<em>Written by <strong>Kritanjali Sarda</strong></em>
3rd Year B.A.LL.B Student, School of Law, Christ University
According to the World Health Organization (WHO), child maltreatment includes– physical abuse, sexual abuse, neglect and negligent treatment, emotional abuse; and exploitation.
WHO defines Child sexual abuse as “Child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person. This may include but is not limited to:
-The inducement or coercion of a child to engage in any unlawful sexual activity;
India is home to 430 million children, roughly one in five of all children (individuals
Below the age of 18years) in the world.
The WHO estimates that 150 million girls and 73 million boys under 18 have experienced forced sexual intercourse or other forms of sexual violence involving physical contact.
Immediate physical and behavioral signs which depict that the child is being sexually abused–
When a child is sexually abused, there is violation of its physical, mental and emotional well being. The child almost immediately goes into the “survivors’ cycle”, that is:
This cycle continues and eventually leads to the long term effects of child sexual abuse. These effects can be seen in children who are sexually abused and adults who are survivors of child sexual abuse. The long term effects of child sexual abuse are:
Prevention is better than cure and this prevention of child sexual abuse is the responsibility of each and every parent, school and the society as a whole. A few measures which the parents should take to prevent child sexual abuse are:
There have been cases of children sexually abusing other children. For example-
Dr. Shekhar Sheshadri, the 1st doctor in the country to specifically study child sexual abuse and a psychiatrist for both children who have been sexually abused and adults who have been sexually abused in their childhood, working at National Institute Of Mental Health and Neuro Science says that the increasing cases of child sexual abuse among children tend to be for 3 reasons-substance abuse which reduces restraint, if they children have themselves been sexually abused by their elders or when they model themselves on adults.
This is a doctrinal research, the main purpose of which is to bring to light the statistics, laws and legislations prevalent in India and international agreements with regard to Child Sexual Abuse, particularly the Protection Of Children from Sexual Offences Act,2012.
STATISTICS OF CHILD SEXUAL ABUSE IN INDIA
One in three rape victims is a child. More than 7,200 children, including infants are raped every year. In 2007, the Ministry of Women and Child Development of the government of India published its 1st ever survey on the issue of child sexual abuse in India titled “Study on Child Abuse: India 2007”.
For the purpose of this study, sexual abuse is defined as severe forms of sexual abuse and other forms of sexual abuse.
Severe forms of sexual abuse include:
Other forms of sexual abuse include:
The questionnaire was administered to 12,447 children belonging to the five different categories of children in family environment, children in schools, children in institutions, children at work and street children in 13 different states. The major findings of this survey were:
A study on Child Sexual Abuse carried out by Save the Children and Tulir in 2006 looked at the prevalence of child sexual abuse among school going children in Chennai. The major findings of this study include:
In 1998 the Indian NGO Recovery and Healing from Incest (RAHI) conducted India’s first study of child sexual abuse. It surveyed 600 English-speaking middle and upper-class women, 76 percent of whom said they had been abused in childhood or adolescence, 40 percent by at least one family member.
Contrary to common perceptions of child sexual abuse, the statistics reveal that a higher percentage of boys are subjected to sexual abuse and that most children are abused by their parents, relatives, people they know or people who are in a position of trust and authority over them; that is the cases of incest are high. Incest leads to a greater mental trauma to the child.
WHY ARE LESS CASES OF CHILD SEXUAL ABUSE REPORTED?
The fear of social stigma, lack of faith in government institutions and cultural norms discourage children and their parents from reporting cases of sexual abuse against relatives or people in position of trust and authority. The victims are also hesitant to make a complaint because of the intimidating way in which they are questioned by the police officials which often leads to re-victimisation and also the insensitive way they are treated by doctors who examine them for evidence of rape. The judicial proceedings in India are a lengthy process and are a tiring ordeal. This requires repeated testimony by the already traumatised victims and their parents and thus many complainants often withdraw their complaint.
The rights guaranteed to children under the Constitution of India as fundamental rights and as Directive Principles of State Policy (DPSP) are-
The atrocious gang rape of a student in New Delhi on 16th December, 2012 followed by massive public protests lead to the appointment of Justice Verma Committee to make recommendations in criminal law so as to provide stringent laws to deal with cases of sexual assault against women. The committee expressed particular concern over the plight of children in residential care institutions. This was subsequently followed by the passing of the Criminal Law Amendment Act, 2013 which made amendments to the provisions of rape in IPC.
Before the enactment of the POCSO Act, the following provisions of the Indian Penal Code (IPC) could be invoked in cases of child sexual abuse:
The following provisions to section 354 of IPC were added by the Criminal Law Amendment Act, 2013.
354A- Sexual harassment and punishment for sexual harassment
354B- Assault or use of criminal force to women with intent to disrobe
Section 375 and 376 were also amended by the Criminal Law Amendment Act, 2013.
376 (2)- Special circumstances
376A- Injury which causes the death or persistent vegetative state
376B- By husband upon his wife during separation
376C- By a person in authority
376D- Gang rape
376E- Repeat offenders
International conventions and agreements which can be invoked to deal with cases of child sexual abuse and to which India is a signatory, are:
Article 1-All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 3 -Everyone has the right to life, liberty and security of person.
Article 5 -No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 22 -Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 6- Right to life, survival and development; Article 4 – Governments have a responsibility to take all available measures (assessing social, legal, health and educational systems) to make sure children’s rights are respected, protected and fulfilled. This may involve changing existing laws or creating new ones; Article 16- Right to privacy; Article 34-Governments should protect children from all forms of sexual exploitation and abuse; Article 19- Protection of children from all forms of violence.
The Integrated Child Protection Scheme (ICPS) is a comprehensive scheme introduced in 2009-10 by the Government of India to bring several existing child protection programmes under one umbrella. It is based on the cardinal principles of “protection of child rights” and the “best interest of the child”. Under this scheme funds are available for setting up and maintenance of Child Welfare Committee (CWC) (the committee has the same powers as a Metropolitan Magistrate) and Juvenile Justice Board (JJB). However, the officials in these committees are not well trained to monitor the conditions of the residential care facilities and orphanages. Child budget has decreased from Rs 81,075.26 crore in 2014-15 to Rs 57,918.51 crore in 2015-16. It has seen a “sharp decline” from 4.52 per cent in 2014-15 to 3.26 per cent in 2015-16. Thus the officials of the ICPS are over worked and lack resources for the effective implementation of the scheme. Childline 1098 is a toll free number to help children in distress and it is run by the Ministry of Women and Child Development and the Childline India Foundation. As a result of new funding that this project receives from the ICPS, the helpline operates in more than 200 cities and districts across India.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) Act, 2000- The Act provides for the establishment of Child Welfare Committees and special juvenile police units. It also establishes rules for monitoring children’s residential care facilities.
CHILD WELFARE COMMITTEES (CWC)- The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the establishment of CWC in every district in India. CWC are quasi judicial bodies which overlook the government’s welfare and police officers and inspect children’s residential care facilities. However, CWC officials are appointed by state government which often leads to lack of transparency in the work carried by it. While 83% members have training in child rights, only 44% have received training in Juvenile Justice System and child protection.
There was a need for the enactment of a separate legislation to protect children from sexual offences because before POCSO most of the sexual offences were covered under Indian Penal Code, 1860. But IPC does not provide for all types of sexual offences against children and it is a general legislation which does not distinguish between adult and child victims. The provisions of IPC also do not treat child sexual abuse as a gender neutral crime and only men were regarded as the perpetrators. There were also no specific provisions for non penetrative sexual assault which could only be dealt with under Section 354 of the IPC. Hence Protection of Children From Sexual Offences Act (POCSO) was passed by the Parliament of India in 2012 to deal with the heinous crimes of sexual exploitation and sexual abuse of children. Section 2(d) of the Act defines “child” as ‘any person below the age of 18 years’. According to this Act Child Sexual Abuse includes a variety of sexual offences such as:-
Thus the Act recognises cases of non penetrative sexual assault and also is gender neutral, that is, both male, female and children themselves can be the perpetrators.
The POCSO Act also provides that no reports in any media shall disclose the identity of the child until the special courts permits the disclosure if it is in the best interests of the child. The media cannot make any comments on the child which is not authentic and which may lead to lowering the reputation or invading the privacy of the child. This provision helps in ensuring that the media does not unnecessarily harass and re-victimise the child.
Section 24 of the Act provides for requisites in recording the statement of the child. The child’s statement shall be recorded in its residence or any place where the child is comfortable, as far as practicable by a woman police officer who is not in uniform and it should be ensured that the child does not come in contact with the accused in any way. This is an effective measure to help children as well as parents to come forward in reporting cases of child sexual abuse. The medical examination of the child shall be conducted by a woman doctor, in the presence of the parent or any other person on whom the child has trust and confidence.
For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act. Section 33 of the Act provides the powers and procedures of the Special Court. The special court shall not permit character assassination of the child, it may permit frequent intervals as per the child’s convenience and also allow a family member or a person in whom the child has trust or confidence to be present during the course of the trial. The court shall also not call the child repeatedly to testify in the court. These provisions help in ensuring a child friendly atmosphere and also help in reducing the traumatic experience of the child during the course of the trial.
Section 35 of the Act provides that “(1)The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.
(2) The Special Court shall complete the trial, as far as possible, within a period of one year
from the date of taking cognizance of the offence.” This helps in speedy trial and disposal of cases and encourages reporting of cases of child sexual abuse as previously many cases went unreported due to the lengthy and cumbersome judicial process. In many cases, the abused child would be a married adult by the time the case came up before the court for trial.
The main drawback of the POCSO Act is that it criminalises consensual sexual activities between teenage adolescents below 18 years of age from the previous age of 16 years. Section 20 of the Act says that all persons should mandatorily report a case of child sexual abuse if they are aware of it, notwithstanding which they will be sentenced to imprisonment for 6 months or fine or both. It is difficult to know how it is possible to actually implement his provision. Section 29 of the Act says that in certain offences under the Act (Section 3,5, 7 and 9), there will be presumption of guilt on part of the accused unless the contrary is proved in the court. This principle goes against the principle of ‘presumption of innocence’ in the Indian legal system. The Act also does not provide explicit provisions for medical examination of the victim and proper care, protection and rehabilitation the abused child.
According to Section 44 of POCSO, the National Commission for the Protection of Child Rights (NCPCR) which has been established under the Commission for Protection Of Child Rights Act, 2005 is responsible for monitoring the implementation of the provisions of POCSO. The Commission’s mandate is “to ensure that all Laws, Policies, Programmes and Administrative Mechanisms are in consonance with the Child Rights perspective as is enshrined in the Constitution of India and also the UN Convention on the Rights of the Child.” The NCPCR also proposes new laws, analyses existing laws and can also initiate investigations in suspected cases where children’s rights are involved. It is a quasi judicial body and can follow up cases referred by individuals who feel that their complaints are not being properly addressed by the police and government officials.
The POCSO is a comprehensive Act and is a progressive step taken by the parliament of India to deal with Child sexual Abuse in India. However, certain flaws in the Act need amendment and it is essential to ensure the proper implementation of this Act. For this purpose, the NCPCR which is entrusted with its implementation should be provided with more resources and manpower to carry on its functions effectively. It is also necessary to ensure that its officials and the officials of the CWC are trained in child protection laws and are backed by effective investigation units. Police and the doctors examining the victim must also be trained in sensitisation programmes to deal with the abused child so that the child is not re victimised by the hostile attitude of doctors and police officials. It must be ensured that all state governments and union territories establish their own CWC in every district and state commission for protection of child rights in furtherance of the objectives of the Act. Steps should also be taken to ensure the registration of all residential child care facilities, their adherence to adequate standards and regular checks on them.
Thus India does have laws, legislations and schemes in place to deal with the human rights problem of child sexual abuse but what is necessary is to ensure the proper implementation of these laws. Regular surveys should also be conducted by the government to know the efficiency of the POCSO Act and other schemes of the government in this regard. According to the analysis of the results of this survey, necessary amendments should be made to the existing laws.
WHO, “Child Sexual Abuse”. Page 75. http://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap7.pdf Accessed on 19th February, 2017.
 Women’s Research Centre, “Recollecting Our Lives: Women’s Experience of Childhood Sexual Abuse”. Canada: Press Gang Publisher, 1993.
 John N. Briere and Diana M. Elliott, “Immediate and Long-Term Impacts of Child Sexual Abuse” The Future of Children, 4(2), 56. Accessed on 16th February,2017.
 John N. Briere and Diana M. Elliott. Page 59.
 Pinki Virani, “Bitter Chocolate: Child Sexual Abuse in India”. New Delhi: Penguin Books, 2000. Page 160.
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 Ministry Of Women and Child Development, “Study of Child Abuse- India 2007”. Chapter 6- Sexual Abuse Page 73-102. http://resourcecentre.savethechildren.se/sites/default/files/documents/4978.pdf Accessed on 19th February, 2017.
 Ministry Of Women and Child Development, Government of India, “Integrated Child Protection Scheme”, 2009. Accessed on 19th February, 2017.
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 Human Rights Watch, “Breaking the Silence- Child Sexual Abuse in India”, 2013. https://www.hrw.org/sites/default/files/reports/india0113ForUpload.pdf Accessed on 18th February, 2017.
 Childline India Foundation, “Everywhere Child Project”. 2011 http://childlineindia.org.in/pdf/The-Everywhere-Child-Protect-Project.pdf Accessed on 21st February, 2017.
 Government Of India, National Commission For Protection Of Child Rights,2007. http://ncpcr.gov.in/index1.php?lang=1&level=1&&sublinkid=5&lid=600 Accessed on 21st February, 2017.
 Human Rights Watch. Page 68.