CONTEXT

• Over the last nine years, India has sought to “protect children from offences of sexual assault, sexual harassment and pornography” through the Protection of Children from Sexual Offences Act (POCSO).
• But the act has been in controversy for several fundamental defects in it. One of such fundamental defects is its inability to deal with historical cases.

HISTORICAL CHILD SEXUAL ABUSE

• Historical child sexual abuse refers to incidents that are reported late.
• It is not just confined to institutions but also includes intra-familial abuse where it is difficult for the child to report the offence or offender at the earliest point in time.

NEED FOR INCLUSION OF SUCH CASES

India must revise its legal and procedural methods to deal with historical child sexual abuse as:

• There is growing international jurisprudence around these issues.
• It is in line with the UN Convention on the Rights of the Child.

UNDERSTANDING THE DIFFERENCE  

• The circumstances around child sexual abuse cannot and must not be viewed in the same manner as other criminal offences.
• The delays in reporting sexual abuse after a considerable passage of time from the date of offence may be due to factors such as threats from the perpetrator, fear of public humiliation, and absence of trustworthy confidant.
• Another theory, proposed, is the accommodation syndrome — where the child keeps the abuse as a secret because of the fear that no one will believe the abuse, which leads to accommodative behaviour.
• Hence, there lies a compelling case to allow delayed reporting and prosecution with regard to incidents of child sexual offences.

IMPEDIMENTS TO HISTORICAL CASES

Tender age of child: 

• It often takes time for the child to recognise and comprehend the gravity of what transpired and become confident to report the offence.

Counter to principle of criminal law: 

• It seems to run counter to the established principle of criminal law. i.e. every act of crime must be reported at the earliest and any delay in filing the complaint dilutes the efficacy of the prosecution’s case.

Legal barriers:

• Provisions in the Criminal Procedure Code (CrPC) prohibit judicial magistrates from taking cognisance of cases beyond a specific time period.
• Cases involving child sexual abuse does not amount to rape as defined under Section 376 of the Indian Penal Code (IPC).

Prior to POCSO,2012:

• Prior to the enactment of POCSO in 2012, it would presumably be classified under the lesser, and somewhat frivolous, offence of outraging the modesty of a woman (Section 354 of the IPC).
• Also, under Section 354 of the IPC, any reporting of an offence, more than three years after the date of incident, would be barred by the CrPC.

Lack of evidence:

• One of the major drawbacks of delayed reporting is the lack of evidence to advance prosecution.
• It is believed that there would be less than 5% chance for gathering direct physical and medical evidence in such cases.
• India, in particular, suffers from a lack of procedural guidance as to how to prosecute historical cases of child sexual abuse.
• In contrast, the U.K. has issued detailed Guidelines on Prosecuting Cases of Child Sexual Abuse under the Sexual Offences Act of 2003 to assist the police in such cases.

CONCLUSION

• There is an urgent need to reform and revise our laws to account for various developments such as historical reporting of child sexual abuse.
• At the very least, the Union government must frame guidelines to direct effective and purposeful prosecution in cases which are not covered by the POCSO.

Reference:

1. https://www.thehindu.com/opinion/op-ed/expanding-the-scope-of-pocso/article34636334.ece