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MANDATORY REPORTING LAWS AND THEIR EFFICACY IN PREVENTING CHILD SEXUAL ABUSE

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This article is written by R. Siva Shankaran of 4th Semester of B.A.L.L.B of The Central Law College, Salem, an intern under Legal Vidhiya

ABSTRACT

Mandatory Reporting laws mandate specific professionals, such as doctors, teachers, and social workers, to report suspected cases of child sexual abuses (CSA), neglect, or other forms of harm to relevant authorities, typically child protective services or law enforcement.  Although these laws differ from jurisdiction to jurisdiction, they all generally work to protect the weak, especially children, by making sure that any indications of abuse or neglect are quickly recognized and taken seriously.  Mandatory reporters may be subject to legal repercussions if they violate the reporting requirements.  The purpose of the laws is to safeguard the health and safety of those who are vulnerable and to enable prompt action to stop additional harm. In India the Protection of Children from Sexual Offences (POCSO) Act 2012, mandates reporting of child sexual abuse.  This law requires anyone who has knowledge or suspicion of child sexual abuse to report it to the authorities. It’s crucial for individuals, especially professionals working with children, to be aware of and adhere to these reporting obligations to ensure the safety and well-being of children, and this paper mainly delves with the child sexual abuse and how the mandatory reporting laws are effective in preventing the children from the sexual abuse.

Keywords

Mandatory reporting laws, Child sexual abuse (CSA) and neglect, POCSO, child abuse, effectiveness of laws.

INTRODUCTION

Child sexual abuse is a major problem in global level, where the child sexual abuse (CSA) as also called child molestation which an adult or other person uses the child for their sexual pleasure and child sexual abuse are a profound violation the human rights of the child and their life, the act of sexual abuse of an child was an serious offence.  For an individual the early child stages was the important because it was their primary stage of their life, at that time only the get started to interact with others but at that age the child are get abused by others, which affects their life until their life it.

The world Health organization has defined child sexual abuse (CSA) as the involvement of child in sexual activity as he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society.[1]  It includes different sexual activity like fondling inviting a child to touch or be touched sexually, intercourse, exhibitionism, involving a child in prostitution or pornography, or online child luring by cyber-predators.[2]

When we comes to India, India is the home to forty-two percentage (more than 1/3rd ) of the world’s population, or more than 19% of all children.  About half of these kids require care and protection.  According to the 2011 census, according to NCRB data there are around 4441.5 lakhs children in India, approximately 28.9% of all children experienced some form of crime in 2020, but only 65.6% of all crime are reported.  When India a became a member of United Nations Convention on the Rights of the Child in 1992, it committed to protecting its children from all forms of sexual abuse and exploitation.

Mandatory reporting laws compel certain professional, including educators, social workers, and healthcare providers, to report any suspicions or proof of specific abuse, neglect, or harm perpetrated against vulnerable people, including children, the elderly, or people with disabilities.  Although these laws differ from jurisdiction to jurisdiction, they usually require reporting to the proper authorities, like law enforcement or child protective services.  The mandated reporter may be subject to fines or professional disciplinary action if they fail to report.  These laws are meant to safeguard individuals who might not be able to defend themselves and to guarantee prompt action to stop additional harm.  Reporting requirements usually take the at-risk person’s safety and wellbeing more seriously than issues with privacy or confidentiality.

OBJECTIVES

  1. To analyse the efficacy of mandatory reporting law.
  2. To describe about the mandatory reporting provision in POCSO Act.
  3. To make an awareness about the child sexual abuse.
  4. To examine the effectiveness of POCSO Act in regard with child sexual abuse cases. 

MANDATORY REPORTING LAWS IN INDIA

In India, The Protection of Children from Sexual Offences (POCSO) Act 2012, it deals with the issue of sexual offences against children. Which was enacted by the parliament of India on November 14, 2012 under the Ministry of Women and Child Development as an significant step towards creating a safer environment for the children aged less than 18 years from the offences like sexual harassment, sexual assault, and child pornography. The act POCSO also mandates for the setting up of special courts that are better equipped to deal with such offenses in a more effective manner, and which is gender-neutral law.

This act contains a special feature and the most debated one which is, mandatory reporting.  It because in India the authorities were notified of only 3% of offences related to child sexual abuse (CSA), it occurred as a result of the societal shame attached to this kind of abuse and the criminal justice system chronic inability to provide for the needs of children who have been sexually assaulted.  It is not unexpected that there is a substantial underreporting of child sexual abuse (CSA) given the shame and associated socio-cultural stigma, especially if the abuse take place within the family.  The most of the sexual abuses done to the child by their close relatives.

The chapter 5 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, deals with the Procedure for reporting of cases through the section 19, 20, and 21 of the act.

Section 19 states about that, all persons have been made duty-bound to report sexual offences against children.  Theses offences range from the harassment to assault, and to the use of children for pornographic purpose.

S.19. Reporting of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974) any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to, —   (a) the Special Juvenile Police Unit; or (b) the local police.

(2) Every report given under sub-section (1) shall be—  (a) ascribed an entry number and recorded in writing; (b) be read over to the informant; (c) shall be entered in a book to be kept by the Police Unit.

(3) Where the report under sub-section (1) is given by a child, the same shall be recorded under          sub-section (2) in a simple language so that the child understands contents being recorded.

(4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.

(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed.

(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).[3]

The section 20 deals with the obligates media, studio and photographic persons to report to local police or special juvenile police unit about the cases under this chapter.

S.20. Obligation of media, studio and photographic facilities to report cases.—Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.[4]

The section 21 of the act deals with the punishment for failing to report the commission of an offence under the section 19. Which up to 6 months to 1 year, or a fine, or both prescribe under section.

S.21. Punishment for failure to report or record a case.—(1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.  (2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine. (3) The provisions of sub-section (1) shall not apply to a child under this Act.[5]

Before the Protection of Children from Sexual Offences (POCSO) Act, in India there are certain legislation which are dealing with the issue of Child Sexual Abuses, those are:

  1. Goa Children’s Act, 2003: The legislation enacted by the government of the Indian state of Goa to ensure the protection and welfare of children.  It likely covers various aspects such as child welfare, protection from abuse, education, and other rights and provisions aimed to safeguarding the interests of children in the state.
  2. Indian penal code, 1860, Sections: 375 (Rape), 354 (Outraging the modesty of a woman), 377 (Unnatural offences).[6]

SUPREME COURT JUDGEMENTS RELATED TO MANDATORY REPORTING

  1. Shankar Kisanroa Khade vs. State of Maharashtra (2013):  The supreme court of India declared that “it is a serious crime when anybody fails to report a crime after learning that a minor child under the age of 18 was the victim of any sexual assault.”  This decision increased the duty placed on a number of professional groups, including doctors and administrators of educational institutions, to report any instances of child sexual abuse to the closest Juvenile Justice Board or Special Juvenile Police Unit.  This presented a dilemma for medical professionals because it is against their professional ethics to reveal their patients identities.[7]
  2. X Vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022): Under the direction of Chief Justice DY Chandrachud, a three-judge Supreme court bench attempted to reconcile the Protection of Children from Sexual Abuse required report in clause with the Medical Termination of Pregnancy Act of 1971 confidentiality clause, The bench cited situations in which minors could consult a Registered medical abortion resulting from consenting to sex.  It acknowledged that minors or their guardians might be reluctant to comply with the mandatory reporting requirement in order to stay out of the legal system and instead seek an abortion from an unfit doctor.[8]

EFFECTIVENESS OF MANDATORY REPORTING LAWS IN PREVENTING ABUSE

The primary goal of POCSO Act is to address child sexual abuse cases after they have happened, as opposed to trying to prevent them completely.  However, there are a number of ways to evaluate its indirect effectiveness in preventing child sexual abuse:

Through these mechanisms, the POCSO Act plays a critical role in preventing child sexual abuse; however, the effectiveness of the act depends on a number of factors including the implementation of its provisions, the distribution of resources for supports services, and stakeholder collaboration.  Enhancing the Act’s efficacy in preventing child sexually abuse requires ongoing efforts to fortify prevention tactics, increase awareness, and address systemic issues.

MEASURES TO ENHANCE ITS EFFICACY

By establish accessible and confidential reporting mechanisms like as helpline, online portals, and child-friendly complaint centers, and the state has to conduct specialized training programs for judges to enhance their understanding of child rights and the legal aspects of child sexual abuse cases.  The Integrated Child Protection Scheme (ICPS) can be leveraged for coordination among different stakeholders, including police, healthcare professionals, and child welfare committees, to address child abuse cases effectively.

The state has to establishing child friendly Specialized Adoption Agencies (SAAs) and Child Care Institutions (CCIs) can provide shelter, rehabilitation support to child victims of sexual abuse and counseling.  The Government has to collaborate with organization like Child Rights and You (CRY), etc, to support the implementation of child protection laws, including the POCSO Act.

DEFECTS OF PROTECTION OF CHILD FROM SEXUAL ABUSE (POCSO)ACT, 2012

The POCSO Act was enacted in 2012, it mainly for the protect the child from any form of sexual abuse by others, punishments for the offences, reporting procedure and incorporate child-friendly mechanisms for reporting, recording of evidence, investigation, and speedy trial of offence through designated special courts. But in India the child rape cases, covering various forms of penetrative assaults, have increased by 96% from 2016 to2022, according to the analysis of NCRB data by child rights NGO CRY.  The rise is attributed to improved public awareness leading to more reported case of sexual offence against children.

In 2022 alone, 38,911 cases of child rape and penetrative assaults were reported, marking a significant increase from 36,381 cases in 2021.  The number for 2020 were 30,705, and for 2019, 31,132.  In 2018, 30,917 cases were reported in 2017. The year 2016 saw 19,765 recorded cases, according to the NCRB data.[9]

The NCRB’s 2020 data is the most recent available.  From 2017, offences under the POCSO Act read the section 377 of IPC and under the section 17 to 22 of the POCSO Act have been included in the NCRB report under separate headings, unnatural offences against minors were not covered by the POCSO Act and were reported separately as IPC crimes prior to this.  Data based on the child victim’s sex since 2017 was also included in the report.

The India Child Protection Fund (ICPF) the NGO whom publishes a research paper on the topic on ‘Justice Awaits: An Analysis of the Efficacy of Justice Delivery Mechanisms in Cases of Child Sexual Abuse in India’. In that paper they reported more than 2.43 lakhs of cases under POCSO Act were pending in Fast-Track Special Court (FTSCs) as on January 31, 2024 despite the central government’s robust policy and financial commitment, and in 2022d, the number of such cases that resulted in conviction remained a mere 3% nationally.  And also the NGO said that even if no new cases area added to the list, the country will need at least 9 years to clear this backlog.[10]

While the pendency rate dropped from 31% to 28%, the police’s charge sheeting rate for POCSO cases increased from 94.2% in 2016 to 94.7% in 2020.  The percentage of convicted cases out of all trials, or the conviction rate, grew from 29.6% in 2016 to 39.6% in 2020, while the courts pendency rate increased from 88.8% to 94.7%. Even though fast-track courts have been established specifically for POCSO trials that need to be completed quickly, there is still high backlog of cases. As of January 31, 2022, over 2.26 lakhs cases registered under the POCSO were pending in POCSO courts, according to the response presented to the Lok Sabha in march 2022.  The ministry of law and justice stated in the same response that the government had launched a plan to establish 1,023 Fast Track Special Courts, including 389 exclusive POCSO (ePOCSO) courts in 31 states and UTs to expedite the trials and resolution of rape and POCSO registration.[11]

CONCLUSION

The problem of child sexual abuse is multi faceted nature in the society, It cannot be simply resolved with only by the approach of mandatory reporting, instead of one approach we may better use the David Finkelhor’s “Four preconditions to child sexual abuse” describes a process that involves: the development of motivation to abuse; the overcoming of conscience; the avoidance or manipulation of potential protectors (termed “external inhibitors”); and the grooming and abuse of the child victim.[12]  And the government has to take preventive steps to avoid child abuse rate, and the cases were to be handled politely by police or authorities towards the victims with affecting their inner trauma and promote the speedy trial to the cases filed in the POCSO.

REFERENCES

  1.  The Protection of Children from Sexual Offences (POCSO) Act, No. 32, 2012, Act of parliament, 2012, (India).
  2.  The Indian Penal Code, 1860, Act No. 45 of 1860, (India).
  3. Ksg india, https://www.ksgindia.com/study-material/news/how-does-the-mandatory-reporting provision-under-POCSO-work.html (last visited April 28, 2024)
  4. Panchami Manjunatha, Mandatory reporting of child sexual abuse offences call for reform in the POCSO act, the leaflet.in, March 7, 2023, https://theleaflet.in/mandatory-reporting-of-child-sexual-abuse-offences-call-for-reform in-the-POCSO-act/
  5. psychotherapy, https://www.psychotherapy.org.uk/news/preventing-child-sexual-abuse/ (last visited April 28, 2024).
  6. Economic Times,https://m.economictimes.com/news/india/child-rape-cases-soar-by-96-per-cent-from-2016-to-2022-due-to-higher-reporting-cry-analysis/articleshow/107202636.cms (last visited April 28, 2024).

[1] World Health Organization, https://iris.who.int Report of the consultation on child abuse prevention (WHO/HSC/PVI/99.1), (April 8th, 2024, 9:44 PM ).

[2] Putnam FW., Ten-year research update review: Child and Adolescent Psychiatry. 2003; 42(3):269-78.

[3] The Protection of Children from Sexual Offences (POCSO) Act, 2012, section 19, No. 32,  Act of Parliament, 2012, (India)

[4] The Protection of Children from Sexual Offences (POCSO) Act, 2012, section 20, No. 32, Act of Parliament, 2012, (India)

[5] The Protection of Children from Sexual Offences (POCSO) Act, 2012, section 22, No. 32, Act of Parliament, 2012, (India)

[6] The Indian Penal Code, 1860, Section 375,354,377, Act No. 45 of 1860,(India)

[7] Shankar Kisanroa Khade vs. State of Maharashtra, (2013), 5 SCC 546

[8] X Vs. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi (2022), 2022/INSC/740.

[9] Crime in India, 2016, 2017, 2018, 2019, 2020, 2021, 2022, National Crime Records Bureau, Ministry of Home Affairs. (https://ncrb.gov.in/sites/default/crime%20in%20India%202018%20-%20Volume%201.pdf).

[10] India Child Protection Fund, Justice Awaits An Analysis of the Efficacy of Justice Delivery Mechanisms in Cases of Child Sexual Abuse in India, WorldPress.com, 2023.

[11] Pavithra K M, Data: POCSO cases increased by 30% in 5 years while pendency rate in Courts crossed 94%, https://factly.in, (7th April 2024, 2:57 PM).

[12] Finkelhore’s, Carlos A. Cuevas, Dara Drawbridge, The Four Preconditions Model, https://onlinelibrary.wiley.com: 1984

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