‘Another Innocence lost’: probably this is the most appropriate way to describe the happening of such a monstrous offense. Indian law has tried from time to time to bring stringent laws for this offense but without success. With the POCSO Act at hand and some awareness and courage of the public, we will be able to tackle this problem at hand.
The Protection of Children from Sexual Offences Act, better known as the POCSO Act, was passed in 2012 to protect persons of age less than 18 (according to the Indian Majority Act, a minor is a person less than 18 years of age) against sexual offenses- both boys and girls. This Act was needed over IPC as it provides mandatory laws for boys as well. Also, it has provisions for non-penetrative sexual offenses and punishments for persons in positions of trust or authority like public servants, staff of educational institutions, police, etc. Notably, this law also recognizes sexual harassment and child pornography under the list of offenses. Thus, it is a child care and protection act.
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This is the first time that any law talks about offenses on boys and considers sexual harassment like touch, stalking, or irritating and child pornography under the ambit of offenses. It avoids re-victimizing the child by providing the child- with a friendly court with a speedy trial and trial on the camera such that the identity of the child is not known. It mandates medical and health check-ups, immediate rehabilitation processes, and compensation. It also provides strict punishment to the offenders which may be extended up to life imprisonment and giving huge compensations. Thus, it is a big step towards providing complete child laws.
Grounds for Offences
- Penetrative Sexual Assault- it includes insertion of the penis /any object /another body part or manipulation of any body part of the child to cause penetration into the vagina /mouth /urethra /anus of the child or asking some other person to do the same. It also includes the application of the mouth to the penis /vagina /anus /urethra of the child or asking the child or any other person to do so.
- Aggravated Penetrative Sexual Assault- It includes penetrative sexual assault to a mentally ill child or when the abuse is committed by a person of authority or trust to the child, like a family member, police officer, members of the armed forces, teacher or doctor or gang penetrative assault or penetrative assault with a child below 12 years of age. Also, it is meant by a situation where, in the case of a girl, the assault has resulted in her pregnancy or has inflicted the child with HIV or any life-threatening venereal diseases or commits a penetrative sexual assault with a mentally or physically sick child.
- Sexual Assault- it includes any intentional touch in the vagina, penis, anus, or breast of the child or makes the child touch the vagina, penis, anus, or breast of such or another person or any other touch with sexual intent.
- Aggravated Sexual Assault- It includes sexual assault by a person in a position of trust or authority like a police officer, member of the armed forces, teacher, or commission of gang sexual assault or assault on a mentally ill child. Also, it amounts to such sexual assault which physically or mentally incapacitates the child or inflicts the child with HIV or any other deadly venereal disease, or commits sexual assault on a juvenile below the age of 12 years.
- Sexual Harassment- It involves any sound or gesture with a sexual intention or constantly following or contacting the child or exhibiting some of his body parts or making him/her exhibit their body parts to such or any other person or showing or using the child for pornographic purposes.
- Child Pornography- It involves using the child for pornographic purposes or storage or sharing of pornographic content involving a child or abetment for using the child for sexual gratification.
A 2007 study on child abuse by the Ministry of Women and Child Development showed that about 53.22% of children are facing one or more forms of sexual abuse, most of which are not even reported due to fear, shyness, or external pressure. Thus, there is an immense need to make it child-friendly so that they can avail themselves of it. The procedure followed is as follows:
- Medical Examination of the Child - After it is acknowledged that an offense has been committed; the child should be taken to the doctor as soon as possible within 24 hours so that the evidence is not lost due to urination, washing, or other motion. Two types of medical tests are conducted- one to collect evidence and the other to document injuries, markings, bruises, etc. The test must be done in the presence of the parents of the child or any other person whom the child trusts. After this, the hospital must document the report in the medico-legal records and report it to the police.
- Reporting a Case of Child Sexual Abuse (CSA) - a person who knows the happening of such an incident, must inform the Special Juvenile Police Unit (SJPU) or the local police. The police should record the report in writing and register an FIR.
- The action of the Police or Special Juvenile Police Unit – Within 24 hours of reporting the crime, the police should determine whether the child needs special care on behalf of the Care of children act. The child should be admitted to a hospital and the matter must be reported to the CWC and the Special court. The police must also inform the child or his guardian about the counseling and other benefits that they can avail of.
- Role of the Child Welfare Committee (CWC) – if the police report that the child requires special care, CWC decides over the child custody based on child custody laws within 3 days. The CWC can also provide support to the child which may be an individual or an organization according to the Children’s Rights Act.
- Recording of the Statement of the Child by Police – The statement of the child should be recorded by audio-visual means in the presence of a translator and the parents or any other person whom the child trusts. The identification of the child is kept hidden during the whole trial to save the interest of the child.
- Trial Proceedings – The trial should be conducted in the presence of the parents or any other person whom the child trusts. The questions of the public prosecutor should also be communicated to the Special Court, who in turn, asks the questions to the child. Section 35 of the Act says that the evidence of the child should be recorded within thirty days.
- Responsibilities of the Special Court – the special court must see that the whole procedure is conducted in a child–friendly environment in the presence of parents, that the child is not frequently asked questions, the dignity of the child is maintained, his identity is not disclosed, and that the trial is completed within one year of the reporting of the crime.