The Protection of Children from Sexual Offences Act, 2012 (POCSO)   NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS

Why Needed Existing laws (IPC and JJ Act, 2000) not enough to address sexual offences committed against children No specific provisions or laws for dealing with sexual abuse of MALE children

International Obligation UNCRC All State Parties to undertake appropriate national, bilateral and multilateral measures to prevent: Inducement or coercion of a child to engage in any unlawful sexual activity: The exploitative use of children in prostitution or other unlawful sexual practices; The exploitative use of children in pornographic performances and materials.

SALIENT FEATURES New offences / Special Courts / Special Public Prosecutor Special Procedures: recording of complaint, statements & Evidence Mandatory Reporting / Punishment for False Reporting Monitoring by NCPCR/ SCPCR / Convergence with JJ Act Compensation

NEW OFFENCES Penetrative Sexual Assault (Section 3) Aggravated Penetrative Sexual Assault (Section 5) Sexual Assault (Section 7) Aggravated Sexual Assault (Section 9) Sexual Harassment of the Child (Section 11) Use of Child for Pornographic Purposes (Section 13)

Special Courts and Speedy Trial Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a receiving a complaint of facts which constitute such offence or upon a police report of such facts [Section 33 (1)] Section 19(6) - the SJPU / or the local police have to report the matter to Special Court within 24 hours. Evidence of the child has to be recorded within a period of thirty days of the Special Court taking cognizance of the offence. The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence

Procedure to be followed after Sexual Offence is Committed SJPU/JWO FIR Produce victim before CWC in 24 hrs CWC to provide Support Person (from NGO) Support person to inform victim: update on investigation; judicial procedure, case proceedings and potential outcome SJPU/JWO to inform Special Court SJPU/JWO to update special court of all developments. SJPU/JWO to inform victim etc about Counselling services; Case development and progress of investigation SJPU JWO to inform parent/guardian: Right to be represented by a lawyer (sec 40); and Victim compensation scheme JWO to start INVESTIGATION Medical SJPU to facilitate Emergency Medical Care Consent of Victim/ Parent/Guardian/Trusted person is a must Doctor to collect Forensic Evidence simultaneously If required, provide counselling 11/28/2018 Asheem Srivastav, Member Secretary, National Commission of Protection of Child Rights

FAILURE TO REPORT Failure to report by a person, who is in charge of any company or an institution, in respect of offence committed by subordinate under his control, also punishable with imprisonment of one year and fine (Section21(2))

FALSE COMPLAINT False complaint against any person with malicious intent punishable with imprisonment of 6 months or with fine or both (Section22(1)) False complaint against child, punishable with imprisonment of one year or with fine or with both (Section22(3)) No civil or criminal liability for giving information in good faith (Section19(7))

Child Rape Cases: NCRB reported 48338 cases from 2001 to 2011

39158 Cases Have been Registered under POCSO (November 2012 – March 2015) by 27 States

Status of Special Courts – 604/665 Districts

11/28/2018 Asheem Srivastav, Member Secretary, National Commission of Protection of Child Rights

Alarming rise in Child Abuse Member Secretary, National Commission for Protection of Child Rights 11/28/2018 Alarming rise in Child Abuse 236% jump in child rape cases between 2001 and 2011; 1 in 4 cases of child rape involve girl younger than 16 years; 90 % victims under 12 years are raped by family member and close relatives or friends; 87 % children were repeatedly abused; Source India Today May 6, 2013

Young Girls - Cannot Dream 11/28/2018 Asheem Srivastav, Member Secretary, National Commission of Protection of Child Rights

Someone Else’s Wealth Early marriage – As young as 5 years; Gauna – After the girl attains puberty ( 13 + years age) Becomes mother in 14 years; Why Fear of losing virginity Many girls get divorced by the time they are 15; Many are sold off for prostitution Education = No/Truncated Health = Weak/Chronic illness Many a time they die due to excessive bleeding of internal organs Court – Do not grant divorce on the grounds that these girls are not mature enough to make a decision about divorce. 11/28/2018 Asheem Srivastav, Member Secretary, National Commission of Protection of Child Rights

Currently Married Persons in 10-14 years Age Group

POCSO complaints registered in ncpcr Case Analysis POCSO complaints registered in ncpcr

Location of the offence

Age of Victim

Relationship between offender and victim

People who approached NCPCR for Complaints

Offender's Age

Problems faced by Victims during investigation Insistence by police that victim should be brought to police station for FIR Police take the victim to the site of offence before registering FIR and Medical Examination Victim made to repeat the details of incident several times. Victim and accused are taken for medical examination in the same vehicle Delayed filing of charge sheet by police resulting in BAIL to accused Delay in serving summons to victim for deposition in court Police fails to inform CWC

Problems faced by Victims during Medical Examination Victim is made to wait for a long time Doctors are rude and impatient with the victim and family Victim not explained about the medical procedure and/or consent Some doctors fail to report the matter to police in case victim directly approaches for medical support Medical examination conducted in the labor ward Forensic evidence not collected at the time of medical examination

Judge’s Comments In the absence of victim’s statement, the case could not be proved beyond reasonable doubt Case not proved in the absence of documentary evidence of victim’s age The IO did not collect the evidence properly In several cases Judges did not comment on the failure to conduct medical examination Victim is habituated to sex as she is married This is clearly sexual assault, torn hymen. But this cannot be attributed to the accused Report does not show use of force

Appreciable Remarks by Judges Prosecutrix’s sole testimony is sufficient to convict, corroboration not required Insisting on corroboration will add insult to injury Delay in filing FIR in cases of father raping daughter is understandable When the victim is of tender age and the case is reported after a long gap, there are bound to be inconsistencies which must be overlooked Gesture of a child who does not understand sex are important and must be taken into account

Some Questions Are the existing laws and provisions effective deterrent in prevention of sexual assault ?? Are we failing in IMPLEMENTATION? To what extent and satisfaction (of victim) the laws and judicial pronouncements have punished the perpetrators ? Can police and judiciary solve the problem of sexual assault? If not, what else is required to be done by individuals, families and communities? What impact sexual assault had on the lives and psyche of past perpetrators and victims? What percentage of perpetrators, both juveniles and adults have reformed?

Some Questions What encourages sexual assault? Is it lack of parental care, inadequate attention or neglect in schools; Changing social values; Easy access to porn films, Media reporting particularly page 3 reporting and so on. Do the parents or society have high level of tolerance or apathy for sexual assault and its reporting for fear of social stigma or any other factor? Is it that the children, particularly boys, witness sexual and physical violence and debauchery within the family, friends and society going unpunished which encourages them in committing these acts with impunity.

428 Special Public Prosecutors appointed

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