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KEY TAKEWAYS FROM POCSO ACT ,2012


Sexual abuses on children are a big blot on society at large as it shook’s the human consciousness of the society and retard the normal healthy growth of children. To stop sexual abuse government of India has brought up a Special Law known as POCSO Act which came into force on 14th November 2012. The POCSO act deals with sexual harassment, sexual assault and pornography.

BEOFRE POCSO ACT:

Child sex abuse crimes before the enactment of POCSO Act were dealt under Indian Penal code. Child Sexual abuses were prosecuted under Indian Penal Code under following sections

  • P.C (1860) – Sec 375 Rape

  • P.C (1860) – Sec 354 Outraging the modesty of women

  • P.C (1860) – Sec 377 Unnatural Offences

The I.P.C. was not adequate enough to protect the children and criminalize non- conventional sexual abuses which are different from above mentioned conventional crimes in form of child trafficking, pornography , sale of children.

There were several loopholes in the IPC which could not effectively protect the child due to various loopholes like:

  • IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.

  • IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.

  • In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse of children


FEATURES OF POCSO ACT:

1) POCSO Act defines child as any person who is below 18 years of age.

2) It recognizes all forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too

3) With respect to pornography, this act criminalizes even watching or collecting pornographic content involving children under Sec 15 of the Act and shall be punished with imprisonment of either description which may extend to three years or with fine or both.

4)This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and is punishable under Section 18 of the act with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.

5) Under Sec 20 of the act under chapter V makes it obligatory for media personnel’s and personnel employed by hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police so that such sex abuse offenders’ can be tracked down by police immediately.

6)However, This Act also has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18 and take the personal liberty of adolescents to indulge in consensual sex and youngsters who indulge in sexual activities will be prone to further harassment from family members, police and society. This new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent.

WHAT IS SEXUAL ABUSE

World Health Organization (WHO) defines child sexual abuse as, ‘inappropriate sexual behavior with a child’ and ‘involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.

ACTIONS WHICH ARE CONSIDERED AS SEXUAL ABUSE ARE (BY WHO):

  • Fondling a child’s genitals

  • Making the child fondle the adult’s genitals

  • Intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation

  • Inducement or coercion of child in unlawful activity.

  • The exploitative use of child in prostitution or other unlawful sexual practices

  • The exploitative use of children in pornographic performances and materials.

  1. Penetrative sexual assault-

According to section 3 of the Act, a person is said to commit ‘penetrative sexual assault’ if he penetrates or manipulates any part of the child’s body so as to penetrate his penis, or any other object into the vagina, mouth, urethra or anus of the child, or makes the child do so with him or any other person.

He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

  1. Aggravated penetrative sexual assault-

A person commits aggravated penetrative sexual assault if the person who commits penetrative sexual assault is a (an)-

  • Police officer, in course of his duty or otherwise.

  • Member of armed or security forces, in course of his duty or otherwise.

  • Member of the management or the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force.

  • Member of the management or is a staff of a hospital, whether Government or private, an educational institution or religious institution or any institution providing services to the child.

  • Person using deadly weapons, fire, heated substance or corrosive substance or causing grievous hurt to the sexual organs of the child.

  • Person who incapacitates or causes the child to become mentally ill as or causes impairment of any kind after sexually assaulting the child.

  • Person who makes a female child pregnant as a consequence of sexual assault, or knows that the girl is pregnant

  • Person who inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection or, Causes death of the child, or attempts to murder the child.

  • Person who commits the assault by taking advantage of a child’s mental or physical disability, or more than once or repeatedly, or below twelve years.

  • A relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child.

  • Person committing in the course of communal or sectarian violence or during any natural calamity or in similar situations.

  • Person is previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

  • Person who makes the assaulted child to strip or parade naked in public.

  1. Sexual assault-

Whoever, with sexual intent touches or makes the child touch the vagina, penis, anus or breast of the child or such person or any other person respectively, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

  1. Aggravated sexual assault-

A person commit aggravated sexual assault if-

The provisions of aggravated penetrative sexual assault are contented. (The conditions are same for both, where the only difference is between penetrative sexual assault and sexual assault.)

He induces or coerces a child to get administered any drug or any chemical substance, to a child with the intent that such child attains early sexual maturity.

  1. Sexual harassment-

A person commits sexual harassment, under this Act, upon a child when such person with sexual intent-

(i) Utters any word, or makes any gesture or exhibits any object or part of body with the intention to be heard or seen by the child.

(ii) Makes a child exhibit his body or any part of his body so as it is seen by such person or any other person.

(iii) Shows any object to a child in any form or media, or entices the child or gives gratification for pornographic purposes.

(iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) Threatens to use, in any form of media, a real or fabricated, of any part of the body of the child or the involvement of the child in a sexual act.


PUNISHMENT FOR OFFENCES COVERED UNDER THE ACT


Penetrative sexual assault- Imprisonment not less than ten years which may extend to imprisonment for life, and fine.

Aggravated penetrative sexual assault- Imprisonment not less than twenty years which may extend to imprisonment for life, and fine.

Sexual Assault- Imprisonment not less than three years which may extend to five years, and fine


Aggravated sexual assault- imprisonment not be less than five years which may extend to seven years, and shall also be liable to fine.

Sexual Harassment of the Child- Imprisonment of three years and fine.

Use of Child for Pornographic Purposes- Not less than Five years and fine and in the event of subsequent conviction, seven years and fine.

Use of child for pornographic purposes resulting in-

  • Penetrative sexual assault: Not less than 10 years (in case of child below 16 years, not less than 20 years)

  • Aggravated penetrative sexual assault: Not less than 20 years and fine.

  • Sexual assault: Not less than three years which may extend up to five years.

  • Aggravated sexual assault: Not less than five years which may extend to seven years.

Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography –

Fine of not less than Rs 5,000; in the event of second of subsequent offence, fine not less than Rs 10,000.


Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court-

imprisonment of either up to three years of imprisonment, or with fine, or both.

Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction-

Not less than three years of imprisonment which may extend to five years; or with fine or with both. Second or subsequent conviction: not less than five years and upto seven years and also fine.


STATISTICS OF POCSO ALL ACROSS INDIA:

As per the data collected by Save the Children, India it has shown that recently, the new child protection legislation like the Protection of Children Against Sexual Offences Act (2012) has given more teeth to fighting child rights violation.

The number of cases registered for child abuse are 36022 in 2016, under the POSCO Act. Sexual offences and kidnapping account for 81% of the crimes against the minor as preventive measures designed to ward off strangers (installing CCTV cameras and providing self-defense training) will be ineffective, as children do not know how to ward off unwanted sexual advances from their known relatives, acquaintances or workplace seniors they trust.

OVERVIEW : There are others provisions under the Act that prescribes the methods of reporting, investigating, handling of evidences, and court trails. The Act also instructs the State Governments to establish special courts for such cases. The Act also provides for punishment for the crime of abetment. Punishment has also been provided for making false complaint or proving false information with malicious intent. The Act has identified and criminalized a range of unacceptable sexual behaviors that pose a threat to children. But to overcome and eradicate this issue from the grassroots level, legal awareness of this issue is the key

BY RIYA KAUR ARORA


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