The Protection of Children Against Sexual Offences Act, 2012 (POCSO) is a comprehensive law to protect children from every known form of sexual abuse, including sexual assault, sexual harassment, and pornography.
It also provides for a special child-friendly set-up for investigation and trial of such offences. Unlike the Indian Penal Code, which provides for punishment for sexual offences against women, POCSO is a gender neutral law.
Any person who is below the age of 18 years is defined as a ‘child’ under the Act, irrespective of gender. Further, any person who has committed sexual abuse against a child can be booked under the Act. The offender could be of any age, ie, below or above 18 years and of any gender.
A simple reading of the act would make it clear, that any person can be prosecuted for engaging in a sexual act with a child, regardless of the fact whether the child consented to it or not.
The law also makes no distinction between a man and a woman who is accused of an offence under POCSO. Further, a division bench of the Hon’ble Supreme Court in a recent judgment has read down the exception to rape in IPC, which permits sexual intercourse between a man and his wife, who is above 15 years of age.
The law as it stands today, is clear that any sexual act with a person below the age of 18 years would be covered under POCSO, with no exception. In fact, last year the NCPCR released a handbook for POCSO, wherein, as a guideline for media reporting child sexual abuse, it is clearly stated that the consent of the child is immaterial. The NCPCR is the nodal agency for formulation of guidelines for the implementation of the Act, under the POCSO Rules, 2012.
The Case at Hand - Your Qs Answered
The case at hand is where an FIR was registered against a 22-year old woman, as she claimed to be married to a 17-year old boy and had a child with him. The infant is now 5 months old. The FIR was registered at the behest of the parents of the boy.
POCSO recognizes three kinds of assaults against children: Sexual Assault, Aggravated Sexual Assault, Penetrative Sexual Assault, and Aggravated Penetrative Sexual Assault.
An act would fall under the category of aggravated assault, when there are special circumstances, for example: repeated abuse, abuse by person in authority, abusing a child who has any physical or mental incapacity etc.
The definition of Penetrative Sexual Assault covers any kind of penetration into the genitals, urethra, or anus of the child, or making the child do so with any other person, or putting the mouth to the genitals of the child or to make the child do the same. It also includes manipulating the body of the child to cause penetration.
Can the woman be charged as a primary offender in this case, even for penetrative sexual assault?
As per the alleged facts of the case a child was conceived as a result of the act. Hence, it would fall under the definition of Penetrative Sexual Assault, as it also covers the act of making a child do it. It is likely that the alleged offender in question will be charged for same.
Although, there is not enough precedent on women being primary offenders in a case of child sexual abuse, the Act makes no exception for any gender.
What is the minimum sentence in case of conviction?
The offence of penetrative sexual assault carries a minimum punishment of 7 years of imprisonment and fine.
The child in question is above 17 years of age and it is alleged, that the child had consented to the sexual act. Will it have any bearing on the case?
There is a disparity in the approach and views of the judges at the stage of bail hearings and quashing, when the child is above 16 years of age and has given a statement that the act was consensual. Some judges consider the argument regarding the age of discretion, while others go for a strict interpretation of law, with no exception.
Further, in cases of consent and where the child is close to 18 years of age, some courts might be inclined to consider the defence of genuine mistake of fact, ie, if it can be proved that the offender was genuinely made to believe that the person is above 18 years of age.
It is yet to be seen if the courts are inclined to accept such arguments.
What about the fact that the case was registered at the behest of the parents?
It is immaterial if the case was registered by the child himself or a family member. If a statement is given by the child to the Police that there was sexual intercourse, it is sufficient to register the case.
Can the woman be sentenced, even if it is proved that she had indeed married the child, considering that a baby was also conceived?
The fact of marriage has no relevance under the law, as it stands today. Even, the fact that there was not much age gap between the parties will be of no consequence at the stage of sentencing. The Act prescribes for a minimum punishment.
In the absence of any sentencing guidelines, in case of conviction, the Court might not be in a position to exercise its discretion to award a sentence lower than the prescribed minimum.
This is despite the peculiar facts of the case, and the mitigating circumstances such as a child being conceived from the alleged act and the close age gap between the offender and the victim.
What about the cases in which both the victim and the offender are minors and in a consensual relationship?
Any sexual act of minors of same age would also attract the provisions of POCSO. The offender will be identified as a child in conflict with law and can be prosecuted before the Juvenile Justice Board.
In the absence of enough legal precedents, the law regarding child sexual abuse is still in its developmental stage.
The act does not recognize the sexual autonomy of any person below the age of 18 years.
This leads to an anomalous situation wherein, even consensual sexual encounters between minors of the same age, or between a minor and an adult when there is not much age difference between the two is considered an offence under the Act, and the child is considered to be in conflict with law.
Considering the large number of cases, wherein even minors are facing charges under POCSO, even for consensual sexual encounters, it might be worthwhile to consider whether some kind of guidelines can be formulated with regard to framing of charges and sentencing, for appropriate case.
(Smriti Shah is a lawyer working in Delhi.)
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