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Feature
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Women and Child Development
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*Audrey D’mello
Introduction:
On 14th November, 2012, a new law was enacted, the Protection of Childen from Sexual Offences (POCSO) Act, which brought in major changes in the law related to sexal violence, as far as children below 18 years are concerned.
The aims and objectives of this Act were:
· To secure a child’s right to safety, security and protection from sexual abuse.
· To protect children from inducement or coercion to sexual activity
· To prevent exploitative use of children in prostitution and generation of pornographic material.
· To provide a comprehensive legislation to safeguard the interest of a child at every stage - reporting, recording of evidence, investigation and trial of offences.
· To provide for establishment of special courts for sensitive and speedy trial
It made the law gender neutral and brought within its purview sexual assault of both girls and boys under 18 years of age. It also widened the definition of sexual violence beyond the conventional peno-vaginal penetration to include crimes which did not amount to rape under the IPC. It also prescribed stringent punishment and many procedural safety measures to protect the child during investigation and trial.
But this statute received hardly any media attention and the police continued to use the existing IPC sections in most cases of sexual assault on children. Things began to change only by January, 2013, when, after the gruesome gang rape and murder of a 23 year old para-medic in Delhi, there were widespread protests and international attention was drawn to the issue of sexual violence against women in India and the question whether we have adequate and stringent laws in place to address the issue became the point of debate in the media. In response, the government set up a committee headed by late Justice J.S. Verma to make recommendations for formulating a new law to deal with sexual violence. As per these recommendations a draft Bill was submitted to the Parliament, and without much delay, on 3rd April, 2013, the Amended law came into effect which changed the relevant sections in the Indian Penal Code (IPC), the Criminal Procedure Code (Cr.PC) and the Indian Evidence Act (IEA). With these changes the definition of sexual violence and the procedural aspects to provide safety to women and children are more or less, similar.
The same are provided here below in a tabular form for easy reference.
Important provisions under the POCSO Act, 2012
Victim under the Act: Any person, both male and female, below the age of 18 years.
Accused under the Act: Any person, both male and female, adult or child.
Note: As far as the offence of sexual violence against children is concerned, the law is gender neutral. Also note that the POCSO Act does not use the word “rape” and uses instead the word “sexual assault”. The definition is very wide and includes a range of offences including non-penetrative sexual abuse and also oral, and anal sex and insertion of objects into the vagina, anus or other body orifices. If grave harm is caused to the victim or if the offence is committed by a person in authority, the offence is termed as “aggravated” offence.
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Section
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Provision
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S. 3
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Penetrative Sexual Assault: Insertion, penetration, manipulation with the penis, any body part, or any object into the vagina, mouth, urethra or anus of a child.
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S. 5
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Aggravated Penetrative Sexual Assault: ‘person in authority’ and/or if additional harm and injury is committed.
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S. 7
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Sexual Assault: touching a child with sexual intent (non penetrative). (Touching vagina, penis, anus, breast or any body part of a child)
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S. 9
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Aggravated Sexual Assault: ‘person in authority’ and/or if additional harm and injury is committed.
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S. 11
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Sexual Harassment: Word, sound, gesture, exhibiting any body part, showing pornography with sexual intent. Making a child exhibit any body part, stalking the child, threatening the use of pornographic media
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S. 13 & S. 15
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Pornography: use of a child for pornographic purposes. Storing pornographic media of a child for commercial use.
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S. 19-21
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Mandatory Reporting:
S.19 (1) any person who has knowledge of sexual offence committed or likely to be committed on a child
S.20 management and staff of media, hotels, lodges, hospitals, clubs, studios and photographic facilities
S.21. Failure to report or record is punishable
S.21 (3) However, a child who fails to report not punished.
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All offences under the POCSO Act are considered as grave offences. Hence they are non bailable and cognisable and the trial is to be conducted by the Court of Sessions.
Amended provisions under the Indian Penal Code
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S. 376
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Insertion, penetration, manipulation with the penis, any body part, or any object into the vagina, mouth, urethra or anus of a woman.
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S. 376 (2)
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Special circumstances
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S. 376 A
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Injury which causes the death or persistent vegetative state
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S. 376 B
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By husband upon his wife during separation
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S. 376 C
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By a person in authority
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S. 376 D
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Gang Rape
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S. 376 E
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Repeat Offenders
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These are seriouds offences and hnece they are non bailable and cognisable and the trial is to be conducted by the Court of Sessions.
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S. 354
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Assault or criminal force with intent to outrage modesty: If a man assaults or uses criminal force on any woman with the intention of outraging her modesty
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S. 354 A
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Sexual Harassment: If a man makes physical contact and advances, demands or requests for sexual favours, shows pornography against the will of a woman or makes sexually coloured remarks
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S. 354 B
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Assault or criminal force with intent to disrobe: If a man assaults or uses criminal force against a woman with the intention of disrobing her
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S. 354 C
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Voyeurism: If a man watches or captures the image of a woman in a private act or disseminates such an image
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S. 354 D
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Stalking: If a man follows or contacts a woman despite a clear indication of disinterest
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S. 509
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Word, gesture or act intended to insult the modesty of a woman: If a man utters any word, sound, gesture, exhibits any object with the intention that it is heard or seen or intrudes the privacy
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These are considered to be less serious offence and hence the triabl is to be conducted by the
Judicial Magistrate, First Class (JMFC) or the Metropolitan Magistrate (MM) of the area. Sopme of these are bailable and the others are non-bailable.
Procedural Safety Measures
The present law for sexual violence upon women and children provides for several safety measures for protecting the victim / survivor right from the time of lodging the FIR till the end of the trial. Some of them are summarized below.
While Lodging the First Information Report (FIR) at the police station
A victim need not come to the police station to lodge the FIR. The same can be given to the police by a relative or a friend who will be the complainant.
The FIR shall be recorded in writing and shall be read over to the complainant and a copy of the same shall be provided free of cost to the complainant.
Failure to record an FIR it a cognizable offence
While recording the statement of the victim.
After the FIR is lodged, the police will record a detailed statement of the victim regarding the crime. The same shall be recorded in a simple language
The police shall not reveal the identity of the victim to the media or to the public.
A woman or a child shall not be detained in a police station overnight.
If the victim needs a translator the same shall be provided.
Within 24 hours of receiving information the victim shall be taken to the nearest hospital for medical examination and care
If the victim has any other special needs, the same shall be met.
If the victim is a child,
· The statement shall be recorded at a place where the child resides or where the child feels comfortable.
· the officer recording the statement shall not be below the rank of sub inspector and should preferably be a woman officer.
· the police officer shall not be in uniform.
· the child shall not come in contact in any way with the accused
· a person who the child trusts shall be present
· for mentally or physically (temporary or permanent) disabled child, a special educator / expert may be called
· If possible, the statement of the child may be recorded using audio-video electronic
· If required, the police shall take the child to the nearest shelter home for emergency shelter and produce the child before the Child Welfare Committee (CWC)
· the Police shall report all cases of child sexual offences to the Child Welfare Committee and Special Court within 24 hours
Medical and Forensic Examination
A person who the victim trusts shall be present at the time of medical examination
A female victim shall be examined only by a lady doctor
The police shall ensure the samples collected from the hospital are sent to the forensic laboratory at the earliest
The medical practitioner shall treat the child for cuts, bruises, bodily and genital injuries, exposure to STDs & HIV. S/he shall discuss possible pregnancy and emergency contraceptives with the child or the person who the child trusts. Rule 5 (4)
The victim may be referred for mental, psychological or other counselling.
Non treatment of a victim by a Hospital is an offence punishable with imprisonment for a term which may extend to one year or fine or both under S. 166B Cr. P C
The medical and forensic examination shall be conducted as per the Central guidelines or the guidelines issued by the respective state.
Scheme for Financial Support and to provide support to overcome and physical and mental trauma caused by the incident
Many states have introduced schemes for either compensation or financial support to the victim. There are different models for the same.
The Maharashtra state has introduced the Manodhairya Scheme for victims of rape and acid attacks, where the compensation has to be paid within a few weeks of lodging the FIR.
Legal assistance during the trial is also provided as per this scheme.
During the Trial
The POCSO Act provides for setting up of special child friendly courts to conduct the trial.
Many states have also set up special courts for all cases of sexual assault concerning women and children.
All trials concerning sexual assault will be conducted in camera.
The victim shall be allowed to have a support person inside the court during the examination and cross examination.
Questions regarding the past sexual history of the victim or child, or any other humiliating questions which cause the victim trauma shall not be asked during cross examination.
If the child I below 7 years, there cannot be direct cross examination. The lawyer would have to give the questions in writing to the judge and the judge shall explain the same to the child.
Conclusions:
If all the protective measures are stringently followed, the investigations and trial will not be a harrowing experience for the victim and this will in turn provide for maintaining the dignity of the victim, which in turn will improve conviction rates in the country.
*Ms. Audrey D’mello is Program Director, Majlis Legal Centre.
Majlis Legal Centre provides socio legal support to victims of domestic and sexual violence in Maharashtra. We have a collaboration with the Department of Women and Child Development, Government of Maharashtra for effective implementation of laws with regard to crimes against women.
