Law to Protect Children from Sexual Offences
Sexual offences in India were covered under Indian Penal Code (IPC) till recently. But the IPC did neither provide for all types of sexual offences against children, nor did it distinguish between adult and child victims. So a special law was enacted by Lok Sabha on 22nd May, 2012. ‘The Protection of Children from Sexual Offences Act, 2012′ is the law. This in fact is a self-contained comprehensive legislation.
Sexual Abuse of Child
The objective of the law is to prevent abuse of children and to bring in a healthy environment endowed with freedom and dignity for their development.
Precisely, the law seeks to strengthen the protection of children from sexual offences – such as sexual assault, sexual harassment and showing pornography - against children and to establish special trial courts for such offences.
A child, as the act defines, is a “person below the age of 18 years”. The law makes no distinction between a male and a female child and is gender insensitive.
The law defines sexual harassment, sexual assault, aggravated sexual assault, penetrative sexual assault etc. at length.
Sexual harassment means making a gesture, exhibiting a part of his/her body, showing a pornographic material or watching his/her body through an electronic media etc. Sexual assault is the touch of a child’s body with sexual intent. Aggravated sexual assault means a sexual assault by an authority, such as a member of security forces, police officer, public servant, etc. in a position of trust or authority of child, who keeps a child under legal custody. Reporting a denigrating report on the child by the media is an offence. Abetting a child abuse is also punishable.
The law provides for stringent punishments ranging from simple imprisonment to rigorous imprisonment of varying periods, possibly with fine to be fixed by the Court.
The punishments under the act are:
- Sexual Harassment : Three years and fine
- Sexual Assault : Not less than three years which may extend to five years, and fine
- Aggravated Sexual Assault : Not less than five years which may extend to seven years, and fine
- Penetrative Sexual Assault : Not less than seven years which may extend to imprisonment for life, and fine
- Aggravated Penetrative Sexual Assault : Not less than ten years which may extend to imprisonment for life, and fine
- Use of Child for Pornographic Purposes : Five years and fine and in the event of subsequent conviction, seven years and fine
Special Courts & Child Friendly Procedures
- The Act provides for the establishment of Special Courts of Sessions or for conversion of any other child court as special court at the district.
- The law prescribes child friendly procedures for reporting, recording of evidence, investigation and trial, of offences.
- The recording of the child’s statement should be at the residence of the child or at a place of its choice, preferably by a woman police officer not below the rank of Sub-Inspector.
- No child is to be detained in the police station during the night for any reason.
- The Police officer should not be in uniform while recording the child’s statement.
- The child’s statement is to be recorded as spoken by the child. Assistance of an interpreter or translator or an expert as needed is to be obtained.
- Assistance of special educator or any person familiar with the manner of communication of the child is to be obtained in case the child is disabled.
- Medical examination of the child is to be done in the presence of either the parent of the child or any other person in whom the child has trust or confidence.
- In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
- No child is to be called repeatedly to testify anything.
- No aggressive questioning or character assassination of the child is to be opted.
- In-camera trial of cases is to be done
Unsuccessful Attempt and Abetment
Any attempt to commit an offence under the Act, even when unsuccessful, has been made liable for punishment up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, for which the offender will get the same punishment prescribed for commission of the offence. The law prescribes punishment for trafficking of children for sexual purposes, as well. For more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is on the accused.
To prevent misuse of the law, punishment has been provided for making a false complaint or proving false information with malicious intent. The punishment for misuse of the law has been kept relatively light as six months so as to encourage reporting of abuses. On false complaint against a child, the punishment is for one year.
Media not to Disclose Victim’s Identity
The media is barred from disclosing the identity of the child without the permission of the Special Court. A breach of this provision will result in a punishment of six months to one year.
Evidence of the child is to be recorded within a period of 30 days. The Special Court is bound to complete the trial within one year. As soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, immediate arrangements are to be made simultaneously to admit the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.
Central Rules Notified
The central government formulated and enforced the rules on 14th November 2012. The rules provide for qualifications and experience of interpreters, translators, special educators and experts. They, as well, lay down arrangements for the care, protection and emergency medical treatment of the child, compensation payable to the victim.
The rules rely on the structures, such as Child Welfare Committees and District Child Protection Units established under theJuvenile Justice Act, 2000, to make arrangements for the care and protection of the child. When a child is taken to emergency medical care facility, no magisterial requisition or other documentation is to be demanded by the medical center before giving medical care.
The rules lay down criteria for award of compensation, which can be awarded at the interim stage as well, on completion of trial by the Special Court.