MEDICOLEGAL PERSPECTIVE

1. The Protection Of
Children from
Sexual Offences
Act, 2012
Presenter: Dr Nikita Prabhakaran
Chair: Dr Shahana

2. • NCRB statistics
• 2016 24/ 1 lakh children
• 2017 28.9/ 1 lakh children
• 2018 108 children are being sexually abused / day in India

3. • Kerala  6th highest in overall sexual offences
highest in southern states
• Child sexual offences MP+ UP , Karnataka(South India)

4. Before POCSO…….

5. Child rights in Indian Law
• Article 15 of Constitution
confers upon the State powers
to make special provisions for children

6. •Article 39 of Constitution
• State shall direct its policy towards securing that
• the tender age of children are not abused
• Their childhood and youth are protected against exploitation
• Given facilities in a healthy manner
• In conditions of freedom and dignity

7. United Conventions on the Rights of Children
Ratified by India on 11th December,1992
State to undertake measures to prevent
Use of children in
(a) unlawful sexual activity
(b) Use of children in prostitution or other unlawful practices
(c) Use in pornographic performance and materials

8. Legal aspects of sexual offences
• Rape  Sec 375 + Sec 376 IPC
• Molestation Section 354 IPC
• Sexual Harassment  509 IPC

9. Child Rights
Sexual
offence Laws
No definite
Jurisdiction

10. Problems???
• No law has adequately addressed
• Nor are they specifically penalised
• Male gender was totally avoided
• The interests of the child needs to be protected
as a victim as well as witness

11. Need ??
• Self contained comprehensive legislation for such offences
• Due regard to safeguarding the interest and wellbeing of the child
At every stage of the judicial process

12. POCSO Act
• Received the assent of the President on 19th June 2012
• Published in the gazette of India in 20th June 2012
• Brought into force on 14th Nov 2012
• 9 chapters and 46 sections

13. An act to:
• Protect children from offences of sexual assault
sexual harassment and
pornography
• To provide for establishment of Special Courts for trial of such
offences

14. Chapters
I. Preliminary
II. Sexual offences against children
III. Using child for pornographic purposes
IV. Abetment of and Attempt to commit an offence
V. Procedure for reporting of cases
VI. Procedures for recording statement of the child
VII. Special courts
VIII.Procedure and powers of special courts and recording of evidence
IX. Miscellaneous

15. Chapter I - Preliminary
• Section 1. Short title, extent and commencement
•Whole of India
• Shall come into force on 14th Nov, 2012

16. • Section 2. Definitions
• (a) aggravated penetrative sexual assault – section 5
• (b) aggravated sexual assault – section 9
• (c) armed forces or security forces-
armed forces of the Union / security forces/ police forces

17. • (d) child means any person below the age of 18 years

18. • (da) child pornography
any visual depiction of sexually explicit content
involving a child
including photograph/videograph/
digital/ computer generated image
indistinguishable from an actual child,
and image created/ adapted/modified
appear to depict a child

19. • (e)domestic relationship- section 2(f) of domestic violence act,2015
• A relationship between two persons
• Who live / have lived together at any point of time
• In a shared household
• When they are related by consanguinity/marriage/through a
relationship in the nature of marriage/ adoption/ family members
living together in joint family

20. • (f) Penetrative sexual assault- section 3
• (g) Prescribed- prescribed by rules under this act
• (h) Religious institution- Religious institutions act 1988
• (i) Sexual assault- section 7
• (j) Sexual harassment- section11

21. (k) shared household-
Household where the person charged with the offence lives/
has lived at any time in a domestic relationship with the child
(l) Special court- a court designated – section 28
(m) Special public prosecutor- section 32

22. Chapter II- Sexual offences against children
• Section 3- Penetrative sexual assault
• Section 4-Punishment for penetrative sexual assault
• Section 5-Aggravated penetrative sexual assault
• Section 6- Punishment for aggravated penetrative sexual assault
• Section 7- Sexual assault
• Section 8- Punishment for sexual assault
• Section 9-Aggravated sexual assault
• Section 10- Punishment for aggravated sexual assault
• Section 11- Sexual harassment
• Section 12- Punishment for sexual harassment

23. Section 3 : Penetrative sexual assault
A person is said to commit so if:
(a) He penetrates his penis
 to any extent
 into vagina/ mouth / urethra/ anus of a child
or
 makes him to do so with him or any other person
(b) Any object/ any part of the body not being the penis

24. (c) He manipulates any part of the body of the child
 so as to cause penetration into the vagina/ anus/urethra of the child
or
makes him to do so with him or any other person
(d) He applies his mouth
 to penis, vagina, anus, urethra of the child
or
 makes him to do so with him or any other person

25. Section 4- Punishment
• (1) Imprisonment of either description
• Not < 10 years
• May extend to life imprisonment
• Shall also be liable for fine
•Amendment
• (2) child < 16 years  imprisonment not < 20 years
• (3) Fine – reasonable
medical expenses of the victim + rehabilitation

26. Section 5 –Aggravated penetrative sexual assault
• (a) whoever being a police officer commits-
(i)within the limits of the police station/ premises
where he is appointed
(ii) Premises of station house whether / not
in the police station or premises
(iii) In the course of his duties
(iv) Where he is known as/ identified a s a police officer

27. • (b) whoever being a member of the
armed forces/ security forces
• (c)whoever being a public servant
• (d) management/ staff of jail/ remand home/ protection home/ observation
home/ other place of custody of care and protection inmate

28. • (e)management/ staff of a hospital inmate
• Whether government/ private
• (f) management/ staff of an educational institution / religious
institution

29. • (g)gang penetrative assault
• (h)using deadly weapons/ fire/ heated substance/ corrosive
substance

30. • (i) causing grievous hurt / bodily harm/ injury to sexual organs of the child
• (j)
•  (i)physically incapacitates/ mentally ill/
unable to perform regular tasks temporarily/ permanently
• (ii) female child- pregnant
• (iii) inflicts with HIV/ life threatening infections
•  (iv) death of the child

31. • (k) taking advantage of child’s mental/ physical disability
• (l) more than once/ repeatedly on the child
• (m)on a child below 12 years
• (n) relative of the child through blood/ adoption/ marriage /
guardianship/ foster care
• (o) in the ownership or management or staff of institution providing
services to the child
• (p) position of trust/ authority of a child
• (q) knowing the child is pregnant

32. • (r)attempts to murder
• (s) in the course of communal/sectorial violence
* natural calamities
• (t)who has been previously convicted under this act
• (u) makes the child to strip or parade naked in public

33. Section 6- Punishment
• (1) Rigorous imprisonment for a term not <20 years + Fine
• (2) Fine reasonable- medical expenses + rehabilitation

34. Section 7- Sexual Assault
• Whoever with sexual intent
 touches the vagina/ penis/ anus/ breast of the child
or
makes the child to touch parts of his/ any other person
or
 does any act with sexual intent
which involves physical contact without penetration

35. Section 8 - Punishment
• Imprisonment not < 3 years
• May extend to 5 years
• + Fine

36. Section 9 – Aggravated Sexual Assault
• Same as that of section 5
• (a) (u)
• (v) persuades/ induces a child
to get administered any drug / hormone/ chemical substance
to a child with the intent that
such child attains early sexual maturity

37. Section 10-Punishment for aggravated sexual assault
• Imprisonment not < 5 years
• May extend to 7 years
• + FINE

38. Section 11- Sexual Harassment
• With sexual intent
(i) utters any word / makes any sound/ gesture/
exhibits any object or part of body
with the intention that it shall be heard by the child
(ii) makes a child exhibit his body / part of his body
so as it is seen by such person/ any other person

39. (iii)Shows any object to a child in any form or media for pornographic
purpose
(iv) Repeatedly or constantly follows or watches or contacts a child
either directly or through electronic , digital or any other means
(v) Threatens to use, in any form of media, any part of the body of the
child
(vi) Entices a child for pornographic purposes

40. Section 12- Punishment of sexual harassment
• Imprisonment of either description – 3 years
• + FINE

41. CHAPTER III
• Section 13- Use of child for pornographic purposes
• Uses a child
• In any form of media
• Whether for personal use/ for distribution
• For the purpose of sexual gratification
• Includes (a) representation of sexual organs of a child
(b) engaged in real/ simulated sexual acts
(c) indecent/ obscene representation of a child

42. Section 14- Punishment
• Imprisonment for not less than 5 years
• Second time- for 7 years

43. Section 15 – Storage of pornographic material involving child
(1) who stores or possess or fails to delete or destroy or report
• With intention to transmit child pornography
• Fine – not < 5000 ( second time -10000)
(2) Distributing / transmitting/ propagating
Imprisonment 3 years +/- Fine
(3) For commercial purposes
Imprisonment 5 years  7 years +/- Fine

44. Chapter IV
• Section 16 : Abetment / attempt of an offence
• First- Instigates someone to do that offence
• Second- Engages with one / more person in conspiracy to do that offence
• Third- Intentionally aids, by commission/omission the doing

45. Section 17 : Punishment for abetment
•Same as that of the offence committed

46. Section 18: Punishment for attempt
• Half the imprisonment of the offence

47. Chapter V
• Section 19 – Reporting Of Offence
• (1)If a child / any other person has the knowledge of such a crime
committed/ likely to be committed
•  Special Juvenile Police Unit (SJPU)
•  The Local Police

48. • (2) Procedure of recording
• Ascribes a special number and registers the case
• Read over to the informant
• Entered in a book to be kept by police unit
• (3) if it is a child  record in a simple language
• (4) in case of any language issues- interpreter/ translator can be used
• (5)SJPU feels the child is in need of immediate care steps can be taken
• (6) Report within 24 hours  to the child welfare committee/
• SPECIAL COURT/ SESSIONS COURT
• (7) no person is held liable if he informs such an offence in good faith

49. Section 20:
Obligation of media, studio and photographic facilities
• Any media person / hotel/ hospital/ lodge
• Has the duty to report to SJPU
• On coming across such an offence

50. Section 21: Punishment for failure to report
• Imprisonment not < 6 months +/-fine
• In charge of any institution  1 year +/- fine

51. Section 22:
Punishment for false complaint or false information
• Against any person
• Solely with the intention to humiliate / defame/ extort/ threaten
• Not < 6 months + Fine
If it is a child no fine
False allegation against a child and child has to go through
not < 1 year imprisonment +/- fine

52. Section 23: Procedure for media reporting
• Shall not make any report without authentic information defaming
• Shall not disclose the identity of the child
• Publisher/ owner is jointly liable
• Imprisonment- not less than 6 months  one year

53. Chapter VI
Section 24-Recording the statement of the child
• Recorded at the residence /
• At a place where he usually resides/
• At a place of his choice
• +
• As far by a woman police officer- not below the rank of SI of police

54. • (2) police officer shall not be in uniform
• (3) at any point of time, he doesn’t come across the accused
• (4) no child shall be detained at night in the police station
• (5) police officer ensures that identity is not revealed to the media

55. Section 25 : Recording by a magistrate
• As spoken by the child
• A copy shall be provided to the child/parent/ representative

56. Section 26: Additional Provisions
• Recording should be in the presence of parent/ any other person
whom he has trust in
• May take the assistance of a translator if necessary
• Child having a mental/ physical disability help of a special educator
• ensure that the statement of the child is recorded by audio- video
electric means

57. Section 27: Medical Examination of a child
• Victim is a girl child by a woman doctor
• In the presence of parent of the child/ any person whom the child trusts
• If parent / guardian not available in the presence of a woman
nominated by the head of the institution

58. Chapter 28: Special Courts
• For the purpose of speedy trial
• State Government @ Chief Justice of the High Court
• Each district, a court of session  designated as a special court
Or
• A special court designated for this purpose

59. • Section 29 : Presumption as to certain offences
• Section 30 : Presumption of culpable mental state
• (unless proven otherwise)
• Section 31: Proceedings before a special court
• As that of sessions Court
• Public prosecutor- conducing the prosecution
• Section 32: Special public prosecutors – for conducting trials of this act

60. Chapter VIII:
Section 33: Procedure and powers of special court
• Special prosecutor questions to the court child
• Permit frequent intervals for the child
• Child friendly atmosphere ( family member )

61. • Child not called repeatedly
• No aggressive questions/ character assassination
• Identity of the child is not disclosed at any course of trial

62. Section 34
In case of commission of offence by a child and
determination of age
• Juvenile justice act ,2015
• (2 of 2016)

63. Section 35 : Period for recording of evidence
• Recording of evidence of child within 30 days of reporting
• If any delay report may be prepared
•?????? --

64. • Section 36 :
• Child not to see accused at the time of testifying
• May record the statement using video conferencing/ other measures
• Section 37 :The trials are conducted in camera
• Section 38 :Assistance of an interpreter/ expert if necessary

65. • Miscellaneous- Sections 39- 46
• Section 43: Public awareness about the act
• Section 44: Implementation of the Act
National commission for protection of child rights
State Commission monitor
Section 45: Power to make Rules: Central Government

66. Amendment act, 2019
• Received the assent of President on 05-08-2019
• Brought into force 16-08-2019
• Section 2  (da) child pornography
• Instead of JJA, 2000 JJA, 2015
• Section 4 had only one section- (1) , (2) and (3)
• Section 5: between the subsections of clause (j)  “or” omitted

67. • Section 5  (s) communal or sectarian violence + natural calamity
+similar situations
• Section 6  10 years substituted to 20 years
• Section 9  + natural calamity/ similar situation
 Section (v)

68. Section 14 extent to 5 years / 7 years not less than 5 years / 7 years
Section 15 only for commercial purposes storage purposes
Section 34 JJA
Section 42 376 E + 509 IPC + 67-B of the Information Technology Act
Section 45 Power of central Government– added subsections

69. POCSO Rules , 2012
• 7 sections
• 1. Short title and commencement
• 2. Definition
•  Expert person trained in mental health, medicine, child
development or other related discipline

70. • Support person  a person assigned by a child welfare committee
to render assistance to child through the process of investigation/trial
• Section 3 – Interpreters, translators and special educators
• Section 4 – Care and protection as needed  SJPU

71. • Section 5- Emergency Medical Care
 no medical personnel shall demand any legal requisition as a pre-requisite
He shall to attend:
• Cuts/ bruises/ injuries to genitalia
• Treatment for exposure to HIV
• Possible pregnancy and emergency contraceptives
• Wherever necessary , a referral or consultation for mental or psychological health
should be made
Forensic evidence collected section 27

72. • Section 6: Monitoring/ implementation of the Act
• Section 7 : Compensation

73. Limitations of the act
• Most of the clauses are over-pronounced
• Misuse of laws

74. • Media?? dead victim and identity
• The lack of awareness of guidelines among police officers and medical
officers
• The lack of an expert absolute loss of evidence injustice

75. Advantage

78. Conclusion

81. Psychological health issues
• Immediate – stress, shock, fear, confusion, self blame, anxiety,
numbness, social withdrawal
• Long term-
• PTSD
• Depression/anxiety disorders
• Somatoform
• Eating behaviours
• Sexual dysfunction
• Alcohol and drug abuse
• Parasuicidal behaviour/ suicide

82. THANK YOU