Tenacious Attempt Of - POSCO Act 2012

'Each day of our lives we make deposits in the memory banks of our children' - Charles.R. Swindoll

Child protection is the protection of children from violence, exploitation, abuse and neglect. Article 19 of the UN Convention on the Rights of the Child contains provisions for the protection of children in and out of the home.

Child protection systems are a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability. UNICEF defines a 'child protection system’ as: the set of laws, policies, regulations and services needed across all social sectors - especially social welfare, education, health, security and justice - to support prevention and response to protection-related risks. These systems are part of social protection and extend beyond it. At the level of prevention, their aim includes supporting and strengthening families to reduce social exclusion, and to lower the risk of separation, violence and exploitation. The United Nations Convention on the Rights of the Child (CRC) is an international treaty that legally obligates nations to protect children's rights. Articles 34 and 35 of the CRC require states to protect children from all forms of sexual exploitation and sexual abuse. This includes outlawing the coercion of a child to perform sexual activity, the prostitution of children, and the exploitation of children in creating pornography.

History of child protection laws in India-. Law Before the 2012 act passed was Goa Children's Act, 2003, was the only specific piece of child abuse legislation before the 2012 Act. Child sexual abuse was prosecuted under the following sections of Indian Penal Code:

I.P.C. (1860) 375- Rape
I.P.C. (1860) 354- Outraging the modesty of a woman
I.P.C. (1860) 377- Unnatural offences

However, the IPC could not effectively protect the child due to various loopholes like

IPC 375 doesn't protect male victims or anyone from sexual acts of penetration other than "traditional" peno-vaginal intercourse.

IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a compoundable offence. Further, it does not protect the "modesty" of a male child. In IPC section 377, the term "unnatural offences" is not defined. It only applies to victims penetrated by their attacker's sex act, and is not designed to criminalize sexual abuse of children.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) came into force on November 14, 2012 to effectively deal with sexual offences against children.

An Act to protect children from offenses of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto whereas clause (3) of Article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;

And whereas, the Government of India has acceded on the 11th December 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the UN, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child.

What is child sexual abuse?

Child abuse is widespread and can occur in any cultural, ethnic, or income group. Child abuse can be physical, emotional, verbal, or sexual. It can also result from neglect. Abuse can result in serious injury to the child and possibly even death the definition of child sexual abuse is broader and includes often a traumatic experience for children and teens; child sexual abuse is a criminal offense punishable by law in many societies.

Child sexual abuse includes:

• Any sexual act between an adult and a minor, or between two minors, when one exerts power over the other
• Forcing, coercing or persuading a child to engage in any type of sexual act.
• Non-contact acts such as exhibitionism, exposure to pornography, voyeurism, and communicating in a sexual manner by phone or Internet.

The Protection of Children from Sexual Offences Act, 2012 defines a child as a person under age of 18 years. It encompasses the biological age of the child and is silent on the mental age considerations where it recognizes forms of penetration other than peno-vaginal penetration and criminalizes acts of immodesty against children too. The act is gender-neutral. With respect to pornography, the Act criminalizes even watching or collection of pornographic content involving children. The Act makes abetment of child sexual abuse an offense. It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children.

Whereas, laws against child sexual abuse vary by country based on the local definition of who is a child and what constitutes child sexual abuse. Most countries in the world apply some form of age of consent, with sexual contact with an underage person being criminally penalized. As the age of consent to sexual behaviour varies from country to country as-

the United Kingdom

The United Kingdom rewrote its criminal code in the Sexual Offences Act of 2003. This Act includes definitions and penalties for child sexual abuse offences and (as far as relating to offences) applies to England and Wales and Northern Ireland.

United States

Child sexual abuse has been recognized specifically as a type of child maltreatment in U.S. federal law since the initial Congressional hearings on child abuse in 1973. Child sexual abuse is illegal in every state, as well as under federal law. Among the states, the specifics of child sexual abuse laws vary, but certain features of these laws are common to all states.

Malaysia

Under Malaysian laws Suspects can be charged only for rape (penile penetration) and incest. Police can do little since the legal definition is limited. Malaysian courts seldom convict people for child sexual abuse, and Malaysia keeps no official statistics on child abuse.

In India, fifty-three percent of children in India face some form of child sexual abuse. Keeping in view the vulnerability of children, The POCSO Act deals, with a wide range of sexual offences, including penetrative sexual assault, non-penetrative sexual assault (kissing, fondling), and non-contact based sexual acts such as sexual harassment. Unlike the IPC, which treats sexual intercourse by a man with his wife above the age of 15 years as an exception to rape, the POCSO Act does not permit any exception. In fact, penetrative sexual assault and non-penetrative sexual assault by a person who is related to a child through marriage constitute an aggravated offence. The Act also provides for establishing Special Courts inter alia empowering the state to make special provisions for children. But there is still no concrete law to regulate or criminalise the offenses that were beyond the scope and ambit of the IPC, such as a law dealing with sexual offences against male children. The act looks into a support system for children through a friendly atmosphere in the criminal justice system with the existing machinery. The positive aspect is the appointment of the support person for the child who would assist during investigation, pre-trial, trial and post trial. The major challenge also would be convergence between different entities under different legislations. The act makes it mandatory to report to the police about any offence defined under POCSO Act 2012. The recent decision of the cabinet in a bill to reduce the age of consent for sex to 16 years will mean that the protection given under this law to protect children from sexual crimes will be restricted to the children who are 16 years of age. There is a fear that this would end up taking away safeguards available to victims under the POCSO Act, especially girls in the 16-18 age bracket. The benefits of POCSO Act would trickle down to the child only if this act is implemented in its true sense and spirit by all the agencies. This act suggests that any person, who has an apprehension that an offence is likely to be committed or has knowledge that an offence has been committed, has a mandatory obligation to report the matter i.e. media personnel, staff of hotel/ lodges, hospitals, clubs, studios, or photographic facilities. Failure to report attracts punishment with imprisonment of up to six months or fine or both. It is now mandatory for police to register an FIR in all cases of child abuse. A child's statement can be recorded even at the child's residence or a place of his choice and should be preferably done by a female police officer not below the rank of sub-inspector.

As per this act, the child's medical examination can be conducted even prior to registration of an FIR. This discretion is left up to the Investigation Officer (IO). The IO has to get the child medically examined in a government hospital or local hospital within 24 hours of receiving information about the offence. This is done with the consent of the child or parent or a competent person whom the child trusts and in their presence.

Child Welfare Committees (CWC) play a vital role under the POCSO Act, cases registered under this act need to be reported to the CWC within 24 hours of recording the complaint. The CWC should take into account the opinion of the child to decide on the case within three days and conclude whether the child should remain in an institution or be with the family. The CWC should nominate with the consent of the child parent / guardian / other person who the child trusts, a support person to assist the child during the investigation and trial of the case.

The State Commissions for Protection of Child Rights (SCPCR) has been empowered and with the responsibility of monitoring the implementation of the provisions of the POCSO Act 2012, to conduct inquiries and to report the activities undertaken under the POCSO Act 2012, in its annual report. The commission is also empowered to call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC. The commission can also recommend interim relief, or make recommendations to the state government to effectively redress the matter.

The rules laid down in this act also had defined criteria of awarding the compensations by the special court that includes loss of educational and employment opportunities along with disability, disease or pregnancy as the consequence of the abuse. This compensation would be awarded at the interim stage as well as after the trial ends.

The present rate of cases of POCSOAct is 14913 during 2015 only as reported by National Crime Report Bureau.

After five years of implementation of this act, sexual offences against children have risen to dramatic levels in the past two decades. These offences are now becoming brutal, show no gender or age biases and are often life-threatening.

Such shameful crimes leave scars over the soul and body of the little innocent ones, forever with Lack of family cohesion, Signs of Emotional Neglect, Signs of Physical Abuse

They are threatened, molested and traumatized. The child, vulnerable for obvious reasons, cannot stand up for itself and stares at a bleak future.

A total of 19,767 children were sexually assaulted (10,934 children reported under section 376 IPC and 8,833 children under sections 4 & 6 of the Protection of Children from Sexual Offences Act) during 2015. Wistfully saying to vanquish the present condition, drawbacks of the act should be vying:

With the matter of consent: If the child/adolescent refuses to undergo medical examination but the family member or investigating officer is insisting on the medical examination, the POCSO Act is silent and does not give clear direction. There is an urgent need to clarify the issue of consent in such cases. However, it would be prudent to take informed consent from the parent when the survivor is a child (below 12 yr) and consent from both parent and the victim, if the survivor is an adolescent (age group from 12 -18 yr). However, emergency treatment needs to be initiated without getting into this consent issues or legality to protect the life of the child.

Medical examination: The POCSO Act, Section 27(2) mandates that in the case of a female child/adolescent victim, the medical examination should be done by a female doctor. However, the law mandates the available medical officer to provide emergency medical care. On the other hand, the Criminal Law Amendment Act, Section 166A of the Indian Penal Code mandates the Government medical officer on duty to examine the rape victim without fail. This conflicting legal position arises when female doctor is not available.

Treatment cost: The law has casted legal obligation on the medical fraternity and establishment to provide free medical care to the survivors. If there are no proper facilities or costly procedure is required, the State should take responsibility of reimbursing the cost, otherwise hospital may provide substandard medical treatment procedure or may deprive the survivor from comprehensive treatment.

Consented sexual intimacy: Sexual contact between two adolescents or between an adolescent and an adult are considered illegal under the POCSO Act 2012, because no exception has been granted in the Act under which 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. However, it is proposed that any consensual sexual act that may constitute penetrative sexual assault should not be an offence when it is between two consenting adolescents, otherwise both the adolescents will be charged under the POCSO Act, 2012.

Child marriage: Child marriage and consummation of child marriage are considered illegal under the POCSO Act, 2012. In India even though child marriage is prohibited under secular law, it enjoys sanction under certain Personal Law thus complicating matters. These issues need to be addressed when the law is open for amendment.

“Hitherto their is contrast between section 375 of IPC where in exception mentioned that a man guilty to have sexual intercourse with his wife will not be charge for rape even though child marriage is a crime thus a contrast between section 375 and posco act has been raised by our noble prize winner Mr. Satyarthi where the apex court directed government to wide awake this matter.”

The main reasons for rise of crime where pre-maturity in children, easy availability of porn in various websites, influence of culture like drugs, alchohol, lack of unawareness. The present act is sufficient itself with some loop-holes acquaint with facts to overwhelm condition their should be sex education given in school to a specific age where it can be understood, under posco only girl child is most affected and most of accused are under 18 years of age through education in primarily state little step can be taken to reduce this situtaion, thus environment under academic should as for gender equality, children's should be taken to jails not to create fear of crime but to create awareness and versed with laws.