importance of pocso in medical context

1. TOPIC : POCSO ACT
PRESENTER : DR Soreingam Ragui A
MODERATOR : DR L Fimate

2. INTRODUCTION
 India is the second populous country in the world.
 The latest census (2011) reveals India is home to
17% of the world's population.
 Nearly 19 % of the world's children live in India
which constitutes 42 % (more than one third) of
India’s total population
 Around 50 percent of these children are in need of
care and protection .

3. Before they turn 18 years:
 1 in 6 boys experience some form of sexual violence.
 1 in 4 girls experience some form of sexual violence.

4.  To find out the extent of child abuse in India, the first ever
National Study on Child Abuse was conducted by the,
covering 12447 children,2324 young adults and 2449 stake
holders across 13 states.
 In 2007 it published the report as "Study on Child Abuse:
India 2007”.
 The survey covered different forms of child abuse i.e.
physical, sexual and emotional as well as female child
neglect, in five evidence groups, namely, children in a family
environment, children in school, children at work, children
on the street and children in institutions brought out some
shocking facts.

5. Its main findings in relation with sexual abuse are:
 Sexual abuse was reported by 53.22% children.
 Among them 52.94% were boys and 47.06% girls
 21.90% of child respondents faced severe forms of
sexual abuse
 5.69% had been sexually assaulted and 50.76% reported
other forms of sexual abuse.
 AP, Assam, Bihar and Delhi reported the highest
percentage of sexual abuse among both sexes, as well as
the highest incidence of sexual assaults.
 The highest incidence of sexual assault was reported in
children on street, at work and in institutional care

6. Cont.
 50% abusers were known to the child or in a position of trust and
responsibility.
 Most Children did not report the matter to anyone.
 More than 53% children report facing one or more forms of
sexual abuse and boys were equally at risk as girls.
 Almost 22% faced severe sexual abuse, 6% sexually assaulted.
 50% of sexual offenders were known to the victim or were in
positions of trust (family member, close relatives, friend or
neighbour).
 5-12 year’s group faced higher levels of abuse, largely unreported.
 Severest sexual abuse in age group of 11-16 years, 73% of sexual
abuse victims were in age groups of 11-18years.

7. Obligation of the State under Constitution and UN
Convention on the Rights of the Child
 UN Convention on the Rights of the Child, 1989
 Article 15 (3) of the Constitution of India mandates the state to
create special laws for the Children.
 Article 39 , Directive Principles of State Policy mandates the
state to ensure that children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and
dignity.…

8. • Till 2012, there was no specific legislation governing child sexual
abuse.
• Increasing incidents of Sexual offences against Children
• IPC recognized limited forms of Sexual Violence against children
Indian Penal Code before POCSO
 Section 509 : Word, gesture or act intend to insult modesty of woman.
 Section 354: Assault or criminal force to Outrage modesty of woman.
 Section 375 : Rape.
 Section377: Unnatural offences.

9. • Immoral Traffic (Prevention) Act, 1956 (Sections 4 (1), 5
(d), 7) were applied in cases of child sexual abuse.
• Sexual offences other than Rape fell into the category of
“Outraging the modesty of women” which was
punishable with a maximum term of two years and/or fine.
• Sexual offences in the IPC are gender specific, except
section 377.
There was need for Gender neutral legislation.

10. POCSO: Need of the Hour
Definition of child sexual abuse is comprehensive and
encompasses the following:
(i) penetrative sexual assault
(ii) aggravated penetrative sexual assault
(iii) sexual assault
(iv) aggravated sexual assault
(v) sexual harassment
(vi) using child for pornographic purpose and
(vii) trafficking of children for sexual purposes

12. What is POCSO Act 2012 ?
 The Protection of Children from Sexual Offences (POCSO) Act
2012,
 When : The Protection of Children from Sexual Offences Act,
2012 received the President’s assent on 19th June 2012
Notified in the Gazette of India on 20th June, 2012.
Act has come into force with effect from 14th November, 2012
 Where : is applicable to the whole of India.
 What : The POCSO Act 2012 defines a child as any person
below the age of 18 years and provides protection to all
children under the age of 18 years from sexual abuse.
 It also intends to protect the child through all stages of
judicial process and gives paramount importance to the
principle of "best interest of the child".

13. The above offences are treated as “aggravated”
 when the abused child is mentally ill
 when the abuse is committed by a person in a
position of trust or authority vis-ã-vis the child.
The Act prescribes stringent punishment graded as
per the gravity of the offence, with a maximum term
of rigorous imprisonment for life, and fine.

14. The Act has come into force with effect from 14th
November, 2012 along with the Rules framed there under:
1. Preliminary (Sec 1-2)
2. Sexual Offences against Children (Sec 3-12)
3. Using Child for Pornographic Purposes and Punishment
thereof (Sec 13-15)
4. Abetment / Attempt to commit an offence (Sec 16-18)
5. Procedure for Reporting of Cases (Sec 19-23)
6. Procedure for Recording Statement of the Child (Sec 24-27)
7. Special Courts (Sec 28-32)
8. Procedure and Powers of Special Courts and Recording of
Evidence (Sec 33-38)
9. Miscellaneous (Sec 39-46 )

15. List of offences and Punishments
15
OFFENCE MINIMUM MAXIMUM FINE
1) Penetrative Sexual
Assault
SEC 3
7 years
SEC 4
Life Imprisonment yes
2)Aggravated Penetrative
Sexual Assault
SEC 5
10 years (Rigorous
Imprisonment)
SEC 6
Life Imprisonment yes
3)Sexual Assault
SEC 7
3 years
SEC 8
5 years Yes
4)Aggravated Sexual Assault
SEC 9
5 years
SEC 10
7 years yes
5)Sexual Harassment
SEC 11
SEC 12 3 years yes

16. Continue…
16
OFFENCE MINIMUM MAXIMUM FINE
6)Use of child for pornographic
purposes
SEC 13 SEC 14 (1)
5 years yes
a) Penetrative Sexual assault
SEC 14 (2)
10 years
SEC 14(2)
Life
Imprisonment
yes
b)Aggravated penetrative
sexual
SEC 14 (3)
Life
Imprisonment
(Rigorous)
SEC 14(3)
yes
c)Sexual assault
SEC 14 (4)
6 years
SEC 14 (4)
8 years yes
d)Aggravated Sexual Assault
SEC 14(5)
8 year
SEC 14(5)
10 years

17. ROLE OF MEDICAL EXPERT UNDER THIS ACT
Section 27 – Medical Examination:
1) The medical examination of a child in respect of whom any offence has
been committed under this Act, shall, notwithstanding that a FIR or
complaint has been registered for the offences under this Act, be
conducted in accordance with section 164-A of the Code of Criminal
Procedure, 1973.
2) In case the victim is a girl child, the medical examination shall be
conducted by a female doctor.
3) The medical examination shall be conducted in the presence of the
parent of the child or any other person in whom the child reposes trust or
confidence.
4) Where, in case the parent of the child or other person referred to in sub-
section(3) cannot be present, for any reason, during the medical
examination of the child, the medical examination shall be conducted in
the presence of a women nominated by the head of the medical institution.

18. The registered medical practitioner rendering medical
care shall:
(i) collect evidence after a thorough medical examination,
(ii) treat the physical and genital injuries,
(iii) conduct age assessment of the victim (if required),
(iv) offer prophylaxis for sexually transmitted diseases including
HIV,
(v) discuss emergency contraceptives with the pubertal child and
her parent,
(vi) do baseline evaluation for mental health issues,
(vii) monthly follow up at least for six months to look for
development of psychiatric disorders,
(viii) do family counselling and
(ix) assist the court in interviewing the child and testifying in the
court

19.  The Act also makes provisions for the medical
examination of the child in a manner that is least
distressful.
 The Act also clearly vocalizes that doctors should not
demand legal records or legal procedure or
documentation to be completed before initiating the
treatment or examination.
 Legal procedures can be done later after initiating the
medical care. It is now mandatory for doctors to register a
medico-legal case in all cases of child sexual abuse.
 Failure of reporting could result in six months
imprisonment and/or a fine under Sec 21 of the POCSO
Act, 2012.

20. The recent legal changes post Nirbhaya incident has posed many
questions in the minds of health care providers while dealing with the
Victims / Survivors of Sexual Violence.
Let’s look into those queries with possible solutions one by one.

21. Can you examine without a police requisition? Yes.
 The Supreme Court had observed in State of Karnataka V
Manjanna (in the year 2000) that the medical examination of Sexual
violence victim should be done immediately and no hospital/doctor
should delay examination for want of police requisition.
 Section 27 POCSO Act (Protection of Children from Sexual
offences Act) (in the year 2012) and Rule 5 of POCSO Rules
specify not to insist for police requisition or Magistrate order before
conducting medical examination.
 Section 357 C CrPC3 (Criminal Procedure Code) (in the year
2013) also states that the hospital first conduct the examination.
 All these legal changes thus ensures the right of sexual violence victim to
voluntary report to the hospital instead of to the Police/ Court after
sexual violence and also that the medical examination of Sexual violence
victim is a Medico-legal emergency.

22. Is it mandatory to inform police? Yes.
Section 19 POCSO Act and Section 357 C CrPC
both instruct the doctor/ hospital to mandatorily
inform the police when they are examining a case of
Sexual Violence.
Section 21 POCSO Act and Section 166 B IPC
(Indian Penal Code) prescribe punishment for not
following the directions of Section 19 POCSO Act and
Section 357 CCrPC.

23. Are there any problems in Mandatory reporting? Yes.
 On one end we have Section 164A CrPC (specific
law for medical examination of the victim of rape)
which insists that no part of examination is lawful
without the consent of woman.
 Section 357 C CrPC and Rule 5 POCSO Rules
specify that treatment is a must and no
hospital/doctor to deny this.
But unfortunately the ‘ right to treatment’ and
‘mandatory reporting’ even when the woman has
not agreed/ consented for the same are enshrined
in the same section of the law.

24. It took several decades of struggle to recognize legally the right to treatment of
the Victim /Survivor of sexual violence. But with these mandatory
reporting laws women seeking treatment and care are going to be
jeopardized.
The MTP Act 1971 (Medical Termination of Pregnancy Act) recognizes
the right of the woman to MTP when her pregnancy is as a result of Sexual
violence. It also guarantees privacy and confidentiality of her
information.
But with the mandatory reporting laws
of sexual violence now all these rights of the woman
are being denied/affected because now such pregnancies
as a result of sexual violence have to be mandatorily
reported to police (even if the lady does not want that).

25. Is it mandatory to go to Government hospital for Sexual
Violence examination? No
Section 357 C CrPC now mandates all hospitals irrespective of
being Government, public sector or private sector the
responsibility of immediately providing first aid or medical
treatment free of cost; thus removing the major barrier which
existed earlier of insisting Government hospitals only.

26. Is it necessary for a female doctor only to examine sexual
Violence victims?
 Over the past decades, several High Courts liberally interpreted
section 53 (2) CrPC and proposed that when we are insisting a
female doctor to examine a female accused why can’t we extend
the same privilege when the female is a victim –and thus insisted
sexual violence victims to be only examined by female doctors
wherever available. But this change had its own problems.
 The 2005 Criminal law amendment in section 164 A CrPC put an
end to this insistence of female doctor, by stating any doctor with
whom the female victim consented can carry out this
examination.
 But the problem again resurfaced with the
present section 27 POCSO Act insisting a
female doctor only to examine a girl child
(less than 18 years).

27. Is it necessary to do age estimation?
The opinion is divided, when medically you can’t accurately opine
the real age and cannot possibly give the age range, why are the
investigating authorities insisting on medical age estimation from
doctors,even when they have clear documentary proof of age.
But section 164 A CrPC and section 15 (5A) of ITPA
(Immoral Traffic Prevention Act 1956) insist on medical age
estimation from doctors.
Recently the Supreme Court is of the opinion in Ashwani Kumar
Saxena V State of M.P that- ‘ only in cases
where those documents or certificates are found
to be fabricated or manipulated, the court, the
Juvenile Justice Board or the Committee need to
go for medical report for age determination’,
thusagain opening up the debate should there be
medical age estimation when clear documentary
proof of age exists.

28. Is treatment part of Doctor’s role? Yes
There is a major shift from the past model of mere evidence
collection in such cases to the present model of insisting
on treatment by doctors.
Rule 5 of POCSO Rules specify that treatment should
include care for:
 Injuries, STD, HIV, Pregnancy testing, Emergency
contraception, psychological counselling.
Section 357 C CrPC insists that such treatment should be
free of cost and noncompliance of such treatment can drag
the doctor to one year imprisonment and/or
fine. Ideally speaking every doctor / hospital
should provide comprehensive care which also
includes rehabilitation and follow up care.

29. What is the relevance of Medical Opinion &
current Law?
Earlier courts were giving lot of credit to the medical
evidence for proving a charge of Rape/ Sexual assault
when the law of rape was looking for penetrative
peno-vaginal sexual intercourse.
Now that the law of Rape / Sexual assault is
changed from recognizing even non penetrative acts
and also penetrative acts into anus / oral / urethra/
vagina by either penis or objects or body parts
(fingering) there could be several situations of rape /
sexual assault with no medical evidence at all.
This has to be clearly understood by doctors, Police,
Lawyers, Courts and all stakeholders in providing
justice to the sexual violence victims.

30. Who can be present while the doctor conducts
examination?
All these days, when a male doctor was conducting the
examination of a female it was insisted for the
presence of disinterested, sound, major female person
as a witness.
Now section 27 POCSO Act insists that whenever you
examine a child there should be a parent or any
person whom she/he trusts to be present
throughout the examination. If such persons are not
available then it? Its the duty of the hospital to
provide one.

31. Are there any Uniform guidelines & Protocols for
dealing with such cases? Yes
Today we have the Ministry of Health and Family
Welfare, Government of India Guidelines &
Protocols–
Medicolegal care for survivors/ Victims of Sexual violence.
These guidelines address all issues including medical
examination, psychosocial care treatment, issues when
dealing with children, disabled, transgender & intersex
persons, persons with alternate sexual orientation, sex
workers, people facing caste, class or religion based
discrimination.
They also have removed the insensitive practices in medical
examination like two finger tests, over emphasis on
hymen, built of the woman, past contraceptive
practices, past consensual sexual acts, past
abortions, etc.

32. Criminal Law Amend Act 2013
23

33. Conclusion
The POCSO ACT looks into
support system of children
through a friendly atmosphere
in the criminal justice system
with the existing machinery .
Multi -sectoral approach to
investigating sexual offence.
Today with a lot of changes in the
medical examination of sexual
violence victims/survivors,
adequate dissemination of this
information to all stakeholders of
health care sector along with proper
training is required.

34. 34

36. Reference
1. “Study on child Abuse in India 2007”(PDF), published by the Govt. of India
(Ministry of Women & Child Development).
2. Model Guidelines POCSO Act 2012 : Ministry of Women and Child Development
Govt Of India.
3. The Criminal Law (Amendment), 2013. [accessed on October 10, 2014]. Available
from: http://indiacode.nic.in/acts-in-pdf/132013.pdf
4. Behere PB, Sathyanarayana Rao TS, Mulmule AN. Sexual abuse in women with
special reference to children: barriers, boundaries and beyond. Indian J p.
2013;55:316–9. [PMC free article] [PubMed]
5. Raha S, Giliyal A. Child Marriage and the Protection of Children from Sexual
Offences Act, 2012. Centre for Child and the Law (CCL) and National Law School of
India University (NLSIU) [accessed on October 10, 2014]. Available from:
https://www.nls.ac.in/ccl/justicetochildren/poscoact.pdf .
6. Harbishettar V, Math SB. Violence against women in India: comprehensive care for
survivors. Indian j Med Res. 2014;140:111–3. [PMC free article] [PubMed] 7.
Ashwani Kumar Saxena V State of M.P. 2013(I) OLR(SC)-2
7. Guidelines & Protocols – Medicolegal care for survivors/ Victims of Sexual violence,
Ministry of Health and Family Welfare, Government of India, 2014.
8. “Study on Child Abuse India 2007(PDF) Published by Govt. of India(Ministry of
women & child development)”