POCSO Act- forensic medicine perspective

MEDICOLEGAL PERSPECTIVE

1. The P rotection O f C hildren from S exual O ffences Act, 2012 Presenter: Dr Nikita Prabhakaran Chair: Dr Shahana

2. NCRB statistics 2016  24/ 1 lakh children 2017  28.9/ 1 lakh children 2018  108 children are being sexually abused / day in India

3. Kerala  6 th highest in overall sexual offences highest in southern states Child sexual offences MP+ UP , Karnataka(South India)

4. Before POCSO…….

5. Child rights in Indian Law Article 15 of Constitution confers upon the State powers to make special provisions for children

6. Article 39 of Constitution State shall direct its policy towards securing that the tender age of children are not abused Their childhood and youth are protected against exploitation Given facilities in a healthy manner In conditions of freedom and dignity

7. United Conventions on the Rights of Children Ratified by India on 11 th December,1992 State  to undertake measures to prevent Use of children in unlawful sexual activity Use of children in prostitution or other unlawful practices Use in pornographic performance and materials

8. Legal aspects of sexual offences Rape  Sec 375 + Sec 376 IPC Molestation  Section 354 IPC Sexual Harassment  509 IPC

9. No law has adequately addressed Nor are they specifically penalised Male gender was totally avoided The interests of the child needs to be protected as a victim as well as witness

10. Self contained comprehensive legislation for such offences Due regard to safeguarding the interest and wellbeing of the child At every stage of the judicial process

11. POCSO Act Received the assent of the President on 19 th June 2012 Published in the gazette of India in 20 th June 2012 Brought into force on 14 th Nov 2012 9 chapters and 46 sections

12. An act to: Protect children from offences of sexual assault sexual harassment and pornography To provide for establishment of Special Courts for trial of such offences

13. Chapters Preliminary Sexual offences against children Using child for pornographic purposes Abetment of and Attempt to commit an offence Procedure for reporting of cases Procedures for recording statement of the child Special courts Procedure and powers of special courts and recording of evidence Miscellaneous

14. Section 1 . Short title, extent and commencement Whole of India Shall come into force on 14th Nov, 2012

15. Section 2 . Definitions (a) aggravated penetrative sexual assault – section 5 (b) aggravated sexual assault – section 9 (c) armed forces or security forces- armed forces of the Union / security forces/ police forces

16. (d) child means any person below the age of 18 years

17. (da) child pornography any visual depiction of sexually explicit content involving a child including photograph/ videograph / digital/ computer generated image  indistinguishable from an actual child,  and image created/ adapted/modified appear to depict a child

18. (e)domestic relationship- section 2(f) of domestic violence act,2015 A relationship between two persons Who live / have lived together at any point of time In a shared household When they are related by consanguinity/marriage/through a relationship in the nature of marriage/ adoption/ family members living together in joint family

19. (f) Penetrative sexual assault - section 3 (g) Prescribed- prescribed by rules under this act (h) Religious institution- Religious institutions act 1988 ( i ) Sexual assault - section 7 (j) Sexual harassment - section11

20. (k) shared household- Household where the person charged with the offence lives/ has lived at any time in a domestic relationship with the child (l) Special court - a court designated – section 28 (m) Special public prosecutor - section 32

21. Chapter II- Sexual offences against children Section 3- Penetrative sexual assault Section 4-Punishment for penetrative sexual assault Section 5- Aggravated penetrative sexual assault Section 6- Punishment for aggravated penetrative sexual assault Section 7- Sexual assault Section 8- Punishment for sexual assault Section 9- Aggravated sexual assault Section 10- Punishment for aggravated sexual assault Section 11- Sexual harassment Section 12- Punishment for sexual harassment

22. Section 3 : Penetrative sexual assault A person is said to commit so if: He penetrates his penis  to any extent  into vagina/ mouth / urethra/ anus of a child or  makes him to do so with him or any other person (b) Any object/ any part of the body not being the penis

23. (c) He manipulates any part of the body of the child  so as to cause penetration into the vagina/ anus/urethra of the child or  makes him to do so with him or any other person (d) He applies his mouth  to penis, vagina, anus, urethra of the child or  makes him to do so with him or any other person

24. Section 4- Punishment (1) Imprisonment of either description Not < 10 years May extend to life imprisonment Shall also be liable for fine Amendment (2) child < 16 years  imprisonment not < 20 years (3) Fine – reasonable medical expenses of the victim + rehabilitation

25. Section 5 –Aggravated penetrative sexual assault (a) whoever being a police officer commits- within the limits of the police station/ premises where he is appointed (ii) Premises of station house whether / not in the police station or premises (iii) In the course of his duties (iv) Where he is known as/ identified a s a police officer

26. (b) whoever being a member of the armed forces/ security forces (c)whoever being a public servant (d) management/ staff of jail/ remand home/ protection home/ observation home/ other place of custody of care and protection  inmate

27. (e)management/ staff of a hospital  inmate Whether government/ private (f) management/ staff of an educational institution / religious institution

28. (g)gang penetrative assault (h)using deadly weapons/ fire/ heated substance/ corrosive substance

29. ( i ) causing grievous hurt / bodily harm/ injury to sexual organs of the child (j)  ( i ) physically incapacitates/ mentally ill/ unable to perform regular tasks temporarily/ permanently (ii) female child- pregnant (iii) inflicts with HIV/ life threatening infections  (iv) death of the child

30. (k) taking advantage of child’s mental/ physical disability (l) more than once/ repeatedly on the child (m)on a child below 12 years (n) relative of the child through blood/ adoption/ marriage / guardianship/ foster care (o) in the ownership or management or staff of institution providing services to the child (p) position of trust/ authority of a child (q) knowing the child is pregnant

31. (r)attempts to murder (s) in the course of communal/sectorial violence * natural calamities (t)who has been previously convicted under this act (u) makes the child to strip or parade naked in public

32. Section 6- Punishment (1) Rigorous imprisonment for a term not <20 years + Fine (2) Fine reasonable- medical expenses + rehabilitation

33. Section 7- Sexual Assault Whoever  with sexual intent  touches the vagina/ penis/ anus/ breast of the child or  makes the child to touch parts of his/ any other person or  does any act with sexual intent which involves physical contact without penetration

34. Section 8 - Punishment Imprisonment not < 3 years May extend to 5 years + Fine

35. Section 9 – Aggravated Sexual Assault Same as that of section 5 (a)  (u) (v) persuades/ induces a child to get administered any drug / hormone/ chemical substance to a child with the intent that such child attains early sexual maturity

36. Section 10-Punishment for aggravated sexual assault Imprisonment not < 5 years May extend to 7 years + FINE

37. Section 11- Sexual Harassment With sexual intent ( i ) utters any word / makes any sound/ gesture / exhibits any object or part of body with the intention that it shall be heard by the child (ii) makes a child exhibit his body / part of his body so as it is seen by such person/ any other person

38. (iii)Shows any object to a child in any form or media for pornographic purpose (iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic , digital or any other means (v) Threatens to use, in any form of media, any part of the body of the child (vi) Entices a child for pornographic purposes

39. Section 12- Punishment of sexual harassment Imprisonment of either description – 3 years + FINE

40. Section 13- Use of child for pornographic purposes Uses a child In any form of media Whether for personal use/ for distribution For the purpose of sexual gratification Includes (a) representation of sexual organs of a child (b) engaged in real/ simulated sexual acts (c) indecent/ obscene representation of a child

41. Section 14- Punishment Imprisonment for not less than 5 years Second time- for 7 years

42. Section 15 – Storage of pornographic material involving child (1) who stores or possess or fails to delete or destroy or report With intention to transmit child pornography Fine – not < 5000 ( second time -10000) (2) Distributing / transmitting/ propagating Imprisonment 3 years +/- Fine (3) For commercial purposes Imprisonment 5 years  7 years +/- Fine

43. Section 16 : Abetment / attempt of an offence First- Instigates someone to do that offence Second- Engages with one / more person in conspiracy to do that offence Third- Intentionally aids , by commission/omission the doing

44. Section 17 : Punishment for abetment Same as that of the offence committed

45. Section 18: Punishment for attempt Half the imprisonment of the offence

46. Section 19 – Reporting Of Offence (1)If a child / any other person has the knowledge of such a crime committed/ likely to be committed  Special Juvenile Police Unit (SJPU)  The Local Police

47. (2) Procedure of recording Ascribes a special number and registers the case Read over to the informant Entered in a book to be kept by police unit (3) if it is a child  record in a simple language (4) in case of any language issues - interpreter/ translator can be used (5)SJPU feels the child is in need of immediate care  steps can be taken (6) Report within 24 hours  to the child welfare committee / SPECIAL COURT/ SESSIONS COURT (7) no person is held liable if he informs such an offence in good faith

48. Section 20: Obligation of media, studio and photographic facilities Any media person / hotel/ hospital/ lodge Has the duty to report to SJPU On coming across such an offence

49. Section 21: Punishment for failure to report Imprisonment not < 6 months +/-fine In charge of any institution  1 year +/- fine

50. Section 22: Punishment for false complaint or false information Against any person Solely with the intention to humiliate / defame/ extort/ threaten Not < 6 months + Fine If it is a child  no fine False allegation against a child and child has to go through not < 1 year imprisonment +/- fine

51. Section 23: Procedure for media reporting Shall not make any report without authentic information  defaming Shall not disclose the identity of the child Publisher/ owner is jointly liable Imprisonment- not less than 6 months  one year

52. Chapter VI Section 24-Recording the statement of the child Recorded at the residence / At a place where he usually resides/ At a place of his choice + As far by a woman police officer - not below the rank of SI of police

53. (2) police officer shall not be in uniform (3) at any point of time, he doesn’t come across the accused (4) no child shall be detained at night in the police station (5) police officer  ensures that identity is not revealed to the media

54. Section 25 : Recording by a magistrate As spoken by the child A copy shall be provided to the child/parent/ representative

55. Section 26: Additional Provisions Recording should be in the presence of parent / any other person whom he has trust in May take the assistance of a translator if necessary Child having a mental/ physical disability  help of a special educator ensure that the statement of the child is recorded by audio- video electric means

56. Section 27: Medical Examination of a child Victim is a girl child  by a woman doctor In the presence of parent of the child / any person whom the child trusts If parent / guardian not available in the presence of a woman nominated by the head of the institution

57. Chapter 28: Special Courts For the purpose of speedy trial State Government @ Chief Justice of the High Court Each district, a court of session  designated as a special court Or A special court designated for this purpose

58. Section 29 : Presumption as to certain offences Section 30 : Presumption of culpable mental state (unless proven otherwise) Section 31 : Proceedings before a special court As that of sessions Court Public prosecutor- conducing the prosecution Section 32 : Special public prosecutors – for conducting trials of this act

59. Chapter VIII: Section 33: Procedure and powers of special court Special prosecutor  questions to the court child Permit frequent intervals for the child Child friendly atmosphere ( family member )

60. Child not called repeatedly No aggressive questions / character assassination Identity of the child is not disclosed at any course of trial

61. Section 34 In case of commission of offence by a child and determination of age Juvenile justice act ,2015 (2 of 2016)

62. Section 35 : Period for recording of evidence Recording of evidence of child  within 30 days of reporting If any delay report may be prepared ?????? --

63. Section 36 : Child not to see accused at the time of testifying May record the statement using video conferencing/ other measures Section 37 :The trials are conducted in camera Section 38 :Assistance of an interpreter/ expert if necessary

64. Miscellaneous- Sections 39- 46 Section 43 : Public awareness about the act Section 44 : Implementation of the Act National commission for protection of child rights  State Commission monitor Section 45 : Power to make Rules: Central Government

65. Amendment act, 2019 Received the assent of President on 05-08-2019 Brought into force  16-08-2019 Section 2  (da) child pornography Instead of JJA, 2000 JJA, 2015 Section 4 had only one section- (1) , (2) and (3) Section 5: between the subsections of clause (j)  “or” omitted

66. Section 5  (s) communal or sectarian violence + natural calamity +similar situations Section 6  10 years substituted to 20 years Section 9  + natural calamity/ similar situation  Section (v)

67. Section 14 extent to 5 years / 7 years not less than 5 years / 7 years Section 15 only for commercial purposes storage purposes Section 34 JJA Section 42 376 E + 509 IPC + 67-B of the Information Technology Act Section 45 Power of central Government – added subsections

68. POCSO Rules , 2012 7 sections 1. Short title and commencement 2. Definition  Expert  person trained in mental health, medicine, child development or other related discipline

69.  Support person  a person assigned by a child welfare committee to render assistance to child through the process of investigation/trial Section 3 – Interpreters, translators and special educators Section 4 – Care and protection as needed  SJPU

70. Section 5- Emergency Medical Care  no medical personnel shall demand any legal requisition as a pre-requisite He shall to attend: Cuts/ bruises/ injuries to genitalia Treatment for exposure to HIV Possible pregnancy and emergency contraceptives Wherever necessary , a referral or consultation for mental or psychological health should be made Forensic evidence collected section 27

71. Section 6 : Monitoring/ implementation of the Act Section 7 : Compensation

72. Limitations of the act Most of the clauses are over-pronounced Misuse of laws

73. Media??  dead victim and identity The lack of awareness of guidelines among police officers and medical officers The lack of an expert  absolute loss of evidence injustice

74. Advantage

75. Conclusion

76. Psychological health issues Immediate – stress, shock, fear, confusion, self blame, anxiety, numbness, social withdrawal Long term- PTSD Depression/anxiety disorders Somatoform Eating behaviours Sexual dysfunction Alcohol and drug abuse Parasuicidal behaviour/ suicide

77. THANK YOU