Can Women Be Prosecuted Under Section 3 of POCSO Act?

The Text of the Law Supports Gender Neutrality:

▪ General Clauses Act Interpretation:
Section 13(1) of the General Clauses Act, 1897 states:
“Words importing the masculine gender shall be taken to include females.”
➡ Therefore, the use of the pronoun “he” in Section 3 of POCSO includes female perpetrators, unless the context explicitly states otherwise.

▪ Scope of Penetrative Sexual Assault Under POCSO:
Section 3 covers more than penile penetration. It includes:
✦ Digital penetration: Acts involving fingers or similar objects.
✦ Object penetration: Using any object to penetrate.
✦ Oral penetration: Any sexual penetration through the mouth.
✦ Making a child perform penetration: The provision also includes acts where a child is made to perform penetration on the offender or a third person.

Legislative Intent Shows a Deliberate Gender-Neutral Design:

▪ Official Statements:

• Ministry of Women & Child Development (Lok Sabha, Dec 20, 2024): POCSO “is a gender-neutral Act.”

• POCSO Amendment Bill, 2019 (Statement of Objects & Reasons): Act explicitly described as “gender neutral.”

▪ Misinterpretation Clarified:

• Some ministry responses emphasised protection of boys as victims.
  ➡ This does not restrict perpetrators to males; gender neutrality applies to both victims and offenders.

▪ Contrast With BNS (Former IPC) Definition of Rape:

• Section 63 of BNS (earlier IPC 375): “A man commits rape against a woman.”
  ➡ Clearly gender-specific.

• POCSO does not use similar male-only language, reflecting a deliberate gender-neutral legislative choice.

Normative and Child-Protection Reasons for Gender Neutrality

▪ Supreme Court on Child Sexual Abuse:

• Sakshi v. Union of India (2004): Child sexual abuse involves diverse acts beyond penile-vaginal penetration.
  ➡ Laws must account for this diversity.

▪ Reality of Abuse Patterns:

• Majority of POCSO cases: male perpetrators, female victims.

• Research and survivor accounts confirm: women can also commit sexual offences against children.

▪ Importance of Gender-Neutrality:

• Gender-specific reading would:
  ✦ Erase experiences of victims abused by women.
  ✦ Deny justice in such cases.
  ✦ Undermine the law’s protective purpose.

Conclusion:

• POCSO should be read as gender-neutral for both victims and perpetrators.

• This interpretation aligns with:
  ✦ The statutory text.
  ✦ Legislative intent.
  ✦ The law’s purpose of safeguarding children.