What is POCSO?
The Protection of Children from Sexual Offences or POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse.
Who is a child under the POCSO Act?
A child is any person under the age of 18 years.
When can a POCSO case be filed?
Any person who has apprehension of or knowledge that any action under POCSO has been committed, shall report such information. The action does not need to have already occurred, simply a fear of such an action occurring would do.
Who can file a POCSO case?
POCSO Act requires mandatory reporting of cases of child sexual abuse to the law enforcement authorities, and applies to everyone including parents, doctors and school personnel. Failure to report a suspicion of child abuse is also an offence under the Act. (Section 21).
What is the procedure for filing a POCSO case?
Any person that has apprehension that any offence under this act has been committed or is likely to be committed should provide this information to the Special Juvenile Police Unit or the local police.
Every report will be ascribed an entry number and be in writing, and will be read over to the informant and be entered in a book to be kept by the police unit.
What if a teacher or a doctor gets to know about any abuse? Does confidentiality and privilege apply?
The legislation makes it clear that the reporting obligation exists whether the information was acquired through the discharge of professional duties or within a confidential relationship. School personnel, doctors and other professionals may, in the course of delivering services, receive information which causes them to suspect that a child has been sexually abused. Thus, a person who has knowledge that an offence has been committed under the child can directly report it to the police or magistrate.)
Is there a time before which abuse must be reported? Is there a limitation period?
The POCSO Act does not provide for any period of limitation for reporting the child sexual offences. Any victim, at any age, can complain the sexual abuse faced by him/her as a child.
Can the police refuse to file and FIR and try to compromise the matter?
The Police cannot refuse to register an FIR. In case they police tries to block the process, immediately contact the superintendent of police or an immediate superior, or contact the special child units to get help. Before you take the child to the police station, make sure you go there in advance and only later take the child if he/she is comfortable.
Are there any other authorities to contact?
You can always contact the CWC or the Child Welfare Committee in your area. They can also be the first party you approach and they will guide you throughout the process. You can find their number online depending upon which state you are in. They will provide a Support Person to assist the child victim and family during the investigation and trial of the case.
I don’t want the entire neighbourhood to know about what happened. Are there any confidentiality requirements in the Act?
Under the Act, media has to secure the identity and privacy of the child. Disclosing or publishing the identity of the child victim by mentioning name, address, neighbourhood, school name and other particulars is punishable with imprisonment of not less than six months but extendable to one year or with fine or with both. It also prohibits making of negative reports that cause harm to the child’s reputation. The Special Court, however, may permit disclosure, if in its opinion such disclosure is in the interest of the child (Section 23).
How will the child have to give the statement to the police?
Child Victim will be provided a translator or an interpreter, having the qualification and experience to understand the content and language of FIR. The child will not, under any circumstance, be brought face to face with the accused while giving her/his statement to the Police or the Magistrate, or while testifying.
Will the court process be long and tiring?
The POCSO Act requires that the evidence of the child be recorded by the Special Court within 30 days of taking cognizance of the offence. Any delay shall be recorded in writing. As far as possible, the trial shall be completed within a period of one year from the date of taking cognizance of the offence.
What do we do if we cannot afford to hire a good lawyer to pursue the matter?
The family or the guardian of the child victim shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act. The Legal Service Authority shall provide a legal counsel to the child victim free of cost. You can contact your state Legal Services Authority for more information.
Are there any special courts for POCSO cases?
The Act mandates establishment of child-friendly Special Courts in every district. The Special Court will create a child-friendly atmosphere and allow the child to be accompanied by a family member, guardian, friend or relative in whom the child has trust or confidence to be present in the court. The court must provide counselling and other services, along with privacy shields to make sure the child experiences no discomfort.
If the child is mentally traumatised, will counselling services be provided?
Professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development will be associated from the pre-trial stage all the way to the trial stage to assist the child (Section 39). The entire process is designed to be as simple for a child to report such crimes.
What are the different types of offences under the POCSO Act?
There are several types of offenses under the POCSO, several of them similar to standard sexual harassment laws. These are:
Penetrative sexual assault – This is when the perpetrator penetrates his penis or any object to any extent into the vagina, mouth, anus, urethra of a child or makes the child do so with him or any other person.
Aggravated penetrative sexual assault- Aggravated assault is when somebody in a position of power, such as police officers, nurses, teachers, etc. This includes police officers, armed forced personnel, public servants, management or staff of a hospital, an educational institution, religious institution, gang penetrative sexual assault. If the action causes grievous hurt or bodily harm, or was done using deadly weapons or the child was impregnated or afflicted with a life threatening disease, then this will apply. The child also needs to be below 12 years of age.
Acts with sexual intent (sexual assault)- Touching the private body parts or makes the child touch that or all acts of physical nature without penetration, with sexual intent comes under this category.
Sexual harassment – If a person utters any word or makes any sound, or makes any gesture or exhibits any object or part of their body with the aim of making a sexual display to a child, it is secual harassment. This also includes making a child show their body or showing pornographic media to a child. Stalking the child either directly or through electronic, digital or any other means is also included.
Using the child for pornographic purposes – If any person uses a child in the form of any media for sexual gratification, they will be liable.
Abetment – Not only the person who did the act, any other person who is involved in instigation, or engages in a plan to commit the act will also be liable under POCSO.
What evidence is usually required for a POCSO case?
POCSO places the onus squarely on the accused to prove that he/ she is innocent. This means that the child who makes the claim does not have to go through mental trauma to prove that the crime was committed. Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved. The law ensures that the pressure is not on the child to prove that the crime took place.
Will a medical examination be done?
The medical examination of child will be conducted (regardless of whether an FIR or complaint is registered) by a woman doctor, if the victim is girl. In case parent is not available for any reason, medical examination of child will be conducted in the presence of a women nominated by the head of the medical institution.
Besides this, the child is also entitled to free medical care. The child victim who is in need of urgent medical care and protection, SIPU/local police shall within 24 hours of receiving information about the crime, arrange to take such child to the nearest hospital or medical care facility centre for emergency medical care.
What happens if the mother or father of the child is involved in the abuse?
If the child victim continues to remain unsafe or at-risk at home, especially in cases involving incest, the child may be transferred to a Shelter Home where all needs of the child will be taken care of.
Are there any resources available for those who file a POCSO case?
1098: The Childline Helpline can put you in touch with a social worker who can provide you with assistance and information. This can be the first step you take if you are unsure of what to do or whom to approach. However, we still recommend doing your own homework even as you consult with Childline. Alternatively, you can search for NGOs in your area that work in this area.
Police FIR: You must inform the child before reporting to the police. You need to ensure that the child is comfortable with the idea and prepared for meeting with the police. You need to reassure the child that you will be with them every step of the way but also inform them that they will have to be prepared to recount the incident. Once the child is prepared, do not take the child to the police station. Instead, the child may choose the place they find most comfortable to meet the police who will come in plain clothes and not in uniform.
Compensation: Various states have different compensatory schemes for child victims of sexual offences. The police are mandated to inform you of the scheme. Additionally, you may seek information from Childline (https://www.childlineindia.org/) or other local NGOs.
What can parents do to prevent sexual abuse?
Parents are the child’s first guide and guru and it’s not always easy as some lessons are harder to impart than the others. One of the most important and invaluable lessons you can teach your child is to understand their own bodies. This not only includes simple biological facts like knowledge of all the body parts and sexuality but also common-sense information about maintaining boundaries and handling relationships.
- As a parent, you need to tell your child to take ownership of their entire body. The emphasis should be on personal space and not just on private body parts. “Your entire body and the space around it belongs to you” is the message that needs to be given.
- Educate your children on safe, unsafe and confusing touch. Some touches (like a mother hugging a child) are clearly safe; some (like an uncomfortable hug or kiss or touching private parts) are clearly unsafe.
- Teach your child to say ‘NO’. Teach them that if someone tries to touch their body in a way that they are not comfortable with or asks them to touch others in an uncomfortable way or wants to take a picture, or violates their personal space – to say “NO”.
- Do not be judgmental about what your child tells you (especially if its about their feelings)
- India has one of the finest and most comprehensive legislation in the world on child protection, staying updated can help you protect not just your own child but children around you. You don’t need to learn the entire law.
This post was authored by Lahar Jain and Hrithik Merchant, and proofread by Lakshmi Nambiar, students of the National Law School of India University, Bangalore.