Introduction

When I explored this topic, a video appeared in the search results. It was a satirical video¹. But I am more concerned with the letters on the blackboard in that video at 06:49. The phrase which was displayed was: “Sex is not a stigma, Ignorance is.” The phrase is eminently true of the situation prevailing not only in Indian society but in the world as a whole. Only some countries have managed to develop and deliver quality sex education to their citizens. More importantly, the need for sex education is not only necessary for young adults and teenage students, but also for the elderly members of society who are reluctant to talk about this concept logically but take it as a joke.

This ignorance is responsible for our encountering sex crimes in our daily lives. Some are reported while others are buried deep inside by the victim, his/her parents, relatives, or the police. In this twenty-first century, information about anything emerged as wealth. But regarding sex education, only a few are informed about the relevant information. Every person has some information about sex, but whether that information is helping to develop a law-abiding citizen is unknown. The rape convicts, testify in courts that they watched porn before committing the offence of rape. This shows that they have access to information but that information is injurious to not only their health but also the health of society at large. Penal provisions are intensified but are fruitless to restrain the offence of rape.

Now we shall focus on the legal aspects of sex education and the laws regarding it. POCSO was enacted to protect children from offences of sexual assault, sexual harassment, and pornography and to provide for the establishment of special courts for the trial of such offences and matters connected therewith or incidental thereto² as provided under the preamble to that Act.

Under this Act, we have some areas to focus on in detail in connection with sexual education under this article—

1. Definition of Child and legal grey area
2. Child pornography
3. Domestic relationship
4. Shared household
5. Special court and special procedures
6. Public awareness about the Act

Definition of Child and Legal Grey Area

Section 2 clause (d) of the Act defines “child” as a person under 18 years of age.

The first reason for this definition is that the Act is for the protection of the rights of children. The age group of teens, from 13 to 18 years old, is the most prone to sexual offences without being reported. In this phase, they are at the age of becoming sexually active. Due to hormonal changes, they eagerly move to sexual acts, and if they are not protected by any law, the offenders are ready to attack their physical and mental health through sexual offences.

The second reason is that sexual acts require free consent for being excepted to be rape or sexual offence. The law regards the consent of minors, which is also for more laws, a person under the age of 18 years, as no consent. So, consented sex is legal and not an offence only for persons above 18 years. And this creates a legal grey area among the person between the age group of 17-18 who consented to sex.

Under the Indian Penal Code, the maxim “Doli capax” is enshrined under section 83, which states that if an offence is committed by a child above 12 years of age, having sufficient maturity regarding the offences done by him, he can be prosecuted. But this Act is enacted for the benefit of the Child, and hence there is no such provision required. There is a different situation in which the juveniles are the offenders, and this is the main concern to be dealt with under the Act. The targeted juveniles act against the provision because,

1. Lack of proper sex education
2. Lack of awareness of the legal provisions of the POCSO Act.
3. Lack of awareness among the victim child who is victimised yet doesn’t know of being victimised.

When both juveniles consent to sex with sexual intent, they are liable to be tried and convicted under the Act’s provisions because their consent is no consent in the eyes of the law and they are both committing the sexual offence against each other under the Act’s provisions. This seems to be a harsh law regarding this situation, but it is, in fact, a good law. The only requirement is that such people be made aware of the Act. The Act is not against them. The Act only seeks to protect their rights against anyone who attempts to assault a child for sexual gratification. This view is also to some extent supported by different High courts in which cases like these appear and High Courts have repeatedly asked the concerned authorities to disseminate information about the Act, especially to teenagers. This will ensure:

1. Prevention of unwanted Child Pregnancy
2. Informed decisions by the Child about sexual acts.
3. Prevention of Sexual offences against the Child.
4. HIV/AIDS prevention.
5. Prevention of other sexually transmitted diseases; and most importantly
6. Avoidance of prosecution of such children in the legal limbo.

Therefore, the Child is more prone to sexual attacks when he doesn’t know about the sexual intents. The word “sexual intent” is of the utmost importance. The Supreme Court continuously decided through a catena of judgments that it is the Sexual intent that makes any act to be included in the offence of Sexual Assault and Sexual Harassment.

The decision of the Bombay High Court, which was stayed by the Supreme court for its nebulous interpretation of section 7 of the Protection of Children from Sexual Offences Act, 2013 (POCSO) about skin-to-skin contact constituting sexual assault, is worth mentioning here.

The appellant in Satish v. State of Maharashtra³ was acquitted under section 8 of POCSO by the High court citing an interpretation of section 7 of POCSO that there was no physical contact between the appellant and victim, that is skin-to-skin contact along with sexual intent but without penetration. The Bombay high court had an opinion which was challenged by the attorney general of India to the supreme court by noting that this interpretation would be against the law.

The court in Attorney General of India vs. Satish and Another⁴ dealt with this case and interpreted that only sexual intent is required and not skin-to-skin contact for the constitution of the offence of sexual assault. The term “physical contact” under section 7 does not require skin-to-skin contact but only “touch with sexual intent”. Another aspect of this definition is that it recognizes only biological age and not mental age as interpreted in the case.

EERA through Dr. Manjula Krippendorf vs. State (Govt. of NCT of Delhi) – It is essential to mention what the Supreme Court held in this case⁵:

“The Parliament deemed it appropriate that the term “age” be defined by chronological age or biological age as the safest standard rather than refer to a person who has mental retardation. It might be because different standards for mental retardation need to be established by a professional body.  Additionally, the degree varies. It appears that the Parliament did not take mental age into account. It is within the purview of legislative knowledge. It should be noted that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2000, provided a procedure for age determination. The process was intended to establish biological age.  It should be noted that under Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), a person who has not reached the age of eighteen is considered a “child.” The method for calculating biological age has been provided.  This is provided to demonstrate that the age of the child has been purposefully set by Parliament and is based on biological age, and if any determination is necessary, it only concerns the biological age and nothing more.”

Hence, through this judgment, it is expected of the legislature to review this definition because the consent to sex is made by the mind, and if the mind is below the age of 18, the mind shall behave like a child, and a child is to be protected against all forms of offences. The prevailing legal grey area needs not be reviewed because such an area is very limited. Awareness about the legal provisions should be made available to this target group.

Child Pornography

The Act provides for the offence of Child pornography in section 2, clause (a) as any visual depiction of sexually explicit conduct involving a child, which includes

i. Photograph

ii. Video

iii. Digital or computer-generated image indistinguishable from an actual child and

iv. Image created, adapted, or modified, but appear to depict a child.

Section 13 provides for the use of children for pornographic purposes. This section does not differentiate it for personal use or distribution. Both are considered the same. The other notable term is sexual gratification, including

1. A representation of the sexual organs of a child.
2. Usage of a child engaged in real or simulated sexual acts whether with or without penetration
3. An indecent or obscene depiction of a child.

Sexual education in the world is mostly focused on the teenage group. It contains concepts about hormonal change, development of sex organs, safer sex, prevention of unwanted pregnancies, menstrual hygiene and mental health and sexual offences. Also, in the name of sex education, some people design sexually explicit content involving children and wish to take the protection of sex education as a defence. As there is a need to impart sex education among children, the offender of child pornography often takes the defence of imparting sex education when they are prosecuted, especially regarding a video or a book.

One such case is Fathima A.S. vs. State of Kerela⁶ in which the appellant took the defence of imparting sex education to his children.

The facts are worth noting: The appellant made her children aged 14 and 8, draw body art on her half-nude body and then posted the video. The court also noted in the case for bail that in the initial years of life, a child learns from his/her mother and this is not a thing which the mother should impart in such a manner. Hence, from this note, we can assume that there is a need to impart specialized sex education as per the age of the child.

Domestic relationship

The Act defined the term as having the same meaning as provided under Clause (F) of Section 2 of the Protection of Women from Domestic Violence Act, 2002.

The definition is explained here: “Domestic relationship” is defined as when two persons related with consanguinity, marriage, or relation being in nature of marriage, or adoption or who live or lived together in a shared household, or as family members living together in a joint family

If any person commits a sexual crime against a child while having a domestic relationship, such an offence will be an aggravated offence against the child. The child trusts the person having a domestic relationship with the child, and when such a person is to attack the child, then the law will be more strict in punishing such a person. 

Shared household

A shared household is defined in Section 2 (k) of POCSO as: “Shared household” means a household where the person charged with the offence lives or has lived at any time in a domestic relationship with the child.” These words are used to include the offence as an aggravated form of offence which is penalized with more punishment than the simple form. This definition is included in the Act because 80% of the sexual offences against the Child are done by persons who are relatives, family friends, or whom the Child trusts. Sections 5(n) and 9(n) are made aggravated through domestic relationships and shared households.

The reason for this is to protect the child at home.

Special court and special procedures

Sex education is not only about the dissemination of information about sexual offences, sexual acts and sexual problems, but also about how to deal with situations where someone becomes a victim of sexual offences. The Act makes special procedures regarding post-offence measures to punish the crime and rehabilitate the victim child.

Special courts are constituted which level sessions courts for the trial of offences under the POCSO Act. Section 28 declares the constitution of special courts for speedy trials. The same court is competent to try any other offence as it would be competent to try under the Code of Criminal Procedure, 1973. It has jurisdiction to try offences under section 67B of the Information Technology Act, 2000, which relates to the publication or transmission of sexually explicit material depicting a child.

In this digital era, crimes are committed digitally and the law has to evolve itself to punish such crimes. Hence, the jurisdiction makes a special court competent to try such offences against the child. The most important sections which the author considers most effective against crimes against the child are sections 24, 25, 29, and 30.

Section 25 makes provisions for the recording of statements of a child. It includes protective measures for the child, such as recording the statement in a place where the child can freely make a statement and to a female police officer as far as practicable and in civil dress, and avoiding contact of the child with the accused during the recording of the statement, so that fear in the child’s mind is washed out.

Moreover, the child is not to be detained in the police station at night. Also, the identity of such a child is not to be disclosed to any person whatsoever. Section 25 makes provision for recording statements by the magistrate under 164 CrPC as they are spoken by the child and without the presence of the advocate of the accused. 

Section 29 shifts the onus of proof on the accused in an offence under sections 3, 5, 7, and 9 under this Act. The court is mandated to presume the offence was committed by the accused until the contrary is proved. This is a major shift from the general criminal jurisprudence, which places the burden of proof on the prosecution to prove beyond reasonable doubt that the offence was committed by the accused.

The accused is given a defence under section 30 in any offence in which the culpable mental state of the accused is relevant that he/she had no such mental state at the time of the commission of the offence. ‘Culpable mental state’ under section 30 includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. Such measures are necessary to protect the child from being harassed at the hands of the accused or the family, which seldom report such cases. EERA through Dr. Manjula Krippendorf vs. State (govt. Of NCT of Delhi)⁷ demonstrates the significance of this provision—

The petition was filed in the High Court under section 482 to transfer the case to the special court constituted under the POCSO Act, 2012. The mentally retarded woman, aged 38, was subjected to rape. The mental age of that woman is approximately 6 to 8 years old, and there is a necessity for the trial to be conducted in a most congenial, friendly, and comfortable atmosphere, and the proceedings should be video-graphed. Hence, the petition was filed. The court rejected this reasoning, as the definition of a child under the Act is the biological one and not the mental one.

Public awareness about the Act

Section 43 makes provisions for Central Government and every state government to take all measures for public awareness about the Act by resorting to different media such as print, electronic, audio, video, or any such medium. The government is also required to inform the victim’s parents and government officials about the act. This will ensure that the offender under the Act does not escape after committing the offence under the Act, as when the child is informed, the child will report to parents, special juvenile police, or NGOs.

Conclusion

Finally, the Act establishes effective measures to combat sexual assault against children. But the need of the hour is more and more dissemination of sex education, not only among the children prone to such offences but also to the public at large and generally, so that the world can punish and recognize the offence, as it did in the cases of rape, dowry deaths, and domestic violence, under which the victims were reluctant to even report the offence, and instead of punishing the crime, we made the victims as the criminals. This situation is prevalent today for offences against children under 18 years of age.

The measure to prevent such behaviour is to impart sex education. But this should not be generalized to all age groups.  Instead, the groups are formed with age groups up to 6 years, then 7–12 years, thirdly, 13–18 years, and lastly, 19–24 years, and different topics are to be covered under this program. Sensible and balanced training in such topics by psychologists and teachers is required to make students aware of the negative and dark elements of society and when to do what in their lives so that they are not in trouble without fault.

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Citations

1. Preamble to Protection of Children from sexual offences Act, 2012.
2. Satish v. State of Maharashtra; (2021) 1 Crimes 175.
3. Attorney General of India vs. Satish and Another, AIR (2022) SC 13.
4. Eera through Dr. Manjula Krippendorf vs. STATE (GOVT. OF NCT OF DELHI), AIR 2017 SC 3457.
5. Fathima A.S. vs. State of Kerela, (2022) 2 KLT 396.
6. Ibid n(5).

This article is written by Somnath Sharma, a law graduate.