Protection of Children from Sexual Offenses Act

The Protection of Children from Sexual Offences Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process. The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.

The New POCSO Act provides for a variety of offences under which an accused can be punished. It recognizes forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too. Offences under the act include:

• Penetrative Sexual Assault: Insertion of penis/object/another body part in child's vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
• Sexual Assault: When a person touches the child with sexual intent, or makes the child touch them or someone else
• Sexual Harassment: passing sexually cultured remark, sexual gesture/noise, repeatedly following, flashing, etc.
• Child Pornography
• Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault[12]

The act is gender-neutral for both children and for the accused. With respect to pornography, the act also criminalizes watching or collection of pornographic content involving children. The Act makes abetment (encouragement) of child sexual abuse an offence. In 2019, the POCSO Act was amended and made more stringent, the amendment raised minimum punishment for penetrative assault from 7 to 10 years and 20 years if the victim was below 16 years in age, with a maximum punishment of life imprisonment with a provision for the death penalty for aggravated penetrative assault.[13][14][15]

It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The child friendly process aims to minimize trauma felt by the victim, eliminate the possibility of revictimization and to protect against intimidation.[16]

A Victim of Child Sexual Abuse can file a complaint at any time irrespective of his/her present age.[17]

A sexually abused child is considered as "child in need of care and protection" under Juvenile Justice (Care and Protection of Children) Act, 2015.[18] Police officer should therefore inform the Child Welfare Committee about every case under the Act within 24 hours.[19] CWC can appoint a support person for the child who will be responsible for psycho-social well-being of the child. This support person will also liaise with the police, and keep the child and child's family informed about progress in the case. Reporting can be done through the toll free number 1098.[20]

The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and does not take into account people who live with intellectual and psycho-social disability.

A recent case in SC had been filed where a woman, whose biological age was 38 years but her mental age was 6 years, was raped. The victim's advocate argued that "failure to consider the mental age will be an attack on the very purpose of act." SC held that the Parliament has felt it appropriate that the definition of the term “age” by chronological age or biological age to be the safest yardstick, rather than referring to a person having mental retardation. The court said while awarding maximum compensation to a rape victim who is 38 years old with a mental maturity of 6 to 8 years but rejecting the plea that the victim's age should be taken not just in physical terms, but also take into account her mental age as well. The victim suffered from cerebral palsy.[21][22]

The Protection of Children from Sexual Offences Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation. Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police. However, under the Medical Termination of Pregnancy Act, it is not mandatory to report the identity of the person seeking an abortion. Consequently, service providers are hesitant to provide abortion services to girls under 18.

According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.[23] Many child rights and women rights organizations have criticized this provision.[24] According to experts, this provision takes away agency of choice from children. There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate. Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention. It contradicts the right to confidentiality for access to medical, and psychological care.

Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure. In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits. Thus, the interest of the victim often go unrepresented.[25]

The law presumes that all sexual acts with children under the age of 18 is a sexual offence, this also includes sexual acts where both the individuals are under the age of 18. Therefore, two adolescents who engage in consensual sexual act will also be punished under this law, this coupled with the need for mandatory reporting has led to the criminalization of consensual relationships between adolescents.[26] This is especially a concern where an adolescent is in relationship with someone from different caste, or religion. Parents have filed cases under this Act to 'punish' relationships they do not approve of.[27] In a 2015 analysis of 142 sexual assault cases in sessions courts of Mumbai, police were found misusing the act in 33 cases, by classifying women who were 18 years old as being between 15 and 18 years of age in their FIRs, in order to criminalize consenting relationships at the request of the parents of the girl.[28]

In contrast to the 2011 act an earlier draft of the bill in 2001 did not punish consensual sex if at least one of the partners were above the age of 16, as did section 375 of the Indian Penal Code, the change from this to the age of 18 in the final act was criticized at the time as it was feared that this would allow and encourage unjustified complaints aimed at penalizing consensual relationships.[29]

• Sakshi v. Union of India [30][31]
• Independent Thought v. Union of India [32]
• Attorney General for India v. Satish and another (2021)[33]
• Alakh Alok Srivastava v. Union of India and Others (2018)[34]