Context: 

• Reforming the Protection of Children from Sexual Offences Act (POCSO) law is necessary to account for the reporting of historical child sexual abuse.

 

More in the news:

• Through the Protection of Children from Sexual Offences Act (POCSO) over the last nine years, India has sought to protect children from:
  • Offences of sexual assault, 
  • Sexual harassment and 
  • Pornography.
• In line with the UN Convention on the Rights of the Child, India must revise its legal and procedural methods to deal with historical child sexual abuse.

 

About Historical Child Abuse:

• It refers to incidents that are reported late. 
  • Child abuse is not just confined to institutions but also includes intra-familial abuse where it is difficult for the child to report the offence or offender at the earliest point in time. 
  • Every act of crime must be reported at the earliest and any delay in filing the complaint dilutes the efficacy of the prosecution’s case.
• The delays in reporting sexual abuse after a considerable passage of time may be due to the factors of:
  • Threats from the perpetrator, 
  • Fear of public humiliation,
  • Absence of trustworthy confidant, and
  • The accommodation syndrome (where the child keeps the abuse a secret because of the fear that no one will believe the abuse).

 

What are Current Laws:

• Provisions in the Criminal Procedure Code (CrPC) prohibit judicial magistrates from taking cognisance of cases beyond a specific time period.
• Cases involving child sexual abuse not amounting to rape as defined under Section 376 of the Indian Penal Code (IPC).
• Prior to the enactment of POCSO in 2012, would presumably be classified under the lesser, and somewhat frivolous, offence of outraging the modesty of a woman (Section 354 of the IPC). 
• Any reporting of an offence, under Section 354 of the IPC, more than three years after the date of the incident would be barred by the CrPC. 
• This presents a legal barrier against the registration of historical child sexual offences which took place before 2012.
• The limitation provisions were incorporated into the CrPC to avert delayed prosecution but child sexual abuse must not be viewed in the same manner as other criminal offences. 
• One of the major drawbacks of delayed reporting is the lack of evidence to advance prosecution.
• Less than 5% chance for gathering direct physical and medical evidence in such cases. 

 

Need to review the law:

• A recent case of Purnima Govindarajulu in 2018 who launched an online campaign to raise awareness leading to:
• The Union Ministry of Law and Justice clarified that no time limit shall apply for POCSO cases. 
• It still fails to address the plight of children who were victims of historical sexual abuse before 2012. 
• The Union government must frame guidelines to direct effective and purposeful prosecution in cases that are not covered by the POCSO.

 

 

What is POCSO act?

• The act was enacted in 2012 especially to protect children aged less than 18 from sexual assault.
• It admitted that a number of sexual offences against children were neither specifically provided for in existing laws nor adequately penalised.
• Therefore an offence against children needs to be explicitly defined and countered through proportionate penalties so that it acts as an effective deterrence.
• The UN Convention on the Rights of the Child which was ratified by India in 1992 requires sexual exploitation and sexual abuse to be addressed as heinous crimes.

 

How does POCSO and IPC deal with sexual assault?

• One, In IPC the definition of assault or criminal force to woman with intent to outrage her modesty is very generic.
• In POCSO, the acts of sexual assault are explicitly mentioned such as touching various private parts or doing any other act which involves physical contact without penetration.
• However it excludes rape which requires penetration; otherwise the scope of ‘sexual assault’ under POCSO and ‘outraging modesty of a woman’ under the IPC is the same.
• Two, IPC provides punishment for the offence irrespective of any age of the victim but POCSO is specific as it is for the protection of children.
• Section 7 of the POCSO Act says that whoever with sexual intent touches the breast of the child is said to commit sexual assault & the Section 8 of Act provides minimum imprisonment of 3 years.
• Whereas Section 354 of the IPC lays down a minimum of one year imprisonment for outraging the modesty of a woman.

 

Protection of Children from Sexual Offences Act, 2012

• It was enacted to protect the children from offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well-being of children.
• It defines a child as any person below eighteen years of age and regards the best interests and welfare of the child as a matter of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
• It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
• It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.
• It also casts the police in the role of child protectors during the investigative process.
• The Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.
• It was amended in August 2019  to provide more stringent punishment, including the death penalty, for sexual crimes against children.