Child Sexual Abuse And Law

Ghanshyam Panchariya

KIIT University, Bhubaneswar

Editor’s Note: The paper deals with the law in India pertaining to child sexual abuse, the passing of the Protection of Children from Sexual Offences Act, 2012 which was the first legislation to deal comprehensively with the law relating to child sexual abuse.”

INTRODUCTION

“If we are to teach real peace in this world, and if we are to carry on a real war against war, we shall have to begin with the children.”                                                                                                                                                                                                                                                              -Mohandas Gandhi[1]

It is an undisputed fact that child sexual abuse in India is increasing at the alarming rate. Children from the majority of the country’s population; they are pegged as the future of the country. They carry with them hopes and dreams to achieve greatness. However, the stark reality remains that fifty three percent of Indian children have been subject to some form of sexual abuse.[2] While tackling the numerous issues plaguing society, the safety and security of children have been grossly side lined. The legislature has shown an extreme nonchalance towards taking any step to protect the most vulnerable section of society. The inadequacy of punishment is one such instance of legislative oversight and as a result, children have become victims of brutal instances of sexual abuse. Years of legislative neglect have taken material form with growing instances of sex tourism, pornography, child rape, child trafficking. This pressurized the Ministry of Women and Child Development to expeditiously draft the offences from Children (Prevention) Bill, 2005 and lobby hard for its passage. In 2012, Parliament finally passed the Protection of Children from Sexual Offences Act which has been hailed as a bold step towards the children of our country.

PREVIOUS PROVISIONS

Indian children, who account for an overwhelming forty percent[3] of the entire population of the country, have, until recently, been placed in a state of extreme vulnerability due to the indifference of the legislature. The lack of legal framework protecting children has only encouraged sexual predators. One of the problems is that under the Indian legal system the definition of ‘a child’ differs from the law to law. Irrespective of the various definitions however, there lies a mandatory obligation of Centre and State to provide for and protect children. Article 45 of the Constitution specifies that the state shall endeavour to provide early childhood care and education for all the children until they complete the age of six.[4] It’s a state responsibility and it is embed in the constitutional roots. The Indian penal code states that nothing is an offence done by a child under seven years, and further, under twelve years, till he has attained sufficient maturity of understanding as regards the nature of the Act and the consequences of his conduct thereof.[5] However, while pushing the perpetrators of rape, the cope defines the age of consent to be below sixteen years.[6] Furthermore, for purposes of protection against kidnapping, abduction and related offences, a ‘minor’ is considered to be under sixteen years age in the case of a male and under eighteen years of age in the case of a female. Under the Child Labour prohibition and Regulation Act, 1986, a child is a person who has not completed fourteen years of age. However, the Age of Majority Act, 1875 along with several legislations[7]considers a ‘minor’ to be a person under eighteen years of age. It is pertinent to remember that India is a signatory to the United Nations Convention where child is considered ‘minor’ age less than eighteen years.

In spite of the strong mandate set forth by national and international laws for protecting the rights of a child, the Indian legislature did not step up to fill in the inadequacies with stringent laws. A gaping loophole can be seen in the Indian Penal Code where code is silent on child sex abuse. The lack of legislative recognition of child sexual abuse as a criminal offence often forces prosecutors to rely on generalized provisions which are not equipped to deal such abuse. In attempt to criminalize sexual offences, the laws enacted for women, protecting them against sexual offences, were extended to include children. However, this resulted in criminalizing offences only against female children who were subjected to peno-vaginal intercourse under the law.[8] Sexual offences against male children along with other forms of sexual abuse including exhibitionism, voyeurism, oral or anal intercourse and touching are left unpunished under the law. The only gender neutral provision that is provided in the code is the controversial section on unnatural offences.[9] Even though it was not intended to prosecute child sex abuse, it has been partially used to do so by recognising the possibility of sexual abuse of boys. While this section is equipped to deal with sexual abuse that involve non-penile-vaginal penetration, its high bench mark of the ‘penetration’ leaves several forms of abuse like molestation and penetration with objects unaddressed.

The first legislation for the protection of children against abuse came in the form of the Goa Children’s Act of 2003. It adhered to the United Nations Conventions on the Rights of the Child. The Act criminalized child abuse and meted out punishments for sexual assault and incest.[10] It prohibits soliciting children for commercial exploitation in the form of pornography or suggestive and obscene photographs.[11] The act has an all-encompassing definition of ‘commercial sexual exploitation of children’.[12] In 2005, the definition of ‘grave sexual assault’ in the Act was amended[13] to include acts such as causing children to pose for pornographic photos etc. Lastly, it laid responsibility on the Airport authorities, border police, railways police, traffic police and developers of movies and photos to report any inappropriate depiction of children in print media or suspicion of trafficking.[14] However, in spite of these legislations, several perpetrators of paedophilic abuse have been acquitted due to lack of evidence. Similarly, the children for protection of Child Rights Act, 2005 was a national legislation that put forth the constitution of children’s courts in states and districts to ensure expeditious trial for offences against children.[15]

NECESSIATE FOR SEPERATE LEGISTATION

There has been extensive debate on whether the Indian Penal Code should be amended to include perpetrators or whether a separate law should be drawn up to specifically address the child sex abuse. In the case of Sakshi v. Union of India[16], a step forward was taken to examine shortcomings of the Indian Penal Code when dealing with the cases of this nature. However, the Court did not adequately address the entire breadth of issues, thereby failing yet again to effectively insulate children in India from sexual abuse. The Supreme Court’s timely acknowledgement of the prevalence of child sexual abuse in India and its alarming only increases the necessity of creating and enforcing laws that protect children. In 2005, a bill specifically protecting the rights of children against this menace was drawn up while drafting the ‘offences Against Children’ Bill. However, in 2007 the Ministry rejected the bill, stating that there was no need for a separate legislation. The Ministry of Law simultaneously worked on the draft of the Prevention of Offences against the Child bill, 2009, which sought to address all offences against children, including sexual offences. However, after several delays and complications in 2011, a specific bill for prevention of sexual abuse against children was drafted comprehensively and was finally passed by the Rajya Sabha in 2011. This bill is now known as the Protection of Children from Sexual offences Act, 2012

PROVISIONS OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

This legislation is in response to the increasing instances of grave sexual offences against children and low rates of conviction for the same. This is the first legislation in the country that deals specifically with offences against children and clearly defines them. It includes within purview the abuse of boys as well as girls.[17] The penalties for offences under this Act have been classified as per the gravity of the offence, ranging from simple to rigorous imprisonment of several years. The Act also penalizes the attempt to commit an offence and the abetment of an offence.[18] The Act has made a distinction between sexual assault and aggravated sexual assault, the penalty for the latter more stringent. An offence is treated as ‘aggravated’ when it is committed by a person who holds a position of trust or authority in the eyes of the child, such as a member of security forces, police officer, public servant, etc.

The burden of proof for offences such as ‘Penetrative Sexual Assault’, ‘Aggravated Penetrative Sexual Assault’, ‘Sexual Assault’ and ‘Aggravated Sexual Assault’, has been shifted on the accused.[19] This has been done keeping in mind the greater vulnerability of children and the heinous nature of the offences.[20] Concurrently, the Act also provides for punishment for making a false complaint or giving false information with malicious intent.[21] However, the degree of punishment has been kept relatively low (six months) to encourage reportage of crimes. The Act specifies the establishment of Special Courts for trial of the listed offences, keeping the interest of the child paramount at every stage of the process by incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences.[22]

ANALYSIS OF THE ACT

The Act has the potential to instil hope in many child victims of abuse who have been denied justice due to the loose ends in penal laws. The Act is progressive in its approach. It is gender-neutral and lays down stringent punishments for a range of sexual offences. It has introduced several measures to prevent the re-victimization of children at every step of the judicial progress. However, there are several provisions in the Act that continue to serve as causes for concern.

Major lacunas

No preventive measures

Overall, the Act does a fine job in dealing with cases of child sexual abuse. However, nowhere does the Act mention provisions to prevent abuse.[23] The Act only lays down measures to be taken after the child has suffered sexual abuse. It should certainly include provisions for prevention as well, since punishment should never be sole deterrent.[24] In cases of child abuse, prevention is certainly the best cure.

Possible preventive measures can be the setting up of a website which has details of first time offenders.[25] This website will ensure that such deviants are not hired by any school, universities, hospitals and places where children traditionally assemble in large numbers.[26]

Age of consent

Raising the age of consent for sex from 16 to 18 is definitely a step back. A study conducted by the International Institute for Population Studies and Population Council in 2010 reveals that instance of pre-marital relationships amongst those above 16 years is higher than ever before.[27] Another lacuna born from such an unreasonable provisions is that sexual intercourse between two consenting teenagers, for example a 17 year old girl and a 19 year old boy, will result in the boy being charged with the offence of child sexual abuse even if the age difference between both of them is negligible and both the teenagers have engaged in safe, consensual sex.

Mandatory reporting

The Act also calls for mandatory reporting to designed authorities by anyone who ‘apprehends’ that an offence may be committed. [28]The failure to report the same is an offence. This provision is quite flawed. This will encourage moral policing and even consensual intimate behaviour may lead to complaints by ill-disposed and disapproving family members and others, leading to the harassment of young adults.[29]

No provisions for marital rape

The Act is also silent on the issue of marital rape.[30] Therefore, there will be no relief if the wife is above 15 years of age, although she will come within the definition of a ‘child’ under the Act.[31] This is void that should be addressed.

No period of limitation

There is no period of limitation mentioned in the Act.[32] This means that even an act that was committed 50 or 60 years ago can be reported. This aspect of the Act should be looked into.

Protection from adverse consequences

A vital issue vis-a-vis the reporting of abuse that is absent from the Act is the Protection of those who report the abuse.[33]There is no provision for the protection of the person who has reported such abuse. Obligation to report, without providing protection for the same, makes little sense.

CONCLUSION

A overwhelming 41% of India’s Population is constituted by children.[34] Therefore, the growing incidence of sexual violence, abuse and exploitation of children does raise many concerns. The problem in India is acute owing to its conservative social environment. The lack of a legal mechanism exclusively directed at curbing such offences is the prime reason behind the breeding of sexual predators. The IPC has never addressed crimes perpetrated against children and yet legislature has continuously impeded several attempts at drafting a separate and robust legislative instrument to this end. However, drafting a specific legislation targeting child sexual abuse is only half the battle won. The next major impediment is compelling people to come forward and report such offences.

Lastly, protection must be accorded to the child during the course of the trial to make it as minimally harrowing as possible. Therefore, all efforts must be combined to ensure that children do not fall prey to such heinous crimes and live a healthy childhood.

Edited By Amoolya Khurana

[1] Child Quote, available at – http://www.compassion.com/child-advocacy/find-your-voice/famous-quotes/(last visited 7th Oct 2014)

[2] Study Undertaken by the Ministry of women and Child Development on Child Abuse in collaboration with UNICEF, Save the Child and Prayas NGO, (9 April 2007), available at http://pib.nic.in/newsite / erelease.aspx?relid=26737 (last visited 28 Oct. 2013).

[3]  Government of India, Ministry of Home Affairs, Office of the Registrar General & Census Commissioner, India, 2001 Census Data, Age Structure and Marital Status, available at http://censusindia.gov.in/Census_And _You/age_structure_and_marital_status.aspx ( last visited 29 Oct, 2013).

[4] Article 51, the Constitution of India, 1950.

[5]  Ss. 82 & 83, Indian Penal Code, 1860 .

[6] S. 376, Indian Penal Code, 1860.

[7] S. 2(k)The Juvenile Justice (Care and Protection of Children) Act, 2000  See alsoS 2(b) The Protection of Women from Domestic Violence Act, 2005.

[8] S. 375, Indian Penal Code, 1860 .

[9] S. 377, Indian Penal Code, 1860.

[10]  Ss. 8 (1)-(3), Goa Children’s Act, 2003.

[11] S. 8(15), Goa Children’s Act, 2003.

[12] S. 2(jj, )Goa Children’s Act, 2003.

[13] Goa Children’s (Amendment) Act of 2005.

[14] S. 7(9),Goa Children’s Act, 2003.

[15] S. 2Child Rights Act, 2005.

[16] Sakshi v. Union of India, [2004] 3 LRI 242

[17]S. 2(1) (d), The Protection of Children from Sexual Offences Act,  2012.

[18] Ss.16,17&18, The Protection of Children from Sexual Offences Act, 2012.

[19] Ministry of Women and Child Development, The Protection of Children from Sexual Offences Act of 2012, available at http://pib.nic.in/newsite/erelease.aspx?relid=84409 (last Visited 29 Oct, 2013).

[20] Supra note 18

[21] S 22, The Protection of Children from Sexual Offences Act, 2012.

[22] The Protection of Children from Sexual Offences Act of 2012 Chapter 7.

[23]Jose Parapully, ‘Questions of Protection’, available at http://www.telegraphindia.com/1120814/jsp/opinion/story_15851.jsp#.UIazp2CpSnM (last visited 29 Oct, 2013).

[24] Supra note 22

[25] Pinky Virani, ‘Child Sex Abuse and the Law’, available at htpp://www.openthemagazine.com/article/nation/child-sex-abuse-and-the-law (last visited 5 Nov, 2013).

[26] Supra note 24

[27] Geeta Ramasehan, ‘Law and the Age of Innocence’, available at http://www.thehindu.com/opinion/op-ed/article3543940.ece (last visited  8 Nov, 2013).

[28] The Protection of Children from Sexual Offences Act of  2012 Chapter 5

[29] Flavia Agnes, ‘Consent and Controversy’, available at http://m.indianexpress .com/news/consent-and-controversy/948277/ (last visited 10 Nov, 2013).

[30] Supra note 28

[31] Id.

[32] arun mal & pallavi nautiyal, Towards Protection of Children against Sexual Abuse: No Child’s Play 3 NUJS L.REV. 90 (2010).

[33] Supra note 22

[34] Population in different age groups and their proportion in the total population, Ministry of Home Affairs, Office of the Registrar General and Census Commissioner of India, (1December 2005), available at http://censusindia.gov.in/Census_And_You/age_structure_and_marital_status.aspx (last visited 10 Nov, 2013).

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