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The Supreme Court recently had to enjoin the Bombay High Court’s understanding of “skin-to-skin contact.”
Another major flaw of POCSO is its inability to manage past cases.
The Bombay High Court’s interpretation of “skin-to-skin contact” was recently enjoined by the Supreme Court.
POCSO’s inability to manage past cases is another big problem. Through the Protection of Children from Sexual Offenses Act (POCSO), India has worked to “protect children from sexual assault, sexual harassment, and pornography” for the past nine years.
The Goa Children’s Act, 2003, was the only particular piece of child abuse legislation in place prior to the enactment of the POCSO Act.
About Protection of Children from Sexual Offences Act, 2012:
- It was designed to protect children from sexual assault, sexual harassment, and pornography, while also taking into account the interests and well-being of children.
- It was revised in August 2019 to make sexual offences against children subject to harsher penalties, including the death penalty.
- It considers the best interests and welfare of children under the age of eighteen to be of fundamental concern at all stages, in order to ensure the child’s healthy physical, emotional, intellectual, and social development.
- It considers sexual assault to be “aggravated” in specific situations, such as when the assaulted child is mentally ill or when the abuse is performed by someone in a position of trust or authority, such as a family member, cop, teacher, or doctor.
- During the investigation, the police are also portrayed in the position of kid protectors.
- A case of child sexual abuse must be resolved within one year of the moment the offence is reported, according to the Act.
Historical child sexual abuse: Efficacy of the prosecution’s case:
The term “historical child sexual abuse” refers to cases that were not disclosed until later.
Historical abuse is not limited to institutions; it also encompasses intra-familial abuse in which the kid finds it difficult to disclose the act or offender at an early stage.
It might take a long time for a youngster to recognise and appreciate the gravity of what has happened, as well as to gain the confidence to report the crime.
At first appearance, this appears to go against the accepted concept of criminal law, which states that every act of crime must be reported as soon as possible, and that any delay in submitting the complaint weakens the prosecution’s case.
Where the fundamental problem lies?
The absence of evidence to advance prosecution is one of the key disadvantages of delayed reporting. In such circumstances, there is thought to be a fewer than 5% possibility of obtaining direct physical and medical evidence.
In India, in particular, procedural advice on how to prosecute historical cases of child sexual assault is lacking.
To aid authorities in such cases, the United Kingdom has produced extensive Guidelines on Prosecuting Cases of Child Sexual Abuse under the Sexual Offences Act of 2003.
No time limit shall apply for POCSO cases:
- In 2018, an online petition based on a child sexual assault survivor’s request received a lot of attention.
- After more than 40 years, the survivor-petitioner tried unsuccessfully to file a complaint against her abuser.
- She had begun an online effort to raise awareness after failing to gain traction with the police.
- As a result, at the request of the then-Minister for Women and Child Development, the Union Ministry of Law and Justice confirmed that no time limit would apply to POCSO cases.
- Though this was a positive clarification that will bolster POCSO jurisprudence, it still does not address the problem of children who were sexually abused before to 2012.
Legal barrier against the registration of historical child sexual offences must be rid-off:
- The Criminal Procedure Code (CrPC) prohibits judicial magistrates from taking cognizance of cases after a certain period of time has passed.
- Prior to the adoption of POCSO in 2012, cases involving child sexual abuse that did not equate to rape as defined under Section 376 of the Indian Penal Code (IPC) would probably be classed under the lower, and somewhat frivolous, offence of outraging the modesty of a woman (Section 354 of the IPC).
- As a result, the CrPC will ban any reporting of an offence under Section 354 of the IPC longer than three years after the date of the incident.
- As a result of this circumstance, historical reporting of child sexual offences before to 2012 is legally improbable.
- This creates an insurmountable legal impediment to the registration of historical child sexual offences that occurred before the year 2012.
- While the limitation provisions of the CrPC were added to avoid delays in prosecution, the circumstances surrounding child sexual abuse cannot and must not be treated in the same light as other criminal offences.
- There is a persuasive case to be made for delaying the reporting and prosecution of child sexual offences.
Our laws must be reformated and revised immediately to account for various developments, such as previous reporting of child sexual abuse.
The Union government must, at the absolute least, establish guidelines to direct effective and meaningful prosecution in situations not covered by the POCSO.