POCSO 2012 does not use the term ‘rape’ more commonly used and also does not confine penetrative sex to penile penetration. Instead, it broadens the offence termed ‘penetrative sexual assault’ (section 3) to include oral sex, as well as, insertion of any object into anus, mouth or vagina, in addition to penile penetrative sex. In State vs Pankaj Choudhary 2011, (pre-POCSO) the accused could only be prosecuted for ‘outraging the modesty of a woman’ for digital penetration of the anus and vagina of a 5 year old child. The prosecution was unsuccessful in proving rape as the High Court ruled that digital penetration was not recognised as an offence under the India Penal Code (Delhi High Court 2011). The addition to the definition of penetrative assault has increased the cover of protection for children.
POCSO also criminalises a range of behaviours as being sexual assaults, short of penetration (section 7). Additionally, the offences of ‘aggravated’ penetrative and non-penetrative sexual assault is made more serious and attract stronger penalties (sections 5, 9) when committed by a specified range of perpetrators, in a wide array of situations or conditions, and/or has a severe impact on the victim. This includes sexual assault committed by persons in authority or position of power with respect to a child, committed by persons in a shared household with the child, in conditions such as: gang rape, causing grievous bodily harm, threatening with firearm or corrosive substances, during communal or sectarian violence, assaulting a child under 12 years of age, or one who is physically or mentally disabled, causing a child to become pregnant, or knowingly assaulting a pregnant child, or infecting the child with HIV, repeated assaults, or accompanied by public degradation. The definition is very comprehensive and covers a range of possible scenarios.
POCSO is also forward thinking in many aspects, in that, the definition of sexual harassment includes repeatedly or constantly following, watching or contacting a child either directly, electronically or through other means [section 11(iv)]—thus, covering incidents of child harassment via sexting or sexual cyberbullying. However, the interpretation of what might constitute ‘repeatedly’ or ‘constantly’ following or contacting a child with sexual intent (with the law specifying sexual intent being a ‘question of fact’) is unspecified in POCSO 2012 and consequently is potentially contestable.
The Act is quite distinctive in that it penalises abetment of or attempt to commit any of the offences listed in the preceding sections (section 16). Another ‘extraordinary clause’ (section 29) in the Act is the presumption of guilt of the accused, until proven innocent. This matter of jurisprudence lends itself to problems in the light of some of the points raised below (Andrade and Rao 2013).
The provision of Special Courts (section 35) where trial proceedings may be conducted in a more sensitive manner with the victim’s testimony given either ‘in camera’ (i.e. privately), via video-link, or behind curtains or screens, is intended not only to reduce trauma but also protect the identity of the child. The Special Court plays a pivotal role in how the law and the evidence may be interpreted.
Implementation of POCSO 2012 involves various criminal justice, state and third sector agencies and is very resource intensive. Various problems arising from resource scarcity and lack of appropriate training which affect how investigations, prosecution and medical examinations are conducted in cases of CSA in have been identified by stakeholders in a state wide consultation in Maharashtra (Maharashtra State Consultation 2014). Instead of revisiting those problems which impact the implementation of the Act, this paper focuses on three issues—namely, age of consent, obligatory reporting and age determination—embedded in the provisions of the Act that might cause unintended negative consequences individually and in combination.