Overview of The POSCO Act, 2012

Childhood is a promise that is never kept” – Ken Hill

Child Sexual Abuse is one of the most common and heinous crime in today’s world. According to the World Health Organization, child sexual abuse can be defined as ‘inappropriate sexual behaviour with a child’ and ‘involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society. Children suffer from mental trauma when they experience such a thing. They experience a large amount of pain, neglection and many more such things. India is one of the countries where incidents of child sexual abuse are very high, we open the newspaper every day there is at least one incident under the headline of child sexual abuse. Approximately 7200 children including infants are raped every year which is an issue of serious concern. Some children don’t even report their cases and suffer in silence. It is mostly seen that most of the cases where these types of the incident have occurred, people who are involved are the most trusted ones. To curb this situation government of India implemented Prevention of Children Against Sexual Offences Act,2012.

Prevention of Children Against Sexual Offences Act,2012(POSCO), it has been enacted to provide a child-friendly environment during the judicial process and make sure that the perpetrators should be punished. It also provides provisions to make sure that there is no re-victimization of the child by the hands of the judicial system. It defines children as someone below the age of eighteen. The act defines various forms of sexual abuse such as the following: 

  • Penetrative Sexual Assault- This act defines penetrative sexual assault as when a person penetrates his penis into the mouth, vagina, anus or urethra of the child or makes the child to do the same or inserts any other object into the child’s body part or even applies his mouth to the child’s body parts then this is said to be penetrative sexual assault.
  • Aggravated Penetrative Sexual Assault- Under this act aggravated sexual assault can be defined as when sexual assault on the child has been performed by a police officer, a member of armed forces or the assault has been committed by a public servant. It also includes when the offender is relative of the child or when the assault harms the sexual organs of the child. Also, as per the latest amendment bill[1] of 2019 two more grounds has been added under this category they are:
  • Assault committed during a natural calamity or in many similar situations of violence.
  • Assault results in the death of the child.
  • sexual assault- This act defines sexual assault defines as where a person touches vagina, penis, breast or anus of the child with sexual intent without penetration.
  • aggravated sexual assault- This include case where the offender is a relative of the child and the assault has caused harm to the sexual organs of the child. The latest bill also adds two more offences under this category-
  • Assault committed during a natural calamity.
  • Administrating or help in administering any hormone or any chemical substance, to a child to attain early sexual maturity.
  • Using Child for Pornographic Purpose- This act also talks about pornographic purposes as when a person uses the child in any form of the media for sexual gratification. Under this act, a person is also penalized if he uses the child for pornographic purposes and it has resulted in sexual assault.

 The above-mentioned offences come under the category of “aggravated” when the abuse4d child is mentally ill or the offence is done by someone in the position of trust or authority. It also provides provisions which incorporate child-friendly manner of reporting, investigation and speedy trial of offences, recording of evidence, trial in-camera and without revealing the identity of the child through designated Special Courts. Under this act, all the form of sexual abuse is specific offences with specific punishment for the criminal.

Before the advent of the POSCO Act, various sections of the Indian Penal Code provided punishment related to sexual offences although there was no such specific law for the non-penetrative assault. However, POSCO Act differentiates between the penetrative and the non-penetrative assault and also provide punishments for the same. Earlier it was compulsory to prove that sexual intercourse has occurred for the offence of rape if the penetration was found to have been made by non-penile organs or other objects it was merely possible to prove the crime and punish the perpetrator.

Section 4 and section 6 of the POSCO Act, deals with the punishment related to penetrative and non-penetrative sexual assault respectively. As per the latest amendments related to the POSCO act, stringent punishments including the death penalty for committing aggravated penetrative assault to both boy and girl below the age of 18 has been provided. Also, the minimum punishment for aggravated sexual assault has been increased from ten years to twenty years.[2]

For making the judicial process easier for the victim various provisions such as no child will be detained at night in the police station for any reason, police officers during the recording of the statement of the child will not be in their uniforms, as per the need of the child an interpretator, translator or an expert will be appointed. It also incorporates that medical examination of the victim will be conducted in the presence of the parents or any person in whom he/she has trust and confidence, also if the victim is a female child then the medical examination will be conducted by women doctor.

It also tells that there will be no aggressive questioning or character assassination of the child during the judicial process. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. Under this act, it is also mandatory to be aware and report the commission of offence and failure to do so would make a person liable for punishment of imprisonment for six months or/and with fine. It is a punishable action if Police / Special Juvenile Police Unit fails to report a commission of the offence under this act [Section- (214.1)]

The burden of proof of more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, has been shifted to the accused by keeping in mind the greater vulnerability and innocence of children. Under this act, punishment has also been provided for making false complaints or proving false information with malicious intent although punishment for this kind of offence has been kept light so as to encourage reporting. But if a false complaint has been reported against a child then as per section 22 of the act the punishment is of one year. Also, as per section 23[3] of the Act, media has been barred for any disclosure of the victim’s identity without permission of the Special Court and if this provision is breached punishment has also been provided for the same from six months to one year.

In the POSCO Act, several duties of the police officers have been specified like according to Rule 4(2) of the act that as soon as information regarding any of the offences which come under the act is received by police it has to follow the following duties[4]:

  • Register the First Information Report.
  • Provide a copy of the FIR to the complainant.
  • If the victim is in medical emergency arrange for the same without any delay
  • Take the child immediately to the hospital with parents or any person the child trusts.
  • For forensic examination make sure to collect the samples.
  • Inform the child and his parents about the support system which include:
  • Availability of Medical Services,
  • Procedural steps involved in Criminal Prosecution,
  • Availability of victim compensation,
  • The arrest of the offender,
  • Filing of Charge against the offender,
  • Dates of court proceedings,
  • Bail or release of the Offender,
  • Rendering of the verdict,
  • A sentence imposed on an offender.

Also, child sexual abuse is a multidimensional issue has several legal, social, medical and psychological implications. So, there are also certain drawbacks regarding this issue such as-

  1. Consent: When it comes to medical examination problems arise when a victim refuses to do so but the investigating officer or the family members are insisting to do the same. There is an urgent need to take care of this issue.
  2. Consented Sexual Intimacy: Under the POCSO Act 2012, sexual contact between two adolescents or between an adolescent and an adult is considered illegal, however, no exception has been granted in the Act under which says that an act of sexual encounter with a person under 18 is an offence irrespective of consent or the gender or marriage or age of the victim/the accused. This act has revived the debate over the validity of the rationale behind age consent laws and the harmfulness of adolescents.

[1] Protection of Children from Sexual Offences (Amendment) Bill, 2019.

[2] Supra note 1.

[3] Protection of Children from Sexual Offences Act,2012.

[4] < http://vikaspedia.in/education/policies-and-schemes/protection-of-children-from-sexual-offences- Act> accessed on 29th October 2019.

Pranjala Raj from Dr. Ram Manohar Lohiya National Law University, Lucknow

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