The Protection of Children from Sexual Offences Act (POCSO Act)

The Protection of Children from Sexual Offences (POCSO) Act was brought in 2012. The legislation was brought to protect children from all types of sexual offenses/abuses.

Before 2012, there wasn’t any specific law for the union of India which regulated sexual offences against children. The only legislation which aimed to protect rights of a child was Goa’s Children’s Act, 2003 and Rules, 2004 which, as the name of the legislation suggests, was only applicable in the union territory of Goa. There were some provisions under the Indian Penal Code, 1860 like Section 354, 375, 377 but these sections had some serious faults just on their own, they didn’t protect either the male children from sexual abuse or their modesty.

In India, POCSO isn’t the only legislation which deals with sexual offenses against children. Certain provisions of Criminal Procedure Code (CrPC),1973, Indian Penal Code (IPC), 1860, Juvenile Justice Act, and Information Technology Act, 2000 overlap in the regulation of sexual offenses against children. [1]

The POCSO Act is a gender-neutral legislation. It defines any individual below 18 years as a child and provides protection, legally, to all children from sexual abuse. The law defines child sexual abuse comprehensively and contains the following:

• penetrative sexual assault;
• aggravated penetrative sexual assault;
• sexual assault;
• aggravated sexual assault;
• sexual harassment;
• using child for pornographic purpose, and;
• trafficking of children for sexual purposes.

These offences are termed aggravated when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-ã-vis the child. The Act proposes stringent punishment depending as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.[2]

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCE ACT, 2012

Despite the fact that India ratified the UN Convention on the Rights of the Child on December 11, 1992, which requires all States parties to the Convention to protect children’s rights from any unlawful sexual activity, the exploitation of children for prostitution, and other illegal and exploitative sexual practises using children in pornographic performances or materials, the number of sexual offences against children was steadily rising. There was no explicit law that dealt with specific offences related to sexual offences against children prior to the passage of the POCSO Act in 2012. Indian Penal Code, 1860 primarily addressed the offences and handed down punishment to those who committed them.

Even though the IPC, 1860, did not have any specific provisions that dealt with sexual offences committed against children, sections like Section 322 (which deals with causing physical grievous hurt), Section 354 (which deals with rape), Section 375 (which deals with rape), and Section 377 (which deals with unnatural offences) were present and were frequently applied in cases of sexual assault or harassment against children.

Many offenders slipped through the cracks of technicality and went unpunished for their crimes because these sections of the IPC failed to provide a clear definition of modesty, only included traditional peno-vaginal intercourse in the definition of rape, gave priority to female victims, and were not gender neutral. The wellbeing of children and the upholding of justice in society were seriously threatened by the lack of a proper statutory response to the rising number of sexual offences committed against children.

Thus, the Protection of Children from Sexual Offenses Act, 2012 was passed by both Houses of Parliament on May 22, 2012, and it became effective on November 14, 2012. The POCSO Act, a stand-alone law, ensures that children are protected from sexual offences, sexual assaults, and porn. The Act also set up special courts with the aim of expedited proceedings and stipulates safeguards to ensure the wellbeing of the child at all stages of the legal procedure.

Features of the POCSO Act

• The Act is gender neutral. The POCSO Act, in contrast to the provisions of the Indian Penal Code, 1860, does not limit the definition of sexual assault victims to females. The Act is a prime example of non-discriminatory legislation that exclusively seeks to protect all children, regardless of their gender.
• In Section 3 of the Act, sexual assault is defined more broadly and includes not just typical peno-vaginal penetration but also penetration of a person’s penis or any object into a child’s vagina, anus, or mouth or coercing a kid to perform such an act.
• The Act also broadened the definition of penetrative sexual assault to include any and all variants of such behaviour, regardless of whether the perpetrator is a trusted adult or a person of authority who has influence on the child.
• The Act also considers the issue of abuse of power and, under Section 5 of the Act, severely punishes anyone—including a police officer, a public employee, or an officer of a security force—who abuses their position to engage in penetrative sexual assault on a child.
• This Act also gives greater weight to sexual assault, which includes the objectification of children for any kind of pornographic or other reason.
• The Act has expanded the definition of “media” to encompass print, computer, and any other technology used for the production, offering, or dissemination of pornography in order to reduce the spread of child porn. The Act also made it illegal to store child pornography.
• The Act calls for the creation of Special Courts in each district in order to guarantee swift proceedings and accurate administration of justice. Additionally, the Special courts have the authority to conduct the trial in secret and with the child’s trusted person present.
• The clause in Section 36 allows for the child to be shielded from the accused during testimony in order to spare the child additional mental stress and trauma.[3]

REFERENCES

[1] POCSO Act : everything you need to know available at https://blog.ipleaders.in/pocso-act-everything-you-need-to-know/#Need_of_the_POCSO_Act_2012 (Last Visited on 11^th September 2022).

[2]  Child sexual abuse: Issues & concerns, The Protection of Children from Sexual Offences (POCSO) Act, 2012, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4557243/
[3]  A Critical Analysis of the Protection of Children from Sexual Offence Act, 2012 available at https://lexlife68840978.wordpress.com/2021/03/28/a-critical-analysis-of-the-protection-of-children-from-sexual-offence-act-2012/ (Last Visited 29th September 2022).

(Last Visited on 11^th September 2022).