Tag: #sexualoffense

Sex Education and India: With Reference to POCSO

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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.

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.

Accomplice Evidence in Sexual Offenses

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The present article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

INTRODUCTION

An accomplice is a person who intentionally and voluntarily aids another person in committing a crime and thus ends up becoming equally guilty for the crime. 

The Indian Evidence Act 1872 deals with evidence from an accomplice, but the Act does not define the word ‘accomplice’. The judiciary has tried to define this word in various cases. In RK Dalmia v. Delhi Admin, the Apex Court said that a person who participates in the committing of the crime with which the accused is charged is an accomplice.

However, there are two cases in which a person can be regarded as an accomplice even when he is not a partner in crime. In cases where the person has received stolen property, he is considered to be the accomplice of the thieves who have stolen the property. Also, accomplices in previous similar offences are taken to be accomplice in the offence for which the accused is on trial if the evidence of the accused having committed crimes of similar nature on previous occasions is admissible to prove the intent of the accused in the offence charged.

An accomplice becomes an ‘approver’ when he becomes a prosecution witness and is granted pardon under Section 306 of the Code of Criminal Procedure (CrPC). 

CATEGORIES OF ACCOMPLICE

For a person to be regarded as an accomplice, he has to be a particeps criminis, i.e., a partner in crime. The modes of participating in a crime can be divided into two broad categories. These categories are:-

  1. The principal offender of first degree or second degree: A principal offender of first degree commits the crime whereas a person who is present at the time of the commission of the crime and aids or abets the commission of the crime is a principal offender of the second degree. 
  2. Accessories before the fact or accessories after the fact
  1. Accessories before the fact: An accessory before the fact is someone who incites, abets, counsels or encourages the commission of a crime but himself does not participate in its commission.
  2. Accessories after the fact: An accessory after the fact is someone who, being aware of the fact that a person has committed a crime, receives or comforts or protects that person and assists him in escaping arrest or punishment. 

EVIDENTIARY VALUE OF THE ACCOMPLICE’S EVIDENCE

Section 133 and illustration (b) of Section 114 of the Indian Evidence Act 1872 talk about the evidentiary value of the evidence given by an accomplice. As per Section 133 of the Act, an accomplice is a competent witness and a conviction based on his testimony will not be illegal merely because the testimony of the accomplice is uncorroborated. On the other hand, according to illustration (b) of Section 114, the testimony of the accomplice will not be considered credible unless verified in material particulars. 

Though it may seem so, there is no contradiction between the two provisions. Section 133 enables the judiciary to convict the accused based on the uncorroborated testimony of the accomplice. However, as the accomplice himself is a participant in the crime, his testimony may not always be reliable. Thus illustration (b) of Section 114 provides that if necessary, the court can presume the testimony to be unreliable unless it gets verified by some independent evidence.  

ACCOMPLICE EVIDENCE IN SEXUAL OFFENCES

Corroboration is the common point between an accomplice and the prosecutrix of a sexual offense because the evidence was given by a prosecutrix also requires corroboration like that of an accomplice. However, the evidence of the prosecutrix is different. Her evidence is equivalent to the evidence of an injured person. She is not an accomplice, but a competent witness.

In Rameshwar Kalyan Singh v. State of Rajasthan, the Supreme Court stated that, in case of rape, the prosecutrix cannot be treated as an accomplice. The Indian Evidence Act does not state that the evidence by a prosecutrix in cases of sexual offence needs to be corroborated but the judiciary insists on the need for corroboration as a matter of practice. The corroborative evidence should be such as to ensure that the evidence of the prosecutrix will be lawfully acted upon. However, it was felt that it would be impossible and dangerous to state or declare what kind of evidence can be regarded as corroboration. 

The nature of corroborative evidence varies from case to case, but the Court has given some guidelines in this regard. These guidelines are as discussed below:

  1. There must be some additional evidence that can ensure that the testimony of the accomplice is true and it is safe to act upon the testimony.
  2. The independent evidence must be able to establish a connection with the accused by confirming the testimony of the complainant or the accomplice that the accused committed the crime. 
  3. Ordinarily, the testimony of one accomplice cannot act as a corroborative evidence for another accomplice. In other words, it can be said that the source of the corroborative evidence must be independent. But if the circumstances are such as to make it safe to depend on the testimony of one accomplice for corroboration of another accomplice’s testimony, then a conviction on such basis will not be illegal.
  4. The corroborative evidence does not need to be direct so as to prove that the accused committed the crime. Mere circumstantial evidence that connects the accused with the crime is sufficient.

In State of Madhya Pradesh v. Sheodayal Gurudayal, the Court laid down a test to determine the necessity of corroboration of the testimony of the prosecutrix. The test is based on the authenticity of the declaration given by the prosecutrix. If the testimony of the prosecutrix appears to be genuine then there is no need for corroboration. However, if any part of the testimony appears to be artificial or exaggerated, corroboration will be needed. It is to be noted that these principles are not rigid and are to be viewed as guiding principles in cases related to sexual offences.

CONCLUSION

It is true that sexual offenses cause great suffering and humiliation to the victim, but at the same time, a false allegation can cause equal distress and humiliation to the accused and ruin his life. Thus, protecting an accused person from a false implication is equally important. The guiding principle for accomplice evidence that is followed in India is that although it is not illegal to convict an accused based on the uncorroborated evidence by an accomplice, it is unsafe as per the rules of prudence. This guiding principle, though clear, is subjective in nature because different judges might have different levels of corroboration and given the lack of any strict rules relating to the extent of corroboration, this subjectiveness can lead to injustice.

BIBLIOGRAPHY

  1. Accomplice, Encyclopaedia Britannica (Nov. 10, 2011), https://www.britannica.com/topic/accomplice.
  2. Accomplice, Law of Evidence, https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.lkouniv.ac.in/site/writereaddata/siteContent/2020051221156635Richa-Paper%2520of%2520Evidence.pdf&ved=2ahUKEwito8Sbt5zxAhWRb30KHTx5CxwQFjAAegQlAxAC&usg=AOvVaw2ikXfB3LX9x3AWN3yd5DZg.
  3. Devika Sharma, ALL HC | “A woman or a girl who is raped is not an accomplice”: HC re-establishes while explaining the significance of testimony of rape victim, SCC Online (Jan. 25, 2021), https://www.scconline.com/blog/?p=242805. 
  4. Gauri Agrawal, Authenticity of Accomplice Evidence, https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.ijlmh.com/wp-content/uploads/2019/03/Authenticity-of-Accomplice-Evidence.pdf&ved=2ahUKEwjB0PmPpZzxAhWlYisKHZWHBO4QFjARegQlHRAC&usg=AOvVaw1-xnmKrST7CCl7CG0ym8ox.
  5. Javaid Talib, Md. Ashraf, Law of Evidence – II, https://www.google.com/url?sa=t&source=web&rct=j&url=https://old.amu.ac.in/emp/studym/99996405.pdf&ved=2ahUKEwito8Sbt5zxAhWRb30KHTx5CxwQFjACegQlCBAC&usg=AOvVaw1QXGjYGS-mdKeu_399vBAj&cshid=1623856092398.
  6. Sole evidence of sexual offence victim is enough for conviction: Supreme Court, The Hindu (Oct. 22, 2020), https://www.thehindu.com/news/national/sole-evidence-of-sexual-offence-victim-is-enough-for-conviction-supreme-court/article32922041.ece. 

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