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An analysis of the POCSO Act

The Protection of Children from Sexual Offenses (POCSO) Act (2012) was passed by the government to address incidences of child sexual abuse. The Act and the Rules made pursuant to it entered into force on November 14, 2012, with immediate effect. The five types of sexual offences recognised under the POCSO Act are penetrative sexual assault (section 3), aggravated penetrative sexual assault (section 5), sexual assault (section 7), aggravated sexual assault (section 9)  and sexual harassment (section 11). 

Incorporating child-friendly mechanisms for reporting, recording evidence, investigating, and speedy trial of offences through designated Special Courts, the POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment, and pornography. The POCSO Act is in due compliance with Article 15 of the Constitution of India and the Universal Nations Conventions on the Rights of The Child regarding the protection of children from sexual abuse. Abetment or attempt to commit an offence is also punishable under the POCSO Act. 

According to the said Act, a child is any person under the age of eighteen. It also defines various types of sexual abuse, such as penetrative and non-penetrative assault, as well as sexual harassment and pornography. Under certain conditions, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority toward the child, such as a family member, police officer, or teacher, it is considered to be “aggravated.” People who trade kids for sex are also subject to punishment under the Act’s abetment-related provisions. The aforementioned Act imposes severe penalties graded according to the seriousness of the offence, with a maximum term of life in solitary confinement and a fine. 

The aforementioned Act also mandates the reporting of sexual offences in accordance with the highest international standards for child safety. This places a legal obligation on anyone who knows that a kid has been sexually assaulted to report the crime; if they don’t, they risk being sentenced to six months in jail and/or a fine. It also designates the police as child guardians when conducting investigations.

As a result, the police officers who receive a report of child sexual abuse are tasked with making quick preparations for the kid’s care and protection.

The POCSO Act includes guidelines for doing the child’s medical checkup in a way that will cause the least amount of distress. In the case of a female kid, a female doctor must do the examination in the presence of the parent or another adult the child trusts.

This Act establishes Special Courts to hold child-friendly trials behind closed doors without disclosing the child’s identity. Therefore, the child may testify in court with a parent or another trusted adult present and may request assistance from a special educator, interpreter, or other professional. In addition, the child is not to be called to testify in court repeatedly and may testify via video link rather than in person.

According to Section 39 of the POCSO Act, the State Government must establish rules for the use of non-governmental organisations, experts, professionals, and people with training in psychology, social work, physical and mental health, and child development to assist the child during the trial and pre-trial stages. 

Punishments under the POCSO Act

The Act was amended in 2019 with provisions for enhanced punishments. For instance, the use of child for pornographic purposes is punished with a minimum term of 5 years (as against the maximum term of 5 years under the 2012 Act); and the Use of a child for pornographic purposes resulting in aggravated penetrative sexual assault results in a minimum term of 20 years and a maximum term of life imprisonment, or death (as against life imprisonment under the 2012 Act). 

Death penalty as a punishment under POCSO Act

According to the National Crime Records Bureau’s report for 2016, there was an increase in the number of cases filed under the relevant Act from 44.7% in 2013 over 2012 to 178.6% in 2014 over 2013, and there was no subsequent reduction in the number of cases. As a result, the POCSO Act was amended in 2019 in order to award the death penalty as a punishment in order to remedy the unequal balance of power between the perpetrator and the victim. This can be seen in section 6(1) of the amended Act. 

Medical Examination under Section 27 of the POCSO Act

According to section 164A of CrPC, the medical examination of a victim of rape should be conducted by a lady doctor, in the case of a girl child. Such an examination must be conducted in the presence of parents, or a woman nominated by the head of a medical institution. 

References:
  1. The Protection of Children from Sexual Offences Act (Act No. 32 of 2012) as updated on 09.03.2021.
  2. Hitabhilash Mohanty & Devpriya Banerjee, An Analysis of Protection of Children from Sexual Offences Act, 2012 (POCSO ACT) (2021), accessed at  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3768096/
  3. Dr. V. Mahalakshmi & K. Susheel Barath, Legal Implications of POCSO Act, 2012- An Analysis. 
By Ananya Bhat