Sexual offences against minors under BNS – Easy Explanation - Sexual offences against minors under BNS

This article is written by Saket Dwivedi, A 3rd year Law student studying in Brainware University, Kolkata and the article deals extensively about Sexual offences against minors under Bhartiya Nyay Sanhita BNS 2023.

Table of Contents

INTRODUCTION

Preventing children from sexual crimes is undeniably important for any legal system to function correctly. As one of the most delicate categories in society, children need to be given specific attention for their proper growth and development. As a step towards a more unified legal framework, India developed the Bhartiya Nyaya Sanhita (BNS), which replaces the Indian Penal Code (IPC) and the newly enacted criminal law deals with sexual offences against minors under BNS.

Sustaining sexual abuse against minors not only causes immediate physical harm but also leaves some dire mental issues in the minds of the victims which are life-threatening. Most victims of abuse are sure to be diagnosed with PTSD (post-traumatic stress disorder), as well as anxiety, depression, and a range of other lifetime mental troubles that can hinder their personal and professional life.

Providing justice to survivors and receiving the right attention will greatly enhance their ability to function and perform in society. Additionally, the families of victims tend to suffer emotional, and economic distress and face social embarrassment which deepens their anguish. With this in mind, laws are to be formulated that do not just focus on punishing the accused but offer sufficient assistance to the victims and families.

In spite of stringent laws such as the Protection of Children from Sexual Offenses (POCSO) Act, there are gaps in implementation which causes the delay in providing justice and reporting of the crime. With the introduction of the Bhartiya Nyaya Sanhita, the legal structure is more comprehensive with the addition of harsher punishment, increased digital tracking, and advanced safeguarding of children.

On its own, however, the law will not change anything; it requires a holistic method with education, sensitization, and engagement of the community to foster an environment of safety and protection for children.

In dealing with the issue approach here follows a particular sequence:

1. What – Their definition and the limits of scope of sexual offenses under BNS.

2. Why – The significance of stringent legal provisions and the impact on society.

3. How – Methods of implementing such measures and enforcing them.

4. When – The timeline and the milestones concerning legislation on child protection.

5. Whom – The subject matter of these questions includes primary beneficiaries and enforcers of these laws.

6. Where – The scope, comparisons with other jurisdictions, and international law.

STEP 1: What are the sexual offences against minors under BNS?

The BNS includes sections addressing crimes with sexual elements committed against children, such as the following:

Definition and Scope of sexual offences against minors under BNS

Sexual offenses against minors include use of children in very abusive activities like rape, child molestation, child harassment, child exploitation, and child pornography.
The BNS classifies the offenses and provides for punitive measures for each and every type of crime committed against the violation.
The law includes crimes with the use of violence and without violence, including the use of information and communication technology.
The law provides for the criminal liability of preparing a child for sexual activities and sexual abuse, making it easier to prosecute offenders for these crimes.
The law now also provides for enabling the child’s psychological abuse in the name of sexual exploitation, thereby widening the net of aid.
Special provisions now also extend to individual offenders being people in trusted positions, teachers, caregivers, and even religious leaders facilitating abuse within the institutions.
The law ensures that the attempts of these sexual crimes against children are also made offenses to further eliminate opportunities to exploit the child.

STEP 2: Why are the provisions of sexual offences against minors under BNS important?

The phenomenon of child abuse has brought forth conspicuous and obvious provisions of the law, presenting ample opportunities to willingly abuse children.
It is recurrently recognized that the achievement and enforcement of this policy serve justice for the victims and actively render further crimes.
A clearly written legal framework builds trust among victims for reporting cases without any fear of stigma.
The incorporation of cyber safety clauses in BNS makes it more relevant in today’s world where minors are particularly susceptible to online abuse and exploitation.

STEP 3: How the law of sexual offences against minors under BNS is enforced?

Law enforcement officials have been given more discretion in terms of investigating and prosecuting crimes to enhance their effectiveness on the matter.
Introduced victim protection programs to guarantee the confidentiality and safety of survivors at all stages of legal processes.
Persistent offenders are liable to harsher sentences like supervised probation for life.
Matters relating to children shall be dealt with very high degree of care in that the taking of the statements must be done in a manner and language which the child can easily understand.

STEP 4: When the reforms of sexual offences against minors under BNS introduced ?

The BNS was enacted in 2023 as part of India’s comprehensive legal reforms intended to enhance the protection of children.
These amendments are aimed at rectifying the apparent gap noted due to the increased technological advancement and its use for the commission of offenses against minors.
The law considers the proposals made by child rights activists and other legal instruments.
New rules stipulate that there shall be heavier fines for recidivists, as well as more comprehensive controls on online services to combat the distribution of child sexual exploitation material (CSEM).
The creation of specialized courts intended for the protection of children aims to define the child’s legal proceedings to make it as simple as possible so that children do not have to undergo undue hardship from lengthy court prosecutions.
The NCPCR has been assigned more functions to monitor the observance of the child protection legislation.

STEP 5: WHO DO THESE LAWS AFFECT?

Victims of child sexual abuse and their relatives.
Law enforcement agencies and courts.
Teachers, school management, and other childcare institutions.
Non-profit associations that support children’s rights.
Uses of services who make available online content have a duty to supervise and block any exploitation of a child on the internet.

STEP 6: WHERE ARE THESE LAWS APPLICABLE?

The laws apply to cases occurring in homes, schools, online spaces, and public places.
Special focus is placed on cases involving digital exploitation, with enhanced monitoring measures in place.
Courts have been given the authority to conduct in-camera proceedings to protect victims’ identities.
Cross-border offenses involving human trafficking for sexual exploitation are now explicitly covered, ensuring international cooperation in combating these crimes The Progression of Child Maltreatment Laws Through History

HISTORICAL EVOLUTION OF LAWS PROTECTING MINORS

The historical timeline for laws surrounding the abuse and exploitation of minors can be broken into major periods and eras on a global scale:

Before the Period of Independence: The laws outlined against the abuse and exploitation of children were very basic and unpronounced, and the legal systems existing under colonial rule did not give any importance to the welfare of children.
Reforms After Independence: The inclusion of the Indian Penal Code (IPC) did serve the purpose of prosecuting specific sexual crimes, but it failed to deliver justice for children who were victims.
POCSO Act (2012): The enactment of the POCSO Act was one of the most crucial milestones in the legal framework of India, which provided for provisions of gender-neutral protection, strict punishments, and the establishment of children-friendly courts.
Bhartiya Nyaya Sanhita (2023): The newest iteration comprehensively consolidates laws dealing with sexual offenses to make them more robust.

CATEGORIES OF SEXUAL OFFENSES UNDER BNS

BNS has placed sexual offenses in a subdivision of progressive categories depending on the intensity and depth of physical and mental impact abuse causes. Some major classifications include the following:

Rape and Aggravated Sexual Assault
Does not fall under the control of any provisions of the rule.
Higher punishment options such as life imprisonment and even the death sentence for heinous acts.
Sexual Harassment and Molestation
Encompasses inappropriate touching, stalking, and verbal abuse
Non-Usage of Measures for Institutional Abuse
Child Pornography and Online Exploitation
Penalties imposed for the possession, distribution, or creation of child sexual abuse material will be harsh.
Internet platforms are tasked with the obligation to monitor and report infringement.

OBSTACLES IN BNS ENFORCEMENT

The laws in place are protective, however, several issues regarding the complete safety of children persist:

Crime Reporting Gaps
Social stigma causes discomfort, thus making people less likely to report the abuse.
People take too long to inform the authorities because they are not well-informed.
Delays in Justice Delivery
Courts being busy with too many cases are taking more time than expected.
There is a gap in health coverage needed for child abuse cases.
A Deficit of Aftercare for Victims
There are not enough facilities to provide therapy and recovery aid to victims.
There is a need for more designated child protection social workers.
Online and Cyber Victimization
Increased incidents of online stalking and pornography remain unnoticed.
There must be more regulations and supervision over service providers.

CONTRIBUTION OF STAKEHOLDERS TO THE IMPLEMENTATION PLAN

1. Law Enforcement

Training of police forces to use more appropriate techniques for investigations which include children.
Action taken on reported incidents should be much more prominent.

2. Courts

Ensuring fast-track courts for expeditious justice.
The child victim’s identity must not be exhibited to the public during trial.

3. Schools and Educational Institutions

Child safety policies are enforced.
Special Programs for students and teachers are held.

4. Parents and Society

Encouraging frank dialogues pertaining to child safety.
Speaking and reporting concerning activities without the fear of stigma.

CASE LAW

A relevant case law related to protecting minors from sexual offenses under Indian law is:

1. Independent Thought v. Union of India (2017) 10 SCC 800

Key Highlights:

This case challenged the exception under Section 375 of the Indian Penal Code (IPC) that allowed marital rape for girls aged 15 to 18.
The Supreme Court ruled that sexual intercourse with a minor wife (below 18 years) would amount to rape, even if the marriage was valid.
The judgment emphasized that child marriage cannot be used as a defense for sexual exploitation and reinforced the importance of child protection laws.
This rule aligned with the Protection of Children from Sexual Offenses (POCSO) Act, 2012, which criminalized all forms of sexual exploitation against minors.

Significance:

Strengthening the legal framework for child protection under POCSO and Bhartiya Nyaya Sanhita (BNS).
Recognized the vulnerability of child brides and ensured they were protected from sexual exploitation.
Marked a significant step in India’s compliance with international child rights conventions.

CONCLUSION

The issue of protection of a child against sexual offenses is a serious legal and socio-psychological obligation. The Bhartiya Nyaya Sanhita complements the existing legal structures with provisions for harsher punishment, greater digital surveillance, and more intrusive legal proceedings into the lives of the victims. But, like many laws in India, its implementation faces obstacles like judicial tardiness and ignorance among the populace.

Bharat would require an intensive effort from every sector of its society like enforcement agencies and judiciary, educational institutions, parents, and civil society for its effective enforcement. When warranted, such measures will consider children as the subject of legal protection, speed up the delivery of justice, and provide child-friendly and sophisticated technology interventions. Strengthening institutional response and awareness would enable India to take a giant leap in eliminating child sexual abuse and protecting the rights of its youngest citizens.