The Protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June 2012. It was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography while safeguarding the interest of the child at every stage of the judicial process. It has jurisdiction to whole of India except the state of Jammu and Kashmir.
The definitional clause 2(d) of the Act defines a child as a person below the age of 18 years. Chapter 2 of the Act talks about penetrative sexual assault and punishment for it. The person is guilty of penetrative sexual assault if he inserts his penis or any other part into the vagina, mouth, urethra or anus of a child or makes a child do it with him or any other person. Or applies mouth to vagina or any other part or make child does so with him or anyone else. If a person is found guilty he shall be imprisoned for the period of seven years and can extend to life imprisonment with fine.
Section 5 defines what will constitute aggravated penetrative sexual assault. Penetrative sexual assault is aggravated penetrative assault if one or more than one following conditions are met:-
- Penetrative sexual assault by the police officer within the police station or any station office or in course of his duties.
Penetrative sexual assault by the public servant
Penetrative sexual assault by person forming part of the management of the jail, remand house, protection house, or any other similar establishment.
- Penetrative sexual assault by staff of hospital or religious institution.
- Gang rape
- Penetrative sexual assault using deadly weapons, fire or corrosive substances
- Penetrative sexual assault by causing grievous hurt or injury either to the body or to sexual organs.
- The penetrative sexual assault which physically incapacitates the child, or causes him to become mentally unstable, such that child is unable to perform chores.
- Makes a girl child pregnant, inflicts HIV AIDS or any other life threating diseases, or commits sexual assault repeatedly, or is already guilty of any offence under this Act
- Penetrative sexual assault on the child by relative or in authority and trust of chid.
- Penetrative sexual violence on the child due to communal and sectarian violence.
- Strips child naked, or making him/her parade in public
The punishment for above is 10 years’ imprisonment which may extend to life imprisonment and fine.
Section 7 defines sexual assault when a person with sexual intent touches vagina, breasts of the child or makes any other person do so. Punishment is 3 years of imprisonment which may extend to 5 years and fine. Aggravated sexual assault is sexual assault committed by persons and situations mentioned in Section 5.
The person is said to commit sexual harassment when with sexual intent he makes sound or utters a word, makes a child to exhibit his body, stalks child either through social media or directly, threatening child that he will circulate the videos involving a child in the sexual act, or uses the child for pornographic purposes.
Punishment for sexual harassment is three years of imprisonment and fine.
Chapter 3 deals with the use of the child for pornographic purposes. Whosoever uses the child for pornographic purposes either in electronic form or printed, either for personal use or for distribution shall be punished with 3 years of imprisonment and fine and in case of subsequent offence 7 years of imprisonment.
Chapter 5 talks about reporting procedures. Any person including a child, who has knowledge that crime has taken place under this Act or is likely to happen, he shall give information to the Special Juvenile Police Unit, Local Police. The report shall be recorded in simple language; help of translator can be taken if necessary. The child should be taken to shelter home within twenty four hours. The matter should be reported to child welfare committees and the special court must be designated. Punishment for failure to record a case shall be given imprisonment for at least 6 months, or fine or both. The same punishment shall apply to a person who gives a false complaint. In no case shall reporting be done in a manner which shall disclose the identity of the child. Chapter 6 talks about the procedure to record the statement of the child. The statement of child should be taken at the residence of the child, or at place the child chooses and shall be taken by a female police officer. At no stage of investigation shall child come in contact with accused, no child shall be detained overnight at the police station for any reason. Identity of the child to be protected unless disclosure is necessary for the interest of child, the statement