Protection of Children from Sexual Offences Act

Goa Children's Act, 2003,{{cite web |url=http://www.childlineindia.org.in/child-sexual-abuse-law-and-lacuna.htm |title=Childline India Foundation : Documents – Cause ViewPoint – Child Sexual Abuse – The Law and the Lacuna |publisher=Childlineindia.org.in |date=19 January 2010 |access-date=14 May 2012 |archive-date=15 May 2012 |archive-url=https://web.archive.org/web/20120515234236/http://www.childlineindia.org.in/child-sexual-abuse-law-and-lacuna.htm |url-status=live }} was the only specific piece of child abuse legislation before the 2012 Act. Child sexual abuse was prosecuted under the following sections of the Indian Penal Code:

• I.P.C. (1860) 375 - Rape
• I.P.C. (1860) 354 - Outraging the modesty of a woman
• I.P.C. (1860) 377 - Unnatural offences

However, the IPC could not effectively protect the child due to various loopholes like:{{Citation needed|date=October 2022}}

• IPC 375 does not protect male victims or anyone from sexual acts of penetration other than "traditional" peno-vaginal intercourse. [https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424 IPC 375] {{Webarchive|url=https://web.archive.org/web/20210613081847/https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424|date=June 13, 2021}}
• IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a compoundable offence. Further, it does not protect the "modesty" of a male child.[https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=394 IPC 354]{{Webarchive|url=https://web.archive.org/web/20231212033451/https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=394|date=December 12, 2023}}
• IPC 377 does not define the term "unnatural offences". It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalise sexual abuse of children.[https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=434 IPC 377] {{Webarchive|url=https://web.archive.org/web/20231107161859/https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=434|date=November 7, 2023}}

The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

The POCSO Act specifies a variety of offences under which an accused can be punished. It recognizes forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too. Offences under the act include:

• Penetrative Sexual Assault: Insertion of penis/object/another body part in child's vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
• Sexual Assault: When a person touches the child with sexual intent, or makes the child touch them or someone else
• Sexual Harassment: passing sexually cultured remark, sexual gesture/noise, repeatedly following, flashing, etc.
• Child Pornography
• Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault{{Cite web |last=Ajeet |first=Kumar |title=What is the POCSO Act? {{!}} Key Provisions, Challenges |date=17 June 2023 |url=https://www.ngopartner.co.in/pocso-act/ |access-date=2023-08-16 |language=en-US}}

The act is gender-neutral, both for children and for the accused. With respect to pornography, the act also criminalizes watching or collection of pornographic content involving children. The Act makes abetment (encouragement) of child sexual abuse an offence. In 2019, the POCSO Act was amended and made more stringent, by raising the minimum punishment for penetrative assault from 7 to 10 years and 20 years if the victim was below 16 years in age, with a maximum punishment of life imprisonment with a provision for the death penalty for aggravated penetrative assault.{{Cite web |date=2019-08-10 |title=Explained: How the POCSO Act has been amended |url=https://indianexpress.com/article/explained/explained-how-the-pocso-act-has-been-amended-5894982/ |access-date=2023-08-12 |website=The Indian Express |language=en}}{{Cite web |date=2018-12-29 |title=Child abuse: More death penalty, longer jail terms |url=https://indianexpress.com/article/india/pocso-child-abuse-sexual-harassment-cabinet-meeting-5514445/ |access-date=2023-08-12 |website=The Indian Express |language=en}}{{Cite news |date=2019-07-10 |title=Government approves changes in POCSO Act, includes death penalty for sexual offences against children |work=The Economic Times |url=https://economictimes.indiatimes.com/news/politics-and-nation/government-approves-changes-in-pocso-act-includes-death-penalty-for-sexual-offences-against-children/articleshow/70159690.cms |access-date=2023-08-12 |issn=0013-0389}}

It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The child friendly process aims to minimize trauma felt by the victim, eliminate the possibility of revictimization and to protect against intimidation.{{Cite book |url=https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf |title=Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 |publisher=Ministry of Women and Child development |date=September 2013 |pages=64,65}}

A Victim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age.{{Cite web | url=https://pib.gov.in/PressReleseDetail.aspx?PRID=1549885 | title=Press Information Bureau | access-date=9 April 2022 | archive-date=9 April 2022 | archive-url=https://web.archive.org/web/20220409133122/https://pib.gov.in/PressReleseDetail.aspx?PRID=1549885 | url-status=live }}

A sexually abused child is considered as "child in need of care and protection" under Juvenile Justice (Care and Protection of Children) Act, 2015.http://cara.nic.in/PDF/JJ%20act%202015.pdf {{Webarchive|url=https://web.archive.org/web/20190402181542/http://cara.nic.in/PDF/JJ%20act%202015.pdf |date=2 April 2019 }}, Section 2(14) Police officer should therefore inform the Child Welfare Committee (CWC) about every case under the Act within 24 hours.Section 19 CWC can appoint a support person for the child who will be responsible for psycho-social well-being of the child. This support person will also liaise with the police, and keep the child and child's family informed about progress in the case. Reporting can be done through the toll free number 1098.http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=284&lid=722 {{Webarchive|url=https://web.archive.org/web/20190304225430/http://ncpcr.gov.in/showfile.php?lang=1&level=1&&sublinkid=284&lid=722 |date=4 March 2019 }} Rule 4(7)

The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability.

A recent case had been filed in the SC where a woman, whose biological age was 38 years but with mental age of 6 years, was raped. The victim's advocate argued that "failure to consider the mental age will be an attack on the very purpose of act." SC held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick, rather than referring to a person having mental retardation. The court said while awarding maximum compensation to a rape victim who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well. The victim suffers from cerebral palsy.{{cite web |last1=Mahapatra |first1=Dhananjay |date=3 March 2017 |title=POCSO: Is a 40-year-old woman with mental age of six entitled to compensation under POCSO? |url=https://timesofindia.indiatimes.com/india/is-a-40-year-old-woman-with-mental-age-of-six-entitled-to-compensation-under-pocso/articleshow/57441310.cms |website=The Times of India |language=en |access-date=6 June 2019 |archive-date=9 March 2017 |archive-url=https://web.archive.org/web/20170309092739/http://timesofindia.indiatimes.com/india/is-a-40-year-old-woman-with-mental-age-of-six-entitled-to-compensation-under-pocso/articleshow/57441310.cms |url-status=live }}{{cite web |date=10 March 2017 |title=Does 'age' encompass mental age? |url=https://www.thehindu.com/opinion/op-ed/does-age-encompass-mental-age/article17436626.ece |website=The Hindu |language=en-IN |access-date=6 June 2019 |archive-date=6 July 2022 |archive-url=https://web.archive.org/web/20220706003514/https://www.thehindu.com/opinion/op-ed/does-age-encompass-mental-age/article17436626.ece |url-status=live }}

The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.

According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.Section 20 Many child rights and women rights organizations have criticized this provision.{{Cite web|url=https://www.legallyindia.com/views/entry/mandatory-reporting-under-pocso-are-we-ready|title=Mandatory Reporting Under POCSO: Are We Ready?|last=JILSblog|website=www.legallyindia.com|date=27 June 2015 |language=en-gb|access-date=2019-08-20|archive-date=23 March 2019|archive-url=https://web.archive.org/web/20190323105300/https://www.legallyindia.com/views/entry/mandatory-reporting-under-pocso-are-we-ready|url-status=live}} According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of the criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.

Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim is often unrepresented.{{Cite web|url=https://priyangee.com/?p=40|title=India's justice system hardly cares about what the victim wants, and this must change|last=Priyangee|date=2018-05-18|website=Law{{!}} Human rights{{!}} Education|language=en-US|access-date=2019-08-20|archive-date=27 August 2018|archive-url=https://web.archive.org/web/20180827225957/http://priyangee.com/?p=40|url-status=dead}}

The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual acts will also be punished under this law; this coupled with the need for mandatory reporting has led to the criminalisation of consensual relationships between adolescents.{{Cite web |last=Jain |first=Mahima |title=The law that criminalises sex between young people in India |url=https://scroll.in/article/1018472/the-law-that-criminalises-sex-between-young-people-in-india |access-date=2022-03-02 |website=Scroll.in |date=2 March 2022 |language=en-US |archive-date=2 March 2022 |archive-url=https://web.archive.org/web/20220302142131/https://scroll.in/article/1018472/the-law-that-criminalises-sex-between-young-people-in-india |url-status=live }} This is especially a concern where an adolescent is in a relationship with someone from a different caste, or religion. Parents have filed cases under this Act to 'punish' relationships they do not approve of.{{Cite web|url=http://www.tarshi.net/inplainspeak/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/|title=Love and Sex in the Time of the POCSO Act, 2012 • In Plainspeak|date=2014-06-01|website=In Plainspeak|language=en-US|access-date=2019-08-20|archive-date=28 June 2019|archive-url=https://web.archive.org/web/20190628043028/http://www.tarshi.net/inplainspeak/voices-love-and-sex-in-the-time-of-the-pocso-act-2012/|url-status=live}} In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalise consenting relationships at the request of the parents of the girl.{{Cite news |last=S |first=Rukmini |date=2015-12-22 |title=Why the FIR doesn't tell you the whole story |language=en-IN |work=The Hindu |url=https://www.thehindu.com/opinion/op-ed/rukmini-s-writes-about-the-mumbai-sessions-court-rulings-on-sexual-assault-during-2015-why-the-fir-doesnt-tell-you-the-whole-story/article8014815.ece |access-date=2022-03-02 |issn=0971-751X |archive-date=26 January 2022 |archive-url=https://web.archive.org/web/20220126064002/https://www.thehindu.com/opinion/op-ed/rukmini-s-writes-about-the-mumbai-sessions-court-rulings-on-sexual-assault-during-2015-why-the-fir-doesnt-tell-you-the-whole-story/article8014815.ece |url-status=live }}

In contrast to the 2011 act, an earlier draft of the bill in 2001 did not punish consensual sex if at least one of the partners were above the age of 16, as did section 375 of the Indian Penal Code. The change from this to the age of 18 in the final act was criticized at the time as it was feared that this would allow and encourage unjustified complaints aimed at penalizing consensual relationships.{{Cite news |date=26 May 2012 |title=Good act, bad provision |work=The Hindu |url=http://www.thehindu.com/opinion/editorial/good-act-bad-provision/article3456804.ece |url-status=live |access-date=9 September 2014 |archive-url=https://web.archive.org/web/20210505200428/https://www.thehindu.com/opinion/editorial/good-act-bad-provision/article3456804.ece |archive-date=5 May 2021}}

• Sakshi v. Union of India{{Cite web |date=2020-12-06 |title=Sakshi v. Union of India |url=https://lexpeeps.in/sakshi-v-union-of-india/ |access-date=2022-07-29 |website=Lexpeeps |language=en-US |archive-date=29 July 2022 |archive-url=https://web.archive.org/web/20220729125356/https://lexpeeps.in/sakshi-v-union-of-india/ |url-status=live }}{{Cite web |last=barelawindia |date=2021-07-03 |title=Sakshi vs Union of India |url=https://www.barelaw.in/sakshi-vs-union-of-india/ |access-date=2022-07-29 |website=BareLaw.in |language=en-US |archive-date=20 August 2022 |archive-url=https://web.archive.org/web/20220820185852/https://www.barelaw.in/sakshi-vs-union-of-india/ |url-status=live }}
• Independent Thought v. Union of India{{Cite web |title=Independent Thought vs. Union of India and Anr. |url=https://privacylibrary.ccgnlud.org/case/independent-thought-vs-union-of-india-and-ors#:~:text=In%202013,%20a%20child%20rights,of%2015%20and%2018%20years. |access-date=2022-07-29 |website=privacylibrary.ccgnlud.org |archive-date=4 July 2022 |archive-url=https://web.archive.org/web/20220704112707/https://privacylibrary.ccgnlud.org/case/independent-thought-vs-union-of-india-and-ors#:~:text=In%202013,%20a%20child%20rights,of%2015%20and%2018%20years. |url-status=live }}
• Attorney General for India v. Satish and another (2021){{Cite web |title=Skin To Skin Touch Not Essential For Offence Of Sexual Assault Under POCSO Act – Supreme Court - Trials & Appeals & Compensation - India |url=https://www.mondaq.com/india/trials-appeals-compensation/1135636/skin-to-skin-touch-not-essential-for-offence-of-sexual-assault-under-pocso-act-supreme-court |access-date=2022-07-29 |website=www.mondaq.com |archive-date=29 July 2022 |archive-url=https://web.archive.org/web/20220729125356/https://www.mondaq.com/india/trials-appeals-compensation/1135636/skin-to-skin-touch-not-essential-for-offence-of-sexual-assault-under-pocso-act-supreme-court |url-status=live }}
• Alakh Alok Srivastava v. Union of India and Others (2018){{Cite web |title=Alakh Alok Srivastava v Union of India and Others on 31 January 2018 - Judgement - LawyerServices |url=https://www.lawyerservices.in/Alakh-Alok-Srivastava-Versus-Union-of-India-and-Others-2018-01-31 |access-date=2022-07-29 |website=www.lawyerservices.in |archive-date=29 July 2022 |archive-url=https://web.archive.org/web/20220729125356/https://www.lawyerservices.in/Alakh-Alok-Srivastava-Versus-Union-of-India-and-Others-2018-01-31 |url-status=live }}

• Delta Meghwal rape case
• 2017 Unnao Rape Case
• 2021 Sexual Assault Rulings by (then) Judge Pushpa Virendra Ganediwala
• 2014 Badaun gang rape allegations
• Muzaffarpur shelter case
• Kathua rape case
• 2022 Hyderabad gang rape

• Aarambh India
• Childline India
• Tulir NGO
• [https://www.haqcrc.org/ HAQ Centre for child Rights]
• [https://www.arpan.org.in/ Arpan]

• Child sexual abuse
• Law of India
• Child Sexual Abuse in India
• Ministry of Women and Child Development

{{Reflist}}

• [http://wcd.nic.in/act/protectionbill.pdf Protection of Children Against Sexual Offences Bill, 2011]

Category:Child welfare in India

Laws

Category:Sex laws in India

Sexual Abuse Laws