THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Sexual offenses against children have been increasing which is a great threat to society. Sexual offenses have been given under IPC. IPC describes the sexual offense as “whoever by choice has carnal intercourse in opposition to the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term up to ten years, and shall also be liable to fine.”

The Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POSCO) Act, 2012 to address the horrendous crimes of child sexual abuse and exploitation through clearer and more harsh legal procedures. The Act was passed to protect children from sexual assault, harassment and pornography as well as to establish Special courts for the trial of such crimes and connected concerns and situations.

The Act was revised in 2019 to include provisions for increased penalties for certain offenses to dissuade abusers and guarantee that children have a safe, secure, and dignified upbringing. 

SALIENT FEATURES OF THE ACT

• The act is gender neutral and it priorities the child’s best interests and welfare at all stages to ensure the child’s healthy physical, emotional, intellectual, and social development.
• The Act defines a child as anybody under the age of eighteen and considers the child’s best interests and well-being to be essential at all times to ensure the child’s healthy physical, emotional, intellectual, and social development.
• It distinguishes between different types of sexual abuse, such as penetrative and non-penetrative assault, as well as sexual harassment and pornography, and considers sexual assault to be “aggravated” in certain circumstances, such as when the abused child is mentally ill or when the abuse is perpetrated by someone in a position of trust or authority over the child, such as a family member, police officer, teacher, or doctor.
• Individuals who traffic children for sexual purposes are also subject to the Act’s abetment provisions. The Act stipulates harsh punishments that are tiered according to the severity of the offense, with a maximum sentence of life imprisonment and a fine.
• It defines “child pornography” as “any visual depiction of sexually explicit activities involving a child, including photographs, videos, digital or computer-generated images indistinguishable from actual children, and images developed, adapted, or changed to appear to depict a kid.”

Punishments for Offences covered in the Act

• Penetrative Sexual Assault (Section 3) against a minor has a minimum sentence of 10 years in jail, with the possibility of life imprisonment and a fine (Section 4). Whoever performs penetrative sexual assault on a child under the age of sixteen must be punished by imprisonment for a term of not less than twenty years, but which may extend to life imprisonment, which means imprisonment for the rest of that person’s natural life, as well as a fine.
• Aggravated Penetrative Sexual Assault (Section 5) – Not less than twenty years in jail, with the possibility of life imprisonment, and a fine. (Chapter 6)
• Sexual Assault (Section 7) — Not less than three years, with the possibility of a five-year sentence, and a fine (Section 8)
• Aggravated Sexual Assault (Section 9) by a person in authority — Minimum sentence of five years, with the possibility of a maximum sentence of seven years, and a fine (Section 10)
• Child Sexual Harassment (Section 11) – three years in prison and a fine (Section 12)
• Use of a child for pornographic purposes (Section 14) — Minimum sentence of five years and a fine, with a maximum sentence of seven years and a fine if convicted again. 14th Section (1)
• Not less than ten years if a kid is used for pornographic purposes resulting in penetrative sexual assault (in case of a child below 16 years, not less than 20 years)
• Using a youngster for pornographic purposes that results in aggravated penetrative sexual assault: 20 years in prison and a fine
• Use of a minor for pornographic purposes resulting in sexual assault: three years minimum, with a maximum of five years.
• Use of a kid for pornographic purposes resulting in serious sexual assault: five years, with the possibility of a seven-year sentence.
• Any individual who maintains or possesses pornographic material involving children in any form, but fails to delete, destroy, or report it to the appropriate authority as required, to disseminate or transmit child pornography – Fine of not less than Rs 5,000; fine of not less than Rs 10,000 in the case of a second or subsequent offense.
• Any person who stores or possesses pornographic material involving a child in any form to transmit, propagate, display, or distribute in any manner at any time, except for reporting, as may be prescribed, or for use as evidence in court, shall be punished with one of the following types of imprisonment: Up to three years in prison or a fine, or both, is possible.
• On the first conviction, anyone who keeps or has pornographic information in any form involving a kid for commercial purposes faces the following penalties: Not less than three years in jail, with the possibility of being extended to five years; or a fine, or both. A second or subsequent conviction carries a sentence of at least five years and up to seven years in prison, as well as a fine.

Challenges before the Investigating Agency

The recording of the child’s statement and conducting the medical examination of the victim(s) are always difficult for the police since the child is inhibited and the parents also obstruct the process. The police frequently lack the infrastructure required to follow all of the Act’s restrictions, and the media’s main aim is to sensationalize events, making it difficult to keep the victim’s name hidden. They are under accidental pressure to offer daily updates on the progress of the investigations, and this excessive media exposure results in the disclosure of critical details about the victim and their family, allowing reporters to identify the victim. Furthermore, social worker pressure stalls the court process and makes it difficult to obtain the correct information. There is also a lack of consistency among these third-party entities. They frequently supply inaccurate information or data regarding the current situation, and their involvement with the problem is just temporary.

Because of the stigma, some victims relocate without alerting the investigating officer, and they commonly become untraceable.

The medical report was written by the doctors who examine the victim frequently using outmoded techniques and words, which weakens the prosecution case. Medical evidence’s chain of custody is frequently breached, resulting in a sample reaching a forensic laboratory after it has become unfit for examination, resulting in the loss of vital prosecution evidence. Because no particular arrangements are made to treat victims of sexual abuse on an urgent basis, most hospitals, the victim, and the police must wait a lengthy time, usually 2-3 hours, before the medical examination can begin. Furthermore, examining doctors are regularly reassigned, which creates issues during a trial when the deposition is disputed during cross-examination.

However, as part of the modified law, mitigation steps are also being made. Medical help and treatment, including X-rays, MRIs, and other diagnostics, must be supplied free of charge in cases of sexual violence, according to S. 357 of CrPC. Furthermore, under S. 166B CrPC, a hospital’s failure to treat a victim is a criminal offense punishable by up to one year in prison, a fine, or both.

Practice, Procedure, and Loopholes that derail the Act

Despite the fact that the Police are required to file an FIR as soon as possible, logistical obstacles and attempts to “solve” the dispute derail the Act’s established procedure. Many cases have been brought to light in which the police, rather than filing an FIR, attempted to arrange a marriage between the victim and the perpetrator to save the accused the humiliation of facing criminal prosecution. Such illegal practices are unjustified and should be discouraged, especially since such occurrences are routinely underreported.

Although the Sakshi Guidelines provide that the defense must submit all cross-examination questions in writing to the presiding judge and that the judge must only ask pertinent questions to the kid, it has been seen that this practice is not followed.

A leading case regarding this act is the case of baby Brianna. Brianna Lopez needed nothing more than love and undivided attention from her family when she was born on February 14, 2002. No one, however, adored her. Stephanie Lopez and Andy Walters, Brianna’s parents, took turns venting their anger toward their child. The father and uncle of the newborn took turns sexually penetrating the helpless infant. They sexually abused her and physically assaulted her.

They shoved a handkerchief in the baby’s mouth when she cried out in anguish.

Stephanie, the baby’s mother, went as far as squeezing and biting her daughter when she cried. Stephanie seemed unconcerned when Andy and Steven tormented the baby in her presence.

The trio went on a drinking binge in their home on July 18, 2002. Andy and Steven went a little too far with their assault on Brianna. They hurled her to the ceiling and stood there watching her fall. This terrible game lasted a long time, and the poor infant moaned and screamed the entire time.

Andy placed his finger, which was wrapped in a baby wipe, inside the infant’s anus the next morning. Andy then proceeded to sodomize the child with a variety of implements. Brianna’s tolerance for abuse had reached its limit. Brianna passed away shortly after being admitted to the hospital.

Stephanie was found guilty of negligent child abuse and was sentenced to 27 years in jail.

Steven was charged with first-degree criminal sexual penetration, conspiracy to commit child abuse, and intentional child abuse resulting in death. Steven was given a sentence of 57 years in jail.

Andy was charged with two charges of child abuse, conspiracy to conduct child abuse, first-degree criminal sexual penetration, and intentional child abuse resulting in death. Andy was given a sentence of 63 years in jail.

Another case was Sabari vs The inspector of Police where The Accused/Appellant was found guilty under section 363 of the Indian Penal Code (IPC) and section 5 (I) read with section 6 of the Protection of Children from Sexual Offenses Act, 2012 (POCSO) and sentenced to five years in prison and a fine of Rs. 2,000. When the crime occurred, the victim girl was a minor who was staying with her grandparents in Singalandapuram. The victim was about 17 years old at the time. On the 28th of June 2014, the victim girl inquired about her transfer certificate from her grandparents, and on the same day at 8:00 pm, she walked out to buy shampoo but never returned. The girl had been missing for six months before she was discovered, and the complaint was filed 30 days later.

The court held that because of a large number of elopement cases submitted, it is frequently noted that the real young victim who is subjected to the offense under POCSO has their justice delayed as a result of the voluminous filing of elopement cases, and so has been unfairly prioritized.

The court acknowledged that the bulk of POCSO cases are brought as a result of a relationship between teens in which the boy is forced to serve time in prison. The Accused in this case was released due to a lack of evidence.

The court stated in its ruling that “when a girl under the age of 18 is involved in a relationship with a teenage boy or a young adult, it is always a question mark as to how such a relationship could be defined, even though such a relationship would be the result of mutual innocence and biological attraction.” “A relationship between different sexes cannot be interpreted as unnatural or alien to such a partnership.”

Conclusion

Cases of Child Abuse are coming into light very often nowadays. A child is considered a blessing in India, however, they are being beaten, raped, molested, etc. They should be provided with opportunities and facilities to grow in a healthy atmosphere that respects their independence and dignity. However, because the system is not victim/survivor-centric, the obstacles established in achieving this are numerous, and its achievement is a faraway mirage.

WRITTEN BY – MS. SUJAN SHAH