Crusading against child sexual abuse through law, introspecting the POSCO

Source : http://www.legalserviceindia.com
Author : Divyalakshmi
Published on : September 21, 2015


  
Divyalakshmi's Profile and details
Deputy General Manager -- Legal at Essential Energy

Crusading against child sexual abuse through law - introspecting the POSCO

As I was reading the Judgement passed by Madras HC which granted bail to Rape accused (minor at the time of the incident) to mediate with the Victim, I just recalled an episode that I watched few days back on Savdhaan India – India fights back a crime show aired on Life Ok which focuses on real – life crime stories in India on sexual abuse and rape of an minor girl at crèche/day care. The accused was caretaker’s brother who would have been at least 10 to 12 years elder when compared with the age of the child that he abused.

Now when I look back at this Judgement passed by Madras HC it is beyond my imagination to even understand how logical is it for us to take precedence of this case and decide many more matters of such nature and ask the victims to marry the predator. Then why the law? Is this the natural justice? Will this not give levy to many more predators to rob the adolescence and childhood of many innocent children or even adults and later offer marriage as weapon to protect themselves?

The statistics on sex crimes against children in India are grim. The culture of silence, ignorance and lack of sensitivity is the main reason behind it.

The Protection of Children from Sexual Offences Act 2012 (POCSO), is the outcome of such grim behavior. A special law for the children below 18 years of age. However our lack of knowledge, the growing complexities of life is playing a major role in increasing the vulnerability of children to various and newer forms of abuse especially, if it is sexual in nature it creates a taboo around the subject matter and very importantly, the vulnerable nature of the children makes the perpetrator strong to gain sexual gratification.

Introspecting POCSO:

Salient Features:
# The POSCO Act is gender neutral
Consent of the child is irrelevant in cases under the POSCO Act.

# The POSCO Act is only applicable to child survivors and adult offenders

# Both men and women can be offenders under the POSCO Act. (Two offences, which involves penetration by the penis, can be perpetrated only by men, specifically under section mentioned below:

# Section 3: A person is said to commit “penetrative sexual assault” if (a) “he penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a child or makes the child to do so with him or any other person”; Since the words “any other person” are used in Section 3(a), women may also be offenders or victims under the second part of Section 3(a).

# Section 5(j): “Whoever commits penetrative sexual assault on a child, which...(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault.” However, even in these two offences, women can be joined as abettors under Section 16, POCSO Act.

# The POSCO under Section 19(1) makes it compulsory/mandatory for all the persons to report cases of sexual offences against children to the local police or the Special Juvenile Police Unit (“SJPU”).
Protection to the minors during the judicial process.

Provisions of Posco:

# The Police or SJPU are required to bring the matter to the attention of the Child Welfare Committee within 24 hours of receiving the report.
The statement of the minor to be recorded at his/her residence or at the place of his/her choice as far as practicable by a woman police officer not below the rank of sub-inspector.
# The Medical Examination must be conducted only by a female doctor, in presence of a person the minor trusts. Consent of the parents/guardians and in their absence, the medical professional is a must on behalf of the minor.
# The POSCO provides for Special Courts for speedy trials and in-camera proceedings to ensure confidentiality and privacy at all times during the investigation or trial.
# That the minor is not exposed in any way to the accused during the recording of evidence.
# The minor is not to be called repeatedly to testify in court, and may be testified through a video link through his/her home or any other place as desired by the minor.
# The defence to route all questions through the judge and is not allowed to ask the minor any aggressive or character assassination.
# An interpreter, translator, or any other expert to be provided for minor’s assistance while giving evidence.

List of offences under The Protection of Children from Sexual Offences Act, 2012 and the Punishment for the offence.

 

SL.NO Offence and Description Punishment under POCSO
1


Section 3
Penetrative Sexual Assault Inserting body part or object in a child, or making a child does this with another.

Section 4
Not less than seven years of imprisonment which may extend to imprisonment for life, and fine
2 Section 5
Aggravated Penetrative Sexual Assault Penetrative sexual assault by a police officer, member of armed forces, public servant, staff of remand home, jail, hospital or school. It includes penetrative sexual assault committed by any other person through gang penetrative assault, penetrative sexual assault using deadly weapons, fire, heated substance or corrosive substance, penetrative sexual assault which physically incapacitates the child or causes child to become mentally ill, causing grievous hurt or bodily harm and injury to the sexual organs of the child, making girl child pregnant, inflicting child with HIV or any other life threatening disease, penetrative sexual assault more than once, penetrative sexual assault on a child younger than 12 years, by a relative, owner / manager or staff of any institution providing services to the child, by a person in a position of trust or authority over the child, committing penetrative sexual assault knowing the child is pregnant, attempts to murder the child, by a person previously convicted for a sexual offence, penetrative sexual assault in the course of communal or sectarian violence, penetrative sexual assault and making the child strip or parade naked in public.
Section 6
Not less than ten years of imprisonment which may extend to imprisonment for life, and fine
3 Section 7
Sexual Assault With sexual intent touching the private parts of a child
Section 8
Not less than three years of imprisonment which may extend to five years, and fine



 
4 Section 9
Aggravated Sexual Assault Sexual assault by a police officer, member of armed forces, public servant, staff of remand home/jail/hospital/school, etc, and other acts of sexual assault by any person as mentioned in the second part of section 5, except making a girl child pregnant.
Section 10 Not less than five years of imprisonment which may extend to seven years, and fine (Section 10)
5 Section 11
Sexual Harassment of the Child With sexual intent: showing any object/body part, or making any gesture aimed at a child making a child exhibit her body enticing or threatening to use a child for pornography.
Section 12 Up to three years of imprisonment and fine
6 Section 13
Use of Child for Pornographic Purposes
Section 14 (1)
Imprisonment up to five years and fine and in the event of subsequent conviction, up to seven years and fine
7 Section 14 (2)
Penetrative sexual assault by directly participating in pornographic acts
Section 14 (2)
Not less than ten years of imprisonment, which may extend to imprisonment for life, and fine
8 Section 14 (3) Aggravated penetrative sexual assault by directly participating in pornographic acts Section 14 (3)
Rigorous imprisonment for life and fine
9 Section 14 (4)
Sexual assault by directly participating in pornographic acts
Section 14 (4)
Not less than six years of imprisonment which may extend to eight years, and fine
10 Section 14 (5)
Aggravated sexual assault by directly participating in pornographic acts
Section 14 (5)
Not less than eight years of imprisonment which may extend to ten years, and fine
11 Section 15
Storage of pornographic material involving a child for commercial purposes
Section 15
Three years of imprisonment and / or fine


Note: As per section 42 of the POCSO Act, where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

Child sexual abuse being an issue shrouded in secrecy. It is important for every parent/ guardian of the child to get sensitized and understand the extent and magnitude of the problem and create a protective environment for children. It is important for every parent to:
# Speak to their children openly about good touch and the bad touch,
# Give them freedom to speak and express their views,
# Teaching the No Touch Zone and proper terms for private body parts,
# Teach children that keeping secrets is not okay,
# Teach children to contact people they trust if a problem occurs.
# Set a family safety rules like making a list of people you would allow your child to be alone with anywhere (listen to your child’s response to the names you suggest),
# Teach your children that people they know are also capable of hurting them.
# Don’t encourage the children to give personal information.
# Check and make sure to discuss their progress/performance or change in behavior with his/her teachers in a timely manner.
# Ensure you activate the parental controls over cable, TV shows, friends, peers etc.
# Ask lot of questions if there is withdrawal attitude
# Never force your child to visit any adult if he/she is not comfortable and be observant.
# If your child complaints about a particular person, don’t keep quiet, take it up and show that you can defend them.
# Educate the grownups about the right values of sex. If you don’t the society will teach them the wrong values.
# Make them understand the value of standing out of the crowd.

Ultimately be vigilant and help them build self-esteem to be able to protect themselves from sexual abuse and tell you about what happened. PREVENTION IS BETTER THAN CURE.