India has 440 million children as a part of its population which is more than the entire population of countries like USA, Mexico and Canada. Every fifth child in the world is an Indian. But what sort of life do these children have as they grow up. These children face some of the toughest challenges than compared anyone else. The majority of Indian children lack in health and nutrition are forced into child labour and are not even sent to school. Besides this, the biggest challenge that children are facing these days is the problem of growing sexual abuse amongst them.
Statistics released by National Crime Records Bureau reveal that there has been steady increase in sexual crimes against children. Although rape is considered as a serious offence under the Indian Penal Code but the law was deficient in recognizing and punishing other sexual offences such as sexual harassment, stalking and child pornography. Rape is the fastest growing crime in the country. It has been estimated by the WHO that the number of girls and boys having experienced forced sexual intercourse or other forms of sexual violence is on an increase. Nearly 1.8 million children were forced into prostitution and pornography. In India there is even the possibility that many of the cases are not reported or under reported. Even boys face sexual abuse these days and it is seen that the overall percentage of boys was much higher than girls. More than 33, 000 cases of sexual crimes against children were reported in our country in 2011. The number has increased by 24 per cent from the year 2010 when 26, 694 cases were reported. The Delhi Rape Incident has sent shock waves in the entire country. Therefore a need was felt for an effective and stringent law for prevention of sexual abuse of children.
In a landmark moment in India’s history “The Protection of Children from Sexual Offences Act”, 2012 was passed. For the first time a special law has been passed to address the issue of sexual offences against children.
The Act has been drafted to address the issue of sexual offences committed against children which until now were tried under laws which did not differentiate between adults and children. The Act came into force on November 14, 2012 (i.e. on Children’s day)
Important provisions of this act
- Definition of Child: The Act defines a child as a person below the age group of 18 years.
- Gender Neutral: The Act has not differentiated between girls and boys when it comes to giving protection from sexual offences. Any child irrespective of his sex can claim protection under this Act but the act has failed to use the pronoun ‘he’ in the description of various offenses. It is truly a gender neutral Act.
- Coverage of all types of Sexual Abuse: The Act covers within its ambit all types of sexual abuses like:-
- Sexual Harassment
- Penetrative or non penetrative sexual abuse.
- Punishment for Violation: The Punishment under this Act depends upon kind and harshness of the offence that includes:
- Life imprisonment for heinous crimes of sexual assaults and abuses along with
- Provisions of fines.
- Child Friendly Procedures : The Act provides child friendly procedures for reporting of crime, recording of evidence, investigation and trial of offences in this Act which is as follows:
- Recording statement of child at the residence of the child or at the place of his choice, preferably by a women police officer not below the rank of sub – inspector.
- Evidence has to be recorded within 30 days.
- Police officer to be not in uniform while recording statement of the child.
- No child to be detained in Police Station at night.
- The Statement of the child is to be recorded as spoken by the child.
- Assistance of an interpreter or translator or an expert can be taken as per need of the child.
- Assistance of Special educator or any person familiar with the manner of communication of the child in case child is disabled.
- Frequent breaks for the child during trial.
- Child not to be called repeatedly to testify.
- No aggressive questioning or character assassination of the child is allowed.
- Medical examination of the child to be conducted in presence of the parent of the child
- Compensation: Under the Act provisions are made for compensation to the victims of sexual abuse which includes compensation on account of loss of education and employment opportunities along with disability, disease or pregnancy suffered by victim.
- Nature & Definition of aggravated offences : An offence will be treated as aggravated if it is committed by a person in position of trust or authority of a child for eg. By a police officer etc.
- Intention to Commit offence under this Act : The Act recognizes the intent to commit an offence, even when it is unsuccessful, for whatsoever reasons, needs to be penalized.
- Attempt to commit offence under this Act: Attempt will commit an offence under the act has been made liable for punishment for up to half the punishment prescribed for the commission of the actual offence.
- Abetment to commit offence under this Act : Act also provides punishment for abetment of offence which is same as for commission of the offence. This would cover Trafficking of the Children for sexual purposes.
- Protecting identity of children from Media: Media has been barred from disclosing identity of the children without permission of special court. Punishment for breaching this provision by media may be from six months to one year.
- Speedy Trial: For speedy trial the act provides evidence of the child to be recorded within a period 30 days and trail to be completed within a period of one year as far as possible.
- Establishment of Special Juvenile Police Unit: A special juvenile police unit has been established to provide relief and rehabilitation of the child as soon as complaint is made who will make immediate arrangements to give the child, care and protection such as admitting the child into shelters homes or to the nearest hospital within 24 hours of the report.
- Reporting of matter to the Child Welfare Committee: The SJPU or Local Police is also required to report the matter to the child welfare committee within 24 hours for recording the complaint for rehabilitation of the child.
- Establishment of Special Courts : Act provides for establishment of special courts under the Act keeping in view the best interest of the child as of paramount consideration.
- Burden of Proof: The burden of proof lies on the accused in any case of child sexual abuse keeping in view the vulnerability and innocence of the children.
- In Camera Trial: The trail to be committed in camera. The child can have his parent or other person in whom he has trust and confidence at the time of testifying in the court.
- Mandatory reporting of Child Sexual Offences: The Act provides for mandatory reporting of sexual offences against children. A legal duty is cast upon a person who has knowledge that a child has been sexually abused to report the offence. In case of failure to report offence, the person will be punished for up to 6 months imprisonment and/or with fine.
- Punishment for providing false information: The Act prescribes punishment if a person provides false information about any offence under this Act with intent to defame any person including child.
Tips for parents to protect children from sexual abuse
Parents can play a vital role in protecting their children from sexual abuse by teaching, empowering and educating their child about these issues. Sexual abuse is preventable and not inevitable. Youngsters are safe when parents take the time to understand potential risks and take protective measures. Create a protective environment for your children and always tell them the do’s and don’ts of accepted behaviors from outside people. Repose trust and faith in your child and be communicative of your child problems. Understand their needs and difficulties and offer solutions. Be friendly with your children so that any form of sexual abuse does not go unreported because of fear in child’s mind.
The Protection of Children from Sexual Offences Act, 2012 has to be implemented in its true sense to combat this problem.
By Shweta Kaushik
Shweta is an Advocate and Consultant and presently working with Centre for Law, Justice & Governance, Mahatma Gandhi State Institue of Public Administration, Punjab at Chandigarh