ABSTRACT
Child sexual abuse is a dark reality that is increasing in India and with numerous harmful impacts. It is a universal and human rights issue. It was not conceded as a serious crime before the “Protection of Children from Sexual Offences Act, 2012”. Child sexual abuse includes the provision concerning child rape, harassment and pornography. This article highlights the types of child sexual abuse and legal provisions related to child sexual abuse.
Introduction
Child sexual abuse means the physically or mentally ill-treatment with a minor or a child with sexual intention. Children are abused by an outsider (unknown to the child) or an insider (family member and relatives). In India, many cases of child sexual abuse are not recorded because many parents prefer to stay quiet.
It happens when a person uses a child for his/her sexual indulgence. Child sexual abuse is in the form of physical contact and non-physical contact. The child does not have the authority to give consent. Consent or dissent both are covered under child sexual abuse.
Various kinds of child sexual abuse:
- An adult revealing their private parts and forcing the child to do the same.
- An adult touching child’s sexual organs and compelling them to do the same.
- An adult initiating sexual intercourse with a child with or without consent.
- An adult showing or encouraging a child to hear and watch pornographic material.
- Obscene phone calls and indecent messages.
- Sharing and preserving indecent images of children.
- Making child to listen sexual content that harms their mental and physical health.
- Adult married to minor and minor to minor is considered a forced relationship.
Laws relating to child sexual abuse
Before 2012, In India, there was no particular law for child sexual abuse. It was governed by the various provisions of the IPC. Section 377[i] deals with the sexual intercourse against the nature, Section 354 states the assault or criminal force on women with intention to indignant her modesty[ii]. Sec.509 deals with insulting women through word, or gesture or showing object which is inappropriate with the intention[iii]. Section 374 defines rape[iv]. The Protection of Children against Sexual Offences Act, 2012 was enacted by Parliament to save children or minors from sexual abuse and it is gender neutral.
Provision contained in POSCO Act
- Section 19 of the POSCO Act, states that the reporting of the cases child sexual abuse is obligatory.
- Section 30(iii) of the Juvenile Justice Act, 2015 states that when a child has been abused sexually, then Child Welfare Committee (CWC) should take actions for child’s rehabilitation. Such a case must be reported to SJPU or local police under POSCO Act, 2012.
- Section 19(6) of the POSCO Act, deals with sexual offence against a child and mandates that a report of the case should be presented in front of CWC within 24 hours after the filing of the case[v].
- Rule 4 (7) of POSCO Act, obliges the CWC to assist child and the family during investigation.
- The Special court should determine the age of child define under Sec. 34(2) of POSCO Act[vi].
- Section 40, POSCO Act 2012 deals with the victim child’s right to receive free legal counsel during the trial[vii].
Others-
- Minor has the liberty to state his statement only where he is comfortable.
- To provide a speedy trial and video recording to ensure confidentiality.
- The child should be medically examined by a female doctor, in the presence of a person whom the child trusted, with his/her guardian consent.
- Contact between the victim and the accused should be avoided during video recording.
- The accused defender can ask questions but those questions would be asked through a judge to a juvenile.
Punishment under POSCO
- Section 4 of the POSCO Act deals with the punishment for penetrative sexual assault, the accused shall be punished not less than 7 years or which may be extended to life imprisonment[viii].
- If a trusted authority or a person or police officer is committed an aggravated sexual assault with child, he will be punished under Sec.6 of the POSCO Act[ix].
- If a person has committed non-penetrative assault, then he will be punished under Sec.10 of the POSCO Act[x].
- Section 12 of the POSCO Act prescribed punishment for three years with a fine[xi].
Further, The Act prescribes punishment in accordance with the gravity of the offence. Storing pornographic material related to the child is an offence, punishment for which imprisonment is in description form, which may be extended to three years or fine or with both.
Landmark Judgements
Ghanshyam Misra v. The state[xii]
In this case, Ghanshyam Misra was the school teacher of a 10-year-old and raped her at the school premises. The schoolteacher is the trusted authority of the child. The court sentenced the accused for seven-year imprisonment with a fine and ordered compensation to the father of the girl.
State v. Pankaj Chaudhary[xiii]
In this case, the court held the accused liable only for ‘outraging the modesty of a woman’. The case revolves around the digital penetration of anus and vagina of a girl child. Before 2012 digital penetration was not recognized as an offence under IPC.
Misuse of POSCO Act
Many cases were reported based on false allegations. The Kerala High Court has held that the petitioner misused the provisions of the Protection of Children from Sexual Offences Act (POCSO Act) so she will be liable. The petition was filed by the victim’s mother. The allegation was that her 16-year-old daughter was alone at home the accused came to her house and hold her. In the investigation, the police officers found that the accused was far away from her house on the incident day. The court held that the allegation on the accused was fictitious. According to Section 22 of the POSCO Act, police can take action against the petitioner. The court dismissed the petition[xiv].
Conclusion
Sexual abuse of a child is a serious crime. POSCO Act has changed the scenario of child sexual abuse in India as prior to it there wasn’t any specific law dealing with said issue. Yet, the need to improve the trial and make it child-friendly is often felt.
[i] Pen. Cod.§ 377.
[ii] Pen. Cod. § 354.
[iii] Pen. Code.§. 509.
[iv] Pen. Code. § 374.
[v] POSCO Act, 2012, Bill No. 32 of 2012, §19(6).
[vi] POSCO Act, 2012, Bill No. 32 of 2012, §34(2).
[vii] POSCO Act, 2012, Bill No. 32 of 2012, § 40.
[viii] POSCO Act, 2012, Bill No. 32 of 2012,§ 4.
[ix] POSCO Act, 2012, Bill No. 32 of 2012,§ 6.
[x] POSCO Act, 2012, Bill No. 32 of 2012, §10.
[xi] POSCO Act, 2012, Bill No. 32 of 2012, § 12.
[xii] AIR 1957 Ori 78.
[xiii] Delhi High Court criminal appeal 813/2011.
[xiv] 27th July 2018, Kerala High court comes out against misuse of provisions of POSCO Act, The Indian Express, https://www.newindian express.com.
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This article is written by Prachi Yadav, 2nd Year student from Mody University of Science and Technology, Laxmangarh, Rajasthan