Children being subjected to sexual offences is the worst thing. The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a special law which seeks to define offences against children and lays punishment. There are several offences under the POCSO Act and the procedure is strict. Aggravated sexual assault in POCSO Act defines the offence and designates specific punishment. Let us explore what constitutes the offence and whether it is punishable severely or casually.
Aggravated Sexual Assault Definition
Before jumping on to understand the aggravated sexual assault definition under POCSO, the first stop has to be understanding sexual assault. Legal aspects are technical and in-depth understanding is crucial. What we are discussing here is the aggravated form of sexual assault. Therefore, what constitutes sexual assault against a child will lead the way for exploring what aggravated sexual assault in POCSO Act is.
Sexual Assault under POCSO Act
Section 7 of the POCSO Act lays the definition of what constitutes sexual assault. It states that “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
The ingredients of sexual assault under POCSO Act are:
- Sexual intent,
- Touching the vagina, penis, anus or breast of the child, OR
- Making the child touch the vagina, penis, anus or breast of another person, OR
- Doing any other act which involves physical contact without penetration.
This clarifies that touching a child on private parts with sexual intent constitutes sexual assault. Also, making the child touch the perpetrator or any other person, on such private parts, or making any physical contact with sexual intent is sexual assault as per Section 7 of the POCSO Act.
Section 9 of POCSO Act
Now coming to the definition of aggravated sexual assault under the POCSO Act, the same is provdied under Section 9. As mentioned earlier, it is the aggravated form of sexual assault – because of the person who committed, the circumstances under which the offence happened, or the consequences of the same. Let’s have a look at the provision itself and then decode the technicalities in easy to understand form:
“Aggravated sexual assault.—(a) Whoever, being a police officer, commits sexual assault on a child—
(i) within the limits of the police station or premises where he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer; or”
Comment: Section 9 (a) of POCSO Act lays about sexual assault committed by the police officer, which constitutes aggravated sexual assault. The place of crime could be the Police Station where the Police Officer was appointed, or the premises of any other Police Station. In fact, sexual assault committed while performing his duties or wherever he is identified as a Police Officer, constitutes aggravated sexual assault. Being in the Police brings a responsible position, and people around them should have a sense of being protected. If children do not feel safe around Police, this fact makes sexual assault more serious, or aggravated as termed so.
“(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child—
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the security or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member of the security or armed forces; or”
Comment: A member of Armed Forces or Security Forces is another utmost respected uniformed personality. They are deemed as the protectors of the nation. Children subjected to sexual assault at the hands of army personnel or commit aggravated sexual assault. As the provision under Section 9(b) lays, the act may be committed within the deployment of such personnel, or the areas under the army’s command. In fact, the offence may be committed on duty, or at a place where such personnel is identified as an army or security personnel.
“(c) whoever being a public servant commits sexual assault on a child; or”
Comment: A public servant committing sexual assault on a child is punishable under Section 9 (c) of POCSO Act. The reason being that public servants serve the people and a sense of safety emanates through them as well.
“(d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or”
Comment: People being members of management or staff at jail, remand homes, protection homes, observation homes of any place of custody, care or protection are squarely covered for aggravated sexual assault. The victims in such cases may be child inmates of such a place, whether it is a jail, protection home, etc. Children staying at such places are already vulnerable for one or the other reasons, and thus, they should feel safe, and not be subjected to sexual assault by the potential protectors.
“(e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or”
Comment: Government or Private Hospitals are places where people go for treatment. There should be a sense of protection at places like hospitals, Therefore, any member of management or staff committing sexual assault on a child in such hospital commits aggravated act.
“(f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or”
Comment: Educational or religious institutions, again, are sacred places. Touching a child or letting a child touch another with sexual intent in such institution constitutes aggravated sexual assault in POCSO Act.
“(g) whoever commits gang sexual assault on a child.
Explanation.—when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or”
Comment: When 2 or more people team up for committing sexual assault on a child, each one of them is deemed to have committed aggravated sexual assault under POCSO Act. Whether or not all of them committed the act does not make a difference, and being part of the planning constitutes the very offence for punishment.
“(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or”
Comment: Children are innocent souls who may be naughty, but they should never be subjected to crimes. Committing sexual assault on a child is in itself a heinous aspect. It is even aggravating if such an act is committed by using deadly weapons, fire, heated substance or corrosive substance.
“(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or”
Comment: While sexual assault on a child is an offence, imagine how it would be if the bodily harm remains. That is why aggravated sexual assault in POCSO Act is said to be committed when injury or harm is caused to the body or sexual organs of the child.
“(j) whoever commits sexual assault on a child, which—
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or”
Comment: Aggravated sexual assault is committed under POSCO Act when such action leads to physical incapacitation of the child. It means the state of being unable to perform physical actions or duties due to a physical ailment, injury, or disability. Mental illness as consequence of sexual assault is also aggravating. In fact, the child’s inability to perform regular tasks due to impairment also constitutes the offence under Section 9 of POCSO Act. While this was mostly about external or mental bodily injuries, deadly diseases like HIV infection or any other life threatening disease constitutes aggravated sexual assault.
“(k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or”
Comment: Though children are innocent, those suffering from any kind of physical or mental illness are even vulnerable. Thus, committing sexual assault on children suffering from mental or physical disability face severe punishment as laid under Section 10 of POCSO Act.
“(l) whoever commits sexual assault on the child more than once or repeatedly; or”
Comment: One instance of sexual assault leaves a permanent mark on a child’s soul. Now just imagine what repetitive acts would do to these innocent souls. That is why such act is counted as aggravated sexual assault in POCSO Act.
“(m) whoever commits sexual assault on a child below twelve years; or”
Comment: As defined under Section 2 (d) of POCSO Act, a child is anyone below the age of 18 years. However, those of tender age are comparatively more vulnerable victims of sexual crimes, because they do not even realize the exact nature of the offence. It becomes aggravated sexual assault when children below the age of 12 years are targeted.
“(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or”
Comment: Children should feel the safest around their family. However, sadly, that’s where most perpetrators belong. Aggravated sexual assault is committed when the accused person is related to the child through blood or adoption or marriage or guardianship or in foster care. Those having a domestic relationship with a parent of the child are also punished.
“(o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or”
Comment: Any institution providing any kind of services should be a safe place for a child. Therefore, when sexual assault is committed by the owner, management or staff of such institution, the act is recognized as aggravating.
“(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or”
Comment: A person being in a position of trust or authority of the child in an institution, home or anywhere else faces aggravated sexual assault punishment under the Act.
“(q) whoever commits sexual assault on a child knowing the child is pregnant; or”
Comment: When a person knows that a minor girl is pregnant, and still commits sexual assault on her, is punishable for aggravated offence.
“(r) whoever commits sexual assault on a child and attempts to murder the child; or”
Comment: Committing sexual assault on a child is already insensitive. If the perpetrator attempts to kill the child, that constitutes an aggravated form of offence and punishable accordingly.
“(s) whoever commits sexual assault on a child in the course of communal or sectarian violence or during any natural calamity or in any similar situations; or”
Comment: Any person regardless of his/her age is vulnerable during communal or sectarian violence or natural calamity. When a child is subjected to sexual assault during such serious times, it is an aggravated form of crime. This provision was amended through the POCSO Act 2019 Amendment for the words “communal or sectarian violence”.
“(t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or”
Comment: A person already convicted of a sexual offence under POCSO Act or any other law, if caught for sexual assault, this is counted in its aggravated form. It may be noted that the same offence is not a mandate here. Even if the person was earlier convicted of sexual harassment and accusations of sexual assault against a child are proved, it constitutes aggravated sexual assault with suitable punishment.
“(u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public;”
Comment: Making a child child to strip or parade naked in public constitutes aggravated sexual assault. However, it may be understood that making a child to strip or parade naked in public pre-supposes sexual assault for making the offence aggravated.
(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity,
Comment: Any kind of persuasion, inducing, enticement, or coercion of a child for administration of drug, hormone or any chemical substance for attaining sexual maturity constitutes aggravated sexual assault in POCSO Act. The provision here was introduced through the POSCO Act 2019 amendment. It may be noted that expressly committing sexual assault is not required as per the provision. Administration of such drug, hormone or chemical substance in itself constitutes aggravated sexual assault as per POCSO Act Section 9 (v).
“is said to commit aggravated sexual assault.”
Comment: All the aforementioned acts from Section 9 (a) to (v) constitute aggravated sexual assault and punishable under Section 10 of the Act.
Aggravated Sexual Assault POCSO Punishment
A person who commits aggravated sexual assault under POCSO Act is punishable with imprisonment of minimum 5 years, along with fine. However, the imprisonment punishment may extend to a maximum of 7 years. Here, the Judge has discretion to decide how serious the offence was based on specific facts. However, the punishment cannot be anything less than 5 years of imprisonment. Imposition of amount of fine is another discretionary aspect, which cannot be done away with because fine is not optional.
