Friday, 4 February 2022

An Analytical Study of Child Sexual Abuse Laws

 An Analytical Study of Child Sexual Abuse Laws

By Shagun Mahendroo

Child sexual abuse legislation was passed in India as part of the country's child protection measures. The 'Protection of Children against Sexual Offences Bill (POCSO), 2011' was passed into law by India's Parliament on May 22, 2012, and it covers child sexual abuse. The Act was created to protect children from sexual assault, sexual harassment, and pornography, as well as to create Special Courts to try such crimes and matters linked to or incidental to them.

Indian residents are granted the state's protection of children under an expansive interpretation of Article 21 of the Indian constitution, as well as mandated by India's status as a signatory to the United Nations Convention on the Rights of the Child.

The POCSO Act's Importance

Prior to the passage of the POCSO Act, most recorded offences were handled by the Indian Penal Code, 1860. There was no explicit statute that could be used to penalise perpetrators. The Protection of Children from Sexual Offenses Act of 2012 (POCSO Act) and its implementing rules were passed with the purpose of protecting children from a variety of sexual offences and creating child-friendly court systems to deal with them.

1)Gender-neutral legislation: The POCSO Act creates a gender-neutral legal framework for children who have been sexually assaulted. It recognises that boys can be victims of sexual violence as well.

2) Procedures that are child-friendly: It implemented regulations aimed at making the criminal justice system more child-friendly and preventing re-traumatization. Everything is covered, from how to document the child's statement through the medical examination and the designation of special child-friendly courts.

3)Wide range: The concept of a sexual offence against a child was further enlarged under the Act. It expanded the definition of sexual assault to include both non-penetrative and aggravated penetrative assault (sections 3–10), as well as punishments for individuals in positions of trust, such as government personnel, educators, and police officers.

4)No time limit for filing a report of abuse: A victim has the right to report an offence at any time, even if it occurred years ago. There are no time or age constraints for reporting sexual offences under the POCSO Act. In the case of State of Punjab v. Gurmeet Singh, 1996 SC, it was held that there is no need to justify the delay in rape cases because the nature of the crime and the stigma associated with it clearly explains the delay in filing the F.I.R.

5)Maintaining the Victim's Identity's Confidentiality: The POCSO Act prohibits the victim's identity from being revealed in any form of media unless the act's special courts authorise it. Whether or not such disclosures are made in good faith is irrelevant.

Satish Ragade V. State Of Maharashtra (2021)

Facts: In this instance, the girl's mother filed a police report alleging that the appellant took her minor daughter into the house under the guise of providing her guava and grabbed her breast and attempted to remove her salwar. The appellant was found guilty and sentenced to three years in prison for charges punishable under sections 354, 363, and 342 of the Indian Penal Code (IPC) and section 8 of the Prevention of Children from Sexual Offenses Act (POCSO Act).

Issue: Is the accused subject to the punishments stipulated in sections 354, 342, and 363 of the IPC, as well as section 8 of the POCSO Act?

Judgement: The Bombay High Court ruled that grabbing a minor's breast without making skin-to-skin contact is not sexual harassment, and acquitted the accused under section 7 of the POCSO Act, but convicted him under the IPC's above-mentioned provisions, thereby decreasing his sentence.

The 2019 Amendment Act

There has been an increase in the number of offences involving children, necessitating the prompt implementation of stricter penalties under the POCSO Act to serve as a deterrent to criminals. Deterrence instils dread in society, causing the offender to stop from doing criminal crimes again. The amending act primarily includes provisions for harsher penalties.

According to the amendment statute, the fine imposed on the criminal must be just and reasonable, and it must be provided to the victim to cover medical expenses and rehabilitation. Previously, most victims lacked the resources necessary to recover from emotional and physical trauma.

The penalty for penetrative sexual assault has been increased from seven to ten years in jail, and where the sexual assault is perpetrated on a child under the age of sixteen, the sentence must be at least twenty years in prison and may extend to the rest of the person's natural life.

Administering any medicine, hormone, or chemical substance to a child with the objective of achieving early sexual maturity has been added to the definition of aggravated sexual assault by adding a subsection to section 9.

The statute makes it illegal to store pornographic materials containing children for commercial purposes, as well as to store or fail to disclose them to the appropriate government. The accused is subject to a punishment of Rs. 5,000 and a maximum sentence of three years in prison, as well as a fine of Rs. 10,000 and a maximum sentence of five years in prison for consecutive reporting of offences.

The act of 2012 is social, gender neutral legislation in the field of criminal law which can be used by the courts to apply and interpret the provisions of the said act in cases falling within the ambit of the statute. The legislature must take all the loopholes and shortcomings into consideration, and must welcome all the amendments time to time, as per the changing dynamics of the society.

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