PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT

Protection of Children from Sexual Offences Act, 2012 protects all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. 

Victim: 

Anyone, whether male or female, who is under the age of 18. 

Who can be punished under this Act: 

Anyone above 18 years, irrespective of gender, can be punished under this Act for sexually abusing a child. If the perpetrator is a child under the age of 18, he will be dealt with under the Juvenile Justice (Care and Protection of Children) Act 2000. 

OFFENCES COVERED: 

  1. Penetrative Sexual Assault:

A person is said to commit penetrative sexual assault if:

  • he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
  • he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
  • he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
  • He applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 

Whoever, commits Penetrative Sexual Assault upon a child shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to imprisonment for life and shall also be liable to fine.

Where a person is prosecuted for committing/ abetting/ attempting to commit this offence, the Court shall presume that such person has committed / abetted / attempted to commit the offence, unless the contrary is proved i.e. Burden of proof to establish innocence is on the accused. 

  1. Aggravated Penetrative Sexual Assault 

Explanation of what defines the assault as 'aggravated' is covered below.

Whoever, commits Aggravated Penetrative Sexual Assault upon a child shall be punished with rigorous imprisonment (rigorous imprisonment means having to do hard labour) for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine.

Where a person is prosecuted for committing/ abetting/ attempting to commit this offence, the Court shall presume that such person has committed / abetted / attempted to commit the offence, unless the contrary is proved. i.e Burden of proof to establish innocence is on the accused. 

  1. Sexual Assault

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

Whoever, commits Sexual Assault upon a child shall be punished with imprisonment of either description for a term which shall not be less than 3 years but which may extend to 5 years and shall also be liable to fine. 

Where a person is prosecuted for committing/ abetting/ attempting to commit this offence, the Court shall presume that such person has committed / abetted / attempted to commit the offence, unless the contrary is proved. i.e Burden of proof to establish innocence is on the accused. 

  1. Aggravated Sexual Assault 

Explanation of what defines the assault as 'aggravated' is covered below.

Whoever, commits Aggravated Sexual Assault upon a child shall be punished with imprisonment of either description for a term which shall not be less than 5 years but which may extend to 7 years and shall also be liable to fine.

Where a person is prosecuted for committing/ abetting/ attempting to commit this offence, the Court shall presume that such person has committed / abetted / attempted to commit the offence, unless the contrary is proved. i.e Burden of proof to establish innocence is on the accused. 

  1. Sexual Harassment

A person is said to commit sexual harassment when such a person with sexual intent:

  • utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
  • makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
  • shows any object to a child in any form or media for pornographic purposes; or
  • repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
  • threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
  • Entices a child for pornographic purposes or gives gratification therefor.

Whoever, commits Sexual Harassment upon a child shall be punished with imprisonment of either description for a term which may extend to 3 years and shall also be liable to fine. 

  1. Use of child for pornographic purposes

Whoever, uses a child in any form of media (including program or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such program or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes :

  • representation of the sexual organs of a child;
  • usage of a child engaged in real or simulated sexual acts (with or without penetration);
  • The indecent or obscene representation of a child. 

Whoever, uses a child or children for pornographic purposes shall be punished with imprisonment of either description which may extend to 5 years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to 7 years and also be liable to fine.

If the person using the child for pornographic purposes commits penetrative sexual assault, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine.

If the person using the child for pornographic purposes commits aggravated penetrative sexual assault, by directly participating in pornographic acts, he shall be punished with rigorous imprisonment for life and shall also be liable to fine.
If the person using the child for pornographic purposes commits sexual assault, by directly.

Participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than 6 years but which may extend to 8 years, and shall also be liable to fine.

If the person using the child for pornographic purposes commits aggravated sexual assault, by directly participating in pornographic acts, he shall be punished with imprisonment of either description for a term which shall not be less than 8 years but which may extend to 10 years, and shall also be liable to fine.
If the person stores any pornographic material involving a child, in any form, for commercial purposes, he shall be punished with imprisonment which may extend to 3 years, or with fine, or with both.

Offence is “aggravated” when: 

  1. Committed by a police officer or member of the armed forces/ security forces: within the limits of a police station or area to which the person is deployed; in the course of his duty and where he is known or identified as an officer or member of the security or armed forces;
  2. Committed by a public servant or person belonging to any institution providing services to the child;
  3. Committed by a person on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection;
  4. Committed by a person on the management or staff of a hospital, whether Government or Private or of an educational/ religious institution;
  5. Committed by a group with common intent (i.e if a child is subjected to sexual assault by one or more persons of a group with common intention, each of such persons shall be punishable);
  6. There is use of deadly weapons, fire, heated or corrosive substance;
  7. Grievous hurt or injury is caused to the sexual organs of the child; or the child becomes mentally ill/ inflicted with HIV or infections or in the case of a female child, makes her pregnant;
  8. The child taken advantage of is mentally or physically disabled;
  9. The child is subjected to sexual assault more than once or repeatedly;
  10. The child is below 12 years of age;
  11. The abuser is a relative of the child through blood or adoption or marriage or guardianship or in foster care or has a domestic relationship with a parent of the child or is living in the same or shared household with the child;
  12. Committed by a person who is in a position of trust or authority of a child in an institution or home of the child or anywhere else;
  13. The abuser knows the child is pregnant;
  14. The abuser attempts to murder the child;
  15. The child is subjected to sexual assault during the course of communal or sectarian violence;
  16. The abuser is a repeat offender;
  17. The abuser makes the child strip or parade naked in public.

No person conducting a medical examination/ medical treatment of a child, with the consent of the parents/ guardian, shall be charged under any of the offences under this Act. 

Abetment of offence under POCSO Act: 

  • A person abets an offence if :
  • He instigates any person to do that offence; or
  • Engages with one or more other person in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or
  • Intentionally aids, by any act or illegal omission, the doing of that offence.

Whoever, commits Abetment will receive the same punishment and fine as one who has committed the actual crime. 

Alternate punishment:

Where an Act or omission is recognised as an offence under this Act and is also recognised as an offence under Section 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code, whichever punishment is greater in degree.