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Protection of Children from Sexual Offences Act, 2012

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CHILD PROTECTION

Rajul Jain, Legal Research Officer,  Shakti Vahini

According to National Crime Records Bureau the cases of sexual offences against children have been on a rise. Many reports reflect that children are often abused by persons in position of trust and responsibility which includes fathers, brothers and other close relatives. Also it is often the case that the form of sexual abuse differs from the traditional definition of rape as penile-vaginal penetration and involves the exploitation of a child through different means. It is also a cause of worry that the laws have neglected the fact of abuse of male child. In such a scenario it was difficult to book the alleged accused under any provisions of the existing laws. It was in view of this that the “Protection of Children from Sexual Offences Act, 2012” was notified and came into force on 14th November 2012. It truly is a boon for the children of India, where the exploitation is disturbingly high and weak laws have failed to deter the offenders.

The following are the highlights of the new Act.

  • The Act for the first time has introduced a gender neutral law in respect of sexual offences as opposed to the “female centric” rape provisions of the Indian Penal Code as currently applicable.
  • The Act’s provision address two categories of offences:

i) Sexual harassment– which would for example include the act of staring or passing comments and acts of showing pornographic material. The main feature distinguishing of harassment from assault being that there is no physical touch/ involvement with the victim on whom the act is directed.

ii) Sexual assault would necessarily involve some amount of physical engagement with the victim of the crime.  Further assault can be categorized as penetrative and non-penetrative.

Further the definition of penetrative sexual assault takes within its purview not only penetration, by penis but also with objects, of vagina, urethra, mouth or anus of a child. The Act will also include oral sexual assault committed with the child. It is also important to mention that the doing of such acts on the body of a child is punishable and making the child do so on any other person is equally punishable. Hence the definition given by this Act is wide enough to take within its sweep activities which violate the body/person of a child in different ways but were not earlier punishable under any provision of any legislation. It was because of this lacuna that the cases which were even reported did not achieve the conviction of the accused.

  1. The intent of the legislature in coming up with an Act which define Sexual assault as does in this Act is quite laudable. Section 7 of the Act, defines sexual assault to include the act of touching the private parts of a child or making him touch the private parts of any other person or any act which entails physical contact with the child even without penetration. Such acts are punishable with an imprisonment of a term not less than 3 years which may extend to 5 years, and fine.
  1. It is further noted that Section 11 of the Act while defining sexual harassment upon a child includes where such person with sexual intent utters any words, makes sound, gesture, or exhibits any object or part of body, or makes a child exhibit his body or any part of his body to be seen by such person, showing pornographic material, following or watching or contacting a child through any electronic, film or digital or any other medium.

       3.   Doing of any such act is punishable with an imprisonment which may extend to    three years and fine.

  1. The Act for the first time provides for the inclusion of using a child for pornographic purposes as an offence. It provides that use of any media- electronic, or print, for the purpose of sexual gratification which includes representation of the sexual organs of a child, usage of a child engaged in real or simulated sexual acts or even indecent or obscene representation of a child shall be liable under the Act.
    • He/ she may be punished with imprisonment of a term which may extend to 5 years and fine. Or, in case of repeated offenders, to imprisonment extending up to 7 years and fine.
    • The relevant section, i.e. section 14 also provides for situations where using the child for pornographic purposes coincides with sexual assault and other offences as provided for under the Act.
    • In this matter, storing for commercial purposes materials which involve child pornography is also an offence and punishable with imprisonment which may extend to three years or fine or both.
  1. The Act also entrusts the SJPU or local police with an obligation to report the matter to the Child Welfare Committee and the Special Court or with in the absence of Special Courts to the Court of Sessions, within 24 hours.
  1. Also to encourage persons to report the offences under this Act, the Act provides that no person shall incur any liability for giving information in good faith.
  1. The Act also institutes a special provision for mandatory reporting. Under section 21of the Act anybody who fails in reporting or recording commission of an offence shall be liable to be imprisoned or fined or both. While the former part of the provision is applicable to anyone and everyone with knowledge of an offence being committed under the Act, the latter part can be made applicable to the police officials who deny or fail to record such complaints.
    1. The provision further provides for an added responsibility on the in-charge of institutions to mandatory report events of sexual abuse which are or come to their knowledge, failure of which will lead to imprisonment and fine. Thus the Act entrusts a heavy responsibility on all institutions to report such incidents. It especially obliges shelter homes, NGOs and such similar institutions.
  1. The Act also criminalizes disclosing the identity of the child victim in the media and the entire publisher or owner of the media are jointly or severally liable for the acts and omissions of his employees.
  1. The Act further provides for situations where people may wrongly implicate others and penalizes it with imprisonment or fine or both.
  1. The Act further provides a provision similar to that of Section 376, IPC in terms of aggravated sexual assault. An act will amount to aggravated sexual assault when it is committed by a person in whom the duty of care and protection of child is reposed either by virtue of being in a position of responsibility like police officer, doctor etc or that who is in relation to the child. Also the consequences of the offence committed on the child for example in incapacitating the child or use of deadly weapons etc will cause the act to fall in the category of aggravated sexual assault.  
  1. It is observed that there are further provisions of the Act which draw reference to the Child Welfare Committees and entrust them with certain functions. There is therefore, a relationship between this Act with JJ Act. Specifically, in case the abuse of the child is by a family member the power is given to CWC to adjudicate within 3 days whether the child should stay with the family or not.
  1. A glance at the Rules of the Act provides us with some insight into practical aspects to support the victim. Rule 3 provides that the District Child Protection Unit shall maintain special register with names of experts who should be approached for providing necessary support.
  1.  Rule 4 highlights the intervention of the CWC in case of a child who is in need of care and protection.
  1. Rule 7 makes provision for facilitating compensation by special courts for the benefit of the victim which can be granted at any stage after filing of the FIR, meaning thereby that an interim compensation can be granted as well.

In addition to this, there are other various forums from where compensation can be provided to the victim like through Delhi Legal Services Authority under Victim Compensation Scheme or even under the High Court separate scheme for compensation or under ICPS.

Conclusions

The Act provides for various offences and gives a different meaning altogether to sexual assault and makes strong provisions for the protection of children against sexual abuse which has been very widely defined. In lay man’s language it can be said that all acts done with a sexual intent towards the child or making him do such an act is penalized. Also most offences attract both imprisonment and fine. Therefore, care has been taken to give utmost importance to the fact that the act which causes an adverse impact on the mind of a child should not go unpunished. With adequate awareness among the children and the implementing agencies the Act is hoped to bring down substantially the crimes of sexual abuse against children.

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