CSA1033 | Laws Related to Child Sexual Abuse: Challenges and Concerns

The legal landscape on sexual offences against children has undergone significant transformation since 2012. With the enactment of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), India took a step forward in establishing a child-friendly system for investigation, medical examination, and trial. However, the Criminal Law (Amendment) Act, 2018 and the POCSO (Amendment) Act, 2019 have introduced the death penalty for rape of children below 12 years and for the aggravated penetrative sexual assault of persons below 18 years. Punishments have also been enhanced and procedural changes introduced which have reduced the time to file chargesheets and complete trials.

The course will examine the relevant legal provisions pertaining to sexual offences, child-friendly procedures, presumption of guilt, compensation, etc, and their judicial interpretations will be discussed along with documented studies capturing the gaps and challenges in their implementation. It will build on students’ understanding of criminal law, human rights, and constitutional law and encourage them to adopt a rights-based lens to examine the legal framework. While the POCSO Act is progressive in several aspects, some of its provisions have severely impacted the enjoyment of rights of children. This course will also delve into issues such as mandatory reporting, age of consent, lack of recognition of non-exploitative and consensual sexual activity among adolescents, judicial treatment of “romantic cases”, implications of the presumption of guilt, and the death penalty for child rape. These issues and recent legal reforms will be critically examined for their compatibility with domestic and international standards on child rights and human rights of accused persons.

The teaching will include a combination of socratic discussion and seminar style discussion.

The structure of the modules is as follows:

Dynamics of Child Sexual Abuse (CSA), its impact on children and on legal processes (4 hours)
Overview of the Substantive Indian Legal Framework relevant to Child Sexual Abuse (8 hours): This session will entail an overview of sexual offences under the POCSO Act as well as other laws and briefly engage with online safety .
Overview of child-friendly procedures under the POCSO Act and its implementation (12 hours): Three sessions will be dedicated to the discussion on child-friendly procedures to be followed by the police, medical practitioners, Magistrates, and Special Courts as well as the gaps and challenges in implementation.
Care and Protection of Child Victims (4 hours): This session will focus on the role of Child Welfare Committees and Support Persons in POCSO cases, Witness Protection Scheme, representation of victims during bail hearings, and other protective measures available within the legal framework:
Conflict between Protection and Evolving Automomy and other Issues and Concerns (8 hours): Two sessions will focus on implication of mandatory reporting, uniform age of consent, criminalization of adolescent sexuality and death penalty for child rape on the rights of children. The tussle between protecting children and respecting their evolving autonomy will be explored.
Treatment of Children in conflict with the law and Restorative Justice for Sexual Violence (4 hours): This session will provide a brief overview of the legal regime relevant to children in conflict with the law, and examine whether the “transfer system” which allows the treatment of children between 16-18 years accused of heinous offences to be tried as adults is compatible with child rights. The possibility of restorative justice approaches in cases of children in conflict with the law who have caused sexual harm will be discussed.