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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
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.”
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