Penetrative Sexual Assault and Its Aggravated Form

In one line

Section 3 defines the core offence in four ways, section 4 punishes it, section 5 lists twenty-one circumstances that aggravate it, and section 6 punishes that.

In exam wording: sections 3 to 6 of the Protection of Children from Sexual Offences Act, 2012 define and punish penetrative sexual assault and aggravated penetrative sexual assault.

Why the law has this at all

The offence of rape in the Indian Penal Code was drafted around a woman's body and a man's act, and neither half fitted a child.

The victim. A boy could not be raped in law. POCSO's section 3 begins "A person is said to commit penetrative sexual assault if" and never names a gender on either side.

The act. The Code's definition turned on penetration of the vagina. A child may be assaulted in ways that do not answer that description at all, and section 3 therefore has four clauses: penetration by the penis into the vagina, mouth, urethra or anus; insertion of any object or part of the body other than the penis into the vagina, urethra or anus; manipulation of any part of the child's body so as to cause penetration; and the application of the mouth to the penis, vagina, anus or urethra.

Each of the four also carries the words "or makes the child to do so with him or any other person", which is the provision that catches the offender who does not touch the child himself but makes the child perform the act.

And there is no reference to consent anywhere in section 3. A child cannot consent, so the section does not ask.

Section 5 then does what the Code never did: it makes the identity of the offender an aggravating circumstance in its own right. A police officer, a member of the armed forces, a public servant, the staff of a jail or a hospital or a school, a relative, anybody in a position of trust or authority. That is because the great majority of these offences are committed by somebody the child knows and cannot refuse.

Some words this chapter uses

Gang penetrative sexual assault is defined by the Explanation to section 5(g).

Position of trust or authority, section 5(p), is not defined, and is deliberately wide: it operates in an institution or home of the child or anywhere else.

Imprisonment for the remainder of natural life is the Act's own formula in sections 4(2) and 6(1).

Section 3: the definition

A person is said to commit "penetrative sexual assault" if:

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child, or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child, or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child, or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus or urethra of the child, or makes the child to do so to such person or any other person.