By Shivangi Pandey, Research Associate, Human Rights and Social Justice Policies

According to the National Crime Records Bureau’s data collected in 2018, 109 children are sexually abused everyday. The Protection of Children against Sexual Offences (Amendment) Bill 2019, (POCSO Bill 2019) which amended the 2012 Act brought out by the government has been an effort to curb sexual crimes against children. The amendment has made punishments more stringent, an effort to make the investigation and judicial proceedings child-friendly with new clauses in place. Though the above seem like  progressive steps forward, it is argued that these provisions only drive attention away from the abysmally poor form of implementation and low rate of conviction. 

Analysing the Major Provisions

Though the gender neutrality aspect of the Bill, that recognizes instances of sexual assault against both minor boys and girls, can be applauded, it has failed to bring out successful amendments to achieve its purpose of holistic protection and justice for the victims of child sexual abuse. 

The definition of aggravated sexual assault has been widened to include assault by those in positions of authority such as police officers, civil servants, and members of the armed forces. Now, it also includes clauses regarding punishment for assault resulting in death, damage to sexual organs and if the assaulter is a family member. The minimum punishment for the above is now life imprisonment and the provision for death penalty has been introduced. While death penalty seems like a quick retributive form of justice, it is basically a populist measure which does not reduce prevalence of the crime. According to the National Crime Records Bureau 94% of the reported cases for rape and sexual abuse against children are committed by family members and people that the child might know. Keeping the above data in mind, introduction of death penalty might reduce reporting of cases exponentially, owing to the guilt and pressure from other family members and not wanting to be the cause of a family member’s death. There will also be a higher possibility of rape and murder of the victim to evade death penalty, as has been evident from the recent incidents of gruesome rape and murder, in the Priyanka Reddy case and the Unnao Rape case. According to a report by Law Commission of India in 2015, there is no proof that death penalty is a stronger deterrent than life imprisonment. Thus the amendment falls short of serving its purpose.

Amendments tackle the loopholes of a previously weaker Act. But in this context, stringent punishments become counter intuitive, when new definitions fail to capture the severity of crimes. For instance, the definition of aggravated sexual assault has not included contraction of AIDS or other Sexually Transmitted Diseases (STDs), which should become punishable to the extent: if the assaulter had been tested positive for such a disease, their punishment for child sexual abuse can be increased accordingly. The inclusion of ‘Use of Children for Pornographic purposes’ and ‘Storage of Pornographic material’ is a new provision aimed at curbing child pornography and its perpetuation in the society. It also penalizes those who are found in possession of child pornography and can be punished with imprisonment for 3 years or fine, or both. The clause also punishes those: who fail to delete it and distribute it. While the new provision above is welcomed as an inclusion of an important factor in curbing child sexual abuse, many offences remain untapped under this amendment such as child trafficking and offences committed by militant groups. In a legal system where acquittals thrive on loopholes, a balance between expansive-inclusive and specific definitions of what constitutes a crime becomes imperative.  

Addressing Procedural Roadblocks

The incidents of child sexual abuse remain extremely under reported in India due to a host of reasons such as abusers being family members, lack of sex education, disbelief and desperation to save “family’s honour” among others. The cases that do get reported and reach the trial stage, perish as pending cases under the debilitatingly long waiting periods. A study found that victims, in such cases, turn hostile while recording their testimonies due to the trauma caused in recounting the abuse and the fear of being exposed to their abuser. The above problem can be dealt with by establishment of fast track special courts whose proceedings are child friendly in the sense that the language of questioning is simple, understandable and non-triggering. It should also be ensured that there is no direct contact with and exposure to the abuser. While such a provision exists, it hasn’t panned out everywhere in practice and the problem of vacancies still remains as the judges appointed for these proceedings would come from the already available pool of judges. Thus, justice in a sense, as a whole, remains delayed.

Even before such cases reach the court, the system fails the victims. Lapses in investigation by the police such as failure to collect relevant evidence, lack of understanding and proper methods to collect forensic evidence, failure to take statements from relevant witnesses become obstacles in obtaining conviction. At this juncture, the Act fails to provide appellate and relief mechanisms in case of non-compliance with duty by the officer/investigator of the reported case.

Recommendations to Address the Policy Gaps

  1. The Juvenile Justice (JJ) Act, 2015 has added a new provision for adoption of orphaned, abandoned and surrendered children. In many cases orphaned and abandoned children on the streets with no protection, fall prey to sexual abuse. In order to curb this and provide a safe environment where these children can find permanent homes, the adoption clause should be added to the POCSO (Amendment) Bill, 2019 (through the Central Adoption Resource Authority), as a part of providing rehabilitation to these children and not placing them back in an unsafe, vulnerable environment again. The foster care system introduced by JJ Act 2015 would provide adequate infrastructure for the willing families to adopt these children.
  2. A Witness and Victim Protection programme is necessary owing to the kind of coercion and pressure victims of child sexual abuse face at the hands of their families. This often leads to helpless and traumatized children changing their statements and withdrawing police complaints. Protection officers can be assigned by the special courts/magistrate to each case for the whole trial period. Victims and witnesses can then directly report any act of coercion to their assigned officers. The officer will then give a report of the same to the magistrate who can then decide the necessary course of action which does not jeopardize the progress of the case. 
  3. A provision under the Protection of Women against Domestic Violence Act 2005, should be added to POCSO (Amendment) Bill 2019, which entails – that if an officer or service provider has not complied with their duty while investigating crimes related to child sexual abuse, they must be liable to fine and even imprisonment, terms of which can vary according to the nature of non-compliance.
  4. Appointment of Special Public Prosecutors who are trained and equipped to take up cases of child sexual abuse should be mandated under the 2019 Bill. This is necessary not only to ensure efficient functioning of special courts but will also solve the problem of  overworked public prosecutors. 
  5. Sexual abuse, specially in a person’s formative years, leaves painful scars reflected through maladaptive health behaviors, psychiatric disorders persisting throughout life and in the occurrence of sexual diseases. Compensation and Rehabilitation thus become an obligation of the State. The National Legal Services Authority has outlined a ‘Compensation scheme’ for victims of sexual abuse. However, even after prescription by the amendment, no rules have been formulated by the Ministry of Women and Child Development, while the Bill fails to specify who will receive the compensation in case of death of the victim. Both these issues should be addressed at the earliest to ensure just application of the provision.
  6. A child violated by sexual abuse requires immediate medical and psychological rehabilitation. Arrangement for service providers (which could include NGOs working towards rehabilitation of victims) should be established and made available immediately after a complaint is received.
  7. In order to discourage the culture of violent sexual practices in the society, sexual education becomes a crucial inclusion in the curriculum of schools. This will create a generation that is sensitized about the varied forms of sexual abuse and is proactive in reporting it to the relevant authorities. Parents and teachers should also be sensitized through educational seminars which should be made compulsory for both government as well as private schools under the provisions of the 2019 Bill. 

Abuse in any form takes a toll on a person, damaging the very core of their being. Though law has the ability to provide redressal mechanisms to address and curb such crimes, it is argued that post facto justice system is not enough in a society damaged by sexual crimes which victimize children. While our justice system needs more stringent and foolproof provisions, we need to outline zero tolerance policies when it comes to protecting and nurturing the physical and mental well being of children. Most importantly, as a society, we need to revisit the aspects of our culture and customs that perpetuate and enable people to harbor sexual perversions of the kind that disrupt a child’s right to a healthy, happy and safe childhood.