Children are innocent souls, untouched by the artifice and shrewdness of the adult world. Everything that a child experiences adds to his/her being. That is why parents need to be extra careful about what their children learn, whom they accompany, and whether they are safe on all fronts or not. Heading towards discussion on sexual crimes, it’s a matter of shame that even children of tender age can be the victims. That is where education plays a vital role, making children aware of the good touch and bad touch. If children know how and when to speak up and stop someone from harassing or abusing them, we are halfway successful in fighting against the crimes against children. Here, we have simplified the provision regarding sexual harassment under POSCO Act 2012. Let’s take a step-by-step approach and understand how POCSO defines sexual harassment.
Protection of Children from Sexual Offences Act
The Protection of Children from Sexual Offences Act, 2012 aims at protecting children from offences of sexual assault, sexual harassment and pornography. It squarely provides for establishment of Special Courts to hear POCSO matters, and effectively addresses the heinous crimes of sexual exploitation and sexual abuse of children. People often ignore crimes related to children, thinking too much about their future and protecting their innocence. Sexual harassment is the first step, and if not controlled and reported, may incite heinous crimes as well. Thus, here, we explain in simple words what sexual harassment under the Protection of Children from Sexual Offences Act (POSCO) Act means. Knowledge is power, and you should know what happens with children around you, to provide them a safer environment to prosper.
Sexual Harassment under POCSO Act
Chapter 2 of the POCSO Act covers sexual offences against children. It defines the various sexual offences under the POCSO Act and lays out their punishment. Chapter 2 E defines what constitutes sexual harassment under POCSO Act and its punishment. Section 11 of POCSO Act defines sexual harassment as stated below.
11. Sexual harassment.—A person is said to commit sexual harassment upon a child when such person with sexual intent,—
Comment: The provision here begins to define what constitutes sexual harassment upon a child, when the person acts with sexual intent. It may be noted that the mens rea, i.e., the intention or knowledge with which the act is committed makes a lot of difference for the offence of sexual harassment under POCSO Act.
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
Comment: Section 11(1) states that the words uttered, sound/gesture made, or any object/body part exhibited with the intention to be seen/heard by the child. Sexual intent is crucial in this part. This can be understood with an example when an Uncle X shows a 4 year old nephew Y an adult movie containing particular scenes, proposing to make this a special secret of Uncle-Nephew duo – this is sexual harassment. On the contrary, when a mother is teaching her 4 year old son to thoroughly clean his body while bathing, including his private parts, this is not sexual harassment under Protection of Children from Sexual Offences Act.
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(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
Comment: The provision makes it a crime if someone makes a child show his whole body or a part of the body, to be seen by the said person or someone else. To understand with an example, if a person makes X being a school teacher asks a 5 year old student in an empty classroom to remove her shirt and he will give her higher marks in Mathematics, this is an example of sexual harassment in POCSO Act.
(iii) shows any object to a child in any form or media for pornographic purposes; or
Comment: Anything obscene, depicting sexual excitement can be understood as pornographic. Anyone showing such obscene photos or videos or any other similar object, to a child, is guilty of the offence of sexual harassment. So if Aunt X shows a pornographic video to her friend’s daughter who is 7 year old, this is sexual harassment.
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
Comment: Stalking is an offence under the Bharatiya Nyaya Sanhita when someone stalks a woman. The same act becomes sexual harassment under Protection of Children from Sexual Offences when someone follows a child, watches them, directly or indirectly contacts them through any means. To understand with an example, X was a man who liked a teenage girl Y and would follow her to and from her school and home, then tuitions as well. Such a behavior could land X in jail for sexual harassment.
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
Comment: The provision punishes the act when a person threatens a child of using real or fabricated media – photo/audio/video depicting any body part of the child, or the child being involved in a sexual act. For example, if X makes a pornographic video of a teenage boy Y with the help of artificial intelligence and threatens him of showing the same to his school friends, X is punishable for sexual harassment of Y.
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(vi) entices a child for pornographic purposes or gives gratification therefore.
Comment: Entices literally means to attract or tempt a person by offering pleasure or advantage. If a person persuades a child to create pornographic material, in return offering some money or other benefits, this constitutes the offence of sexual harassment under POCSO Act. If X, a middle-aged woman tactfully tells a story to her 12 year old niece about a girl of her age who earned in lakhs by recording videos of her sexual acts, and extends a similar offer to the niece, X is punishable under POCSO Act for sexual harassment.
Explanation.—Any question which involves “sexual intent” shall be a question of fact.
Comment: The explanation here makes it clear that anything surrounding ‘sexual intent’ in order to decide sexual harassment under POSCO is a question of fact, and needs to be proved accordingly.
12. Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Comment: Section 12 of the POCSO Act lays the punishment for offence of sexual harassment. Anyone who is commits sexual harassment upon a child shall be imprisoned for a maximum term of 3 years, and fine. This means that it is the discretion of the Court to pass a sentence of only 6 months, or nothing less than 3 years, based on the seriousness of facts of the matter.
