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KEY TAKEAWAYS

  • The Kerala High Court expressed concern on Tuesday over the rising number of cases filed under the Protection of Children from Sexual Offences Act (POCSO) in the state, as well as the lack of a system to protect children from the perpetrators' threats.
  • Justice Devan Ramachandran stated his dissatisfaction with the lack of a victim protection programme.
  • "It is high time that we implement a victim protection scheme in the State. Right now, it only exists on paper; it has not been implemented yet. If this happened in any other country, the victim would have been protected and hidden away by now." - said Justice Devan Ramachandran.

INTRODUCTION

Victim, or victims is a term used for individuals or groups who have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, as a result of acts or omissions that violate criminal laws in force within member states, including those prohibiting criminal abuse of power.

The dictionary meaning of a victim is:

  • A person who suffers as a result of a destructive or injurious action or agency: a victim of an automobile accident.
  • A person who has been duped or cheated, whether by his or her own emotions or ignorance, the dishonesty of others, or some impersonal agency: a victim of misplaced trust; a victim of a con artist; a victim of an optical illusion
  • A person or animal who has been sacrificed or is thought to have been sacrificed: warvictims
  • A living being sacrificed for religious purposes.

Victims and witnesses of serious crimes are especially vulnerable when the perpetrator is powerful, influential, or wealthy, and the victims or witnesses are members of a socially or economically marginalised community. Girls and women who report sexual violence are often put under extreme pressure or face direct threats from the accused. Despite the fact that a victim of crime is not a party in criminal proceedings, they play an important role in the criminal justice system. Their testimony is an essential component of the prosecutor's case against the accused.

A witness is someone who witnessed a crime with their own eyes. The victim of a crime, on the other hand, can be a witness. Therefore, a witness is critical in court for distinguishing between facts and allegations or claims made by both parties. Witnesses are regarded as one of the most important components of the criminal justice system. It is because of them that the trial is able to reach a reasonable conclusion. The witness's inputs may have a direct bearing on an accused's conviction or acquittal, so it is preferable that such witness be shielded from the wrath of extraneous factors that have the potential to change his stance on a particular case. Extraneous factors, such as corruption or threats, form a majority and turn the witness hostile, making it necessary for the state to protect such witnesses in order to maintain the prescribed course of justice. While there is no specific victim protection scheme in India, there does exist a Witness Protection Scheme, 2018.

BACKGROUND

  • While hearing a petition from a victim and her mother seeking police protection in a POCSO case because they were threatened by the perpetrator in Kerala, the Court then issued orders to the police to guarantee that the victim and her family were appropriately protected from the accused or his family members posing a threat to their life. The accused is a victim's relative.
  • The matter was set for hearing on November 2nd as a result of the aforementioned direction.
  • Despite the fact that the accused was acquitted in the case, the victim's family has attempted to appeal the decision.
  • In this situation, the accused and his family allegedly began threatening the victim to not pursue the case further.
  • As a result, Advocate P.M Rafiq and Advocate Ajith Thomas made a request for police protection.
  • According to the plea, they made submissions to the local police and the District Police Chief, requesting protection for the victim and her family's life and property, but received no reaction, prompting them to seek relief from the Court.
  • In another case heard by the Court, the judge raised the same issue. This was stated in a plea filed by a sexual assault survivor who approached the Court alleging harassment not only from the accused but also from two police officers.
  • "Without meaning to conclude at this stage that the allegations in the writ petition are correct, it still causes a lot of distress to this Court because there are specific guidelines, circulars and orders issued by the various competent authorities with respect to the protection of victims of sexual attack, including rape, but many times I notice that these are not being effectively implemented”, the bench observed.

WHAT IS POCSO ACT

The Ministry of Women and Child Development championed the introduction of the Protection of Children from Sexual Offences (POCSO) Act, 2012 in order to effectively address the heinous crimes of sexual assault and sexual exploitation of children through less ambiguous and more stringent legal provisions.

The Act was passed to protect children from sexual assault, harrassment, and pornography, as well as to establish Special Courts for the trial of such crimes and connected concerns and situations.

The POCSO Act was amended to make it more effective in dealing with child sex abuse cases in the country. The Act was notified on August 6, 2019, and took effect on August 16, 2019. It addressed the need for stringent measures to deter the country's rising trend of child sex abuse on the one hand, and the threat of relatively new types of crimes on the other. The Act was amended to include provisions for increased penalties for certain offences in order to dissuade abusers and guarantee that children have a safe, secure, and dignified upbringing.

Prior to the 2012 Act, the only specific piece of child abuse legislation was the Goa Children's Act, 2003. The following sections of the Indian Penal Code were used to prosecute child sexual abuse:

I.P.C. (1860) 375- Rape

I.P.C. (1860) 354- Insulting a woman's modesty

I.P.C. 377- Unnatural offences

WHEN IS POCSO USED

When a sexual offence against a child is committed, the police may add sections of the POCSO Act to the First Information Report (FIR). While special laws override the IPC, the FIR frequently mentions portions of both. An FIR, for example, would charge someone with rape under Section 376 of the IPC as well as applicable sections of the POCSO Act.

The POCSO Act also established procedures to make the criminal justice system more child-friendly and to prevent re-traumatization. This includes everything from how the child's statement should be recorded to the medical examination, as well as the designation of special child-friendly courts. Under provisions of the POCSO Act, a child is entitled to the following:

  • Having their statement recorded at their home or a location of their choice, preferably by a woman police officer or an official not lower than the sub-inspector rank, dressed in civilian clothes.
  • The police official should make certain that the child does not come into contact with the accused during the investigation. The child cannot be detained at the police station at night, and his or her identity should be kept hidden from the public and media unless a Special Court orders otherwise.
  • If the survivor is a girl, the medical examination should be performed by a female doctor, and it can only be performed in the presence of a parent or someone the child trusts. If neither of the two is present, the examination should be conducted in the presence of a woman nominated by the medical institution's head.

The special courts established by the POCSO Act must also be child-friendly. There are provisions such as making the court premises child-friendly by allowing a family member, guardian, friend, or relative in whom the child has trust or confidence to be present; allowing frequent breaks for the child during the trial; and ensuring that the child does not have to face the accused during evidence collection and cross examination.

Depending on the Special Court's discretion, proceedings may also take place in private, which means that no one other than those involved in the case, as well as the child's parents or another adult he or she trusts, may be present in court. There are also provisions and guidelines in place if the case requires assistance from NGOs or social workers, as well as experts (psychologists, interpreters, and so on) during the pre-trial and trial stages for the child; and guidelines for interviewing survivors, including special needs children and children with disabilities.

FEATURES OF THE ACT

  • The Act is gender-neutral and prioritises the child's best interests and welfare at all stages to ensure the child's healthy physical, emotional, intellectual, and social development.
  • The Act defines a child as anyone under the age of eighteen, and considers the child's best interests and well-being to be essential at all times in order to ensure the child's healthy physical, emotional, intellectual, and social development.
  • It distinguishes between different types of sexual abuse, such as penetrative and non-penetrative assault, as well as sexual harassment and pornography, and considers sexual assault to be “aggravated” in certain circumstances, such as when the abused child is mentally ill or when the abuse is perpetrated by someone in a position of trust or authority over the child, such as a family member, police officer, or teacher.
  • Individuals who traffic children for sexual purposes are also subject to the Act's abetment provisions. The Act stipulates harsh punishments that are tiered according to the severity of the offence, with a maximum sentence of life imprisonment and a fine.
  • It defines "child pornography" as "any visual depiction of sexually explicit action involving a child, including photographs, videos, digital or computer-generated images indistinguishable from actual children, and images developed, adapted, or changed to appear to depict a child."

PUNISHMENTS FOR OFFENSES COVERED IN THE ACT

  • Penetrative Sexual Assault (Section 3) against a minor has a minimum sentence of 10 years in jail, with the possibility of life imprisonment and a fine (Section 4).
  • Whoever performs penetrative sexual assault on a child under the age of sixteen must be punished by imprisonment for a term of not less than twenty years, but which may extend to life imprisonment, which means imprisonment for the rest of that person's natural life, as well as a fine.
  • Sexual Assault (Section 5) — Not less than twenty years in jail, with the possibility of life imprisonment, and a fine (Section 6) Sexual Assault (Section 7) — Not less than three years in prison, with the possibility of five years in prison, and a fine (Section 8) (Section 8)
  • Aggravated Sexual Assault (Section 9) by a person in authority — Minimum sentence of five years, with the possibility of a maximum sentence of seven years, plus a fine (Section 10)
  • Child Sexual Harassment (Section 11) – three years in prison and a fine (Section 12)
  • Use of a child for pornographic purposes (Section 14) — Minimum sentence of five years and a fine, with a maximum sentence of seven years and a fine if convicted again. Section 14 (1) Use of a child for pornographic purposes that results in penetrative sexual assault: 10 years (in case of child below 16 years, not less than 20 years)
  • Using a minor for pornographic purposes that results in aggravated penetrative sexual assault: 20 years in prison and a fine
  • Use of a minor for pornographic purposes resulting in sexual assault: three years minimum, with a maximum of five years.
  • Use of a minor for pornographic purposes resulting in serious sexual assault: five years, with the possibility of a seven-year sentence.
  • Any individual who maintains or possesses pornographic material involving children in any form, but fails to delete, destroy, or disclose it to the appropriate authority as required, with the aim to disseminate or transmit child pornography - Fine of not less than Rs 5,000; fine of not less than Rs 10,000 in the case of a second or subsequent offence.
  • Any person who stores or possesses pornographic material involving a child in any form for the purpose of transmitting, propagating, displaying, or distributing in any manner at any time, except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with one of the following types of imprisonment: Up to three years in prison or a fine, or both, is possible.
  • On the first conviction, anyone who keeps or has pornographic material in any form involving a kid for commercial purposes faces the following penalties: Not less than three years in jail, with the possibility of being extended to five years; or a fine, or both. A second or subsequent conviction carries a sentence of at least five years and up to seven years in prison, as well as a fine.

CONCLUSION

Victims should be treated compassionately and with dignity. They are entitled to access to the justice system and prompt redress for the harm they have suffered, as provided for by national legislation. Judicial and administrative mechanisms should be established and strengthened as needed to allow victims to seek redress through expeditious, fair, inexpensive, and accessible formal or informal procedures.

Victims should be made aware of their options for seeking redress through such mechanisms. They should be provided with the necessary material, medical, psychological, and social assistance by governmental, voluntary, community-based, and indigenous organisations. They should be informed about the availability of health and social services, as well as other relevant assistance, and should have easy access to them. Police, justice, health, social service, and other personnel involved should receive training to become more sensitive to the needs of victims, as well as guidelines to ensure proper and timely assistance. When it comes to providing services and assistance to victims, special consideration should be given to those who have special needs due to the nature of the harm inflicted.


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