Mandatory reporting of child sexual abuse offences: Call for reform in the POCSO Act

Reporting systems as envisioned under the POCSO Act should refrain from excessive emphasis towards punitive consequences of non-compliance and generating blanket obligations. Instead, reporting systems must primarily be help-oriented, which may or may not involve legal enforcement at the initial stage, so as to empower the child victim with necessary resources and social support to recognise, confront and report abuse.

—-

THE Protection of Children from Sexual Offences Act (POCSO Act) is a landmark legislation enacted on June 20, 2012 to protect children from the offences of sexual assault, harassment and pornography. It provides for the establishment of special courts for trial of such offences and matters connected therewith.

Under Section 19 of the POCSO Act, all persons have been made duty-bound to report sexual offences against children. These offences range from harassment to assault, and to the use of children for pornographic purposes. Failure to report is punishable with imprisonment that may extend to six months or fine or both under Section 21 of the Act.

The objective of the mandatory reporting clause is to ensure enhanced detention and intervention so that children do not remain victimised for the rest of their lives carrying the scars of abuse, or even worse, the abuse repeating itself in patterns.

The Supreme Court in X versus Government of NCT, Delhi (2022) significantly curtailed the scope of mandatory reporting under the POCSO Act and balanced the requirement with the confidentiality requirement under the Medical Termination of Pregnancy Act, 1971 (MTP Act). The court held that any doctor providing abortion to a minor under the MTP Act does not have to disclose the name of the minor while reporting the case to the police or in any other subsequent court case. Minors availing abortion under the MTP Act will now have enhanced protection of their privacy in their interactions with doctors and will not be forced to partake in criminal prosecutions.

Also read: By recognising pregnant woman's right to dignity and autonomy, Supreme Court has made informed decisions on reproductive health possible

However, as noted by legal academic Professor Aparna Chandra, the judgement in itself might not be enough to protect minors, as the requirement to report the matter to police under Section 19 still remains and if the identity of the minor is revealed, then they can still can be forcefully mandated to take part in the criminal justice system against their will.

Civil society organisations too expressed reservations about the reading down of the mandatory reporting obligation. They highlighted that most children often do not have the resources to confront abuse and remove themselves from abusive situations. This is more so when there is proximity of the offender in cases of incest. Mandatory reporting, then, becomes an important tool to ensure that the best interests of the child are protected and effective intervention is secured to provide the abused child necessary social support.

This article firstly undertakes an analysis of both these perspectives, and secondly argues that mandatory reporting provisions, even if in the perceived best interest of the child, are counter-productive to the aim of combating child sexual abuse. I argue that reporting systems as envisioned under the POCSO Act should refrain from excessive emphasis towards punitive consequences of non-compliance and generating blanket obligations. Instead, there should be an explicit undertaking by the legislature towards envisioning reporting systems that are primarily help-oriented, which may or may not involve legal enforcement at the initial stage, so as to empower the child victim with necessary resources and social support to recognise, confront and report abuse.

Mandatory reporting as justified under the best interest principle

Mandatory reporting is noted to be important, firstly, to counter the underreporting of child sexual abuse cases and the social stigma associated with it. International non-governmental organisation Human Right Watch's World Report 2013 details the glaring underreporting of sexual abuse against children in India. To counter this phenomenon, it is imperative that the State imposes minimum obligation on all persons of the society to report instances of child sexual abuse. This would serve to ensure that all instances are adequately investigated in light of rampant under-documentation.

Children are particularly vulnerable to the authority of caretakers and adults around them, making it difficult to ensure effective documentation of abuse. An empirical study of nearly 4,400 judgements on child sexual abuse by courts points out the need to ensure timely reporting and registration of cases so that a fair trial can be ensured. Criminal investigations require collection of evidence, and an inordinate delay in the reporting of incidents denies the child the possibility of justice and closure by way of a fair trial.

Secondly, as the Supreme Court notes in Shankar Kisanrao Khade versus State of Maharashtra (2013), most often parents choose not to report crimes against children for the sake of protecting the child from social stigma associated with the abuse.

Such actions could have the adverse impact of harming the child. To counter these underlying social beliefs, stigma and the phenomenon of underreporting, there is a strong case made for enforcing the mandatory reporting provision in the POCSO Act. This will ensure that the 'best interest of the child' is protected, and not compromised to social prejudices and stereotypes.

Abuse against a child is not just an instance of crime against an individual, but it is an exploitation of vulnerability and innocence that has a grave impact on society. It is the deepest form of degradation that a person can be subjected to. The violation of such rights casts an obligation on the State and the society to report the offence, and ensure that the perpetrator is brought to justice and held accountable.

Also read: Ten years of POCSO Act: Conflicting stands by different high courts raise key concerns

Mandatory reporting and child autonomy

The POCSO Act treats any sexual activity with a minor as a criminal offence, even if it is a consensual act between two minors. This is ironically in stark contrast to the Juvenile Justice (Care and Protection of Children) Act, 2015 under which the State differentiates among minors and considers 16–18 year-olds as "deliberative intentional adults" who are capable of being subjected to prosecution as adults for heinous crimes.

Article 12 of the United Nations Convention on the Rights of the Child (CRC) provides that children should be heard in all matters affecting them, and their views given due weightage according to their age and maturity. Children's views being given "due weight" means that it is primarily insufficient just to hear the views of the child; instead, their views must be accorded due importance in proceedings that affect their interest.

General Comment No.4 on the CRC states that it is the right of adolescents to express views freely and having them duly taken into account is fundamental in realising adolescents' right to health and development. The emergence of the doctrine of 'evolving capacity of children' in international law is radical in its recognition that children can exercise rights on their own behalf. All children thereby require varying degrees of protection and due recognition of their autonomy and their right to participate in decision-making in different contexts across different areas.

However, recognition of the autonomy of the child within reporting structures to identify and counter child sexual abuse means according 'due importance' to the view and consent of the child in consistence with their evolving capabilities in making the decision whether to report an offence or not. Recognition of sexual autonomy of children does not mean a tacit disregard for the need to counter abuse and exploitation. The dichotomy the POCSO Act conceives between the best interest of the child and their autonomy only serves to firstly alienate the child from their own agency, and secondly, decreases the responsibility of the society and State machinery towards empowering the child to realise their agency and autonomy by providing the multi-dimensional support framework that the child necessarily requires when subjected to trauma and abuse.

When the autonomy of the child is incorporated and adopted into legal decisions concerning the best interest of the child, the child will get to choose, as argued by Irish law lecturer Dr. Aoife Daly, if and when they wish to be involved in legal proceedings (process autonomy), and the outcome (outcome autonomy) in consistence with their evolving capabilities, unless it is likely that significant harm will arise to the child and their safety from their decisions.

Also read: POCSO on the ground: a case study from Punjab

Envisioning reporting structures with respect for child sexual autonomy

Blanket mandatory reporting systems not only completely disregard the need to identify and respect the evolving capacity of children to consent and their capacity to participate in proceedings concerning whether or not they seek to report, but they also create a deterrence, as identified in X versus Government of NCT Delhi to access healthcare, including psychological support in the aftermath of abuse to avoid criminal prosecution.

Legal academic Professor Mrinal Satish conveys it succinctly when he states that by way of enforcing mandatory reporting, "we are only taking consensual sexual relations seriously, not cases of actual sexual abuse. In law reform over the last five years, we have moved away from the therapeutic angle that medicine is supposed to give, to pushing doctors to become officers for enforcing the law for the entire criminal justice system, thereby failing the criminal justice system." It should be a minimum threshold to ensure that reporting structures do not interfere with the ability of the minor to access healthcare services, information about their reproductive health, and their privacy and confidentiality. The National Commission for Protection of Child Rights has previously highlighted the 'counter-productive' nature of the mandatory reporting provision, as parents and children would defer from seeking medical services due to fear of social stigma and lack of resources to pursue legal proceedings under a criminal prosecution.

Secondly, the structure does not provide the necessary autonomy and support to ensure that children have greater understanding of the proceedings and greater influence in determining its outcome so as to empower them to report offences by their own volition. The POCSO Act does not provide for a safe environment within which children can discuss their experiences and receive non-coercive guidance to enable them to confront abuse. By mandating reporting, children are compelled to participate in a criminal justice system that fares poorly in adopting child-friendly procedures and support systems.

Mandatory reporting of cases often is followed by lack of proper investigation. This defeats the purpose of such reporting and subjects the child to trauma without any finality or closure of accountability by the justice system. A report by Praja Foundation, a non-partisan organisation, notes that 99 per cent of cases under the POCSO Act are still pending as of December 2020. There is also a 20 per cent shortage of police sub-inspectors responsible for investigating cases.

The non-profit organisation Kailash Satyarthi Children's Foundation's recent analysis of the data published by National Crime Records Bureau for the years 2017, 2018 and 2019 revealed that two-fifths of cases under the POCSO Act were disposed of by the police without filing a chargesheet; the primary reason given was "cases true but insufficient evidence or untraced or no clue".

Over the years there has been an increase in the number of instances in which the police have closed cases after investigation without filing a chargesheet, alleging 'false reporting'. This indicates that there are a large number of cases with room for full and thorough investigation by the police.

Instances of child sexual abuse are grave offences which involves the exploitation of children; thereby, it is imperative for the police to undertake prompt investigations which are sensitive to the needs and interests of the child. The trend of increasing closure of cases raises a compelling concern on the nature and quality of investigation conducted by the police. Without proper and prompt investigation, mandatory reporting remains yet another way a child relives the trauma of abuse, awaiting justice from a system that is uncertain at best, and insensitive and deficient at worst. A blanket mandatory reporting provision must not conceal the State's responsibility to provide for a system that protects accountability.

Thirdly, in 2001 the United Nations (UN) Committee on the Rights of the Child recommended that the response to reports of abuse against children should be "a coordinated and multidisciplinary response that may or may not involve law enforcement at the initial stage." The World Report on Violence Against Children, published by the UN Secretary General, has also recommended that any reporting method which is chosen should be help-oriented, offering social support rather than primarily operating as a punitive measure.

Section 19 of the POCSO Act does not conceive a multi-faceted reporting structure, instead imposing a primarily punitive mechanism which creates an adversarial relationship between families and child protection agencies, often deterring the former from seeking support. Reporting mechanisms can only be a means to counter abuse when they are "safe, well publicized, confidential and accessible".

Psycho-social support for the victim under the POCSO Act only commences when the child is compulsorily brought within the criminal justice system. Within 24 hours of the reporting of the case, the police is mandated to determine if the child is in need of care and protection. If decided in the affirmative, the child has to be produced before the Child Welfare Committee for further directions and social support. Even the appointment of support persons under the Act only commences when the child is brought within the criminal justice system.

However, an effective way to counter child sexual abuse would be to adopt a more holistic and dynamic approach that provides State-funded social support and additional services, including reproductive healthcare, abortion services and psychological support, irrespective of whether the child choses to report the offence or not.

Any identification of abuse should first and foremost generate a help-oriented response towards the victim. The presence of a help-oriented reporting structure will only serve to empower the child to report the offence and pursue the same within the legal framework.

Final takeaways

If we harbour the will to steer reporting systems towards empowering children rather than merely seeking to protect them, central to our response to countering abuse and exploitation against children should be the inclusion and respect towards their autonomy, consent and their evolving capabilities. This necessarily means that a minor's opinion and consent in accordance with their evolving capabilities becomes the focal point to determine the State's response to any abuse that is identified.

Reporting systems should strive towards identifying cases of abuse instead of mandatorily registering them as offences under the criminal justice system at the very first instance. To the extent that the POCSO Act criminalises consensual sexual relationships between adolescents, it is imperative that State machineries are sensitised to ensure that only cases of abuse are identified, and not consensual sexual relationships between minors.

Also read: The need for revising the age of consent under the POCSO Act

Identification of abuse within reporting systems should be accompanied by a holistic response of the State which provides the necessary social, legal, medical and psychological support to the victim, irrespective of whether they chose to report the offense or not. The extent to which the child's autonomy, consent and opinion will determine State's response to abuse identified is also dependent on the child's evolving capabilities, and the presence of any immediate threat to their physical and mental well-being.

The object, therefore, should be to calibrate a nuanced approach that balances the requirement to report with the autonomy of children to decide for themselves when and how to report offences. It is amidst this balance that one can strive to secure and exemplify the best interest of children by envisioning a reporting system that is not primarily punitive, but is holistic and multi-faceted in its functioning.