appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act on the State Government.
- The powers of a Special Court & procedure for recording of evidence (Chapter VIII):
- A Special Court can take cognizance of any offence, without the accused being committed to it for trial upon receiving a complaint of facts which discloses such
- The court may permit frequent breaks for the child during a trial.
- The court shall not call the child repeatedly to testify
- The court shall ensure the identity of the child must be protected and kept confidential For the purposes of this subsection of the Act. ‘identity of the child’ is an expansive definitions which includes the identity of the child’s family, school, relatives, neighbourhood and any other information by which the identity of the child may be revealed.
- In case a child is abused or likely to abuse by a family member, then he/she must be taken out of the custody of his/her family (Rule 4 of POCSO Rules)
- The Special court must also ensure that the child must not see the accused at the time of testifying (Section 36)
- Section 37 also highlights that the special court shall try cases in camera and allowing a family, member, a guardian, a friend, or any other person in whom the child has trust to be present.
- Burden of proof: This child protection law is also unique because it places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC (Chapter VII, section 29)
– Vaishali Jain, Paralegal – POSH at Work