POCSO Act Section 11 and Section 12: Sexual Harassment and Punishment
Section 11 of the Protection of Children from Sexual Offences Act, 2012 defines sexual harassment of a child where specified conduct is done with sexual intent. Section 12 provides the punishment for the offence.
CHAPTER II - SEXUAL OFFENCES AGAINST CHILDREN | E. SEXUAL HARASSMENT AND PUNISHMENT THEREFOR
Section 11 - Sexual Harassment
Section 11 covers specified conduct directed at a child when it is accompanied by sexual intent. The provision includes words, sounds, gestures, exhibition, electronic or digital contact, threats involving depictions of the child, and conduct connected with pornographic purposes.
A person is said to commit sexual harassment upon a child when such person with sexual intent, -
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation. Any question which involves "sexual intent" shall be a question of fact.
Sexual Intent under Section 11
Sexual intent is an express ingredient of Section 11. The Explanation makes clear that whether sexual intent exists is a question of fact. Its determination therefore depends on the evidence and circumstances of the particular case rather than on a separate statutory presumption in Section 11 itself.
Electronic and Digital Conduct
Clause (iv) expressly includes repeatedly or constantly following, watching or contacting a child through electronic, digital or other means. Clause (v) also covers threats to use a real or fabricated depiction through electronic, film, digital or another mode. The statutory language therefore applies to conduct occurring through modern communications and digital media where the required sexual intent is established.
Section 12 - Punishment for Sexual Harassment
Section 12 is the corresponding punishment provision for sexual harassment of a child under Section 11.
Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Punishment under Section 12
The provision prescribes imprisonment of either description for a term that may extend to three years and also makes the offender liable to fine. Unlike Sections 8 and 10, Section 12 does not prescribe a statutory minimum term of imprisonment.
Meaning of Child under the POCSO Act
Section 2(1)(d) defines a child as any person below the age of eighteen years. Other definitions applicable to the Act are available in Section 2 of the POCSO Act.
Sections 11 and 12 Compared with Other POCSO Offences
Section 11 addresses sexual harassment as specifically defined by that provision. Physical contact with sexual intent without penetration is separately dealt with as sexual assault under Sections 7 and 8, while penetrative sexual assault is dealt with under Sections 3 and 4. Use of a child for pornographic purposes is separately addressed by Section 13.
Official Legal Resources
India Code - Protection of Children from Sexual Offences Act, 2012Ministry of Women and Child Development - PublicationsChild Helpline 1098