Child Sexual Abuse: Efficacy of Protection visa-vis Prosecution under Criminal Justice

System
By : C.E.Pratap on 05 November 2014

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Introduction
Children are innocent and helpless and therefore they need proper care and protection during
the growing years so that their full potential can be utilised for the development of the
society. They are the architects of the future of a nation so they should be protected from all
kinds of abuse and given opportunities for their all round development. Child abuse is a state
of emotional, physical, economic and sexual maltreatment meted out to a person below the
age of eighteen and is a globally prevalent phenomenon. Child sexual abuse is a clear
violation of the basic human rights of a child. Sexual abuse is inappropriate sexual behaviour
with a child. Child sexual abuse is not a recent phenomenon. It persisted across ages yet a
very large percentage of population of India feel that this is a largely western problem and
that child sexual abuse does not happen in India. Since independence, India has developed
its own jurisprudence concerning children and recognizing their rights giving paramount
importance to their aspirations in the march towards an inclusive and equitable society. Yet
the problem of child abuse has not received enough attention in India until the passing of the
first landmark legislation the Protection of Children from Sexual Offences Act, 2012 which
exclusively addresses the issue of child abuse. The present paper attempts to trace out the
relevant statistics of child abuse in India, the scenario of child sexual abuse, the efficacy of
child protection and the effectiveness of prosecution with special reference to criminal justice
system in India in the light of recent enactment.
Child Sexual Abuse Glaring Facts and Reality
Child abuse is shrouded in secrecy and there is a scheme of silence around the entire subject.
In fact there is a well entrenched belief that there is no child abuse in India and certainly
there is no sexual abuse in the country until this belief was shattered by the study
undertaken by the Ministry of Women and Child Development on Child Abuse in India in
2007. The few glaring facts that emerge from this study are children on street, children at
work and children in institutional care reported the highest incidence of sexual assault,
53.22% of children reported having faced one or more forms of sexual abuse which means
one out of every two children has been a victim of sexual abuse atleast once, 50% abuses

are persons known to the child or in a position of trust and responsibility. Another striking
factor which was revealed in the study was that most children did not report the sexual abuse
to anyone.[1] These distressing facts only highlight the gravity of the situation prevalent in
our country.
According to World Health Organisation, child abuse or maltreatment constitutes all forms of
physical and or emotional ill-treatment, sexual abuse, neglect or negligent treatment or
commercial or other exploitation, resulting in actual or potential harm to the childs health,
survival, development or dignity in the context of a relationship of responsibility, trust or
power.[2] Child sexual abuse includes fondling a childs genitals, making the child fondle the
adults genitals, intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation.
These acts must have to be committed by a person responsible for the care of a child.[3]
POSCO Act: New Legislative Vision for Child Protection
Sexual offences are hitherto covered under different provisions of Indian Penal Code. But the
dismal fact is that these provisions do not provide for all types of sexual offences against
children and more importantly does not distinguish between adult and child victims. The only
way to overcome this issue of child sexual abuse is to create an enabling environment
through empowered legislation and by making effective policy on child protection and their
successful implementation. The enactment of Protection of Children from Sexual Offences
Act, 2012 is one such genuine attempt by the legislators to create the desired enabling
environment by empowering the children and strengthening the legal provisions for their
protection from sexual abuse and exploitation. The Act purports to protect persons below the
age of 18 years from offences such as sexual assault, sexual harassment and child
pornography all of which have been accurately defined for the first time and are accompanied
by rigorous punishments proportionate to the gravity of the crime. The Act also provides for
safeguarding interest and well being of the child at every stage of the judicial process by
incorporating child friendly procedures for reporting, recording of evidence, investigation and
trial of offences and establishment of special courts and speedy trial of such cases.[4]
The Act for the first time clearly defined the terms Penetrative sexual assault[5],
Aggravated penetrative sexual assault[6], Aggravated sexual assault[7]Sexual harassment
of the child[8], Use of child for pornographic purposes[9]. In fact, the wisdom of the
legislators is well brought forth in Sections 5 and 9 of the Act which overtly classifies and
penalizes the act of penetrative sexual assault and sexual assault by a police officer, member
of armed forces, public servant, being on the management or on the staff of a jail or remand
home or protection home or observation home as aggravated penetrative sexual assault and
aggravated sexual assault respectively to severely reprimand the persons who commit such
offences despite their high status and responsible post. These provisions send out a strong
message in general, which will aid in wider curbing of such offences by public servants and by
persons in responsible posts.
Child sexual abuse is a critical pattern of crime which, if not dealt appropriately, the interest
of the child which is a fundamental principles to be followed in the determination of a case
involving a sexual offence against a child have been laid down in various international
instruments and in the Preamble to the Protection of Children from Sexual Offences Act, 2012

itself will be at jeopardy. Thus the judicial officers, public prosecutors, the investigating team
comprising the police and Medico-Forensics, the State Legal Services Authorities and the
Juvenile Justice Boards must co-ordinately work for furthering the interest of the child. The
POSCO Act provides for the establishment of special courts to deal with the offences under
the Act keeping the paramount importance at every stage of the judicial process. In order to
secure an effective implementation of the Act, recently the Apex Court has directed all the
States to designate special courts at the earliest possible endeavour.[10]
Efficacy of Prosecution in protecting the interest of the child
At the center of every child sexual abuse prosecution is the story told by the child. The childs
story in the form of the initial disclosure of abuse is usually the starting point of the
investigation; and the childs story in the form of the evidence he or she gives at trial is
usually the foundation of the prosecution case. Thus the fundamental objective that needs to
be taken in to consideration in all child sexual abuse case is the best interest of the child.
Sexual abuse can itself have dire long term negative psychological consequences for its
victims, but the degree of psychic trauma is as much and perhaps more dependent on the
way the child victim is treated after disclosure then at the time of the offence itself. For
ensuring that the levels of psychic trauma are kept at minimal the following aspects from
criminal justice system point of view must be looked into: first, minimizing the impact of the
investigation, secondly, minimizing the trauma of testifying.
The Protection of Children from Sexual Offences Act, 2012 gives ample protection to
safeguard the interest of the child right from the occurrence of the offence of sexual abuse
and provides a special mechanism for reporting the a case. In keeping with the best
international child protection standards, the Act also provides for mandatory reporting of
sexual offences. This casts a legal duty upon a person who has knowledge that a child has
been sexually abused to report the offence; if he fails to do so, he may be punished with six
months imprisonment and or a fine.[11] Thus, a teacher who is aware that one of her
students has been sexually abused by a colleague is legally obliged to bring the matter to the
attention of the authorities. This is a very important salutary provision under POSCO Act
which is enacted with a view to safeguard and protect the interest of child thereby having a
penalising effect appended to Section 21 and its non-compliance will lead to sanction under
the ambit of criminal law. Section 19 mandates the procedure for reporting of cases that any
person including the child who has apprehension that an offence under this Act is likely to be
committed or has knowledge that such an offence has been committed, he shall provide such
information to:(a) the Special Juvenile Police Unit[12]; or
(b) the local police.[13]
Further every report given under Section 19 (1) shall be ascribed an entry number
and recorded in writing[14]; to be read over to the informant[15] and shall be entered in a
book to be kept by the Police Unit.[16] Where such report is given by a child, the same shall
be recorded in a simple language so that the child understands contents are being recorded
and in case contents are being recorded in the language not understood by the child or
wherever it is deemed necessary, a translator or interpreter shall be provided to a child if he

fails to understand the same.[17] It also provides that where the Special Juvenile Police Unit
or local police is of the option that the child against whom an offence has been committed is
in need of care and protection, then it shall after recording the reasons in writing, make
immediate arrangement to give him such care and protection including admitting the child to
the shelter home or to the nearest hospital within twenty hours of the report.[18] It is
provided that the Special Juvenile Police Unit or local police shall, without unnecessary delay
but within a period of twenty four hours, report the matter to the Special Court or where no
Special Court has been designated, to the Court of Session, including need of the child for
care and protection and steps taken in this regard. The Act, on the other hand, also
prescribes punishment for a person, if he provides false information with the intention to
defame any person, including the child.[19]
For the purposes of providing a speedy trial the POSCO Act provides for establishment of
Special Courts[20] and for speedy trial the evidence of the child to be recorded within a
period of 30 days[21] and the Special Court is to complete the trial within a period of one
year from the date of cognizance of the offence.[22] The POSCO Act further incorporates
child friendly procedures for reporting, recording of evidence, investigation and trial of
offences which aim to ensure that the child is protected from intimidation, whether
intentional or not. These interalia include recording the statement of the child at the
residence of the child or at the place of his choice, preferably by a woman police officer not
below the rank of sub-inspector[23]and the police officer while recording the statement of
the child shall not be in uniform.[24] The police officer making the investigation shall while
examining the child, ensure that at no point of time the child come in the contact in any way
with the accused.[25] Further no child shall be detained in the police station in the night for
any reason.[26]
The police officer shall ensure that the identity of the child is protected from the public media
and the media has been barred from disclosing the identity of the child without the
permission of the Special Court.[27] The child rights activists say that POSCO Act, which has
helped overcome shortcomings in the Indian Penal Code in dealing with child victims of
sexual abuse, has several structural deficits that need to be addressed.[28] Before this Act
came in to force, the police used the provision Section 354 I.P.C.[29], a bailable offence in
cases were girls complained of indecently touched. However the corresponding provision
under POSCO Act[30] is gender neutral. The attempt to commit an offence under the Act
mandates to be made liable for punishment for up to half the punishment prescribed for the
commission of the offence.[31] The Act also provides for punishment for abetment of the
offence, which is the same as for commission of the offence[32]. This would cover trafficking
of children for sexual purposes.
Impact of the Investigation on a Child Minimizing to a maximum extent
One of the primary causes of stress for children in the investigative phase of proceedings is
the number of times a child may have to tell the story of their abuse. Those who may
interview the child in the course of the proceedings might include police officers, social
workers, lawyers, doctors, mental health professionals. Continually having to repeat a
harrowing story may itself be a harrowing experience for children. The investigating officers
and judicial officers must try to avoid recurring interviews of the victim. The Act provides for

child-friendly pre-trial and trial procedures to minimise the trauma felt by child victims and to
eliminate the possibility of revictimisation at the time of trial. The child friendly pre-trial
procedures cast duties on the police and are to be implemented at the time of reporting of
offences and recording of the childs statement.[33]
While recording statement of a child videotaping interviews through audio-video electronic
means[34] is permitted which have the benefit of reducing trauma on the child victim by
limiting the number of interviews. Instead of the child having to recall the account of abuse
multiple times to different agencies as above mentioned, the interview can be videotaped and
passed along to them. Further videotaping the interviews with child sexual abuse victims also
helps increase the reliability of their statements. Besides, most disclosures in child sexual
abuse cases occur first to family members and then to other institutionalised, law
enforcement agencies who are not specifically trained to question children about sexual
abuse; consequently leading to errors in interviewing and the child is more susceptible to
suggestion and more subject to confusion or imagined memory than an adult.[35] Keeping in
mind these problems, the POSCO Act permits to seek the assistance of a translator or an
interpreter, having such qualifications, experience to assist in recording of evidence in such
cases as provided under Sections 26 (2), 26 (3) and 38 respectively. Further the Special
Court shall try cases in camera[36] and in the presence of the parents of the child or any
other person in whom the child has trust or confidence.
In the common law system of criminal trial, cross examination is generally considered to be
the sine qua non method of testing the credibility of a witness. The purpose of cross
examination is to unearth and discover the truth beyond any doubt. But there is a little doubt
that the strategies usually employed in cross examination are more likely to confuse or
intimidate a child witness than to lead to the discovery of truth. The defence counsel must
adopt a middle path while testing and probing the childs evidence so as to uphold the rights
of the victim and the accused.[37] It is the duty of the judge to set child-friendly atmosphere
while recording of evidence and give frequent breaks for child. It is also the duty of the
presiding judge to ensure that the child is not called repeatedly to testify in the court.
Many children find the courtroom experience intimidating and this intimidation can create
stress in child victims. Under these circumstances, a child can be a poor witness, and the
process of navigating the criminal justice system can compound a childs trauma. The POCSO
Act, 2012 provides for a number of child-friendly procedures to be followed in the Special
Court. In addition to this, some measures can be out in place in the Special Court to ensure
that the child is not overcome by the circumstances. However, the rights of the accused, for
example that of cross-examination of the child, must be protected while balanced against the
rights and needs of these child victims. Some of the ways to ensure the childs comfort is that
screens are permanently in place in the Special Courts for the witness stands for the children.
Additionally, the child-friendly courtrooms can be equipped with closed circuit television
capabilities, which allow the child to testify in a separate room from the accused. Special
waiting rooms should be provided within the court premises to allow the families to wait in
privacy throughout the court proceedings. During criminal investigation some minimum levels
of protection are required in relation to any interviews with the victim.
Conclusion

Thus it can be rightly concluded that Protection of Children from Sexual Offences Act is a
welcome piece of legislation, in that it recognises almost every known form of sexual abuse
against children as punishable offences, leaving little room for ambiguity in its interpretation.
Further, by providing for a child-friendly judicial process, the POSCO Act encourages children
who have been victims of sexual abuse to bring the offender to book and seek redress for
their suffering, as well as to obtain assistance in overcoming their trauma by criminal justice
system. It makes the different agencies of the State, such as the police, judiciary and child
protection machinery, collaborators in securing justice for a sexually abused child; working
together, they can ensure that the child is given an opportunity to obtain justice for harm
suffered and begin the process of rebuilding the childs life and future.
Authors Profile
C.E.Pratap is presently pursuing final year M.L. in Criminal Law and Criminal Justice
Administration at Dr. Ambedkar Government Law College, Chennai. The author has few of his
articles published in law journals, chapter contributed in edited books, presented papers in
several International and National Seminars to his credit.
Contact
The author can be reached at Mobile No. 98416 34847
E.mail: justicepratap@yahoo.co.in
Address for correspondence: 17/8, 5th Street, Alwarpet, Chennai 600 018.
[1] Ministry of Women and Child Development, Survey on Child Abuse in India, Government
of India, 2007.
[2]World Health Organisation : Report of the Consultation on Child Abuse Prevention,
Geneva, 1999, http://www.who.int/violence-injury-prevention/violation /neglect/en/ Last
accessed on 20/09/2014.
[3]Dr.S.K.Chatterjee: Offences against Children and Juvenile Offence, (Central Law
Publications, Allahabad, 1stEdn., 2013), p.165.
[4]POSCO Act, 2012, Statement of objects and reasons.
[5]Section 3, POSCO Act, 2012 defines the offence of Penetrative sexual assault.
Section 4, POSCO Act, 2012 provides for punishment for penetrative sexual assault of not
less than seven years which may extend to imprisonment for life and fine.
[6]Section 5, POSCO Act, 2012 defines the offence of Aggravated penetrative sexual assault.
Section 6, POSCO Act, 2012 provides for punishment for aggravated penetrative sexual
assault of rigorous imprisonment for a term which shall not be less than ten years which may
extend to imprisonment for life and fine.
[7]Section 9, POSCO Act, 2012 defines the offence of Aggravated sexual assault.
Section 10, POSCO Act, 2012 provides for punishment for aggravated sexual assault as
imprisonment of either description for a term not less than five years which may extend to
seven years and fine.
[8]Section 11, POSCO Act, 2012 defines the offence of Sexual harassment.
Section 12, POSCO Act, 2012 provides for punishment for sexual harassment as
imprisonment of either description for a term which may extend to three years and shall also

be liable to fine.
[9]Section 13, POSCO Act, 2012 defines the offence of use of child for pornographic
purposes.
Section 14, POSCO Act, 2012 provides for punishment for using a child for pornographic
purposes of rigorous imprisonment of a term which may extend to seven years and also with
fine.
[10]Keynote address delivered by Honble Mr. Justice P.Sathasivam, the then Chief Justice of
India during the Southern Regional Conference on POSCO Act, 2012 on 16.11.2013 at Tamil
Nadu State Judicial Academy, (2013) 4 MLJ (Crl) 17 at pg.19.
[11]Section 21, POSCO Act, 2012.
[12]This clause makes provision for reporting of offences. It provides notwithstanding
anything in the Code of Criminal Procedure,1973, any person (including the child), who
apprehends that an offence under the proposed legislation is likely to be committed or has
knowledge that such an offence has been committed, he shall provide such information to the
Special Juvenile Police Unit; or the local police.
[13]Section 19 (1), POSCO Act, 2012.
[14]Ibid, Section 19 (2) (a).
[15]Ibid, Section 19 (2) (b).
[16]Ibid, Section 19 (2) (c).
[17]Ibid, Section 19 (4).
[18]Ibid, Section 19 (5).
[19]Ibid, Section 22.
[20]Ibid, Section 28.
[21]Ibid, Section 35 (1).
[22]Ibid, Section 35 (2).
[23]Ibid, Section 24 (1).
[24]Ibid, Section 24 (2).
[25]Ibid, Section 24 (3).
[26]Ibid, Section 24 (4).
[27]Ibid, Section 24 (5).
[28]Neha Gupta, N.K. Aggarwal, M.S.Bhatia, The Protection of Children from Sexual Offences
(POSCO), Forensic Psychiatry, Delhi Psychiatry Journal 2013; 16: (2), pp.429-431.
[29]Section 354, I.P.C. provides punishment for assault or criminal force to woman with
intent to outrage her modesty.
[30]Section 7, POSCO Act, 2012 defines the offence of Sexual assault as whoever, with
sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch
the vagina, penis, anus or breast of such person or any other person, or does any other Act
with sexual intent which involves physical contact without penetration is said to commit
sexual assault.
[31]Ibid, Section 18.
[32]Ibid, Section 17.
[33]Ibid, Sections 19 to 26.
[34]Ibid, Section 26 (4).
[35]Supra note 10.
[36]Section 37, POSCO Act, 2012.
[37]Supra note 10 at pg.20.