The Legal Relief section of Haven provides an introductory, objective description of the legal measures available to survivors following sexual misconduct as well as a brief description of the POCSO Act. It also includes links to governmental certified legal resources.
This is not a substitute for professional legal advice, and must only be taken as the dissemination of public information.
POCSO Act
The Protection of Children from Sexual Offences Act was enacted in 2012 and is gender-neutral; it recognises that boys can be victims of sexual violence as well. It defines a child as someone under the age of 18. The Indian Penal Code does not recognise that sexual assault can be committed on boys. This law recognises sexual harassment of a child which involves touch, and also that which doesn’t (sections 11 and 12), such as stalking, making a child expose themselves or exposing themselves to a child, and so on.
The law lays down the procedures for reporting sexual crimes against children. Under section 19 of the Act, it is mandatory to report sexual crimes against children, including when there is an apprehension that an offence under the Act has been committed.
This child protection law is also unique because it places the burden of proof on the accused, following ‘guilty until proven innocent’ unlike the IPC.
Under provisions of the POCSO Act, a child is entitled to the following:
— Getting their statement recorded at their residence or a place of their choice, and preferably by a woman police official or an official not below the sub-inspector rank, in civilian clothes.
— The police officers should ensure that during the investigation, the child shouldn’t come in contact with the accused.
— The child cannot be detained at the police station at night, and his/her identity should be protected from the public and media unless directed otherwise by a Special Court.
— If the survivor is a girl, the medical examination should be done by a woman doctor, and the examination can only be done in the presence of a parent, or a person the child trusts. If neither of the two are there, then the examination should be done in the presence of a woman nominated by the head of the medical institution.
Sections of the POCSO Act may be added by the police in the First Information Report (FIR) whenever a sexual offence is committed against a child. While special laws override the IPC, sections of both are often mentioned in the FIR. For instance, an FIR would book an accused under section 376 (rape) of the IPC as well as relevant sections of the POCSO Act.
Punishments under POCSO are more stringent than under IPC.
For more information, one may visit thenewsminute.com or view the pdf here.
Guide to POCSO Act
Court Rights for Sexual Assault Survivors
In the courtroom, a rape survivor has the right to:
-
Anonymity can be ensured by taking the survivor's statement in-camera. No member of the general public or media can be present unless the presiding judge thinks fit, on an application by either of the parties and allows any person to gain access to the proceedings (Amendment of Section 327, CrPC).
-
Access to a lawyer and/or free legal aid is available through the Legal Aid Authority of each state. A representative of the Legal Aid Authority can be found at the District Court as well as at the Magistrate Court (Delhi Domestic Working Women's Forum Vs. Union Of India And Others, 1994).
-
Appoint an advocate who can keep her informed of when the accused applies for bail when the charge sheet is filed when the first hearing is to be held and so on. This advocate can go to the court regularly on the survivor's behalf (Delhi Domestic Working Women's Forum Vs. Union Of India And Others, 1994).
-
A rape trial that is completed within 2 months of the date of filing the charge sheet.
-
Not be asked questions during cross-examination that are related to her character or previous sexual experience (Amendment of Section 146, Indian Evidence Act).
-
Compensation in the form of financial assistance and support services such as counselling, shelter, medical and legal aid, training and education. Financial compensation may go above Rs 1.40 lakh (Section 5.1.17, Umbrella Scheme on the Protection and Empowerment of Women, 2013).
-
Compensation may also be given by the accused as a fine if he is convicted (Section 357, CrPC).
If the survivor is below 18:
-
This special court must complete the trial within a year of the date of taking cognizance of the offence (Section 35(2), Protection of Children Against Sexual Offences Act, 2012).
-
-
All questions must be asked in a sensitive and easy-to-understand manner. For this, the defence lawyer (lawyer of the accused) should submit in writing the questions he or she wants the survivor to be asked (Sakshi Vs. Union of India).
-
She can be accompanied by family or friends (if they are not witnesses) while giving her statement. She is also allowed to take breaks as and when required (Sakshi Vs. Union of India, 2004).
-
-
The case must be heard in a special court (Section 28(1), Protection of Children from Sexual Offences Act).
How the court can help to ensure an FIR is filed
-
If the survivor’s complaint is not recorded at the police station, she can complain to the Superintendent of Police Magistrate Court, which can order the police to file the FIR (Section 154(3) CrPC).
Indian Penal Code's Definition of Sexual Assualt
The Indian Penal Code, the Code of Criminal Procedure as well as the Protection of Children Against Sexual Offences Act have provisions against rape and sexual assault. With the Criminal Law (Amendment) Act, 2013, the definition of rape and sexual assault has been expanded and punishments made stricter. Here, we explain the salient features of this amendment in a simple manner.
What is rape?
According to the Criminal Law (Amendment) Act, 2013, rape takes place when:
-
A man penetrates a woman’s vagina, mouth, urethra or anus without her consent, with his penis or with an object.
-
A man forcibly applies his mouth to the vagina, urethra or anus of a woman.
-
A man forcibly manipulates a woman’s body in order to cause penetration.
-
Two individuals below the age of 18 engage in sexual activity, even if it is consensual.
What is consent?
Consent, in this context, is a woman’s willingness to have sexual intercourse. It can be expressed through words, gestures or non-verbal communication. The Criminal Law (Amendment) Act specifically states that if a woman does not physically resist forced sexual activity, it does not mean that she has given her consent.
Under this law, a woman’s consent is not taken if she is told that she or anyone she knows will be hurt or killed; if she is drugged or incapable of giving consent; if she is physically or mentally disabled; or if she is led to believe that her assailant is her husband.
What’s different about the Criminal Law Amendment Act, 2013?
Under this law:
-
Trafficking, acid attacks, sexual harassment, disrobing, voyeurism and stalking have been recognized.
-
If a public servant does not perform his/her duty or does not adequately investigate a case, he/she can be fined and imprisoned for 6 months to 2 years.
-
If a survivor of sexual assault is treated in an unlawful manner at a public or private hospital, the director of that hospital can be fined and imprisoned for up to 1 year.
-
Rape trials must be completed within 2 months of filing charges.
What is the punishment for rape?
-
The minimum punishment for rape is 7 years, but it can extend up to life imprisonment.
-
The punishment for a repeat offence of rape or rape that leads to a vegetative state or death is 20 years, which may extend to life imprisonment or death.
-
If rape is committed by a gang, the punishment is no less than 20 years for each member of the gang, and he must also give compensation to the survivor.
-
If a non-military public servant commits rape, he can be imprisoned for life, and fined.
Supreme Court Guidelines for Sexual Assault Trials
The Supreme Court of India laid down guidelines for the behaviour of defence lawyers in rape trials in a 1996 judgement. Unfortunately, these guidelines are not strictly followed today.
Below are a few excerpts from the judgement:
-
The courts should examine the broader probabilities of a [rape] case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix.
-
The court should not sit as a silent spectator while the victim of the crime is being cross-examined by the defence. It must effectively control the recording of evidence.
-
While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made as a means of harassment or causing humiliation to the victim of crime.
-
It [an in-camera trial] would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. The improved quality of her evidence would assist the courts in arriving at the truth and sifting the truth from falsehood.
These legal resources are by no means the end of one's research. They aim to serve as a skeletal, objective explanation for complex documentation.
We are not to be held liable for the use of information on this page