What is a Crime Under the POCSO Act and What is Not?

Recently, there has been immense furore over social media about a video clip involving the Dalai Lama’s alleged inappropriate gesture towards a child at a public gathering. Many have condemned the act as an offence of child sexual abuse, while others have condoned it by stating that the gesture was steeped in a specific cultural context and should not be sexualised. No legal action has been taken in this case. 

Incidents and discussions like this highlight the importance of understanding what constitutes a crime under the Protection of Children From Sexual Offences Act (POCSO) Act, 2012 and what does not. 

What is the POCSO Act?

The Protection of Children from Sexual Offences Act (POSCO) was enacted in 2012 to protect children from offences of sexual assault and to make the redressal process easier for and tailored to the best interests of the survivor. The Act protects everyone under the age of 18 years. 

What is an offence under the POCSO Act?

The POCSO Act classifies different forms of child sexual abuse, regardless of the child’s gender under sections 3 to 15 of the Act. This may be broadly defined as : 

Non-Physical Behaviour

• Any non-physical sexual behaviour through gestures, speech, and visuals.
• Any act related to child pornography
• Enabling premature sexual sensibilities in children through drugs

Physical Behaviour

• Touching a child’s private parts or touching them inappropriately
• Sexual abuse through penetration

Even an attempt to commit any of these acts is a crime. 

Who can report a case of Child Sexual Abuse?

Under sections 19 and 21 of the POCSO Act, anyone with the knowledge of any incident of child sexual abuse must report it to the Special Juvenile Unit of the police. They must record the complaint in writing.The POCSO Act does not limit the capacity to file a complaint only to the victim or their guardians. Anyone who is aware of any incident and is reasonably certain that a child is a victim of any form of sexual abuse, should file a complaint. This is known as the mandatory reporting provision. If it is proved that anyone privy to any information regarding an incident of child sexual abuse has wilfully neglected their duty to report it, they can be punished with a jail time up to 6 months and a fine. 

How to report child sexual abuse?

There are various ways to report an incident of child sexual abuse. According to section 19 of the Act, you can approach the Special Juvenile Police Unit or any local police to register a complaint of child sexual abuse. Designated special courts handle cases of child sexual abuse. The police must inform the relevant child welfare committees and special courts within 24 hours from the receipt of a complaint. The Act mandates that child sexual abuse cases be resolved within the period of one year. 

If you are unable to approach the police, there are alternative ways of reporting child sexual abuse. You can register a complaint on the online portal of the National Commission for Protection of Child Rights (NCPCR) or call the helpline numbers of the NCPCR or Childline India. You can also make a complaint before the NCPCR through email or by post. 

For detailed information about reporting child sexual abuse, read our explainer here. 

What is not considered a crime under the POCSO Act?

According to the POCSO Act, except certain provisions (discussed below), there must be a sexual intent behind any act for it to constitute an offence. The accused carries the burden of disproving any sexual intent. 

Under Section 29 of the Act though for specific offences, the accused will be presumed to be guilty unless proven otherwise. These offences are as follows:

• Section 3 : Penetrative Sexual Assault
• Section 5: Aggravated Penetrative Sexual Assault, which is penetrative sexual assault by someone in position of power over the child.
• Section 7: Sexual Assault, which is sexually touching a private part of a child or any sexual physical contact short of penetration.
• Section 9: Aggravated Sexual Assault, or sexual assault by someone in a position of power over the child. 

In this context, certain provisions under the “General Exceptions” of the Indian Penal Code (IPC) become relevant. According to the IPC, certain acts which may otherwise constitute a crime will not incur criminal liability if;

• An act is done without any criminal intention, which is without the intent to cause harm.
• If the perpetrator is ignorant of the nature of the wrong committed through an act. This is known as the M’ Naughten Rules which implies if a person commits an act which is contrary to the law but is not conscious of the wrongful attributes or implications of an act, it won’t be considered a crime. 
• An act done in good faith for the benefit of a child.

In several child sexual abuse cases, often “innocent intentions” stemming from cultural practices are citied as defences. The above exceptions become relevant in such instances.