Palghar minor gangrape: 10 years of POCSO Act; child safety still a distant dream!

Child sexual abuse is a very sensitive issue in India, which is home to millions of children. In addition, it is alarming that only a few parents, educators, and members of the general public are aware of the POCSO Act.

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A 15-year-old girl was reportedly gang-raped for hours by eight males in Maharashtra's Palghar district on December 16. The incident was brought to light after the teenage girl texted her male friend that she had been abducted. According to police, the girl's father contacted them at about 2 p.m. on December 17 to report that she had gone missing the night before. Her father said that he was able to interact with her on the phone while she was anxiously crying.

The victim stated to the local police that her ordeal began at 8 p.m. on December 16 and lasted till 10 a.m. the next day. The eight suspects were arrested by police in the early hours of December 18. They have been booked under multiple sections of the Indian Penal Code ('IPC'). The charges include Sections 376D (gang rape), 366A (procuration of a juvenile girl), 341 (wrongful restraint), 342 (wrongful confinement), and 323 (voluntarily causing hurt). The police have also employed provisions of the Protection of Children from Sexual Offenses Act, 2012 ('POCSO Act'), and the accused were brought to court and are currently held in police custody.

The case has brought to light the lack of effectiveness of the POCSO Act after completing more than a decade since its enactment. Despite being a pervasive social evil, child sexual abuse is rarely discussed and people are ashamed to report it. Every day, there are several reports of sexual assault against minors. Most of them are usually abused by their family, relatives, neighbours, or someone close to them.

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

According to the most recent National Crime Records Bureau data, crimes against minors in India increased by 16.2 per cent between 2020 and 2021. In 2021, Uttar Pradesh (7,129) had the most cases reported under the POCSO Act, followed by Maharashtra (6,200), Madhya Pradesh (6,070), Tamil Nadu (4,465), and Karnataka (4,465).

What is the POCSO Act and what is its significance?

The Union Ministry of Women and Child Development proposed a Protection of Children from Sexual Offenses Bill in September 2010, which, after numerous rounds of modifications, became the POCSO Act on Children's Day, November 14, 2012.

The POCSO Act is an extensive piece of legislation that was passed with the intention of protecting children from a variety of sexual offenses such as sexual assault, sexual harassment, and pornography. It also protects children's interests by incorporating a child-friendly system for reportage, gathering evidence, conducting investigations, and expediting cases through special courts.

According to this law, a child is someone who is under the age of 18 years, and the severity of the penalty is based on the seriousness of the crime. The maximum punishment for offences under this Act is life imprisonment and jail.

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

According to the Act, a sexual assault is considered "aggravated" when it is carried out by a family member or an individual in a status of trust or authority, such as a teacher, medic, or even a police authority. The Act establishes a gender-neutral standard for the court proceedings for all minor victims.

The Rules under the Act also mandates that every individual who deals with children must undergo a comprehensive background check and undergo frequent police verification at any facility that houses children or has regular contact with them. A school must provide specialised training to its staff on child safety and protection. The institution should also implement a child protection policy that is founded on the idea of "zero tolerance" for violence against children.

The act also ensures that a sexual offense against a child must be reported in accordance with Section 19 of the Act, including when there is reason to suspect that a violation of the Act has taken place. The burden of proof is placed on the accused under this child protection statute, contrary to the IPC, which follows the principle of "guilty until proven innocent."

The Act was revised in 2019 to include provisions for stiffer penalties for certain offences in an effort to discourage offenders and guarantee that children grow up with safety, security and with a sense of dignity.

What are the punishments for dealing with child abuse?

India is a signatory to the United Nations Convention on the Rights of the Child. The POCSO Act was designed to provide child-friendly procedures beginning with report filing, and fulfils the provision of Article 15(3) of the Indian Constitution. Therefore, it is essential to enact specific laws to best protect children's rights and ensure them a carefree childhood.

The National Commission for the Protection of Child Rights and the state Commissions for the Protection of Child Rights are tasked with monitoring how the provisions of the Act are being put into practice. The POCSO Act outlines the penalties for subjecting children to any form of a sexual offence.

Any object or body part entering a child's mouth or private area is prohibited by Section 3 of the POCSO Act. The manipulation of a kid's body, forcing a child to enter another person's space, or even forcing a child to enter the offender's space are all included in this section.

Penetrative sexual assault is punishable under Section 4 of the Act. An offender who commits a penetrative sexual assault faces a minimum sentence of 10 years in prison and a maximum sentence of life in prison. If the child is under the age of 16, the minimum sentence may be increased to life in prison.

According to Section 5 of the Act, a penetrative sexual assault can turn into an aggravated sexual assault if the abuser is a person in the victim's authority or position of trust, if the victim is impregnated, if the child is injured, or if the abuser is a blood relative to the victim.

In accordance with Section 7 of the Act, a perpetrator is considered to have sexually assaulted a child if they fondle their private parts. The act of touching is considered a sexual offence. A minimum jail sentence of three years, which may be increased to five years, and a fine are the penalties for the violation of section 7, as stated under Section 8.

According to Section 9, an act also becomes aggravated depending on the type of assault and its consequences. For a violation of section 9 of the act, Section 10 imposes a fine and any type of imprisonment for a period that is at least five years and up to seven years.

The law recognises both touch-based and non-touch forms of sexual harassment of children, including stalking, forcing a kid to expose themselves, exposing oneself to a child, and other behaviours under Sections 11 and 12 of the POCSO act. The offender faces up to three years of imprisonment and a fine.

Sections 13, 14 and 15 of the POCSO Act particularly stipulate harsh penalties for exposing children or employing them to create child sexual abuse material. Furthermore, keeping any pornographic content involving a child is a serious offense under this act. The penalty for such an offence can be imprisonment of any kind for a period of up to three years, a fine, or both.

Section 16 defines abetment and criminalises the offender leading another person to commit an offence, if the offender is involved in a plan to commit an offence with another person or persons, or if the offender willingly helps in any illegal act or omission. Sections 17 and 18 of the POCSO Act penalise all acts of abetment and attempt to commit an offence under the Act.

According to Section 19 of the POCSO Act, it is a requirement that each citizen notify the police when a minor has been the victim of sexual offences. The family and media must maintain the child's privacy and identity. The punishment for disclosing or publicising the identity of the child victim by specifying their name, residence, neighbourhood, school name, or other details is either a fine or a term of imprisonment of at least six months.

Also read: Is disclosure of identity of victim under POCSO Act a cognizable offence? A three-judge SC bench may decide

Additionally, the Act forbids the publication of unfavourable information that hurts a child's reputation. If a Special Court set up under the Act determines that the disclosure is in the child's best interests as defined by Section 23, it may approve the disclosure for the reasons to be stated in writing.

What are the current issues in the POCSO act?

Recently, research was published that analysed the execution of the POCSO Act. The study, titled 'A Decade of POCSO Developments, Challenges and Insights from Judicial Data' was carried out using information gathered from courts between February 2012 and February 2021.

The research was carried out by the independent legal research think-tank, the Vidhi Centre for Legal Policy, in collaboration with the Data Evidence for Justice Reform program at the World Bank. The report was published on November 17, 2022.

The study mentioned that according to the Supreme Court, 96 per cent of victims in POCSO Act cases were not given a support person. A support person could be an individual or group working in the area of children's rights or child protection, a representative of a children's home or shelter that has responsibility for the child, or a member of the District Child Protection Unit who stands by the victim throughout the legal process.

The report also points out that not all districts have designated POCSO courts. As part of the government's Fast Track Special Courts Scheme, 408 POCSO courts have been established as of 2022 across 28 states. Even when appointed, Special Public Prosecutors are frequently used for non-POCSO Act matters since there aren't enough of them assigned especially to handle POCSO Act cases.

The slow pace of the police inquiry and the delay in sending sample deposits to forensic science laboratories are also the main causes of delayed investigation resulting in rising in cases under the POCSO Act.

Also read: Establish exclusive special courts in districts with more than 100 cases under POCSO Act: SC

Where do we stand in giving justice to the victims?

The study further concluded that just 14.03 per cent of POCSO Act cases result in convictions and 43.44 per cent in acquittals. There are three acquittals for every conviction among POCSO Act cases.

According to the study, there are some states where the difference between acquittal and conviction is enormous. Acquittals were seven times more common in Andhra Pradesh than convictions, whereas convictions were five times more common in West Bengal.

In Kerala, the difference between acquittals and convictions is not as large, with acquittals accounting for 20.5 per cent of total cases and convictions accounting for 16.49 per cent. The national capital of Delhi has the most POCSO Act trials. Namchi in Sikkim, Central Delhi, Medak  in Telangana, and West Garo Hills in Meghalaya are the districts with the most pending and resolved POCSO trials.

According to the report, it takes an average of 509.78 days to resolve a POCSO Act complaint, even though the Act requires that such gruesome crimes should be resolved within a year.

One-fifth of the cases in this dataset resulted in transfers, according to the research, which found that transfers from one court to another were used to settle a total of 22.76 per cent of cases. While transfers made up just around eight per cent of all disposals in 2013, they increased to slightly more than 19 per cent in 2019 and a stunning 42 per cent in 2020. According to the research, this tendency is "concerning" and the transfers signify either administrative mismanagement or incorrect appraisal of facts by the police, as POCSO Act matters are meant to be heard by Special Courts.

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

What society can do? 

Children are sometimes too young to understand sexual abuse or are too embarrassed to tell anybody else. However, the consequences of child sexual abuse may be terrible. Children who experience abuse exhibit a variety of psychological symptoms, including feelings of powerlessness, embarrassment, and suspicion of others. If a parent notices that their child is acting abnormally or exhibiting signs of abuse, they should seek professional treatment immediately.

According to data collected by the research, only six per cent of the 138 judgments that were examined in detail had the accused being a stranger to the victim. While the link between the victim and the accused was unknown in 44 per cent of the instances, the accused were known to the victims in 22.9 per cent of them, with family members being involved in 3.7 per cent of the cases, and previous romantic relationships in 18 per cent of the cases.

Children must be kept safe in all environments. A school, a playground, a sports club, or any social event must all have rules and procedures in place that openly and particularly address children's safety. Parents must guarantee that only individuals aware of the POCSO Act work with their children. At home, this may include verifying that the babysitter has reliable references. At school, this may imply that parents request to examine the institution's safeguarding policies, and require that schools and other organisations adopt safer recruiting procedures and that everyone teaching or volunteering with children get regular child protection training to identify indicators of sexual abuse. If you find out about any child being sexually abused you should immediately call the child abuse helpline 1098.

Child sexual abuse is a very sensitive issue in India, which is home to millions of children. In addition, it is alarming that only a few parents, educators, and members of the general public are aware of the POCSO Act. The difficulty in ensuring that every child has independence, greater access to education, and better health still remain a sad reality.

Child sexual abuse is a barbaric crime that must be addressed urgently in India and around the world.