The Protection of Children from Sexual Offences Act, 2012 Explained.
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The last few years have seen an increase in instances of child sexual abuse. In light of this, the Ministry for Women and Child Development proposed the Protection of Children from Sexual Offences (POSCO) Act, 2012 to the Central Government. Following the best interest of the child principle from the United Nations Convention on Right of the Child (UNCRC), this Act was enacted to protect children below 18 years old to maintain the child’s physical, emotional intellectual and social wellbeing. Broadly, this Act covers penetrative sexual assault, non-penetrative sexual assault, sexual harassment and child pornography; while also protecting the privacy and confidentiality of the child.
UNCRC mandates that every State is responsible for maintaining the best interest of the child to ensure:
- No child is coerced to engage in unlawful sexual activity;
- No child to be engaged in prostitution and related unlawful activities;
- No child to be engaged in pornography and related terms.
What amounts to penetrative sexual assault?
When a person –
(a) penetrates his penis into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) inserts any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
Any person convicted of penetrative sexual assault will be imprisoned for 10 years to life, and also be liable to pay fine.
What amounts to non-penetrative sexual assault?
When a person touches the vagina, penis, anus or breasts of the child or makes the child touch these parts of another person, or does any act with sexual intention involving physical contact but without any penetration amounts to non-penetrative sexual assault.
Any person found guilty of this offence will be punished with imprisonment of 3-5 years along with fine.
What amounts to sexual harassment?
When a person with sexual intent –
(a) Utters any word, makes any sound, makes and gesture, exhibits any object or part of body;
(b) Makes a child exhibit his body or part of to be seen by such person or any other person;
(c) Shows any object with pornographic content;
(d) Follows or contacts a child electronically, digitally or directly;
(e) Entices a child for pornography;
will be punishable with imprisonment up to 3 years along with fine.
What do aggravated offences mean?
Both penetrative and non-penetrative sexual assault have “aggravated” forms of assault. The Act lists out different forms of aggravated sexual assault. They are as follows, but not limited to:
- If the child in question is either mentally ill or physically disabled, or
- When the abuse/assault is committed by the person in trust of the child, for instance, by a family member, teacher, doctor, management of jail or shelter home, government official, police official or armed force official;
- Where the accused person abuses the child below the age of 12;
- Whoever commits sexual assault on a child, which:
- physically incapacitates the child or causes the child to become mentally ill as defined or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently;
- in the case of female child, makes the child pregnant as a consequence of sexual assault;
- inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering her or him physically incapacitated, or mentally ill to perform regular tasks;
5. Whoever commits penetrative sexual assault on a child and attempts to murder the child.
When a person is found guilty of aggravated sexual assault, he/she will be punished with imprisonment for minimum 20 years extendable to completing of natural life in prison or death, and also be liable to pay fine. This provision* for sexual assault (particularly rape) of minor girls was brought in by a recent Criminal Law Amendment which stated that rape of minor girl below the age of 12 will lead to imprisonment for a minimum of 20 years but can be extended to death. Whilst the Amendment focused on the provisions for girls, the punishment for rape of boys below 12 stands at 10 years to life imprisonment and for boys below 18 stands at 7 years to life imprisonment.
What amounts to child pornography?
When a child is used for the purpose of “sexual gratification”, regardless of the medium it is carried out in, including:
- Representation of the sexual organ of the child;
- Using a child in a sexually stimulating act;
- Obscene representation of the child;
will be liable for punishment for up to 5 years and fine. On account of the second conviction, the accused will be liable for punishment for up to 7 years and fine.
However, where the child is used for pornography and the person in question himself participated in:
- Penetrative sexual assault, he shall be punished with imprisonment of 10 years to life and fine;
- Aggravated penetrative sexual assault, he shall be punished with imprisonment for life and fine;
- Sexual assault, he shall be punished with imprisonment up to 6 – 8 years and fine;
- Aggravated sexual assault, he shall be punished with imprisonment for 8-10 years and fine.
Where a person stores pornographic material in any form will be punished with imprisonment up to 3 years and fine.
Notwithstanding anything mentioned in this Act, where an offence has been committed that overlaps with the provisions of the Indian Penal Code, the punishment whichever is greater in degree will apply.
Abetment of an Offence:
A person is considered to abet the offence if that person:
– Instigates any person to commit any offence mentioned in this Act;
– Engaged with anyone in any conspiracy of committing any such offence;
– Illegally aids the commission of the offence through an act or omission to act.
Will be punished with the same punishment provided for that offence. Which means to say that any person who commits an offence and any person who abets in committing the offence will be treated with the same punishment, regardless of the extent of offence committed.
Attempting of an Offence:
When a person attempts to commit any offence mentioned under this Act, or does anything towards the commission of the offence will be punished as if the offence is committed itself. The punishment for attempting any such offence would be for the same term of imprisonment and fine as provided for that offence.
Reporting of an Offence:
This Act casts a special duty on the person (including a child) who has apprehension or knowledge that such offence as mentioned under this Act is committed to inform the local police or Special Juvenile Police Unit. All reports made under this Act are to be recorded in writing. When a report is made by a child, the language is required to be simple for the child to understand the contents thoroughly. Where the child making such a report is in need of care and protection, the local police can make a written statement and send the child to a shelter home for protection. It is also the duty of the police to ensure that the report is sent to the local Child Welfare Committee within 24 hours of the report being prepared. The Criminal Law (Amendment) Act, 2018, also imposes an obligation to complete the investigation of rape cases within 2 months of reporting. Apprehension here would mean reasonable belief of the possibility of the offence occurring or going to occur.
Special Juvenile Police Unit is created in every District as mandated by the Juvenile Justice (Care and Protection of Children) Act, 2015. This Unit consists of members from:
- A Chairman who would either be the Deputy Superintendent of Police or District Human Rights Cell or Assistant Commissioner of Police;
○ All Child Welfare Police Officers of all stations within that jurisdiction;
○ Two Social Workers attached to the District Child Protection Officer.
The medical examination of the child with respect to whom the offence is being committed has to be undertaken by a registered medical practitioner and in the presence of a parent or trusted adult. Where the child is a girl, the medical practitioner has to be a woman. Such medical examination shall be arranged within 24 hours of the receipt of information by the local police.
Procedure for Recording Statement of a Child:
Where a child is giving a statement to the police on any offence, the Act mandates certain rules to be followed:
- Where to record – at the house of the child or choice of place of the child;
- Who records – a female officer not below the rank of sub-inspector;
- How to record:
- The police officer recording shall not be in uniform;
- The police officer investigating should ensure that the child does not come in contact with the accused at any point of time;
- The Police officer to ensure that no child is kept in the Police station overnight;
- The police officer to ensure that the identity of the child is not revealed under any circumstance;
- Statement to be recorded in presence of the parents or whom the child has trust;
- Record the statement in audio-electronic means;
- Take the assistance of a translator or special educator where needed to support the child.
The obligation on the Media to Report an Offence:
When any person of the media (hotel, studio, photographic facility, etc.) comes across any content or material which is sexually exploitative of the child in any medium, they are bound to report to their local police.
Punishment for Failure to Report an Offence or False Reporting:
Any person who has reasonable apprehension or knowledge of any offence being committed is bound to report it with the local police. This calls for a mandatory reporting of cases for anyone with the slightest knowledge and the failure to report will impose a punishment of six months imprisonment and fine. Similarly, any person who knowingly gives false representation to the police regarding a crime will be punished with a term of six months imprisonment and fine. However, such obligations do not extend to a child.
Privacy and Confidentiality:
No person belonging to the Media can publish any information about any child falling under the purview of this Act which may have an effect on the child’s reputation or privacy, without having full authentic information of the child.
No reports or publication shall have the name, address, photograph, family details or any other information that could disclose the identity of the child unless the court gives its permission, where such disclosure is in the interest of the child.
Any person failing to comply with the privacy and confidentiality provisions of the Act shall be imprisoned for 6-12 months and be liable for fine.
Special Courts or Child-Friendly Courts:
Every district is constituted with a Special Court or Court of Sessions to try cases under this Act in such a manner conducive for the child to freely express themselves. The motive behind such “Child-Friendly Courts” is to avoid subjecting children to rigours of the systems. This implies that the child will not be called to testify multiple times. The child will also not be subjected to aggressive questioning or character assassination and instead, the Court will ensure that the dignity of the child is always maintained.
The Act also imposes a time frame for conducting the trial. Where evidence needs to be collected from the child, it shall be completed within 30 days from when the Court takes cognizance of the case. The entire trial procedure as far as possible should be completed within one year.
Public Awareness of the Act:
The Central Government and State Government have to take measures to:
- Publicly display the provision of the Act in any medium or platform;
- Members of Central and State Government, including the police, are imparted periodic training on implementation of the Act.
*Note: Punishment of rape of child mentioned herein is updated according to the Criminal Law (Amendment) Act, 2018.
For further information on POCSO implementation, toolkits, preventive strategies of abuse and authorities involved, visit the National Commission for Protection of Child Rights portal.
About the Author:
Manasa is an alumna of School of Law, Christ University, Bangalore. Currently, she works with Aangan Trust, a child protection organisation based out of Mumbai. She also Heads the Research and Documentation team with the Red Elephant Foundation. She has a keen interest in working around children and gender, international law and peace. As a researcher in law and a helpless bystander of violence against women and children, she wishes to focus her line of work in understanding the complexity around gender spewed violence.