Sexual abuse can happen to children of any race, religion or culture. It
is a fact that millions of girls and boys are being abused sexually abused
worldwide within homes and outside. They are abused by families and known
persons. The perpetrator exploits the child’s vulnerability to gain sexual
gratification. It involves mental, physical and emotional abuse of a child.
Children are unable to resist, so this crime is getting spread worldwide. One
of the form of sexual abuse in India is the child marriage which is most
prevalent in villages. According to National Crime Records Bureau, number of
rapes is increasing day by day as against the children. Crimes against children
like kidnapping, procuring minor girls and rape have doubled. The average age
of sexual abuse is around nine years.
Protection of children under Indian Penal Code and other
Laws: Section 375 defines rape. Section 376 of IPC provides punishment
for the rape which shall not be less than seven years and may extend upto ten
years. When the girl is under twelve years ,the punishment is greater. Section
377 is generally invoked when boy children are sexually abused. Outraging the
modesty of a women or girl is dealt with section 354. Obscenity and Pornography
are dealt under the Young Persons Act 1956. A young person means a person
under the age of twenty years. Under section 6 of Information Technology Act
2000, publication and transmission of pornography through the internet is an
offence.
Although these offences dealt with IPC but
there are shortcomings in this law. These sections do not include the common
forms of child sexual abuse nor their impact on children. Section 375 does not
treat forced sexual intercourse by a husband against wife under fifteen years
as an offence. Sexual assault on children should be made a specific offence
requiring stringent punishment. There is no provision to deal with the trauma
of the child. The recording of the statement of child victims need a special
provision in CrPC. There are several cases pending in the courts as the trial
goes on for years. Some girls have become adults by the time the final
judgement comes through.
New law in this context: The
Protection of children from sexual offences Act 2012 is a good hope for such
offences. This Act has been drafted to strengthen the legal provisions for the
protection of children. For the first time, special law has been passed to
address the issue of sexual offences against children. This law provides
protection to all children under the age of 18 years from sexual assault,
sexual harassment and pornography.
The Act provides stringent punishments. An offence is treated as “aggravated “
when committed by a person in a position of trust or authority of child such as
member of security forces, police officer and public servant also. It also
intends to protects the child through all stages of judicial process and gives
paramount importance to the principle of “best interest of the child”. The main
offences covered by this Act are:
-Penetrative and aggravated penetrative sexual assault,
-Sexual and aggravated sexual assault,
-Sexual harassment and
-Using a child for pornographic purposes.
Any person
below the age of 18 years is defined as a ‘child’. A person commits ‘sexual
harassment’ if he uses words or shows body to a child with sexual intent and
shows pornography to a child. A person commits ‘penetrative sexual assault
‘ if he penetrates his penis makes a child to do so. Santhosa v. State[i]..Ravi
(victim‟s father) lodged the complaint on stating that his daughter went
to school and did not return thereafter. On enquiry, he got to know that
accused has kidnapped her.Offences made under Section 376 read
with Section 34 of IPC and also under Sections 3 and 4 of the POCSO Act
were added in the case.Court looked into the material placed on record and held
that as on the date of the alleged incident, she was at the age of 13 years.
Therefore, the contention of the learned Counsel for the petitioner that there
was a free volition of girl and both the petitioner and the victim girl married
each other with their free will was rejected by the Court.
"Aggravated penetrative sexual assault’ is committed by a
police officer, member of armed forces or a public servant, staff of
private hospital,protection home,observation home,remand home or other
place of custody or care and protection. In Saint Shree
Asharam Bapu V. State of Rajasthan.[ii].the
prosecutrix was a student of Gurukul. Saint Asharam convicted for Sexual
and aggravated sexual assault along with other sections. A person commits
‘sexual assault’ if he touches the vagina, penis anus or breast of a
child with sexual intent.
Section 4 gives punishment for penetrative sexual assault i.e. imprisonment for
seven years which may extend to imprisonment for life and also impose fine. In Sunil
Mahadev Patel V. The state of Maharashtra.[iii].
accused is prosecuted for the offences punishment under section
376,363,366A of IPC and Section 3,4,5 and 6 of POSCO Act 2012. The age of
prosecutrix is 15 years old although she was having an affair with the accused
but she got the benefit of her age under this Act. Section 6 provides
punishment for aggravated penetrative assault for ten years or life
imprisonment or for fine. Section 8 provide punishment for sexual assault for a
term of three years which may extend to five years imprisonment or fine. In Chandrasekhar
V. State by Ceb.. [iv]the father was alleged
guilty of sexually molesting her minor daughter.
Section 12 gives punishment for sexual harassment with imprisonment which may
extend to three years and fine. If a child is used for pornography purpose in
any media shall be guilty of offence under section 13 and he shall be punished
for five years imprisonment or fine. If a person store a pornographic material
involving child, he shall be punished with imprisonment of three years or fine
or both. Any person abetting an offence against a child shall be punished with
half year imprisonment or fine or both.
Offences need to be reported: Any person
who is scared about such offences are likely to be committed may report to the
Special Juvenile Police Unit or the Local Police. When the noted person
satisfied that the child need protection, he shall make immediate arrangements
for their protection and they shall with in 24 hours report the matter to the
Child Welfare Committee and the Special Court.
It is also
the obligation of media to report such crimes to the Special Juvenile Police
Unit or the Local Police failure of which is accountable to punishment of one
year or fine under section 21. Such reporting should be fair and no media is
allowed to present comments on any child in any form. They are not allowed to
disclose the name, identity, and address, photograph family details or school etc.in public unless and until the reasons were recorded in
writing before the Special Court.
Statement of a
child shall be recorded at their residence and in the presence of a woman
police officer not below the rank of Sub-Inspector. No child shall be detained
in the police station in the night for any reason. Section 25 provides that if the Magistrate
records the statement, he records all the words spoken by the child and in the
presence of the parents or the person they trust. For this purpose, Magistrate
and police officer may take the help of any interpreter if necessary.
Recording should be made by audio-video electronic means. Same method and care
to be followed in case of medical examination.
Provision of Special Courts and Special Public
Prosecutor: The State Government for the purposes of speedy trial
constitutes in districts the Special Courts. The Special Courts has
jurisdiction to try an offence under CrPC and Information Technology Act 2000,
alongwith POSCO Act 2012. The State Government may appoint a Special
Public Prosecutor for every Special Court for conducting cases. Saint
Shree Asharam Bapu V. State of Rajasthan.[v].Noticing
the necessityof speedy trial, Court directs the trial court to proceed with
this case and decide the issue whether cognizance is to be taken against
the accused or not and if so, for what offences ? The trial court shall without
any interruption and hindrance proceed with the trial on day to day basis till
its conclusion so that the speedy trial is ensured.”Where any offence under
this Act is committed by child he/she shall be dealt with under the provisions
of the Juvenile Justice (Care and Protection of Children Act 2000).
Recording evidence with due care: Evidence of the
child shall be recorded within 30 days of the Special Court taking cognizance
of the offence. The Special Courts make ensure that the child is not exposed in
any way to the accused at any time of recording the evidence and accused not to
hear the statement of the child. The court may record the statement through
video conferencing or by utilizing single visible mirrors or curtains or any
other device. Trials are to be conducted in cameras and in the presence of the
parents or any person of trust and confidence. The family and guardian shall be
entitled to the assistance of a legal counsel of their own choice.
Child
Welfare Committee (CWC) plays a vital role under the POSCO ACT, cases
registered under this Act need to be reported to the CWC within 24 hours and it
should appoint a person to support the child. The State Commission for
Protection Of Child Rights (SCPCR) has given responsibility of monitoring the
implementation of the provisions of POSCO Act 2012.
Strong provisions, weak implementation: This special law to protect children from offences of sexual
assault, sexual harassment and pornography, remains an unimplemented law,
unknown to most and beyond the reach of those who need to apply it. POCSO
enjoining the Central and State governments to take measures for giving wide
publicity through the media — television, radio and print — and imparting
periodic training to all stakeholders on the matters relating to implementation
of POCSO’s provisions, the Act is relatively unknown. In the
infamous Apna Ghar Rohtak shelter home case of May 2012, where
over 100 inmates were allegedly subjected to sexual abuse, the POCSO provisions
have reportedly still not been invoked against the accused.
Suggestions for better working of the Act: The Act
looks into a support system for children through a friendly atmosphere in the
criminal justice. Although the Act is made for the full protection of children,
there is less awareness in the society of the Act. In most of cases people deny
the existence of child abuse. The perpetrators in many cases are mostly people
known to the children. Children are not aware of what inappropriate behavior
means, they don’t even know that they being abused. Since talking about sex is
taboo in our society, the victims end up feeling guilty and don’t even tell
anybody. Hence, the country failed to protect the child. So in order to make
children safe in our country, there should be sex education and a mechanism
should be created for them to feel safe to report cases. Public awareness
program should be conducted. Recently cabinet has suggested to reduce the age
of consent for sex to 16 years. There is a fear that this would end up taking
away safeguards available to victims under this Act. So the age should extend
to teenagers especially in case of girls.
As
Karnataka ranks top among the 10 states in sexual offences in India, police
officers from Dakshina Kannada district were educated on sexual offences and
its medico-legal importance.
According to the new guidelines set by the apex court after Nirbhaya rape [vi]incident
in New Delhi, every district should have a 'rape crisis cell'. The cell should
be immediately notified when an FIR in relation to a sexual assault is made.
The cell must provide legal assistance to the victim under one roof.
At the end, I would like to say,
“CHILDREN ARE LIKE WET CEMENT,WHATEVER FALLS ON THEM MAKES AN
IMPRESSION. SO PUT GOOD IMPRESSIONS ON THEM,GIVE THEM BETTER LIFE”.
COMPLIED BY:
VANITA BANSAL(ADVOCATE)
B.A.LL.B
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