THE POLICY OF “PROTECTION OF CHILDREN FROM SEXUAL OFFENCES” (POCSO) AND ITS REVISION
Abstract
Public policy for all the sections of the society becomes the most important task of the bureaucracy because each individual’s development is imperative for the making of a dynamic society. Despite this perception, there is one section which is in most cases not taken into serious consideration for policy making and this is the children of the nation. Their rights and protection has not been comprehensively delved into until recent times. And one such aspect is making policies and rules for their protection from sexual offences. Sexual offences against children is a concern that is plaguing several countries across the world but in most cases, the incidents are hidden in nature. It is one of the most under-reported offences and the effect of ‘Child Sexual Abuse’ (CSA) lingers across the lifetime of an individual and can harm a child beyond repair. And this has been identified by several developed and developing nations and required policy implementations have been put in place.
India is one of those nations which looked into this threatening concern and in order to effectively combat the horrible crimes of CSA and exploitation, it enacted the Protection of Children from Sexual Offences (POCSO) Act in 2012. It is a comprehensive law on sexual abuse that broadens the range of sexual offences that can be committed, mandates reporting of abuse, and established standards for the evaluation of victims. Although it has been a decisive step in curbing the problem, it has its own set of challenges in its implementation and scope with respect to the successful policies of a few developed nations. Thus, this paper aims to present the features, amendments, successes and the required revisions to the POCSO Act in India.
Indian policies and programs have always supported the wellbeing of children. According to the National Policy for Children (2013) it has been stated that Survival, Health and Nutrition, Education and Development, Protection and Participation of children should be seen as key priority. And thus, POCSO has been drafted and later amended in the same spirit. It aims to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. The idea behind its implementation has been reinforced by the fact that 40% of India’s children were under the threat of sexual abuse as presented by the Ministry of Women and Child Development (MWCD) based on 2011 census. This problem has been emphasised even by the internal organisations. The United Nations (UN) has defined child sexual abuse as contacts or interactions between child and an older or more knowledgeable child or adult (a stranger, sibling or person in position of authority, a parent or a caretaker) when the child is being used as an object of gratification for the older child’s or adult’s sexual needs. In line with this definition,the POCSO Act deals with:
Penetrative sexual assault: It is when person insert penis, or any other object into the body of child or ask child to do so;
Aggravated penetrative sexual assault: It is when trusted person or any government employ insert penis, or any other object into the body of child or ask child to do so;
Sexual assault: It is when a person with sexual intent touches the child’s private body parts or ask child to do so;
Aggravated sexual assault: It is when trusted person or any government employ with sexual intent touches the child’s private body parts or ask child to do so ;
Sexual harassment: A person is said to commit sexual harassment upon a child when such person is with sexual intent comment or follow or gaze a child or show any pornography to the child;
Using a child for pornographic purposes (Chopra 2015).
Article 34 of the United Nations Convention on the Rights of the Child (UNCRC) mentions that governments should protect children from all forms of sexual exploitation and abuse (UNCRC 1989). And since the Government of India ratified this legislation in the year 1992, it enacted the POCSO Act based on the ideals of UNCRC. This Act possesses certain salient features which make it prodigal with respect to dealing with the problem. They are as follows:
“Children” according to the Act are individuals aged below 18 years. The Act is gender-neutral. Different forms of sexual abuse including but not limited to sexual harassment, pornography, and penetrative & non-penetrative assault are defined in the Act.
Adequate provisions are made to avoid re-victimization of the Child at the hands of the judicial system. The Act assigns a policeman to the role of child protector during the investigation process.
The Act stipulates that such steps must be taken which makes the investigation process as child-friendly as possible and the case is disposed of within one year from the date of reporting of the offence.
The Act provides for the establishment of Special Courts for the trial of such offences and matters related to them.
To monitor the implementation of the Act, the National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority. Both are statutory bodies.
The Act enhances punishment for sexual offences against children with a provision for the death penalty.
Along with these significant features of the original act, certain appreciable amendments have been added in 2019:
More stringent punishment
The act was amended in 2019 to increase the minimum punishment from seven years to ten years. It further adds that if a person commits penetrative sexual assault on a child below the age of 16 years, he will be punished with imprisonment between 20 years to life, with a fine.
New Category under CSA
The Ministry of Women and Child Development has cited reported rapes of young girls in the aftermath of Kedarnath floods and that children constitute 50-60% of victims of calamities to make a case for including rapes in course of natural calamities as the 21st category under the definition of CSA.
Expanding the list of perpetrators
The 21 categories under aggravated penetrative sexual assault cover child victims who have been subject to penetrative sexual assault by a police officer or a member of the armed forces or security forces, by a public servant, a relative, the staff of a jail or remand home or protection home, staff of a hospital, educational institution, or religious institution among others.
Punishment of Death
The maximum punishment of death will also be applicable when sexual assault victims are children with mental or physical disabilities, in cases of repeat offenders, rape and attempt to murder, and rape during communal violence.
Challenges and Controversies of the Act
Implementation of any policy has its own set of limitations and contentions. The same is on a higher note for policies which deal with issues that are multidimensional in nature and the POCSO Act is one such crucial case. It deals with CSA having multidimensional implications- legal, social, medical, and psychological. It thus faces certain drawbacks in its operation. They are:
Awareness and Sensitisation about the POCSO Act
POCSO is the most recent and most crucial legislation to protect children from sexual abuse but citizens possess very limited knowledge about the law. And hence, it becomes very important to work on this challenge. The POCSO Act in its guidelines has stated, “The Central Government and every State Government, shall take all measures to ensure that—
(a) The provisions of this Act are given wide publicity through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act;
(b) The officers of the Central Government and the State Governments and other concerned persons (including the police officers) are imparted periodic training on the matters relating to the implementation of the provisions of the Act” (POCSO, 2012).
But despite these provisions, awareness is limited because of poor policing and the failure of support services to work efficiently. POCSO applies only after a crime is reported and its prevention should not just be legal in nature. It would require the sensitisation of all stakeholders about the issue. This would ensure early identification of children who are in need of aid and would help in providing justice at the earliest to the survivor of CSA.
Mandatory Reporting
According to Section 19 of the Act, it becomes obligatory to report offences of CSA if one is aware of them occurring and the person who fails to do so will eventually be liable for punishment of up to six months of imprisonment or fine or both. This provision seems so idealistic from the surface but it has a few inherent problems associated with it. Reporting of these cases in many countries is very minimal and this was stressed by the report of Human Rights Watch in 2013 (HRW 2013). It states that only a minute percentage of child sexual abuse cases are ever reported to the police. There are various reasons attributed to this- the survivors and their family choose not to come forward because of the fear that they will not be treated sympathetically including intimidating investigation of the cases, degrading and painful medical examinations, intimidation by perpetrators to drop charges and daunting court proceedings.
Several studies show that mandatory reporting, though aimed at punishing the offender, is not in the best interest of the survivor. Mandatory reporting is not desired by the survivors because of apprehensions about retaliation by the perpetrator; anxiety that others will come to know about the assault; and fear of losing community support. All this makes the parents or guardians uptight about informing. As per POCSO act, it is mandatory to register a medical legal case in all cases of sexual assault but the procedure of reporting it has not been clearly mentioned. Section 19 talks about mandatory reporting especially by those working with children and young people in the education, social, religious and health sectors. This clause made medical practitioners and other stakeholders to cause under reporting who were fearful of legal hassles. Medical practitioners find it challenging to report these cases when a victim is nonconsenting of disclosure.
Readiness of medical professionals to deal with CSA
According to the report of World Health Organisation (WHO) in 2003, many Indian health practitioners, police officials and courts seek evidence of “sttuggle” and “injuries” in cases of rape and sexual assault though WHO in its module of guidelines states “only approximately one-third of rape victims sustain visible physical injuries” (World Health Organisation 2003). And as many acts of CSA do not involve violence or penetrative sex, doctors then report there is no evidence of rape. The lack of proper training on how to handle survivors and such sensitive issues adds up to the problem of efficiency of this policy. Although POCSO has made a lot of progress in legal and judicial proceedings, it has been inadequate in providing comfort through good quality services of physical and mental health of the survivors.
Incapacity of Special Courts and Judicial Delay
According to Section 28(1), POCSO Act, State Governments should, in consultation with the Chief Justice of the High Court, designate a Sessions Court to be a Special Court to try offences under the POCSO Act, to facilitate speedy trial. Special courts play a very significant role in the proceedings under POCSO but almost all the courts have public prosecutors but they are again not exclusively dealing with POCSO cases. Although the legal prerequisite directs each district to have an exclusive POCSO court, the directives have been continuously ignored.
It has also been observed that the appointed judges are not experts in CSA laws and there are no provisions for additional capacity-building of the professionals. This further burdens the judicial system thus reducing the performance of the policy and leading to judicial delay of disposing cases. This could be seen in the legislation of the infamous ‘Kathua Rape case’ which took 16 months for the primary accused to be found guilty despite the fact that the POCSO Act directs for the full trial and conviction procedure to be completed in one year.
Amplification resulting from Digital Technologies
Rising digital technology has increased the manifestations of child exploitation and sexual abuse. Online bullying, harassment and child pornography are just a few examples of growing CSA incidents. The legislation needs to strive to keep up with these technological changes and add effective measures to the policy.
Revisions and Recommendations for POCSO
Systematic changes in law enforcement and prosecution hold the key to tackling CSA in a more efficient manner. This could be achieved by constantly reviewing and revising certain provisions of the policy to make it more accessible and accommodating to the survivors. Some of the revisions could be considered with respect to the following provisions:
Mandatory reporting: There is a stark difference in the clauses related to mandatory reporting in POCSO and similar kinds of legislations enacted in other countries. In India, POCSO imposes an obligation on every person with respect to reporting. On the other hand, in most states of the USA, member states of the EU and Australia, only certain professionals such as doctors, teachers, counsellors, social workers, and psychologists are mandated reporters (Binjrajka 2015). These are categories of people who are frequently in contact with children and are sensitive to the manifestations of sexual abuse in the form of behavioral changes, low self-esteem, and aggression among others. If India could adopt something along similar lines, it would increase the rate of reporting through sensitive handling of issues of confidentiality and trust of the child.
Capacity-building of Police Officers: When it comes to crimes against minors, especially cybercrime, investigative authorities must continually improve their capabilities. A module on “offences against children” should be included in the curriculum of police academies and training programmes, so that officials can become familiar with child-related laws, such as the POCSO Act, their goals and procedures, and investigative and forensic techniques.
Training for Judicial professionals and improving Infrastructure: When dealing with and assessing the evidence of a child, the Special Courts employ the same standards and competencies as utilised for adults, which undermines the goals of the POCSO Act. It is essential that the Special Courts investigate the child’s condition with the help of the child’s attorney and/or support person and do not take the child’s deposition at face value. Infrastructure for Special Courts must be improved and POCSO Act-mandated special procedures must be followed. Increase the number of Special Courts and equip them with the necessary facilities and personnel.
Training to the Medical and Mental Health Practitioners: There is an urgent need to teach all medical students and primary care physicians the delivery of child-friendly interviews, systematic assessments, evidence gathering, prophylaxis for HIV and STDs, family counselling, and frequent follow-up. Evaluating a victim of CSA involves specialised knowledge and methods in history collection, forensic interrogation, and medical examination. There can be both immediate and long-term negative effects on a person’s mental health from child sexual abuse. In order to provide the victim with follow-up care in the event that psychiatric disorders emerge, mental health professionals must offer individual counselling, family therapy, and rehabilitation (Chopra G 2019).
Conclusion
Therefore, the POCSO Act can be considered as a powerful tool in dealing with child sexual abuse but because it a recent legislation in comparison to other laws, it faces with the crunch of resources and awareness among the people. It is more than ten years of its existence and many of the stakeholders have little or no knowledge of even the basic provisions of the Act. Awareness about sexual abuse can go a long way in prevention from CSA. Information related to POCSO should come in public domain and awareness among stakeholders will help in eradication of CSA. This along with the other limitations should be looked into to make the POCSO Act as a pioneer to several other developing countries who are dealing with this debilitating social concern.
References
Chopra, G. (2015). Child Rights in India: Challenges and Social Action. Springer (India) Pvt.
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html [accessed 10 October 2023]
The POCSO Act 2012, available at https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf [accessed on 09 October 2023]
Human Rights Watch, (2013). Breaking the Silence: Child Sexual Abuse in India. Retrieved and accessed on 15 may 2018. https://www.hrw.org/sites/default/files/reports/india0113ForUpload.pdf [accessed 10 October 2023]
Binjrajka, M. (2015). Mandatory Reporting Under POCSO: Are We Ready? Journal of Indian Law and Society.. (2011).
Chopra G, Renu (2019). Child Sexual Abuse in India and the Protection of Children from Sexual Offences (POCSO) Act 2012: A Research Review; Integrated Journal of Social Sciences.
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