Protection of Children from Sexual Offences (POCSO) Act,

On 14^th November, 2012, a new law was enacted, the Protection of Children from Sexual Offences (POCSO) Act, which brought in major changes in the law related to sexual 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 below the age of 18 years. 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.

 

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. The Centre has collaboration with the Department of Women and Child Development, Government of Maharashtra for effective implementation of laws with regard to crimes against women.