- Desh Ratan Nigam, Senior Advocate, Supreme Court ;
- Malini Bhattacharya, President, All India Democratic Women’s Association ;
- Ramesh Negi, Chairperson, Delhi Commission for Protection of Child Rights ;
- Geeta Luthra, Senior Advocate, Supreme Court
- After Madhya Pradesh and Rajasthan, Haryana has turned to be the third state where the Assembly has approved the provision of the death penalty for such sexual guilty parties. Delhi may take after the strides also.
- The case concerns the “merciless” rape of an eight-month-old youngster in the National Capital.
- The administration has communicated its objection to capital punishment for child abusers, attackers and pedophiles, saying “capital punishment isn’t a response for everything.”
The Protection of Children from Sexual Offences Act (POCSO Act)
In order to effectively address the heinous crimes of sexual abuse and sexual exploitation of children through less ambiguous and more stringent legal provisions, the Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The Act defines a child as any person below eighteen years of age, and regards the best interests and well-being of the child as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child. It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-à-vis the child, like a family member, police officer, teacher, or doctor. People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
Under Section 44 of the Protection of Children from Sexual Offences (POCSO) Act and Rule 6 of POCSO Rules, 2012, the National Commission for Protection of Child Rights, in addition to its assigned functions, also mandated:
- To monitor in the implementation of Protection of Children from Sexual Offences (POCSO) Act, 2012;
- To monitor the designation of Special Courts by State Governments;
- To monitor the appointment of Public Prosecutors by State Governments;
- To monitor the formulation of the guidelines described in section 39 of the Act by the State Governments, for the use of non-governmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child, and to monitor the application of these guidelines;
- To monitor the designing and implementation of modules for training police personnel and other concerned persons, including officers of the Central and State Governments, for the effective discharge of their functions under the Act;
- To monitor and support the Central Government and State Governments for the dissemination of information relating to the provisions of the Act through media including the television, radio and print media at regular intervals, so as to make the general public, children as well as their parents and guardians aware of the provisions of the Act;
- To call for a report on any specific case of child sexual abuse falling within the jurisdiction of a CWC;
- To collect information and data on its own or from the relevant agencies regarding reported cases of sexual abuse and their disposal under the processes established under the Act, including information on the following:-
- Number and details of offences reported under the Act;
- Whether the procedures prescribed under the Act and rules were followed, Including those regarding timeframes;
- Details of arrangements for care and protection of victims of offences under this Act, including arrangements for emergency medical care and medical examination; and
- Details regarding assessment of the need for care and protection of a child by the concerned CWC in any specific case.
- To assess the implementation of the provisions of the Act and to include a report in a separate chapter in its Annual Report to the Parliament.
Total modifications needed for Deterrence
- “Two-finger tests” need to be banned:
- A few clinics still look for data on the status of the hymen, and that specialists keep on practicing the two-finger test in assault cases.
- The two-finger test endeavors to find out whether a young lady has a sexual history, with the supposition that in the event that she assented to sex sooner or later prior, her claim that she was assaulted is suspect.
- The Supreme Court in 2013 had held that the two-finger test on an rape survivor disregards her entitlement to privacy, and requested that the executive give better therapeutic strategies to affirm rape.
- Treatment of survivors at hospitals and courts:
- Now and again, the examination-in-chief of a kid in court has more than once deferred as the judge was hesitant to hold an in-camera hearing, as is ordered by the law in such cases.
- Subsequently, the kid was made to recall and describe her experience a few times over, which is against the arrangements of the Protection of Children from Sexual Offenses Act, 2012.
- On the other hand, amid therapeutic examinations, survivors in some cases need to sit tight for a considerable length of time outside the room where the examination is to occur. The room is unmistakably set apart out all others, and along these lines passers-by recognize the young lady or lady as having endured sexual mishandle.
- Fear of reporting:
- A more recent study conducted by the Centre for Child and the Law, National Law University of India-Bengaluru in five states on the POCSO Act has shown that the percentage of cases where the perpetrator was known to the child was above 70 percent in all the five states surveyed.
- In many cases where the offender is known, families may find it difficult to file a complaint with the police given the possibility that he may be sentenced to death.
- Other fears:
- As a large number of individuals continue to associate an incident of sexual assault with shame for the casualty, they may fear that she may be socially ostracised or that no one would marry her.
- Victimization by authorities during the examination of an assault just heightens these feelings of trepidation. A few instances of rape go unreported hence.
To curb Child Sexual Abuse
Preventing and identifying signs of child abuse
The government has introduced measures to put a stop to child abuse. It is important that signs of child abuse are identified sooner, so that steps can be taken to stop the abuse at an earlier stage and limit the harm to the child.
- Parenting support
- Child abuse usually occurs in the home. If parents or caregivers are no longer able to cope with caring for their children, this can result in dysfunctional behaviour and lead to neglect and abuse.
- That is why municipalities should offer parents support and advice through the Youth and Family Centres and baby and toddler clinics.
- For example few Scandinavian Central governments supports the municipalities, where it spreads good examples of parenting support practices. It also pays for research into what methods work well. Central government gives financial support to the Netherlands Youth Institute, which encourages knowledge-sharing with and between municipalities.
- Public information campaigns against child abuse
- The governments should run public information campaign aimed at preventing child abuse.
- It should urge neighbours, relatives and others who are close to children in abusive situations to take action.
- The campaign also tells people how they can identify the signs of domestic violence and what action they can take.
- Teaching future professionals about child abuse
- The government should take steps towards encouraging educational institutions to include the subject of child abuse in study programmes for future professionals, like doctors, teachers and youth care workers.
- Mandatory reporting code in cases of suspected abuse
- Professionals who suspect abuse should be made to follow a reporting code for domestic violence and child abuse.
- One of the minimum requirements that must be met by a reporting code is the ‘child check’.
- Professionals treating an adult with a certain condition, like addiction, must assess the safety of any children living with the adult.
- They must also do this with the children of adults living in situations involving domestic violence.
- Additional measures to prevent child pornography
- Preventing and identifying child pornography falls under the government’s sexual abuse strategy.
- It is important for parents and young people to become ‘digitally aware’.
- They need to know that there is a risk of children encountering or becoming involved in child pornography or grooming.
- The government should take steps to make people be more aware of the risks of using the internet, for example via its media literacy platform.
- Institutional alternations required
- Law are not retaliation, it is intended to punish, to deter, and to reform
- To give a compelling reaction, it’s critical to examine the present framework and comprehend why it has failed.
- The low rates of conviction don’t have the impact of accountability in the first place in any case. Our examination should be brisk and logical.
- Need of great importance is to critically devise approaches to reinforce the current criminal equity and kid insurance frameworks and guarantee higher convictions, higher reporting of offenses, set up preventive methodologies, and address countless and operational holes.
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