India is the home to largest number of sexually abused children:WHO.POCSO act protects such children but what is the dilemma faced by a doctor when such a victim becomes his patient?
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POCSO ACT AND DOCTOR'S DILEMMA
3. CHILD SEXUALABUSE
India shelters 430 million children, approximately
one in five children (individuals under age 18) in
the world.
The government assesses that 40 % of India's
children are susceptible to intimidations such as
trafficking, homelessness, forced labour, drug
abuse, and crime.
4. Every 2nd child is being exposed to one or the other
form of sexual abuse and every 5th child faces critical
forms of it.
India has the dubious distinction of having the world's
largest number of sexually abused children; with a child
below 16 years raped every 155th minute, a child below
10 every 13th hour and one in every 10 children sexually
abused at any point of time.
5. In 2006, a study on CSA was conducted on 2211
class XI students, girls and boys, who had
different socioeconomic upbringing and attended
mainstream schools by the Chennai-based NGO
Tulir – Centre for Prevention and Healing of
Child Sexual Abuse, and international
organisation Save the Children. The results
showed that 939 (42%) out of 2211 children had
faced at least one form of sexual abuse at some
point in time. 39 per cent of the girls faced sexual
abuse, compared to 48 per cent of the boys.
6. Another significant study at the pan Indian level has
been the National Study on Child Abuse (2007). This
study, which is the largest of its kind, covered 13 states
with a sample size of 12447 children, 2324 young adults
and 2449 stakeholders.
The National Study reported the following:
53.18 % children in the family environment not going to
school reported facing sexual abuse.
49.92% children in schools reported facing sexual abuse.
50% abusers are persons known to the child or in a
position of trust and responsibility.
7. A survey conducted in 2017
participated in by more than 45,000
children in the 12- 18 age group,
across 26 states in the country,
revealed that one in every two
children is a victim of child sexual
abuse. Conducted by World Vision
India with a sample of 45,844
respondents, the survey also revealed
that one in every five do not feel safe
because of the fear of being sexually
abused. It also found that one in four
families do not come forward to
report child abuse.
8. A sexual offence is committed against a child in India
every 15 minutes and there has been an increase of more
than 500 percent over the past 10 years in crime against
minors, an analysis by child rights NGO CRY has found.
There has been a significant increase in crimes against
minors of more than 500 per cent over the past 10 years
with 1,06,958 cases being reported in 2016 over a figure
of 18,967 in 2006," the Child Rights and You (CRY)
analysis also said.
11. INDIAN PENAL CODE
I.P.C (1860) – Sec 375 Rape
I.P.C (1860) – Sec 354 Outraging the
modesty of women
I.P.C (1860) – Sec 377 Unnatural Offences
I.P.C 375 doesn’t protect male victims or
anyone from sexual acts of penetration other
than “traditional” peno-vaginal intercourse.
12. IPC 354 lacks a statutory definition of “modesty”. It
carries a weak penalty and is a compoundable offence.
Further, it does not protect the “modesty” of a male
child.
In IPC 377, the term “unnatural offences” is not defined.
It only applies to victims penetrated by their attacker’s
sex act, and is not designed to criminalize sexual abuse
of children.
13. OTHER LEGAL PROVISIONS
Section 357C Code of Criminal Procedure, 1973:-
This Section provides that all hospitals are required to
provide first-aid or medical treatment, free of cost, to the
victims of a sexual offence.
Section 166B of Indian Penal Code, 1860:-
1) No hospital whether the private or public can deny treatment
to a rape victim.
2) Treatment should be provided immediately and free of cost.
3) If a hospital staff is involved in rape, then law dictates
punishment for a minimum of seven years
14. POCSO ACT, 2012
A comprehensive law to provide for the protection of
children from the offences of sexual assault, sexual
harassment and pornography, while safeguarding the
interests of the child at every stage of the judicial process
by incorporating child-friendly mechanisms for
reporting, recording of evidence, investigation and
speedy trial of offences through designated Special
Courts.
15. WHY POSCO?
The laws needed to be more stringent
IPC did not provide sufficient protection against child
abuse
Children deserve special care :The Constitution of India
protects children
Article 15(3) permits the State to make special provisions for
children
Article 39 (e) and (f) requires the State to protect children of
tender age from abuse, to be provided equal opportunities and
facilities to develop in a healthy manner and to be protected
from exploitation and moral and material abandonment
16. FEATURES OF POSCO
POCSO ACT defines a child as a person under the age of
18 year.
It criminalises all forms of assault not merely penetration
Criminalises watching or collecting porn involving
children
abetment of child sexual abuse an offense
Under Sec 20 of the act under chapter V, hospital or
employees are required to report sexual abuse
criminalize consensual sexual intercourse between two
people below the age of 18
17. 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, all other Government functionaries as well as
Non-Government Organisations, and all professionals
and experts assisting the child at the trial and pre-trial
stages are bound to abide by these principles.
18. PRINCIPLES:-
Right to life and survival
The best interests of the child
The right to be treated with dignity and compassion
The right to be protected from discrimination
The right to special preventive measures
The right to be informed
The right to be heard and to express views and concerns
The right to effective assistance
The right to privacy
The right to be protected from hardship during the justice process
The right to safety –
The right to compensation
19. REPORTED CASE OF CHILD ABUSE
POSCO – State wise cases –
Uttar Pradesh led the highest number of child abuse
cases (3,078)
Madhya Pradesh (1,687 cases)
Tamil Nadu (1,544 cases)
Karnataka (1,480 cases)
Gujarat(1,416cases).
21. INITIAL MANAGEMENT OF CHILD
SEXUALABUSE
Every case of sexual assault is a medical emergency for
which free treatment is mandatory at government or
private medical facilities, and no document or precondition
is necessary for providing emergency medical care.
A victim of CSA may approach a health facility directly for
treatment, with a police requisition after police complaint,
or with a court directive. The hospital is bound to provide
treatment and conduct a medical examination with consent
of the child/parent/guardian, depending upon the age of the
child.
22. The victim may or may not want to lodge a
complaint, but requires medical examination and
treatment. In such cases, the doctor is bound to
inform the police as per law.
However, neither court nor the police can force
the survivor to undergo medical examination
without an informed consent of the
child/parent/guardian.
If the victim does not want to pursue a police
case, a medico-legal case (MLC) must be made
and an informed refusal documented.If the victim
has reported with a police requisition or wishes to
lodge a complaint later, the information about
MLC number and police station must be recorded.
23. DUTY PRESCRIBED BY LAW
Section 27 – Medical Examination:
27. (1) The medical examination of a child in respect of
whom any offence has been committed under this Act,
shall, notwithstanding that a First Information Report
or complaint has not been registered for the offences
under this Act, be conducted in accordance with section
164A of the Code of Criminal Procedure, 1973.
(2) In case the victim is a girl child, the medical
examination shall be conducted by a woman doctor.
24. (3) The medical examination shall be conducted in the
presence of the parent of the child or any other person
in whom the child reposes trust or confidence.
(4) Where, in case the parent of the child or other person
referred to in sub-section (3) cannot be present, for
any reason, during the medical examination of the
child, the medical examination shall be conducted in
the presence of a woman nominated by the head of the
medical institution
25. Rule 5 - Emergency medical care:
(1) Where an officer of the SJPU, or the local police
receives information under section 19 of the Act that
an offence under the Act has been committed, and is
satisfied that the child against whom an offence has
been committed is in need of urgent medical care
and protection, he shall, as soon as possible, but not
later than 24 hours of receiving such information,
arrange to take such child to the nearest hospital or
medical care facility centre for emergency medical
care: Provided that where an offence has been
committed under sections 3, 5, 7 or 9 of the Act, the
victim shall be referred to emergency medical care.
26. (2) Emergency medical care shall be rendered in such a
manner as to protect the privacy of the child, and in
the presence of the parent or guardian or any other
person in whom the child has trust and confidence.
(3) No medical practitioner, hospital or other medical
facility centre rendering emergency medical care to a
child shall demand any legal or magisterial
requisition or other documentation as a pre-requisite
to rendering such care.
27. (4) The registered medical practitioner rendering
emergency medical care shall attend to the needs
of the child, including -- (i) treatment for cuts,
bruises, and other injuries including genital
injuries, if any;
(ii) treatment for exposure to sexually transmitted
diseases (STDs) including prophylaxis for
identified STDs;
(iii) treatment for exposure to Human
Immunodeficiency Virus (HIV), including
prophylaxis for HIV after necessary consultation
with infectious disease experts;
28. (iv) possible pregnancy and emergency contraceptives
should be discussed with the pubertal child and her
parent or any other person in whom the child has trust
and confidence; and,
(v) wherever necessary, a referral or consultation for
mental or psychological health or other counselling
should be made.
(5) Any forensic evidence collected in the course of
rendering emergency medical care must be collected in
accordance with section 27 of the Act.
29. 2. EMERGENCY MEDICAL CARE:
The child may be brought to the hospital for
emergency medical care as soon as the police
receive a report of the commission of an offence
against the child. In such cases, the rules under the
POCSO Act, 2012 prescribe that the child is to be
taken to the nearest hospital or medical care
facility. This may be a government facility or a
private one.
30. This is reiterated by Section 23 of the Criminal Law
Amendment Act, which inserts Section 357C into the
Code of Criminal Procedure, 1973. This section provides
that all hospitals are required to provide first-aid or
medical treatment, free of cost, to the victims of a sexual
offence
31. 2.1 MEDICAL EXAMINATION
Medical examination is to be conducted as per the
provisions of Section 27 of the POCSO Act, 2012
and Section 164A of the CrPC, 1973 which states:
(1) Where, during the stage when an offence of
committing rape or attempt to commit rape is
under investigation, it is proposed to get the
person of the woman with whom rape is alleged or
attempted to have been committed or attempted,
examined by a medical expert,
32. such examination shall be conducted by a registered
medical practitioner employed in a hospital run by the
Government or a local authority and in the absence of a
such a practitioner, by any other registered medical
practitioner, with the consent of such woman or of a
person competent to give such consent on her behalf and
such woman shall be sent to such registered medical
practitioner within twenty-four hours from the time of
receiving the information relating to the commission of
such offence.
33. 2) The registered medical practitioner, to whom such
woman is sent shall, without delay, examine her and
prepare a report of her examination giving the
following particulars, namely:-
(I) the name and address of the woman and of the
person by whom she was brought;
(II) the age of the woman;
(III) the description of material taken from the person
of the woman for DNA profiling;
(IV) marks of injury, if any, on the person of the
woman;
34. (V) general mental condition of the woman; and
(IV) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each
conclusion arrived at
(4) The report shall specifically record that the consent of
the woman or of the person competent to give such
consent on her behalf to such examination had been
obtained.
(5) The exact time of commencement and completion of
the examination shall also be noted in the report.
35. (6) The registered medical practitioner shall, without
delay forward the report to the investigation
officer who shall forward it to the Magistrate
referred to in section 173 as part of the documents
referred to in clause (a) of sub-section (5) of that
section.
(7) Nothing in this section shall be construed as
rendering lawful any examination without the
consent of the woman or of any person competent
to give such consent on her behalf.
In the above legal provision, the term “woman” may be substituted by the
term “child”, and applied in the context of the POCSO Act, 2012.
36. COMPENSATION FOR MEDICAL EXPENSES:
Section 33(8) provides: “In appropriate
cases, the Special Court may, in addition to
the punishment, direct payment of such
compensation as may be prescribed to the
child for any physical or mental trauma
caused to him or for immediate
rehabilitation of such child.”
37. Rule 7 provides further details in relation to the payment
of this compensation. It specifies that the Special Court
may order that the compensation be paid not only at the
end of the trial, but also on an interim basis, to meet the
immediate needs of the child for relief or rehabilitation at
any stage after registration of the First Information
Report [Rule 7(1)]. This could include any immediate
medical needs that the child may have.
38. Further, Rule 7(3) provides that the criteria to be taken
into account while fixing the amount of compensation to
be paid include the severity of the mental or physical
harm or injury suffered by the child; the expenditure
incurred or likely to be incurred on his/her medical
treatment for physical and/or mental health; and any
disability suffered by the child as a result of the offence.
Hence, the child may recover the expenses incurred on
his/her treatment in this way.
39. MODALITIES OF MEDICAL EXAMINATION
OF CHILDREN
Role of Medical Professionals in the context of the
POCSO Act, 2012 Doctors have a dual role to
play in terms of the POCSO Act 2012. They are
in a position to detect that a child has been or is
being abused (for example, if they come across a
child with an STD); they are also often the first
point of reference in confirming that a child has
indeed been the victim of sexual abuse.
40. The role of the doctor may include:
Having an in-depth understanding of sexual
victimization
Obtaining a medical history of the child‟s
experience in a facilitating, non-judgmental and
empathetic manner
Meticulously documenting historical details
Conducting a detailed examination to diagnose
acute and chronic residual trauma and STDs, and
to collect forensic evidence
41. Considering a differential diagnosis of behavioural
complaints and physical signs that may mimic sexual
abuse
Obtaining photographic/video documentation of all
diagnostic findings that appear to be residual to abuse
Formulating a complete and thorough medical report
with diagnosis and recommendations for treatment
Testifying in court when required
42. When doctor can suspect sexual abuse
There are at least three different circumstances when there
is no direct allegation but when the doctor may consider
the diagnosis of sexual abuse and have to ask questions
of the parent and child. These include but are not limited
to:
when a child has a complaint that might be directly
related to the possibility of sexual abuse, such as a girl
with a vaginal discharge;
43. when a child has no complaint but an incidental finding,
such as an enlarged hymenal ring, makes the doctor
suspicious.
when a child has a complaint that is not directly related
to the possibility of sexual abuse, such as abdominal pain
or encopresis (soiling);
45. SEXUALABUSE OF BOYS
According to the Study on Child Abuse: India 2007 by
the Ministry of Women and Child Welfare which was
supported by The United Nations Children's Fund,
53.22% children faced one or more forms of sexual
abuse; among them, the number of boys abused was
52.94% and of girls was 47.06%.
50. MANDATORY REPORTING:
When a doctor has reason to suspect that a child
has been or is being sexually abused, he/she is
required to report this to the appropriate
authorities (i.e. the police or the relevant person
within his/her organization who will then have to
report it to the police).
Failure to do this would result in imprisonment of
up to six months, with or without fine. (Sec21)
52. TAKING MEDICAL HISTORY
The doctor has to take a detailed medical history of the
child’s experience before beginning the examination of
the child. The history should be obtained in a facilitating,
non-judgmental and empathetic manner. It is important
for the doctor to remember that child sexual abuse is
often a diagnosis based on medical history, rather than
on physical findings.
The medical history will guide the physical examination.
Its objective is not to obtain information for forensic
purposes but for treatment and diagnosis and to ensure
the safety of the child.
54. INTERVIEWING TECHNIQUES
The interview should not have an investigative
tone. Relevant questions need to be asked to
obtain a detailed pediatric history.
Determine child’s verbal and cognitive abilities,
level of comfort, and attention.
Document the questions asked and the child’s
responses verbatim, take a note of their body
language, demeanour and emotional responses to
questioning.
55. Detailed medical history, past
incidents of abuse or suspicious
injuries, and menstrual history
should be documented
Ask the child to identify body
parts; including names for genitalia
and anus (use an anatomically
appreciate diagram). Write the
findings on the diagram in detail.
56. Ask about different types of touch; include kisses,
hugs, tickles, spankings, and pinches or bites. Use
the diagram to ask about all possible abusive touches
and ask about any other times (places) it happened.
It is best to avoid leading and suggestive questions;
instead, maintain a “tell-me-more” or “and-then-
what-happened” approach.
Avoid showing strong emotions such as shock or
disbelief.
57. CONSENT OF THE VICTIM
Consent of parent or the guardian of the child victim
may be asked for the following purposes:
examination, sample collection for clinical and
forensic examination, treatment and police
intimation.
(a) Informed consent
Consent should be informed, i.e. the person
giving the consent should be told about the
purpose, expected risks, side effects, and benefits
of the examination, and the amount of time it will
take.
58. This information should be given before the examination
is conducted, in a form, language and manner that the
child and his parent/ guardian can understand.
(b)Uninformed Consent
A child victim and family may approach a health facility under
three circumstances, and informed consent must be taken in all:
a) On his/her own only for treatment for effects of assault;
b) With a police requisition after police complaint; or
c) With a court directive.
59. If a person has come directly to the hospital without
the police requisition, the hospital is bound to provide
treatment and conduct a medical examination with
consent of the survivor/parent/guardian (depending on
age) Rule 5 (3) POCSO Rules, 2012. Note: Even if the
child or parent doesn’t give consent for medical
examination you can still provide them with medical
treatment.
60. If a child victim has come on his/her own without
FIR, but may require a medical examination and
treatment, even in such cases the doctor is bound to
inform the police under POCSO (Section 20).
Police personnel should not be present during any
part of the examination.
(b) Medical examination for legal purposes After
taking the consent, the examination needs to be
conducted in the presence of a person trusted by the
child (eg. parent / relative / social worker), in the
absence of which, a woman nominated by the
hospital, needs to be present during examination
(Section 27).
62. PHYSICAL TREATMENT
Under Rule 5 of the POCSO Act, 2012 emergency
medical care is to be provided by any medical facility,
private or public; and no magisterial requisition or
other document is to be demanded as a precondition to
providing emergency medical care. Such care includes
treatment for cuts, bruises, and other injuries
including genital injuries, if any. Inpatient care is
recommended if the child’s safety is in jeopardy or if
the child has an acute traumatic injury requiring
inpatient treatment.
63. As often child victims become pregnant or contract STD, it
is therefore, suggested that to prevent Pregnancy and
STDs in sexually abused children
Pregnancy test should be done on girls.
Urine test is as sensitive and accurate as blood test,
and easier for patient
64. The doctor must provide information about emergency
contraception, and, unless medically contraindicated,
offer emergency contraception.
Legally, the child can provide consent and must be given
an assurance of confidentiality for reproductive health
care. The patient must provide informed consent.
If the patient is not able to give informed consent,
consent must be obtained from parents, guardian, or
surrogate decision-maker
65. What is the purpose of a forensic examination?
To ascertain:
Whether a sexual act has been attempted
or completed. Sexual acts include slightest
genital, anal or oral penetration by the
penis, fingers or other objects as well as
any form of non-consensual sexual
touching. However, the absence of injuries
does not imply that no assault occurred or
that the child had consented.
66. Whether such a sexual act is recent.
Whether any injury has been caused to the child’s body.
The age of the child, in the case of adolescent girls/boys.
Whether alcohol or drugs have been administered to the
child.
NOTE: Do not conduct “Two” finger test on victims of
sexual assault. Past sexual experience has no bearing
on the current case of sexual violence.
68. COLLECTION AND PRESERVATION OF
EVIDENCE
Collection and preservation of evidence using the
SAFE Kit –
Do a thorough medical and forensic examination,
as valuable evidence is lost after repeated
examinations.
Preserve the clothes and other relevant material
that the child was wearing at the time of the
incident
69. Collect materials, swabs and samples for DNA profiling/
forensic evidence from hair, nails, body surfaces or
orifices, any product of conception, before washing
/cleaning / before the child urinates / defecates. Collect
blood samples for intoxicants and blood group.
Ensure proper labeling, storage, preservation and chain
of custody is established for samples and materials being
handed over for forensic examination. Critical forensic
evidence, especially DNA, could be lost or contaminated
unless care is taken.
70. For a girl who has attained menarche, Emergency Contraception is advised.
The report has to be prepared as per guidelines, namely: -
Demographic details of the child and the contact details of the
person who brought the child.
The approximate age of the child and two identifying marks.
Materials taken from the child for DNA profiling / forensic
evidence which includes:-
Details about any injury, minor or major, on the body of the
child. Absence of injuries, does not rule out sexual assault.
Mental and emotional condition of the child.
Any other useful information.
72. MEDICO-LEGALAND ETHICAL ISSUES
POCSO Act provides for mandatory reporting of sexual
offences against children, so that any adult, including a
doctor or other health care professional, who has
knowledge that a child has been sexually abused is
obliged to report the offence (Sections 19, 20, 21).
73. However, he or she is not expected to investigate the
matter, or even know the name of the perpetrator. This
should be left to the police and other investigative
agencies. The report may be made to the Special Juvenile
Police Unit, or to the local police station. Alternatively, a
call can be made to the Childline Helpline at toll free
number i.e.1098 and they can then assist the informant in
making the report.
74. The Act does not lay down that a mandatory
reporter has the obligation to inform the child
and/ or his parents or guardian about his duty to
report. However, it is good practice to let
parents/guardians know that action to report will
be taken.
75. This will help establish an open
relationship and minimize the
child’s feelings of betrayal if a
report needs to be made. When
possible, the medical professional
should discuss the need to make a
child abuse report with the family
and with the child if in his/her best
interest, according to the age and
maturity of the child. However, be
aware that there are certain
situations where if the family is
warned about the assessment
process, the child may be at risk for
further abuse, or the family may
leave with the child.
76. Do’s Don'ts
How to Act
Be Patient and calm. Don’t Pressurize the Victim for their Story.
Don’t speak rapidly
Let the victim know you are listening. e.g:-
Nod Your head
. Don’t look at your watch or cell phone.
Attitude
Acknowledge how the victim is feeling Do not judge. Do not say “You should not
feel this way”
Give the victim the opportunity to ask what
they want. You may ask, ”How can we help
you.”
. Do not assume what you think would be
best for them.
Encourage victim to keep talking. You may
ask, “Do you want to tell me more?”
Wait until victim has finished talking before
asking questions.
Allow for silence. Do not finish the victim’s thoughts.
Stay focused on the victim’s experience and
offering them support.
Do not relate somebody else’s story or even
your own experiences.
78. ONE STOP CENTERS (OSC)
The Ministry of Women & Child Development, Govt. of India
is establishing One Stop Centers (OSC) to provide support and
assistance to victims of gender violence .
Thus, comprehensive services, including medical, police,
psychosocial counseling, legal aid, shelter, referral and facilities
for video-conferencing are provided ‘under one roof.’
For those below 18 years, these are undertaken in coordination
with authorities under the Juvenile Justice Act, 2011 and the
POCSO Act, 2012. The scheme is centrally sponsored with
100% financial assistance.
79. ROLE OF MENTAL HEALTH
PROFESSIONALS
Mental health professionals have an important
role in assisting the child and the family during
examination and for comprehensive management
of CSA. Victims of CSA are vulnerable
topsychoemotional distress and may have a
tendency to self-harming behavior. Experts can
counsel the child and help to reduce the
emotional burden of trauma. Appropriate
measures must be taken to prevent further abuse,
trauma and re-victimization.
81. THE LAW HAS PROVIDED FOR
EVERYTHING…
Rich package of punishment to the guilty
Complete medico-legal examination of the survivor.
Intimation to the Law enforcing agencies.
Comprehensive medico-legal examination including
identification of findings and collection of material
evidence
Comprehensive medical care for physical and
psychological trauma.
82. KERALA MEDICO-LEGAL PROTOCOL FOR
EXAMINATION OF SURVIVOR OF SEXUAL
OFFENCES 2015
In partial amendment to Kerala Medico-legal Code 2011
Errors in relation to consent, intimation etc rectified.
History and findings in accordance with the existing
legal provisions
Allied examinations and consultations listed.
Opinion clearly defined.