Child rape, also called as child sexual assault (CSA) is a worldwide problem that negatively affects both the physical and mental health of the victim. The problem was not accredited before year 2012, until the Protection of Children against Sexual Offences Act (POSCO Act) was enacted. This special legislation became an important step to criminalize various crimes against children and thus securing them of the same. Inspite of such acts, there has not been any improvement in conditions of the country that presents an emergency in front of us to take relevant steps. This article deals with the whole problem in detail.
As per the Census of 2011, India has population of 471 million that is below the age of eighteen. The problem of Child rape is defined as sexual assault of any person who is below the age of 18 years with the use of force or coercion. According to the World Health Organization, “child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or that violates the laws or social taboos of society.”
The sexual assault is not only faced by the girls but boys are equitably vulnerable to it. The statistics related to it are very disturbing and alarming. This offence is a big violation of the Human Rights and it leads to a number of negative consequences on children which are long term in nature. The victims are seen to confront mental and emotional trauma that causes a hurdled growth.
Legal Response to Child Rape
Before the enactment of 2012 legislation, only the Indian Penal Code recognized the crime and that too was not specified to children. Section 375 of Indian Penal Code defined rape as sexual intercourse without consent of a woman. With the increase in child rapes and outrages in the country, a special legislation, i.e. Protection of Children from Sexual Offences Act was passed. This legislation aimed to criminalise the malpractices faced by the minors and makes it mandatory to set up special courts to speed up the trials of such offences. However, when we look upon the statistics, we find that statistics tell a different story. The conditions, instead of improving, have worsened. As per National Crime Record Bureau, 39,827 cases were reported in year 2018 under the POSCO Act under which 21,605 child rapes were recorded. It included 21,401 rapes of girls and 204 of boys, the data showed. The highest cases of child rape were recorded in Maharashtra, followed by Uttar Pradesh and Tamil Nadu. However, the numbers might be shocking, but the positive side is the improving trend in reporting crimes.
Distinctive Features of POCSO Regarding Child Rape
The most important feature of this act is it does not use the word ‘rape’ and is not only restricted to penetrative sex. Section 3 of the Act broadens the crime by providing a term ‘penetrative sexual assault’ to consist oral sex, as well as insertion of any object into anus, mouth, or vagina as well as penile penetrative sex. In the case of State v. Pankaj Chaudhary, 2011 (pre-POSCO), it was held that the accused could only be prosecuted for digital penetration of the anus and vagina of a five year child and thus ‘outraging the modesty of a woman.’ The act of rape was not proved because digital penetration was not identified as an offence under the Indian Penal Code. The inclusion of the term has been beneficial to protect the children efficiently.
Besides criminalizing the rape, it also illegalized similar behaviours like sexual assault, short of penetration under Section 7 of the Act. In addition, the act has also made the offence of ‘aggravated’ penetrative and ‘non- aggravated’ penetrative sexual assaults more serious. It helps in attracting more serious and strong penalties by distinguishing between the perpetrators by whom it was done, the situations under which it was done and the impact of it on the victim (Section 5 and Section 9). The definition is wide and covers a variety of possible scenarios.
Section 35 of the Act includes the provision of Special Courts for the trial proceedings that is child friendly. The hearings are conducted extremely sensitive way. The statements by the victim are given privately, i.e. either in camera, via video link, or behind the curtains to reduce the mental trauma and to protect the identity of the child too. These special courts play a crucial role in providing the justice. The act mandates every police officer to inform about each and every case to Child Welfare Committee who will be accountable for mental and social well being of the child.
Problems with the Implementation of the Act in Rape Cases
- Determination of age: The first and foremost problem is regarding the determining the age of victim and perpetrator. It is the duty of special courts to determine the age under Section 34(2) but the directions are not specific for it. In the case of Babloo Pasi v. State of Jharkhand, the Supreme Court ruled that it is difficult without birth certificate or other valid documents. The suggestion of Medial Boards may be informative, but cannot be the conclusive way to be adopted. In India, a large fraction of births are not registered that poses a problem to prove age.
- Mandatory reporting: As per the act, it is compulsory to report child rape. If there is a failure in the same, the person may face imprisonment of over six months or may be fined or both. This was criticized by many organisations because it violates the right to choice. There are many instances where survivors do not want to suffer from the distress of proceedings. It also interferes with the access of medical and psychological care.
- Consent: As per this legislation, intimation with person less than 18 years of age is crime. So if two minors are consensually having sex, they can be punished under this law. There are many examples where parents have filed cases because they do not approve to relationships of the child. It is mostly seen when there is a difference of caste or religion.
Child rape is an ever growing problem in the country and to cope up with it, Protection of Children against Sexual Offences Act might be a significant step by the government. It has been very successful in securing children from range of crimes that are threatful to their mental health. The number of reported cases might demotivate us but it also shows the success of country in educating the general public of such crimes instead of concealing them inside their homes. However, some issues must be solved in order to provide more flexibility. The problem lies in the society. It is the high time that we begin to aware the society of these crimes and put behind the bars as much criminals as we can.
Frequently Asked Question (FAQs)
- What is the crime of child rape?
- What are the present situations in the country?
- What are the legislations that are made in order to protect the children from sexual assaults?
- What are the important features of the Protection of Children against Sexual Offences Act?
- What are the contentions in implementation of the Act in rape cases?
- Carson, D., Foster, J., & Tripathi, (14th Aug. 2013), Child Sexual Abuse in India: Current Issues and Research, [online].
- The Times of India, (26th Aug. 2013), “Consensual sex with minor not a crime, Delhi court says”, [online]
- India Today, (12th Jan. 2020), 109 children sexually abused every day in India in 2018: NCRB, [online]
- Vikas Chaudhary, Radhika Dayal & Divya Pillai, (19th Sept. 2018), Child Sexual Abuse in India: A Systematic Review, [online]
Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6177170/
 The Census of India 2011, Ministry of Home Affairs (Government of India). Available at: https://censusindia.gov.in/2011census/population_enumeration.html
 World Health Organisation, Child Sexual Abuse. Available at: https://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf
 National Crime Records Bureau. (2015). OGD Platform: Open Data Source Government of India. Available at: https://data.gov.in/catalog/crime-committed-against-children-under-different-crime-heads%23web_catalog_tabs_block_10
 Section 3 of the Protection of Children against Sexual Offences Act, 2012. Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12852§ionno=3&orderno=3
 State v. Pankaj Chaudhary, AIR 2004 SC 1677
 Section 7 of the Protection of Children against Sexual Offences Act, 2012, Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12856§ionno=7&orderno=7
 Section 5 of the Protection of Children against Sexual Offences Act, 2012, Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12854§ionno=5&orderno=5
 Section 9 of the Protection of Children against Sexual Offences Act, 2012, Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12858§ionno=9&orderno=9
 Section 35 of the Protection of Children against Sexual Offences Act, 2012, Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12884§ionno=35&orderno=35
 Section 34 (2) of the Protection of Children against Sexual Offences Act, 2012, Available at: https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_14_00005_201232_1517807323686§ionId=12883§ionno=34&orderno=34
 Babloo Pasi v. State of Jharkhand, S.L.P. (Criminal) No.1620 of 2007.