In a layman’s language, any sexual activity carried out without the consent of the other person or done forcefully is a ‘rape’. Crimes and sexual offences against children are on rise at a dramatic level in India. A child is said to be the most safe with his/her family but in today’s Kalyug, leave the strangers, a child is not safe even with his/her uncle, aunt, brother, sister and even parents. Age is no longer a bar in sexual crimes, under the influence of lust humans turn wilder than animals and rape people of all ages including an infant of few months to a child of 3-10 years and even a corpse. These brutal and life threatening crimes including Unnao rape case followed by Kathua rape case stirred the nation. Offenders find children to be the easy targets because most of the times children are not aware of what is being done to them and often they can’t stand for themselves. While the offenders carry on with their brutality, children are left with nothing but the lifelong scars that are etched on their souls and bodies.
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Recognising the agony and vulnerability of children, shortfalls of provisions of laws for sexual crimes against children and the trauma a child undergoes both during the crime and under trial, parliament initiated the process to introduce a new act in 2008, specially for the children, aimed to address sexual exploitation of children. Protection of Children from Sexual Offences (POCSO) Act was passed by Rajya Sabha on 10th May, 2012 and by Lok Sabha on 22nd May, 2012, thereafter it received President’s assent on 19th June, 2012 and came into effect on 14th November 2012. Due to the insufficiency of existing laws (IPC, it Act, 2000 and Juvenile Justice Act, 2000), POCSO Act was formulated for two main reasons. First, to address the sexual offences of children including the male children and second to provide children a child friendly system of trial under which the perpetrators could be punished. The Act avoids re-victimisation of the child at the hands of judicial system.
1. The Act defines child as ‘any person below the age of 18 years’ and sexual abuse involves penetrative and non-penetrative activities, harassment and pornography. It further states that a sexual assault is to be considered “aggravated” under some specific situations, such as when the abused child is mentally ill or when the offender is a member of the armed forces or security forces or a public servant or he/she is in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital — whether Government or private.
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2. The Act makes it mandatory to report the sexual offences. According to the act, it is the legal duty of a person who is aware that a child has been/is being sexually abused to report the offence. If he/she fails to do so, he/she may be punished with six months’ imprisonment and/or a fine.
3. According to the act, the evidence of the child should be recorded within a period of thirty days and the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. It also states that the Special Court shall try cases in camera and makes it mandatory to carry out the entire process in presence of the parents of the child or any other person of child’s trust or confidence.
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4. The POCSO act provides provisions for punishment for false complaint or false information provided to the court. The Act prescribes strict punishment on the basis of the offence and prescribes imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and also includes fine as punishment for aggravated penetrative sexual assault. The Act also declares imprisonment of three years or fine or both as punishment for storage of pornographic material involving a child. It also prescribes punishment to the people who traffic children for sexual purposes.
5. POCSO Act covers majorly all the provisions including the sexual offences, punishment, trial and reporting the crime. Yet there are some loopholes in this act, lets have a look at them:
– The offence of penetrative sexual assault is said to have been committed when an offender uses his penis, any body part or any object to enter the body of the child, to any extent, through the vagina, mouth, urethra or anus. Offence is not necessarily completed when an offender enters the body of the child but also when he/she makes a child do the said things or of similar nature to his/her body.
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– There are different ways but penetration is necessary in all for an assault to be called as a sexual penetrative assault. In many cases, it is reported that offender does everything to the victim sans penetration. In such a situation, any other offence under the IPC or the POCSO may be said to be committed, but not penetrative sexual assault.
– To prove the offence of rape, medical reports are required and a medical officer declares it to be a rape only if traces of semen are found or genitals of the victim including the hymen, Labia Majora or vulva are found to be damaged.
– On the basis of above facts, it is quite easy to commit the offence of rape legally, that is, without leaving any seminal stains and without causing any injury to the genitals of the victim.
6. Act defines sexual activity with any person below the age of 18 as a sexual assault irrespective of the consent of persons involved.
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In a recent case in Haryana, a 16 year old girl eloped and married a 23 year old boy, they both indulged in sexual activities, and later on when the girl’s family found them, they got the boy arrested under charges of kidnapping and rape. Even after the girl admitted to indulge with him sexually on her consent, court ignored and announced the man guilty considering the age of the girl.