Protection of Children from Sexual Offences (POCSO) Act, 2012

Need of Special Law Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims. The Protection of Children from Sexual Offences Act, 2012 (POCSO) has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. POCSO has defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences defined under the Act.

Basic Information The Protection of Children from Sexual Offences Act 2012 published in official Gazette for general information on 20.06.2012. Brought into force from 14.11.2012 by way of a separate notification in terms of Section 1(3). The Protection of Children from Sexual Offences Rules 2012 also notified and brought into force on 14.11.2012. POCSO Act has been amended through Criminal Law Amendment Act, 2013 in February, 2013. 46 provisions in Act & 7 Rules

Salient Features New offences /Special Courts /Special Public Prosecutor Mandatory Reporting /Punishment for False Reporting/ Active assistance of police at all stages Special Procedures: recording of complaint, statements & Evidence Engagement of Experts/Convergence with JJ Act Monitoring of NCPCR/ SCPCR Compensation

Offences Penetrative Sexual Assault (Section 3&4) Aggravated Penetrative Sexual Assault (Section 5&6) Sexual Assault (Section 7&8) Aggravated Sexual Assault (Section 9&10) Sexual Harassment of the Child (Section 11&12)

Aggravated Assault A sexual assault is deemed to be “aggravated” under certain circumstances, such as: when the abused child is below the age of 12 years.; when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, such as a family member, police officer, teacher, doctor or a care-taker; when the abuse is committed by any public servant; when the abused child is disabled; When the child repeatedly abused by any person etc.

Offences Use of Child for Pornographic Purposes (Section 13&14) Storing, for commercial purpose, any pornographic material in any form involving a child ( Section 15) Punishment for abetment of the offence. This also covers trafficking of children for sexual purposes. (Sec 16&17) Attempting to commit any offence under this Act (Section 18)

Other Offences Failure to report or record the commission of an offence [Section 21(1)]: Up to 6 months or fine or both Making false complaint or providing false information against any person, solely with the intention to humiliate, extort, threaten or defame such person [Section 22(1)]: up to 6 months or fine or both Making false complaint or providing false information against a child for victimising a child under any offence under this Act [ Section 22(3)]: up to 1 year or fine or both

Punishment The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. Punishment for storing any pornographic material in any form involving a child. Punishment for abetment of the offence including trafficking of children or attempting to commit any offence. Disclosure of identity of a child in any media report, without permission of the is also considered as an offence. If any offence committed by child then he will be dealt under the provisions of Juvenile Justice Act, 2015.

Reporting The Act provides mandatory reporting of sexual offences. This casts a legal duty upon a person who has knowledge that a child has been sexually abused or has apprehension that such an offence is likely to be committed, to report the offence. Police officer is also legally bound to record such information and start its investigation. If any person fails to report or record such information, he may be punished with six months imprisonment and/ or a fine. The Act also prescribes punishment for a person, if he provides false information with the intention to defame any person, including the child.

Production of child before CWC When offence has been committed or attempted or is likely to be committed by a person living in the same or shared household with the child, or the child is living in a child care institution and is without parental support, or the child is found to be without any home and parental support, the local police shall produce the child before the concerned Child Welfare Committee within 24 hours of receipt of such report, together with reasons in writing as to whether the child is in need of care and protection and with a request for a detailed assessment by the CWC.

Child Friendly Procedure: Police Recording of statement of child victim on at his/her residence or at a place of child’s choice. Allowing Child’s parents or guardians or any person in whom child has trust and confidence during all stages Arrangements of translator or interpreter if child uses a different language. Child shall not be exposed to the accused in any manner. Protect child’s identity – including family /residence/school/ relatives /neighbourhood details

Medical Examination Child victims shall be examined by the registered medical practioners in accordance with 164-A of CrPC. If victim is girl then examination shall be conducted by the woman doctor. Medical examination shall be conducted in the presence of the parent or any other person in whom child have trust and confidence.

Appointment of Support Person Support Person may be provided to child victims of an offence by the Child Welfare Committee. Where a support person has been provided to the child, the local police shall, within 24 hours of making such assignment, inform the Special Court in writing. Support person shall be allowed by all the authorities during the pre-trial and trial stage.

Constitution of Special Court The Act provides for the establishment of Special/ Children Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process Appointment of special public prosecutor Take cognizance without committal Evidence of the child to be recorded within a period of 30 days The Court is to complete the trial within a period of one year, as far as possible.

Child friendly procedure in Special Court Put Qs received from counsels to child Permit frequent breaks Create child friendly atmosphere Child not called repeatedly No aggressive Q.ing – dignity of child protected Protect child’s identity – including family /residence/school/ relatives /neighbourhood details In-camera trial of cases The burden of proof is shifted on the accused

Compensation Interim Conviction/Acquittal /Offender not found but child suffered Consider – Type and gravity of abuse; med. Expenditure, loss of edu. opportunities, loss of employment, relationship between child and offender, single or repeated offence, contracted STD, HIV, disability suffered, financial condition of child, other relevant factors.

Monitoring The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

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