The Law Commission has proposed some amendments to the Protection of Children from Sexual Offences Act to deal with cases wherein there is tacit approval, but not legal consent, from children aged 16 to 18 years.
The Law Commission has advised the government not to tinker with the existing age of consent under the POCSO Act and suggested introducing guided judicial discretion in the matter of sentencing in cases involving tacit approval of children in the 16-18 age bracket.
The commission, in its report submitted to the law ministry, said the amendments are necessary as such cases do not merit to be dealt with the same severity as the cases that were ideally imagined to fall under the POCSO Act.
Over the years, the POCSO Act, which seeks to protect children from sexual assault, sexual harassment, and pornography, has often come in conflict with the role of consent in determining the nature of relationships between adolescents.
The act defines a child as a person aged below 18.
According to Section 6 of the POCSO Act, "Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person and shall also be liable to fine, or with death."
However, the law panel has suggested that certain amendments need to be brought in the POCSO Act to remedy the situation in cases wherein there is tacit approval, though not consent in law, on part of the child aged between 16 and 18 years.
The proposed changes aim to provide greater discretion to special courts in cases where the child involved in the offence is aged 16 or above and has had an intimate relationship with the accused.
The commission has highlighted various factors that should be considered when determining the sentence in such cases.
Under the recommended amendments, special courts would be allowed to impose a lesser sentence than the minimum prescribed under sub-section (1) of the POCSO Act. The decision would be based on a thorough evaluation of the facts and circumstances surrounding each case.
Special courts would consider various factors when determining the sentence, including whether there was tacit approval from the child, though not consent in law, for the acts leading to the offence.
They would also assess the age difference between the accused and the child, ensuring it is not more than three years.
Moreover, the court would evaluate the accused's criminal history, conduct after the offence, and confirm the absence of undue influence, fraud, misrepresentation, coercion, force, violence, or deceit perpetrated on the child, according to the law panel recommendation.
Additionally, the court would verify that the accused was not in a dominating position to intimidate the child, parents, relatives, or witnesses, and that there is no evidence of child trafficking or manipulation of the child's social or cultural background.
Importantly, the court would ensure that the child was not used by the accused for pornographic purposes or any illegal or immoral activity, the commission said.
