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Law on Sexual Violence against Women and Children in India

January 28,2015, 02.59 PM IST |
Legal Provisions Concerning Sexual Violence against Women and Children in India
Introduction:
On 14th 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 childs 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.

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 (CrPC) 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.

All offences under the POCSO Act are considered as grave offences. Hence they are non-bailable and
cognisable and the trial are to be conducted by the Court of Sessions.

Amended provisions under the Indian Penal Code

These are serious offences and hence they are non bailable and cognisable and the trial is to be conducted by the
Court of Sessions.

These are considered to be less serious offences and hence the trial is to be conducted by the Judicial Magistrate
First Class (JMFC) or the Metropolitan Magistrate (MM) of the area. Some 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 is 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 Dmello 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.

(PIB Features)
Email: - featuresunit@gmail.com
himalaya@nic.in

SS-276/SF-276/ 27.01.2015
YSK/ Uma
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