Know About The Protection Of Children From Sexual Offences (Amendment) Act, 2019

TW: Child Sexual Abuse

The Protection of Children from Sexual Offences (Amendment) Act, 2019 is a special law that was first brought into effect in 2012 to deal with child sexual abuse cases. It is highly comprehensive in nature and aims to protect children from the offences of sexual assault, sexual harassment and pornography.

According to the Act, a ‘child’ is anyone below the age of 18 years. Under POCSO, the following activities, when committed against a child, amount to a criminal offence:

Penetrative Sexual Assault:

This includes cases where a person-

1. Penetrates his penis into the vagina, mouth, urethra or anus of a child, or
2. Makes a child do the same, or
3. Inserts any other object into the child’s body, or
4. Applies his mouth to a child’s body parts.

Aggravated Penetrative Sexual Assault:

This includes-

1. Cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child.
2. Cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others.
3. Assault resulting in death of child.
4. Assault committed during a natural calamity, or in any similar situations of violence.

Sexual Assault:

Sexual assault includes cases-

1. Where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration.
2. Where the assault is committed during a natural calamity.
3. Where the person administers or helps in administering any hormone or any chemical substance to a child for the purpose of attaining early sexual maturity.

Aggravated Sexual Assault:

It includes cases where sexual assault (as specified above) is aggravated because it has been committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, doctor, member of the armed forces, public servant, hospital staff, etc., or when the abused child is mentally ill.

Sexual Harassment

Sexual harassment on a child is committed when a person with sexual intent:

1. Says a word, or makes any sound or gesture, or exhibits any object or part of the body, with the intention that the child will notice this act.
2. Makes the child exhibit his body such that other(s) can see it.
3. Repeatedly/constantly follows or watches or contacts the child.
4. Shows any object to a child for pornographic purposes.

Using Child For Pornographic purposes:

The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer generated image indistinguishable from an actual child.

A person is guilty of using a child for pornographic purposes if

1. He uses a child in any form of media for the purpose of sexual gratification.
2. He uses children for pornographic purposes resulting in sexual assault.

Storage Of Pornographic Material:

The Act penalises:

1. Storage of pornographic material for commercial purposes.
2. Failing to destroy, or delete, or report pornographic material involving a child.
3. Transmitting, displaying, distributing such material except for the purpose of reporting it.

The POCSO Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. The punishment for each of the aforementioned offences is as follows:

POCSO also makes the reporting of child sexual offences mandatory. This means that the person who has knowledge that a child has been sexually abused, also has the legal duty to report the offence. In case of a failure to report, that person may face imprisonment for 6 months and/or a fine.

This emphasis on reporting is born out of the understanding that if suspected victims of CSA are identified in time, then they can be prevented from falling prey to further harm. In contrast, if such cases are not detected and reported, then the child may carry the scars of the abuse throughout their lives, and in some cases, even end up repeating the pattern of abuse with someone else.

The Act attempts to avoid re-victimization and ensure that the child’s best interests are safeguarded throughout the judicial process. This is achieved through various provisions like, incorporating child-friendly mechanisms for reporting, recording of evidence, and investigation; speedy trial of offences, trial in-camera and without revealing the identity of the child through designated Special Courts.

Moreover, the Preamble to the POCSO Act mentions certain principles which have to be adhered to by all involved parties, including the courts, police, Child Welfare Committee (CWC), Special Courts, NGOs, and all government bodies. Some of them are:

• Ensuring the best interests of the child
• Respecting the child’s right to life and survival
• Treating the child with dignity and compassion, and without any discrimination
• Protecting the child’s right to be heard and informed
• Honouring the child’s right to safety, privacy, and compensation

Though the POCSO Act is considered an excellent piece of legislation, one which recognizes almost every known form of sexual abuse against children as punishable offence, it has come under the scanner for various reasons. Some points of criticism are:

• Gender-bias: All the provisions of the Act use the pronoun ‘he’ while referring to the accused, which means that only males can be booked for child sexual offences under POCSO. This is seen as unreasonable because available data states that even females are perpetrators, especially in cases where a male child is abused.
• Death Penalty: The Act makes it possible for the court to award death penalty in case a minor is raped, even though this happens in the rarest of rare cases. While this is intended to have a deterrent effect, opponents of death penalty have argued that this punishment may backfire. This is because many a times, the perpetrator of abuse is a family member itself, and this penalty may discourage the reporting of the crime. Some experts have also opined how the death penalty may increase the incidence of murder with child sexual abuse since the perpetrator would find it to be an easy way to silence the abused child.
• Treatment Cost: POCSO makes it a legal obligation of the hospital/clinic/medical centre to provide free treatment to the CSA survivor. If there are lack of proper medical facilities or a costly procedure is required to be conducted, then there is a possibility that the hospital/ clinic/medical centre may provide substandard care or deprive the survivor of it altogether. Therefore, it has been argued that the State governments should take responsibility of reimbursing the cost of treatment.

The POCSO Act is a landmark law which, if enacted properly, has the potential to deter perpetrators and bring down the occurrence of child sexual offences, while also ensuring that the survivors receive proper care and justice. It is the duty of all stakeholders, including government bodies, police, medical professionals, courts, and welfare committees to adopt a joint multi-disciplinary approach in order to protect childhood and innocence.