The Protection of Children from Sexual Offences Act, 2012
Passed by the government of India on June 19, 2012, this Act aims to provide for the protection of children (persons below 18 years) from sexual assault, sexual harassment and pornography, and the establishment of Special Courts for trying such offences.
Referring to the Convention on the Rights of the Child
(adopted by the United Nations in 1989), the Act says that “…it is imperative
that the law operates in a manner that the best interest and well being of the
child are regarded as being of paramount importance.”
The Act contains nine chapters: Preliminary (Chapter I);
Sexual offences against children (Chapter II); Using child for pornographic
purposes and punishment therefor (Chapter III); Abetment of and attempt to
commit an offence (Chapter IV); Procedure for reporting of cases (Chapter V); Procedures
for recording statement of the child (Chapter VI); Special courts (Chapter VII);
Procedure and powers of special courts and recording of evidence (Chapter VIII)
and Miscellaneous (Chapter IX).
The Act extends to the whole of India.
What are the penalties for sexually assaulting or harassing a child?
Sexual assault refers to when someone – with sexual intent – touches the vagina, penis, anus or breast of a child, or makes a child touch their body parts or those of another person, or does any other act involving physical contact with the child without penetration. Acts of sexual assault are punishable with imprisonment for three to five years, and a fine.
Aggravated sexual assault includes acts of assault that are committed by police officers on duty or inside police stations, members of armed or security forces on duty or within areas under their command, public servants, as well as members of the management or staff at jails, protection homes, hospitals, or educational or religious institutions. Such cases also include repeated offenses, ‘gang sexual assault’, assault using deadly weapons, assault against children below 12 years, and more. Persons who have committed aggravated sexual assault are punishable with imprisonment for five to seven years, and a fine.
A person is said to have committed penetrative sexual assault if they inserted their penis or an object into a child’s body or made the child do so to another person; manipulated any of the child’s body parts with the intention of penetration, or made a child do so to another person; or applied their mouth on specified parts of the child’s body, or made the child do so.
The penalty for such an offence shall be at least 10 years of imprisonment and may extend to the rest of the offender’s life, along with a fine. If the child against whom the offence is committed is under 16 years, the minimum imprisonment term shall be 20 years. The fine imposed in such cases shall be ‘just and reasonable’ and paid to the victim to meet their medical and rehabilitation expenses.
Sexual harassment includes when a person – with sexual intent – says something, makes gestures, or exhibits an object or body part for a child to see; makes a child exhibit their body part; shows an object to a child, in any form or media, as pornography; or repeatedly or constantly follows, watches or contacts a child. Acts of sexual harassment are punishable with imprisonment for up to three years, along with a fine.
What are some other offenses penalised under the Act?
If someone, through any medium, uses a child or children for pornographic purposes, the person shall be punishable with imprisonment for five years and with a fine. For subsequent convictions, the imprisonment term shall be at least seven years.
Anyone who stores or possesses pornographic material involving a child for commercial purposes shall be punishable with imprisonment for three to five years, or a fine, or both. In the event of a subsequent conviction, the imprisonment term shall be five to seven years.
If someone abets an offence under this Act, and the offence is committed as a consequence of such abetment, they shall be punished with the penalty prescribed for that offence.
Anyone who fails to report the commission of an offence shall be punished with imprisonment which may extend to six months, or a fine, or both.
What is the procedure for recording a child’s statement under the Act?
The child’s statement shall be taken at their residence, or a place of their choice, and as far as possible by a woman police officer not below the rank of a sub-inspector. The police officer shall not be in uniform; they shall ensure that the child does not come in contact with the accused; and they shall keep the child’s identity from the media, unless directed by the Special Court. No child shall be detained in a police station at night for any reason.
The Magistrate or the police officer, as the case may be, shall record the child’s statement in presence of the child’s parents, or any other person trusted by the child. The Magistrate or police officer may take the help of a translator or an interpreter if necessary. They may seek the assistance of a special educator if the child has a mental or physical disability. Wherever possible, the Magistrate or the police officer shall ensure that the statement is also recorded by audio-visual means.
In case the victim is a girl child, her medical examination shall be conducted by a woman doctor. The examination shall be conducted in the presence of the child’s parent or someone that they trust. If no parent or trusted person is available, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.
What is a Special Court?
State governments, in consultation with the Chief Justice of the High Court, shall designate a Sessions Court in each district as a Special Court to try offences under this Act.
If a person is prosecuted for committing, abetting or attempting to commit any offence under Sections 3 (penetrative sexual assault), 5 (aggravated penetrative sexual assault), 7 (sexual assault) or 9 (aggravated sexual assault) of this Act, the Special Court shall presume that such person has committed, abetted or attempted to commit the offence, unless the contrary is proved.
Focus and Factoids by Meenu Pandey.
Ministry of Law and Justice
Government of India, New Delhi
19 Jun, 2019