THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (AMENDMENT) ACT, 2019

ABSTRACT:

The sexual assault against children and women are increasing day by day. This article deals with the penetrative sexual assault against children and it’s another version which is known as aggravated sexual assault. Section 3 to 6 of the Protection Of Children from Sexual Offenses ( Amendment ) Act, 2019 defines these sexual assaults and their punishment. The significance of this article is to make clear that every rape is not a sexual assault and not every sexual assault is a rape. This article focuses on difference between rape and sexual assault too. This paper enlarges the definition of penetrative sexual assault and aggravated sexual assault.

INTRODUCTION:

The Protection of Children from Sexual Offenses ( Amendment ) Act, 2019 which was passed by Rajya Sabha on July 24, 2019 and by Lok Sabha on Aug 01, 2019 was introduced by Smriti Zubin Irani – The Minister of women and child development on july 18, 2019. The POCSO Act seeks to protect children from offenses such as sexual assault, sexual assault and pornography.

SEXUAL ASSAULT:

An illegal act which forces a person in unwanted sexual contact. It can be verbal, visual, oral or anything.

TYPES OF SEXUAL ASSAULT:

• RAPE

• FORCIBLE SODOMY

• FORCIBLE OBJECT PENETRATION

• MARITAL RAPE

• UNWANTED SEXUAL TOUCHING

• SEXUAL CONTACT WITH MINORS

• INCEST

• ANY UNWANTED OR COERCED SEXUAL CONTACT

OTHER SEXUAL CRIMES:

• Sexual Harassment

• Solicitation of minors via internet

• Possession of child pornography

DIFFERENCE BETWEEN RAPE AND SEXUAL ASSAULT:

Though there is some difference between them , they both are serious crimes.

When a person intentionally penetrates another’s vagina, anus or mouth with a penis , without the consent of other person, it is known as Rape.

When a person penetrate another person’s vagina or anus with any part of the body other than a penis, or by using an object, without the other person’s consent, it is known as Sexual Assault.

PENETRATIVE SEXUAL ASSAULT:

According to the Act, “Penetrative Sexual Assault” Involves

(I) Penetration of penis into the vagina, mouth, urethra or anus of a child (or)

(II) Insisting the child to do the same (or)

(III) Insertion of any other object into the child's body (or)

(IV) Applying his mouth to a child’s body parts.

PUNISHMENT:

Before the 2019 Bill - Imprisonment of 7 years to Life and Fine

After the 2019 Bill – Minimum Punishment 7 years is increased to 10 years.

( Penetrative Sexual Assault on a child below 16 years, then the punishment is

Imprisonment of 20 years to life with a fine )

CASE LAW:

Anil Surendra Singh Yadav v. State of Gujarat

( 27 December 2019 )

In this case , the accused kidnapped the victim to his house and throttled by hitting on her head and neck and committed penetrative sexual assault as described in section 3 of the POCSO Act and committed rape as described in section 375 of the IPC.

The appellant ( accused ) thus had committed the offenses publishable under section 4 of the POCSO Act and under section 376 of the IPC. Since the victim was under 16 years of the age, it was also duly proved that the accused had committed the offense punishable under section 376AB of the IPC. The accused by committing the murder of the victim after the penetrative sexual assault had also committed “aggravated penetrative sexual assault” as per section 5( r ) punishable under section 6 of the POCSO Act and murder punishable under section 302 of the IPC. The court has no hesitation confirmed the death penalty for accused awarded by the Special Court.

AGGRAVATED PENETRATIVE SEXUAL ASSAULT:

According to the Act, the “aggravated penetrative sexual assault” Includes cases such as when a member

• The police officer

• Member of the armed forces

• Public Servant

• Relative of the Child

Commits penetrative sexual assault on a child.

Added that if any organ of the child gets damaged due to assault and the child becomes pregnant.

Additional definition of aggravated penetrative sexual assault by bill:

(I) Death of the child due to assault

(II) Assault conducted during a natural calamity or in any similar situations of violence.

CASE LAW:

Monoharan v. State By Inspector of Police,Coimbatore

( 1 August, 2019 )

In this case the first accused kidnapped a Male and Female child to a hills and committed sexual assault and put the children to death along with another accused. The first accused was encountered by police. The accused appellant was convicted section 302, 376(2)(f) and (g) and 201 IPC. The appeal was dismissed and the appellant was sentenced for life till his natural death, without remission / commutation under section 432 and 433 of Cr.P.C.

Just as this judgement is being dictated, we notice that a significant amendment has been made the POCSO Act, 2012, vide , “ The Protection of Children from Sexual Offenses ( Amendment ) Bill,2019” (hereinafter, “Amendment”) which was passed on 24th August 2019 by the Rajya Sabha.

CONCLUSION:

Nonetheless, considering the rising crime rate particularly of the heinous nature of crimes against the young girls and in response to the societies cry for injustice against the criminals and to have deterrence’s in the society, the culpability of the appellant accused deserves to be awarded extreme punishment. Though not all sexual assault becomes rape, the punishment of both should be made equal in order to reduce the heinous crimes in the society. 80% of the sexual assault is made by acquaintance people and 20% by the strangers. Hence, nonetheless keep the children and women safe from Humans ( Strangers and Neighbors too ).


Credit: SHALINI SHIVABALAN

Clg name: school of excellence in law

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