Child Sex Abuse (CSA) is a growing concern. An urgent need to address CSA also emerges from the secrecy such incidents are shrouded in and the tendency of parents/parental figures to hide such cases in an attempt to protect a false idea of familial ‘honour’. This coupled with immense internalised blaming on the part of children and the lack of adequate sex education or dissemination of information to children about their bodies, their rights and their bodily autonomy makes the need for a strong law very important. CSA in India is governed by the Protection of Children from Sexual Offences Act, 2012 (POCSO). The Act aims to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for related matters. This law is gender neutral.
What sexual offences against children are recognised under this Act?
- Penetrative sexual assault
Penetrative sexual assault is said to take place when there is any form of sexual activity with a child that involves any form of insertion. A person can be accused of penetrative sexual assault if they:
- Insert a male sexual organ (penis) into the child’s mouth or private body parts; or
- Insert any object into the child’s private body parts; or
- Manipulate the child into inserting a body part, sexual organ or object into their own private parts or that of another; or
- Apply their mouth to a child’s private body parts or make the child do that to anybody’s private body parts.
The punishment for this crime is a jail term of 7 years to life and a fine.
- Aggravated Penetrative sexual assault
Penetrative sexual assault against a child is considered as an aggravated penetrative sexual assault if either the person committing the act(s) mentioned above is in a position of authority or trust in relation to that child or if the nature of assault is particularly heinous.
Aggravated penetrative sexual assault also includes acts where more than one person (gang) commits penetrative sexual assault on the child, acts that were committed using violent weapons, acts that cause grievous hurt or injury to the child’s sexual organs, acts that result in physical or mental disability/impairment of the child, acts where the offender tried to murder the child, an act committed during a riot, acts where the offender takes advantage of the physical or mental disability of the child, the act transfers HIV or any dangerous disease to the child, in the case of a female child who is already pregnant or acts that leave her pregnant, acts of repeated assault, acts against children below the age of twelve etc.
The punishment for this crime is a rigorous jail term of 10 years to life and a fine.
- Sexual Assault
Sexual activity that involves touching the child but does not includes acts of penetration. Making a child touch the sexual organs of someone else or touching their private parts is sexual assault.
The punishment for this crime is a jail term of 3 to 5 years and a fine.
- Aggravated Sexual Assault
Sexual assault against a child is considered to be aggravated sexual assault if either the person committing the act(s) mentioned above is in a position of authority or trust in relation to that child or if the nature of assault is particularly heinous. Similar conditions as covered under aggravated penetrative sexual assault are mentioned here.
The punishment for this crime is a jail term of 5 to 7 years and a fine.
- Sexual Harassment
Sexual harassment here is defined as doing any of the following acts with a sexual intent:
- Uttering of any word, making any sound or gesture or exhibiting any object or body part; or
- Making a child exhibit their body or their body part(s) to anybody; or
- Showing a child any pornographic content; or
- Constantly watching or contacting a child physically, electronically or digitally; or
- Threatening the child of exposure of any part(s) of their body or of the child engaged in any sexual act through any form of media; or
- Enticing a child for pornographic purposes.
The punishment for this crime is a jail term of no more than 3 years and a fine.
- Using A Child For Pornographic Purposes
Using a child for any pornographic purpose, either as part of the content or for any production purposes is a crime. The pornography could be in any form or medium.
The punishment for making the child take part in making or distributing porn in any way renders a jail term of upto 7 years and the person is liable to pay a fine. In cases where assault of any sexual kind has occurred during this process, the punishment is more severe.
Is helping someone commit a sexual crime against a child punishable?
Abetment is the aiding of someone in committing a crime. Abetment of any sexual crime as given under this Act carry the same liability as actually performing the criminal act.
Is trying to commit a sexual crime punishable under this Act?
Yes. An attempt to commit any sexual crime as listed under this Act is punishable. The punishment is to be half the jail term of the actual criminal act being committed or fine or both.
Are you liable to report a case of CSA if you know of it?
Yes. Under this Act a person is also liable to be held guilty if they fail to report a case when they know a case of CSA has been or may have been committed. The punishment is a fine or a jail term of up to 6 months or both. While children can also report such cases that they may know of, they cannot be punished for not reporting such a crime. If an employer having cause to believe an employee could have been committing an act of CSA does not report such act, they can be punished with a jail term of upto 1 year and a fine.
What procedures must be kept in mind while questioning a child?
The police must ensure that they question the child in a manner that does not scare or seem threatening to the child. It is deemed preferable for the questioning to be done by a woman police officer in plainclothes and at the child’s residence. It must be ensured by the police officer that the child does not come into contact with the offender at any point and that the identity of the child is protected from the media. At no point should the child be kept overnight at the police station.
When the case comes before a judge, the judge is to record the statement of the child as spoken by the child, this must be done without the child’s lawyer being present. It is advised that the questioning/recording of statement of the child is done when the child is in the presence of someone they trust and preferably recorded in an audiovisual format. The help of a translator, interpreter or a special educator may be taken as required.
What are the provisions regarding the medical examination of the child?
The child should be comfortable with the examination and it should be conducted in the presence of a parent or a person the child trusts, if such person is not available, the examination must be done in the presence of a woman appointed by the head of the medical institution. A woman doctor is supposed to examine a female child.
The examination can be done even without an FIR being filed and should be done within 24 hours.
What is the role of the Child Welfare Committee?
The police must report cases of CSA to the Special Courts and Child Welfare Committees (CWC) within 24 hours. The CWC undertake further action for relocation, care and protection of the child.
What are the rules regarding trials in cases of CSA?
There are Special Courts set up to deal with cases of CSA. These Courts are meant to follow a procedure that ensures that the child feels safe and comfortable. The Court must try to complete the trial within one year. The child must not be made to come face to face with the offender. The trial is to only be open to the people related to the case, the parents and people the child trusts
What is the new online complaints mechanism set up by the Government?
Online complaints under POCSO can be made at http://ncpcr.gov.in/ by clicking at the POCSO E-Box section. It enables a simple way for children to register online complaints regarding CSA and provides information and support.
What if a false complaint is made?
A false complaint made intentionally is punishable with a fine or a jail term of 6 months or both if the complaint is made against an adult; if the complaint is made against a child, the punishment is a fine or a jail term of 1 year or both. A child making a false complaint cannot be punished.
What if the sexual act involving the child is consensual?
There is currently a debate about whether it should be considered assault if the act is done with consent of the child.
What rules must the media follow while reporting cases of CSA?
While reporting cases of CSA, all media channels have a responsibility to find out and represent only completely accurate information. They cannot reveal the identity or any identifiers regarding the child unless the Special Court grants written permission for such disclosure. Where any of these rules are broken, the owner of the media channel and the employee who revealed such information will be responsible. The punishment here is a fine or jail time of 6 to 12 months or both.
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