Children, Consent, Crime and Care

The article explain the nature and scope of the law relating to protection of children from sexual offences,
particularly embodied in “The Protection of Children from Sexual Offences Act” (POCSO Act) 20121, which
was formulated in order to effectively address sexual abuse and sexual exploitation of children in India. This
article also puts light on the punishments for offences covered in the Act, Provisions related to conduct of trial
of reported offences, Duties of the Police as Specified in POSCO Rules 2012, Role of doctors in providing
care.” Besides that, this article also shows different forms of sexual abuse, including penetrative and non-
penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be
“aggravated” under certain circumstances. The decisions of Supreme Court regarding sexual offences against
children and women, Reports of Ministry of Women and Child Development and other various journals,
reporters and digest, manual and reference books had been consulted.

Introduction

In a survey by Ministry of Child and Women Welfare, it was found that more than 53% of children are the
victims of sexual abuse. The Protection of children from sexual offences act 2012 passed on 19th June 2012 and
was notified in the gazette of India 20 June 2012. Posco defines a “child” as any person who is below 18 year
of age, different form of sexual abuse including penetrative and non-penetrative assault as well as sexual
harassment and pornography. It also clarify the role of Police in investigation and project police as protector of
a child as police have to provide shelter home and bringing in front of CWC. The Act also give mandatory
reporting of sexual offences. It creates a legal duty upon a person who has knowledge that a child has been
sexually abused to report the offence. If he neglect to do so he may be punished with 6 months imprisonment or
fine or both.

Definition

Section 2 of Posco Act, 2012 defines child as any person below the age of eighteen years and provide
protection from sexual offences. It further provides definition of child sexual abuse which includes the
following: (i) penetrative sexual assault, (ii) aggravated penetrative sexual assault, (iii) sexual
assault, (iv) aggravated sexual assault, (v) sexual harassment, (vi) using child for pornographic purpose, and
(vii) trafficking of children for sexual purposes. It further provide provisions for avoiding re-victimization,
child friendly atmosphere through all stages of the judicial process and gives superior importance to the
principle of “best interest of the child”. It also provides 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. 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.

Consent – Material or Immaterial?

1
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. There is an urgent need to clarify the issue of
consent in such cases. However, it would be prudent to take informed consent from parent when the survivor is
a child (below 12 year) and consent from both parent and the victim, if the survivor is an adolescent (age group
from 12 -18 year). However, emergency treatment needs to be initiated without getting into this consent issues
or legality to protect the life of the child.

Consented sexual relationship

Sexual relationship between two adolescents or between an adolescent and an adult are illegitimate under the
POCSO Act 2012, because no exception has been given in the Act under which an act of sexual relation 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 assenting adolescents, otherwise both the adolescents will be commit
offence under the POCSO Act, 2012.

Crime and Care

Crime As per Posco act 2012, Offence is said to be “aggravated" when committed by a person in a position of
trust or authority of child such as a member of security forces, police officer, public servant, etc. Posco Act
2012 list out certain crimes or offences against child which are embodied in different section from section 3 to
section 13 of the act respectively Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual
Assault, Aggravated Sexual Assault, Sexual Harassment of the Child, Use of Child for Pornographic Purposes.
Posco 2012 act also provides punishment for above mentioned offences as imprisonment or fine or both.

With respect to care of child, there is key role which is to be played by doctor. The Act clearly states that
doctors should not demand legal procedure as 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 could result in six months imprisonment and/or a fine under Sec 21 of the POCSO Act, 2012.

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-visited 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 shall provide medical treatment, free of cost to the victims of a sexual offence.

Conclusion

This act or special law to prevent children from sexual offences remains an unimplemented law, and should be
implemented strictly. It is now for the Centre and State Governments to implement this concept of CCCC(4C’s)
by creating effective system to check heinous crimes of gross sexual abuse against children. Laws are only
effective when they are implemented.