The recent policy note “Home, Prohibition and Excise Department, Tamil Nadu Police” by the Tamil Nadu Home Department on the Protection of Children from Sexual Offences (POCSO) Act, 2012 demonstrates a superficial understanding of sexual offences against children. The ambiguity of the categorisation and the misrepresentation of data cause concern, as the policy note will determine scheme and programme intervention and budget allocation.
The baldness of classification of cases under the Act as “POCSO Rape” and “POCSO Others” without any nuance is bound to cause public alarm. It is deceptive on two fronts. First, the note demonstrates an archaic understanding of sexual violence which the Act intentionally turned on its head in 2012.
In the absence of a definition of what constitutes “POCSO rape”, one can only speculate whether it refers to the pre-POCSO definition of rape as was defined in the Indian Penal Code, which considered only peno-vaginal penetration, or it includes the various forms of penetrative acts as defined in the POCSO Act, which allows that anyone besides men could be perpetrators and both boys and girls can be victims.
If “POCSO rape” alludes to the post-POCSO definition, the semantics of the word “rape” needs to be considered since it does not appear anywhere in the POCSO Act, 2012. Unlike pre-POCSO legislation, there is a conscious shift in the Act to consider all kinds of sexual penetration. This leaves us with the perplexing question as to what offences are then clubbed under “POCSO rape” and “POCSO others”?
No sexual offence against a child can be considered any less or greater in its impact on the affected child. The POCSO Act thus calibrates a range of sexual offences against children ranging from touching to non-touching with sexual intent, and considering our digital lifestyles and technology-facilitated crimes. In fact, non- penetrative touching offences committed within certain contexts and relationships attract a higher sentence, thus making them aggravated offences. However, the very categorisation of “POCSO others” denotes offences as less impacting, in its perpetuation.
Second, the policy note states that from the figures for 2019, there is a 29% increase in the reporting of overall POCSO and a 22% increase in “POCSO rape” cases, respectively, in 2020. Such a generic understanding of POCSO data will create panic. Hence, teasing out the meaning from the numbers is necessitated.
Reporting of sexual violence will never witness a decreasing trend as it is not a law and order problem but a societal crime, embedded in homes and community. The abusers are most often related or known to the young person. An increased awareness, coupled with confidence in the criminal justice system, is a contributing factor for the growing reporting.
More cases being reported under “POCSO rape”, which the note infers, is misleading. Non-penetrative sexual acts constitute the bulk of offences against children. However, the reporting usually happens only when there is a need for medical attention or in a situation as in elopement or “Romeo-Juliet” (as teenage romances are often called) cases. Also there is the fallacy subscribed to by stakeholders of medical evidence being able to confirm sexual offences. Thus, what is reported to authorities is a miniscule fraction of the actual number of cases happening. Even the figures of “POCSO rape” cases do not reflect the reality. Over half of these cases are of consensual sexual intimacy by teenagers, but which come under the purview of the law since the age was raised from 16 to 18 when the POCSO Act was enacted in 2012. This has been consistently indicated by various tables in the National Crime Records Bureau (NCRB), research studies and anecdotal evidence across India including Tamil Nadu. The “Romeo-Juliet” cases are clogging the system, with the Madras High Court earlier this month shifting all POCSO cases of eloping and marriage of girls aged 16 to 18 from special courts to Mahila courts in Madurai, Salem and Thiruvannamalai. Thus, even after close to a decade of enactment of POCSO, the primary objectives of the Act seem to be defeated, which is to address the range of sexual offences against children, without any discrimination.
