Pre posco

Goa Children's Act, 2003,[10] was the only specific piece of child abuse legislation before the 2012 Act.

The Goa Children’s Act, 2003 (Goa Act No.18 of 2003) published in Official Gazette
(Extraordinary No. 5), Series I, No. 15, dated 14-7-2003. The Act came into force
on 8-7-2003.

1. Short title, extent and commencement.— (1) This Act may be called the
Goa Children’s Act, 2003. (2) It shall extend to the whole of the State of
Goa.
Child sexual abuse was prosecuted under the following sections of Indian Penal Code:

 I.P.C. (1860) 375- Rape

 I.P.C. (1860) 354- Outraging the modesty of a woman
 I.P.C. (1860) 377- Unnatural offences

However, the IPC 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 criminalise sexual abuse of children.

Evolution of posco
A four-year-old girl has accused her classmate in a Delhi based school of sexually assaulting her
twice, once with his fingers and second time with a sharpened pencil when there was no teacher
or Ayaah in the class.
The police are carefully examining the legal provisions in the case as "the Indian Penal Code
provides children below seven years of age certain protection against prosecution."

53% of the children in India had been sexually abused as per the 2007 survey by the
Ministry of Women and Child Development. In the light of such circumstances
Protection of Children against Sexual Offences Act, 2012 also known as POCSO Act was
passed by both the houses of Parliament on May 22, 2012 and it came into effect on
November 14, 2012. POCSO Act is a step forward because before there were only two
punishable sexual offences in the IPC- rape, which is peno-vaginal penetration, and
outraging the modesty of a woman, e.g. groping or taking indecent photographs. Also, the
law did not distinguish between an adult and a child. This act is applicable to the whole
of India and provides protection to children under the age of 18 years against sexual
offences.

Historically, child sexual abuse (CSA) has been a hidden problem in India, largely
ignored in public discourse and by the criminal justice system. Until recently, CSA was
not acknowledged as a criminal offence; rape was the main, if not the only, specific
sexual offence against children recognised by law in India. In the absence of specific
legislation, a range of offensive behaviours such as child sexual assault (not amounting
to rape), harassment, and exploitation for pornography were never legally sanctioned.
In the past few years activists, Non-Governmental Organisations (NGOs) and the
central government’s Ministry of Women and Child Development have actively engaged
in helping break ‘the conspiracy of silence’ (HRW 2013) and have generated substantial
political and popular momentum to address the issue. The movement, spearheaded by
the Ministry of Women and Child Development, led to the enactment of new legislation
called the Protection of Children from Sexual Offences (POCSO) 2012.

Post pocso

Table 1
Recorded rape against children-comparative figures (source: NCRB website)

Year All India Maharashtra

2001 2113 367
2005 4026 634
2010 5484 947
2012 8541 917
2013 12,363 1546
Since 2001, there has been a gradual but steady rise in recorded incidents of sexual
abuse i.e. child rape. Although there is no evidence to indicate that globally the
prevalence of CSA has been going up over the years (Barth et al. 2013), we might
hypothesize that increased reporting in India over this period might be the result of
greater public awareness, education and a more sensitive criminal justice response to
CSA. Following the enactment of POCSO, the number of offences registered under rape
itself went up 44 % nationally and 68 % in the state of Maharashtra within a year,
lending support to the hypothesis. Further, detailed figures from Maharashtra provided
by the second author indicate that total registered crime under POCSO was 2540
offences in 2013 and 3858 offences in 2014, amounting to a 51 % increase in 1 year.

Case laws

In State v. Aas Mohammad[2] , a 14-year-old girl was in a sexual relationship with her landlord.
A complaint was filed by the mother on discovering that the girl was six months pregnant. In
court, the girl admitted that the matter was reported only because the man had refused to marry
her. During the proceedings, the accused offered to marry the girl, deposit a sum of Rs 30,000 in
her name, and provide shelter for her mother. The couple got married when he was released on
bail. The judge ensured compliance with the undertaking and acquitted the accused as the girl
and her mother retracted their statements.
The above ruling is in contradiction with the spirit of POCSO Act. This act means to protect
children from offences of sexual assault, sexual harassment and child pornography; not to give
legality to child marriage or any such acts which are clearly illegal in India. The marriage of an
underage is a mockery of justice and the resilience of court on such matter is a grave wrong.
Further in State v Iskhar Ahmed[3], J. Shalini Nagpal, Chandigarh Special Court held that
‘[h]aving a love affair with the prosecutrix and having conversations with her, would not give a
license to the accused to commit rape on her person or even to have sexual intercourse with her
consent, as consent of the child to penetrative sexual assault is immaterial.’ This implies that the
liability that exists in the POCSO Act is strict liability, i.e., doctrine of mens rea is not taken into
consideration, which implies that the POCSO Act has confounded child sexuality with child
sexual abuse. And this approach has already been criticized in English Law. R v Prince[4] is one
such case. In this case, Henry Prince was charged of having unlawfully taken Annie Phillips, an
unmarried girl under the age of 16years, out of the possession and against the will of her father,
contrary to Section 55 of the Offences against the Person Act, 1861. He was found guilty even
though he pleaded, that firstly, the girl told him that she was 18, however, her father proved that
she was 14 years, she also looked much older than a 16 year old and secondly, that the
defendant bona fide believed her statement, was accepted by the jury.
But in R v K[5], wherein a man aged 26 years, was charged with indecently assaulting a 14 year
old girl, which was in contradiction to Section 14 of Sexual Offences Act, 1956. The defendant
pleaded that firstly, the activity between them was consensual and secondly, the girl had told him
that she was 16 and that he had no reason to disbelieve her. In preliminary hearing, the judge
ruled that the prosecution would be required to prove that at the time of the incident the
defendant did not honestly believe that the girl was 16 or over. His case then went on to the
Court of Appeal and then to the House of Lords which delivered unanimous judgement of not
guilty. The court adopted the doctrine of mens reaand such discretion, while judging on cases, is
also expected from the Indian Judiciary. Not giving regard to the doctrine of mens rea is like
going back in time.