You are on page 1of 14

CENTRAL UNIVERSITY OF SOUTH BIHAR,

GAYA

PROJECT WORK
POCSO ACT

SUBMITTED TO

- BSLSA

By- NIRSHAN RAJ


BA.LLB(H)
CUSB, GAYA

CONTENTS

1 | Page

TITLE

SR.NO.
1.

ACKNOWLEDGEMENT

2.

LITERATURE REVIEW

3.

ABSTRACT

4.

POCSO ACT

5.

TYPES OF SEXUAL ABUSE

6.

RELIEFS AVAILABLE TO CHILD VICTIMS

7.

ROLE OF DOCTORS

10

8.

AWARENESS OF POCSO

11

9.

CHALLENGES AND CONTROVERSIES

12

10.

CONCLUSION

14

ACKNOWLEDGMENT

2 | Page

PAGE NO.
3

During the course of writing this project, I have received the help, encouragement and assistance
from my teachers, friends, BSLSA staff and other. I am thankful to all of them.
I am particularly great thankful to my Instructor, Mr. KISHORE KUNAL (OSD) & Mr. ROHIT
KUMAR (OSD) for encouragement and support that he provided during the preparation of the
project.
I am deeply indebted to the eminent logical experts and philosophers and other scholars of repute
whose valuable work has been highly useful in writing this project.

LITERATURE

3 | Page

REVIEW

LAW JOURNALS & WEBSITES REFFERED

www.wikipedia.com
www.legalreasonig.com
www.helpageindia.org
NSLSA Scheme
socialjustice.nic.in
www.indiankanoon.org
www.legalservice.com
www.prsindia.org
www.helpline.com

ABSTRACT
The child sexual abuse is an under-reported offence in India, which has reached epidemic
proportion. A recent study on prevalence of sexual abuse among adolescents in Kerala, reported
4 | Page

that 36 % of boys and 35 % of girls had experienced sexual abuse at some point of time. A
similar study conducted by the Government of India in 17,220 children and adolescents to
estimate the burden of sexual abuse revealed shocking results and showed that every second
child in the country was sexually abused; among them, 52.94 per cent were boys and 47.06 per
cent were girls. Highest sexual abuse was reported in Assam (57.27%) followed by Delhi (41%),
Andhra Pradesh (33.87%) and Bihar (33.27%).
Sexual abuse and sex trafficking remain highly prevalent and are among the serious problems in
India. In the last two decades, an increase in the prevalence of sexually transmitted diseases has
been shown in children. Children who are victims of sexual abuse often know the perpetrator in
some way. Hence, the problem of child sexual abuse needs to be addressed through less
ambiguous and more stringent punishment. The Protection of Children from Sexual Offences
(POCSO) Act, 2012 was formulated to effectively address the heinous crimes of sexual abuse
and sexual exploitation of children. Legal provisions were made through implementation of the
Criminal Law (amendment) Act, 2013 which amended the Indian Penal Code, the Code of
Criminal Procedure, 1973, The Indian Evidence Act, 1972, and the Protection of Children from
Sexual Offences Act, 2012. This Criminal Law (Amendment) Act, 2013 also dictates punishment
on stalking, voyeurism, trafficking and acid attack.

POCSO ACT

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), was enacted to
protect children from offences of sexual assault, sexual harassment and pornography and to
provide a child-friendly system for the trial of these offences. The Act provides for seven specific
5 | Page

sexual offences against children and stipulates child-friendly legal procedures that must be
adhered to during investigation and trial.
Under the POCSO Act, the term child has been defined to mean any person below the age of
eighteen years. The Act does not recognize sexual autonomy of children in any form. Children
can also be held liable for committing sexual offences under the Act. As a result, sexual
interactions or intimacies among or with children below the age of 18 years constitute an
offence.
Until recently, various provisions of the Indian Penal Code (IPC) were used to deal with sexual
offences against children as the law did not make a distinction between an adult and a child.
POCSO deals with sexual offences against persons below age of 18 years. The POCSO defines
"Penetrative sexual assault," "sexual assault" and "sexual harassment" making the offence
aggravated if it is committed by a police officer, public servant, staff member of jail, remand,
protection or observation home, staff of a hospital or an educational institution or by a member
of the armed or security forces. POCSO provides for relief and rehabilitation as soon as the
complaint is made to the Special Juvenile Police Unit or the local police who are required to
make immediate arrangements for care and protection. The intent to commit an offence defined
under POCSO is also punishable besides abetment or aiding the sexual abuse of a child. Special
emphasis has been provided for trial in special children's courts with speedy disposal and special
procedures to avoid child not seeing accused at the time of testifying.
The POCSO Act further makes provisions for avoiding re-victimization, child friendly
atmosphere through all stages of the judicial process and gives paramount importance to the
principle of best interest of the child. It incorporates child friendly mechanisms for reporting,
recording of evidence, investigation and speedy trial of offences, trial in-camera and without
revealing the identity of the child through designated Special Courts. It also provides for the
Special Court to determine the amount of compensation to be paid to a child who has been
sexually abused, so that this money can then be used for the child's medical treatment and
rehabilitation.
The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the
offences of sexual assault, sexual harassment and pornography, while safeguarding the interests
of the child at every stage of the judicial process by incorporating child-friendly mechanisms for
reporting, recording of evidence, investigation and speedy trial of offences through designated
Special Courts.

TYPES OF SEXUAL ABUSE:

o Touching behaviours include :6 | Page

Fondling a child's body for sexual pleasure.


Kissing a child with sexual undertones/inclinations.
Rubbing genitals against a child's body.
Sexually touching a child's body, and specifically private parts (breasts and genitals).
Includes encouraging or forcing a child to do likewise.
Making a child touch someone else's genitals, or playing sexual ("pants-down") games.
Encouraging or forcing a child to masturbate, with the child as either a participant or
observer.
Encouraging or forcing a child to perform oral sex (mouth-to-genital contact on or by the
child).
Inserting objects or body parts (like fingers, tongue or penis) inside the vagina, mouth, or
anus of a child; includes attempts of these acts.

o Non-touching behaviours include :Encouraging a child to watch or hear sexual acts either in person or lowering the bars of
privacy.
Looking at a child sexually.
Exposing one's private body parts to a child (exhibitionism).
Watching a child in a state of nudity, such as while undressing, using the bathroom, with
or without the child's knowledge (voyeurism).
An adult making suggestive comments to the child that are sexual in nature.
Commenting on the sexual development of a child.
Encouraging or forcing a child to read/watch pornography, giving pornographic material
or using the child in pornography.
People making and downloading sexual images of children on the Internet.

RELIEFS AVAILABLE TO CHILD VICTIMS OF SEXUAL


OFFENCES:
a) Child friendly processes: The Act requires respect for the dignity and autonomy of the child
at every stage of the legal process. It provides for child-friendly procedures for medical
examination, recording the statement of the child by the Police and Magistrate, as well as during
7 | Page

the examination of the child in court. Cases reported by a child must be recorded by the
police/Special Juvenile Police Unit (Hereinafter referred to as SPJU) in simple language so that
the child understands what is being recorded. A qualified translator/interpreter must be provided
to the child if the statement is recorded other than the preferred language of the child. The child
must be accompanied by a parent, guardian, or any other person whom the child trusts or has
confidence in, during procedures involving medical examination, recording statements, or giving
testimonies in court. Before any medical examination is conducted, consent by or on behalf of
the child must be obtained. Medical examination can be conducted irrespective of whether a First
Information Report/Complaint has been filed. Where the victim is a girl, examination must be
done by a woman doctor. Also, the child must not be brought face to face with the accused while
giving his/her statement to the police or magistrate, or while testifying in court. If necessary, a
support person must also be provided to a child to assist him/her during the investigation and
trial. Under no circumstances can the child be asked to remain in the police station at night.
b) Emergency medical care: Child victims who are found to be in need of urgent medical
attention are entitled to receive emergency medical care within 24 hours of the Police/ SPJU
receiving information about the crime.
c) Care and protection: If the police/SPJU have reasonable grounds to believe that the child is
in need of care and protection, they must immediately make arrangements to give the child such
care and protection and also alert the Child Welfare Committee ( Here-in-after referred to as
CWC), the statutory authority vested with this responsibility. The CWC can take steps to ensure
that care and protection is extended to the child. For instance, it can provide the child with a
support person to render assistance during the investigation and trial. It can also order that the
child be taken out of the custody of her/his family if she/he has been or is likely to be sexually
abused there.
d) Compensation: It is not essential that the accused needs to be convicted in order to receive
compensation, a child victim may receive interim compensation for immediate needs for relief of
rehabilitation and final compensation for the loss or injury caused to her/him. The State
Government must pay the compensation to the victim within 30 days from the date of the order
of the Special Court.
e) Punishment: The Act prescribes punishment for offenders who commit sexual offences
against children.

CHILD FRIENDLY PROCEDURES AS INCORPORATED IN


POCSO
o Recording the statement of the child at the residence of the child or at the place of
his choice, preferably by a woman police officer not below the rank of subinspector. Evidence has to be recorded within 30 days.
8 | Page

o
o
o
o
o
o
o
o
o
o
o

No child to be detained in the police station in the night for any reason.
Police officer not to be in uniform while recording the statement of the child.
The statement of the child to be recorded as spoken by the child.
Assistance of an interpreter or translator or an expert as per the need of the child.
Child not to see accused at the time of testifying. The evidence of the child shall
be recorded within a period of 30 days of the cognizance of the offence.
Assistance of special educator or any person familiar with the manner of
communication of the child in case child is disabled.
Medical examination of the child to be conducted in the presence of the parent of
the child or any other person in whom the child has trust or confidence.
In case the victim is a girl child, the medical examination shall be conducted by a
female doctor.
Child not to be called repeatedly to testify and frequent breaks to be given to the
child during the trial.
No aggressive questioning or character assassination of the child.
Trial to be in the special court in camera.

ROLE OF DOCTORS IN PROVIDING CARE IN THE PRESENT


LEGAL FRAMEWORK
The Act also makes provisions for the medical examination of the child in a manner that is least
distressful. The Act also clearly vocalizes that doctors should not demand legal records or legal
procedure or documentation to be completed before initiating the treatment or examination.
Legal procedures can be done later after initiating the medical care. It is now mandatory for
doctors to register a medico-legal case in all cases of child sexual abuse. Failure of reporting
9 | Page

could result in six months imprisonment and/or a fine under Sec 21 of the POCSO Act, 2012.
The registered medical practitioner rendering medical care shall:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)

Collect evidence after a thorough medical examination,


Treat the physical and genital injuries,
Conduct age assessment of the victim (if required),
Offer prophylaxis for sexually transmitted diseases including HIV,
Discuss emergency contraceptives with the pubertal child and her parent,
Do baseline evaluation for mental health issues,
Monthly follow up at least for six months to look for development of psychiatric
disorders,
Do family counselling and
Assist the court in interviewing the child and testifying in the court.

Another significant provision made in this law is that no hospital under the jurisdiction of the
Indian constitution can refuse to admit the victim of child sexual abuse for examination and
treatment. This issue has been re-emphasized in Section 23 of the Criminal Law Amendment
Act, which inserts Section 357C into the Code of Criminal Procedure, 1973. This Section
provides that all hospitals are required to provide first-aid or medical treatment, free of cost, to
the victims of a sexual offence. The amended Act, Section 166B of Indian Penal Code specifies
that no hospital whether the private or public can deny treatment to a rape victim. Treatment
should be provided immediately and free of cost. If a hospital staff is involved in rape, then law
dictates punishment for a minimum of seven years.

AWARENESS OF POCSO
Despite POCSO lays down that the Central and State Governments shall take measures to give
wide publicity through media including television, radio and print media and imparting periodic
training to all stake holders on the matters relating to implementation of provisions of POCSO,
the Act is relatively unknown. Shockingly, in the most recent unfortunate rape case, the Delhi
Police included the provisions of POCSO to the FIR reportedly after two days of the filing of the
FIR on 15th April, 2013. In the infamous APNA GHAR, Rohtak shelter home case of May 2012,
10 | P a g e

despite rampant allegations of child sexual abuse of over 100 inmates, reportedly, the provisions
of POCSO are still not stated to have been invoked against the accused. Most child sex abuse
cases are not booked under POCSO. Child sex offenders get away despite a stringent law. The
Act is unknown. Indoctrination, training, familiarization and actual application by police officers
and other stake holders still remains a far cry. POCSO remains an Act of law in oblivion.

A LANDMARK JUDGMENT
Upon the National Commission for Protection of Child Rights (NCPCR) petitioning the High
Court, in a path breaking judgment rendered on 9th April, 2013, it has been directed that the
states of Punjab and Haryana as well as Union Territory of Chandigarh shall ensure that, State
Commissions for Protection of Child Rights headed by a Chairperson who should be a person
who has been a Judge of the High Court, shall become fully functional by appointing
Chairpersons and six members appointed through a transparent selection process. The High
Court has further directed mandatory registration of all children homes, constitution and
notification of children's courts and appointment of special public prosecutors besides
constituting a proper selection committee to make further selections of various committees to be
set up for child welfare. Hence, the entire machinery of monitoring child rights has been
galvanized. A further direction has been issued that the National Commissions and State
Commissions shall start discharging their functions under POCSO for implementing its
provisions and modules/ training programs for sensitizing all stake holders on child rights and for
dealing with cases in children's court also initiated in the Chandigarh Judicial Academy. It is now
for the State Governments to implement this beneficial mandate and create an effective
machinery to check heinous crimes of gross sexual abuse against children by enlightening all
concerned about it.

CHALLENGES AND CONTROVERSIES


There are certain drawbacks in the law around the following issues:
(a) Consent: If the child/adolescent refuses to undergo medical examination but the family
member or investigating officer is insisting for the medical examination, the POCSO Act is silent
and does not give clear direction. There is an urgent need to clarify the issue of consent in such
11 | P a g e

cases. However, it would be prudent to take informed consent from parent when the survivor is a
child (below 12 years) and consent from both parent and the victim, if the survivor is an
adolescent (age group from 12 -18 years). However, emergency treatment needs to be initiated
without getting into this consent issues or legality to protect the life of the child.
(b) Medical examination: The POCSO Act, Section 27(2) mandates that in case of a female
child/adolescent victim, the medical examination should be done by a female doctor. However,
the law mandates the available medical officer to provide emergency medical care. On the other
hand, the Criminal Law amendment Act, Section 166A of Indian Penal Code mandates the
Government medical officer on duty to examine the rape victim without fail. This conflicting
legal position arises when female doctor is not available.
(c) Treatment cost: The law has casted legal obligation on the medical fraternity and
establishment to provide free medical care to the survivors. If there are no proper facilities or
costly procedure is required, the State should take responsibility of reimbursing the expense
otherwise hospital may provide substandard medical treatment procedure or may deprive the
survivor from comprehensive treatment.
(d) Consented sexual intimacy: Sexual contact between two adolescents or between an
adolescent and an adult are considered illegal under the POCSO Act 2012, because no exception
has been granted in the Act under which an act of sexual encounter with a person under 18 is an
offence irrespective of consent or the gender or marriage or age of the victim/the accused.
However, it is proposed that any consensual sexual act that may constitute penetrative sexual
assault should not be an offence when it is between two consenting adolescents, otherwise both
the adolescents will be charged under the POCSO Act, 2012. On the other hand, the latest
amendment of the Indian Penal Code concerning rape laws in 2013 clearly reports that the age of
consent for sex has been fixed to 18 year, hence, anyone who has consensual sex with a child
below 18 years can be charged with rape, which may increase the number of rape cases. One
more serious repercussion is that obstetric and Gynaecologists need to report all the MTP
(medical termination of pregnancy) cases performed on children (below 18 years).
(e) Child marriage: Child marriage and consummation of child marriage are considered illegal
under the POCSO Act, 2012. In India even though child marriage is prohibited under secular law,
it enjoys sanction under certain Personal Law thus complicating matters. These issues need to be
addressed when the law is open for amendment.
(f) Training: There is an urgent need to train the medical, teachers, judicial, advocates and law
enforcing agencies in the POCSO Act, 2012. Research, information, monitoring and sensitizing
the public are the biggest challenges. Training all the stakeholders is one of the important
variables in providing comprehensive care and justice. There is also an urgent need to train all
the medical undergraduates and primary health care doctors in providing child friendly interview,
12 | P a g e

structured assessment, collecting evidence, prophylaxis for sexually transmitted diseases and
HIV, family counseling and regular follow up.
(g) Role of mental health professional: The definitive signs of genital trauma are seldom seen in
cases of child sexual abuse. Hence, the evaluation of child sexual abuse victim requires special
skills and techniques in history taking, forensic interviewing and medical examination. The role
of mental health professional is crucial in interviewing the child in the court of law. Child sexual
abuse can result in both short-term and long-term harmful mental health impact. Mental health
professionals need to be involved in follow up care of the victim with regard to emergence of
psychiatric disorders, by providing individual counseling, family therapy and rehabilitation.
(h) Reporting: It is well known that the cases of child sexual abuse are usually not reported.
Further, knowing and reporting child sexual offence is highly difficult and highly personal
decision for many family members and also for survivors. Both survivors and family members
feel embarrassed and ashamed bearing the guilt, anger, frustration and emotional turmoil of the
act. The fear of re-victimization because of medical examination, criminal justice system and
poorly informed society members keeps them silent and undergo torture for long duration.

CONCLUSION
Child sexual abuse affects tens of thousands of children and young teens every year. Though
sexual abuse is all too common, many adults are unprepared or unwilling to deal with the
problem when faced with it, leading to underreporting of the crime and stigmatizing of the
victim. Child sexual abuse can take many forms, but is always a violation of a young persons
rights, and increases the risk of many adverse physical and mental health conditions. An
13 | P a g e

atmosphere of silence and poor communication around sexuality contributes to child sexual
abuse. Programs can help empower young people to report unwanted contact and can prepare
parents, clergy, and youth-serving professionals to recognize the signs of child abuse and take
appropriate action.
The POCSO Act, 2012 is an excellent piece of legislation and it recognizes almost every known
form of sexual abuse against children as punishable offence but a few challenges remain to be
answered. A multi-dimensional, multi-agency team and multi-tier approach including access to
psychosocial support is to be made available to deliver holistic comprehensive care under one
roof for victims of child sexual abuse.
To avoid child sexual abuse several initiatives should be taken, such as schools shall run
programs on sexual abuse of children, parents should train their children and teach them about
their genitals and other reproductive organs, guardians should frequently ask if they suspect their
activities. Social awareness programs should be encouraged. In so far child sex abuse is
concerned, POCSO is a wholesome law. The Government must create the machinery to
implement it and educate its officers besides all stake holders on what it contains. The remedy to
handle the public outcry is by implementing POCSO. All child offenders must be charged, tried
and punished in accordance with POCSO expeditiously. Speedy, stringent and relentless pursuit
of POCSO is the remedy and a possible cure. The State must not waste its time in exploring
alternatives when the answers exists in a law made by Parliament for these special offences
against children, the most vulnerable section of society. Today's children are tomorrow's future.
Let us protect them.

14 | P a g e