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The Protection of Children from Sexual Offences (Amendment) Bill, 2019

Stringent punishments under POCSO Act

• In a historic decision to protect the children from Sexual offences, the Union Cabinet chaired by PM Modi has approved the Amendments in the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• It will make punishment more stringent for committing sexual crimes against children including death penalty.
• The amendments also provide for levy of fines and imprisonment to curb child pornography.

Salient Features of the POCSO Act 2012

• This act is applicable to the whole of India and provides protection to children under the age of 18 years against sexual offences.
• Definition of sexual abuse – penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, 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 vis-a-vis the child, like a family member, police officer, teacher, or doctor.
• It has raised the age of consensual sex from 16 years as per Indian Penal Code, 1860 to 18 years. This means that –
  • Any person (including a child) can be prosecuted for engaging in a sexual act with a child irrespective of whether the latter consented.
  • A husband or wife can be prosecuted for engaging in a sexual act with his or her spouse under the age of eighteen years.
• The burden of proof lies on the accused – punishment has been provided for false complaints or false information with malicious intent.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
• In keeping with the best international child protection standards, the Act also casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
• The Act also casts the police in the role of child protectors and are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, should the need arise.
• The police are also required to bring the matter to the attention of the Child Welfare Committee (CWC) within 24 hours of receiving the report, so the CWC may then proceed where required to make further arrangements for the safety and security of the child.
• The Act also makes provisions for the medical examination of the child designed to cause as little distress as possible. The examination is to be carried out in the presence of the parent or other person whom the child trusts, and in the case of a female child, by a female doctor.
• The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible.
• The Special Court can determine the amount of compensation to be paid to a child who has been sexually abused for the child’s medical treatment and rehabilitation.
• The Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.

Role of police: The Act casts the police in the role of child protectors during the investigative process. Thus, the police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child, such as obtaining emergency medical treatment for the child and placing the child in a shelter home, and bringing the matter in front of the Child Welfare Committee (CWC), should the need arise.

Safeguards: The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible. Hence, the child may have a parent or other trusted person present at the time of testifying and can call for assistance from an interpreter, special educator, or other professional while giving evidence. Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.

Mandatory reporting: The Act also provides for mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence; if he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.

Definitions: The Act defines a child as any person below eighteen years of age. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault to be “aggravated” under certain circumstances, 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 like a family member, police officer, teacher, or doctor.

What are the amendments proposed?

• The act will be amended to introduce the death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault.
• Aggravated penetrative sexual assault: The Act defines certain actions as “aggravated penetrative sexual assault”. These include cases when a police officer, a member of the armed forces, or a public servant commits penetrative sexual assault on a child. It also covers cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child or the child becomes pregnant, among others. The Bill adds two more grounds to the definition of aggravated penetrative sexual assault. These include: (i) assault resulting in the death of child, and (ii) assault committed during a natural calamity.
• Penetrative sexual assault: Under the Act, a person commits “penetrative sexual assault” if he: (i) penetrates his penis into the vagina, mouth, urethra or anus of a child, or (ii) makes a child do the same, or (iii) inserts any other object into the child’s body, or (iv) applies his mouth to a child’s body parts. The punishment for such offence is imprisonment between seven years to life, and a fine. The Bill increases 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 punishable with imprisonment between 20 years to life, along with a fine.
• Aggravated sexual assault: Under the Act, “sexual assault” includes actions where a person touches the vagina, penis, anus or breast of a child with sexual intent without penetration. “Aggravated sexual assault” includes cases where the offender is a relative of the child, or if the assault injures the sexual organs of the child, among others. The Bill adds two more offences to the definition of aggravated sexual assault. These include: (i) assault committed during a natural calamity, and (ii) administering any hormone or any chemical substance, to a child for the purpose of attaining early sexual maturity.
• Storage of pornographic material: The Act penalises storage of pornographic material for commercial purposes with a punishment of up to three years, or a fine, or both. The Bill amends this to provide that the punishment can be imprisonment between three to five years, or a fine, or both. In addition, the Bill adds two other offences for storage of pornographic material involving children. These include: (i) failing to destroy, or delete, or report pornographic material involving a child, and (ii) transmitting, propagating, or administering such material except for the purpose of reporting

What is the rationale behind the legislation?

• As per the last available data from the National Crime Records Bureau 2016 of child rape cases came up before the courts under the POCSO Act read with Indian Penal Code Section 376.
• Less than three per cent cases ended in convictions, pointing to the need for better access to justice for all, and not just more stringent conviction in a small percentage of cases.
• There is the belief that harsher punishments will deter people from committing child rape.
• Also, justice for child survivors demands that the law provide for the death penalty.
• Lastly, the disgust for the crime makes the perpetrator ‘deserving’ of death penalty.

Why are the arguments flawed?

1. Deterrence

The deterrence argument puts forth that fear of harshest punishment will prevent individuals from committing child rape.

• But social, economic, cultural, psychological and other factors in one’s life interact in far more complex ways.
• Various studies have proved the uncertainty of death penalty in being an effective deterrent.
• Moreover, in the context of child rape, many preventive measures and policies do have a definitive impact on preventing child rape.
• These may include risk assessment and management, cognitive behavioural treatment and community protection measures.
• Diverting resources to the death penalty, is more like taking away from developing these strategies that have greater preventive potential.

2. Justice

The argument of death penalty as justice to the child survivor seeks to cover-up the real reasons preventing justice.

• Notably, the conviction rates are low under the Protection of Children from Sexual Offences Act, 2012.
• There are some grave concerns over the manner of investigations and criminal prosecutions under the POCSO Act.There is lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers.
• Inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures are some other concerns.
• Furthermore no real system of positive measures to reduce vulnerabilities of children in this context has been developed.
• Working on these shortfalls is the need of the hour to ensure justice for child survivors.

3 Under-reporting

A large proportion of perpetrators are family members or those close to or known to the family.

• This results in massive underreporting of such crimes.
• This concern will only intensify with death penalty, as the child’s family risks sending a family member or a known person to the gallows.

4. Legal

Under the Constitution, a legislation has to always give a sentencing judge the option to choose between life imprisonment and death penalty. Death penalty cannot be declared as the only punishment for any crime. The sentencing judges will have to make this choice in the context of child rape too.

5. Vulnerability

The arbitrariness of the death penalty in India also arises from the discriminatory impact of the choice of what constitutes ‘rarest of rare’.

• The Death Penalty India Report of 2016 found that over 75% of death row prisoners were extremely poor.
• They belong to marginalised groups with barely any meaningful access to legal representation.
• Thus, in most cases, the weakest sections of the society bear the burden of the death penalty.
• It is important to understand this implication, in the discussion on death penalty for child rape.

Challenges

• It is frightening to see a society which is getting more and more literate and educated, is not aware of the concerned laws and legislations, otherwise, the original POCSO Act was good enough to create fear in the minds of people. This is evident from the rising number of cases of sexual assault on child.
• The resolution of such cases is not quick. It takes time to punish the criminals.
• Regarding the death penalty, there is a controversy. In some cases, it creates a deterrence but there is also a view that if one knows that one is going to get a death penalty for committing one such crime, one would probably commit more such crimes as anyway one is going to get the death penalty.
• The damage that is done to a child psychology by a person of trust cannot be compensated with anything.
• People are not even aware of the fact that the POCSO law is a gender neutral law.
• Implementation of the law remains a problem. The Kathua Rape case took 16 months for the main accused to be convicted whereas the POCSO Act clearly mentions that the entire trial and conviction process has to be done in one year.
• The POCSO Act gives the judges in the designated POCSO courts a lot of power to announce interim medical compensations for relief to victims. The judges in many cases do not provide for the same. Also, there have been cases when the compensation has reached to the victims after their death.
• The rate of conviction under the POCSO act is only about 32% if one takes the average of the past 5 years and the percentage of cases pending is 90%.
• As per the POCSO Act, FIR must be registered under the 30 days but this hardly happens.
• Politicization of rapes on communal angles is another challenge. The Unnao rape case and Kathua rape case are some of the examples.

What is the way forward?

• Measures that governments ought to take are different from steps meant to convey public abhorrence.
• The social menace of child rape requires sustained planning, engagement, and investment of resources by the government.
• Death penalty for child rape is a counterproductive diversion and an easy way out on the issue.