Daily News Analysis

SEXUAL OFFENCES

13th July, 2021 Polity

Context

  • The Supreme Court has asked trial judges to take care to not reveal the identity of victims in sexual offence cases.

Impact of Social offences

  • Sex related offences are shameful universal phenomena, which take place in every society.
  • Sexual offences aptly take the form of sexual violence, which sometimes cause severe and irreparable damage to the physical and mental health of the victims.
  • Physical injury includes an increased risk of a range of sexual and reproductive health problems.
  • Its impact on mental health can be equally serious as that of physical injury.
  • Sexual offences, when they assume the form of sexual violence may lead to murder, suicide, acute depression, etc. of victims.
  • It entirely disturbs the social well being of the victims because of stigmatisation and the consequential loss of status in their families and the neighbourhood.

 

Legal mechanism to deal with sexual offences

  • The fundamental principles to be followed in the determination of a case involving a sexual offence against a child have been laid down in various international instruments and in the Preamble to the POCSO Act, 2012 itself.
  • The State Governments, the Child Welfare Committee, the Police, the Special Courts, NGO’s and all professionals and experts assisting the child at the trial and pre-trial stages are bound to abide by these fundamentals.

Fundamentals involved while dealing with sexual offences

  • Right to life and survival: Every child has the right to life and survival and to be shielded from any form of hardship, abuse or neglect, including physical, psychological, mental and emotional abuse and neglect; and to a chance for harmonious development and a standard of living adequate for physical, mental, spiritual, moral and social growth.
  • The best interests of the child : Every child has the right to have his/her best interests given primary consideration. This includes the right to protection and to a chance for harmonious development.
  • The right to be treated with dignity and compassion: Child victims should be treated in a caring and sensitive manner throughout the justice process, taking into account their personal situation and immediate needs, age, gender, disability and level of maturity and fully respecting their physical, mental and moral integrity.
  • The right to be protected from discrimination: The justice process and support services available to child victims and witnesses and their families should be sensitive to the child‟s age, wishes, understanding, gender, sexual orientation, ethnic, cultural, religious, linguistic and social background, caste and socio-economic condition, as well as to the special needs of the child, including health, abilities and capacities.
  • The right to special preventive measures: Children may already face twice as much risk of repeated victimisation as adults because they often are or are perceived by a potential o ender as being vulnerable, unsure of how to defend themselves or unable to properly assert themselves and take a strong position against an adult.
  • The right to be informed: There are two aspects of child victims‟ and witnesses‟ right to be informed. The first aspect is the more general one and consists of informing child victims and witnesses about the assistance they are entitled to.
  • The second aspect is more specific and relates to information on the particular case in which the child is involved.
  • The right to be heard and to express views and concerns: Every child has the right to be heard in respect of matters a ecting him/her. The child has a right to participate at all levels.
  • The right to effective assistance: The child must receive the required assistance to address his/her needs and enable him/her to participate effectively at all stages of the justice process.
  • The right to privacy: The child‟s privacy and identity must be protected at all stages of the pre-trial and trial process”.
  • The right to be protected from hardship during the justice process: Throughout the justice process, child victims are exposed to hardship, also referred to as secondary victimization.
  • The right to safety: Where the safety of a child victim may be at risk, appropriate measures should be taken to require the reporting of those safety risks to appropriate authorities and to protect the child from such risk before, during and after the justice process.
  • The right to compensation: The child victim may be awarded compensation for his/her relief and rehabilitation. This compensation may be awarded at an interim stage, during the pendency of trial, as well as at the conclusion of the trial.

Legal Intervention

  • Section 228A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such a victim.
  • Apex court, in the State of Karnataka versus Puttaraja case, had said it would be 'appropriate' if courts do not name the victim in its records.