Expanding the scope of POCSO

Reforming the law is necessary to account for the reporting of historical child sexual abuse.

India, as a signatory to the Convention on Rights of the Child ( especially Art.19 and 34 of the CRC) and to deliver the promises under Art.15(3) and 39 of our Constitution, enacted a specific legislation for sexual offences against children (The POCSO Act) in 2012, apart from amending the provisions of IPC under the Criminal Law (Amendment) Act of 2013. Though the Preamble to POCSO calls for the effective redressal of ‘sexual exploitation’ and ‘sexual abuse’ of children as they are heinous crimes, it still does not define what is child sexual abuse (CSA) let alone the historical child sexual abuse (HCSA). With the surging cases of sexual offences against children and with the movements like ‘Me Too’ where many adult survivors have come out about their sexual abuse as children, it is definitely the time for India, among other countries, to update its terminology handbook.

As per international instruments, CSA includes involving children in sexual activities that they do not fully comprehend, or give informed consent to, or be developmentally prepared; inducing/ coercing children for sexual acts, prostitution, pornography; child solicitation, etc. HCSA is also the same as CSA except that the reporting of the alleged abuse is late/ non-recent; historical abuse is not just confined to institutions but also includes intra-familial abuse where it is difficult for the child to come out and report the same day. By the time they become adults, fully comprehending the gravity of what transpired and confident enough to report, they place the horrors in open air for the accused to be prosecuted and stopped from harming any more soul. The problem herein is  where does HCSA fit in with POCSO? Because the definitions in sec.7 and 11 of POCSO are exhaustive, not inclusive; ‘sexual assault’ and ‘sexual harassment’ are defined in a way that nothing short of ‘physical contact’ will under sexual assault and nothing outside the 6 pre-defined scenarios will fall under sexual harassment. This calls for reconsidering, redefining and purposive interpretation of terms under the Act to better serve its object.

The delays in reporting sexual abuse after a considerable lapse of time may be due to other relevant factors like threats by perpetrator, fear of public humiliation, absence of trustworthy person to stand up for in childhood and even the CSA Accommodation Syndrome (where the child initially keeps it a secret but feeling helpless, trapped and afraid that no one will believe the abuse upon disclosure leads to accommodative behaviour). However, with no regard for these just reasons, in reality, the police are hesitant to register cases of adult survivors as there would be only about 0-5% chances for direct physical/medical evidence to try the case. The absence of specific protocol on how best to register, investigate, assess evidence and adjudicate a HCSA case only exacerbates the situation. Like the countries of Canada, UK, USA and Australia, India too shall appoint Independent Inquiry Commissions on HCSA to better grasp the grass root level realities of this horror and issue guidelines like the UK’s Guidelines for Prosecuting Child Sexual Abuse under the Sexual Offences Act 2003 and China’s 2014 Guide on Infringement by Guardians for the stakeholders and for the police to know which direction to go with while investigating a HCSA case.

Also, in 2018, the Law Ministry, at the request of the then Minister for Women and Child Development, clarified that no time limit shall apply for reporting HCSA cases. But this clarification on limitation contradicts Art.20(1) of the Constitution as it does not allow prosecuting perpetrators under an Act that was not in place on the day of the alleged offence. Several pre-2012 incidents were tried only as per sec.354 and the unamended provisions of sec.375, 376 of IPC and not under POCSO. Therefore, a proper legal amendment to sec.19 of the POCSO to accommodate later-day reporting of HCSA cases, will help clarify the legal position in HCSA as against sec.468 of CrPC and Art.20(1) of our Constitution.  

Thus, understanding the reasons for delay in HCSA reporting, India shall redefine its law on child sexual abuse, take pro-active steps of issuing Commissions, removing limitation, framing guidelines for the purposive implementation of POCSO Act as justice for survivors before 2012 is as crucial as the justice for those post-2012. And ranked 7th out 60 countries in the ‘Out of the Shadows’ Index (based on response to the threat of sexual violence against children), it is important for India to set its course right for others to follow!

Link to the Article: https://www.thehindu.com/opinion/op-ed/expanding-the-scope-of-pocso/article34636334.ece

References:

• WHO, ‘Guidelines for Medico-legal Care for Victims of Sexual Violence’ (2003), Chapter 7, 75-93.
• Murray, Laura K et al., ‘Child sexual abuse’, Child and adolescent psychiatric clinics of North America (2014), 23 : 2 , 321-37.
• WHO, ‘Preventing child maltreatment: a guide to taking action and generating evidence / World Health Organization and International Society for Prevention of Child Abuse and Neglect’ (2006).
• WHO, ‘Consultation on Child Abuse Prevention’ (1999).
• Royal Commission into Institutional Responses to Child Sexual Abuse, ‘The Impact of Delayed Reporting on the Prosecution and Outcomes of Child Sexual Abuse Cases’ (2016). 
• Jyoti Belur, Brijesh Bahadur Singh, ‘Child Sexual Abuse and the law in India: a Commentary’ (2015), Crime Science 4, 26.
• Stephanie D. Block, Linda M. Williams, ‘ The Prosecution of Child Sexual Abuse: A Partnership to Improve Outcomes’ (2019).
• Stacia N. Stolzenberg, ‘Children’s Allegations of Sexual Abuse in Criminal Trials: Assessing Defense Attacks on Credibility and Identifying Effective Prosecution Methods’ (2020).
• Bingham Adrian et al., ‘Historical Child Sexual Abuse in England and Wales:  the Role of Historians’ (2016), History of Education, 45:4, 411-429.
• A. Connolly Debohra et al., ‘Remembering Historical Child Sexual Abuse’ (2003), Criminal Law Quarterly 47, 439-480.    
• ‘Out of the Shadows’ white paper
• www.loc.gov