Victims of crime, today, feel left out, ignored and are crying for attention and justice. “Let us hear their loud cry today – tomorrow may be too late”,
-Dr. Justice A.S. Anand
Child sexual abuse (CSA) is a serious and pervasive social malady in India as it is in many areas of the world today. CSA can contribute to abnormal and arrested development, and a wide array of psychological and emotional disorders, that some children and adolescents may experience for a lifetime.
In India as in other countries, intra-familial sexual abuse often goes unreported. When this occurs and children are not given the protective and therapeutic assistance they need, they are left to suffer and struggle on their own. This article discusses the nature and incidence of child abuse and neglect in India from an anthropological perspective, with an emphasis on the sexual abuse of children and youth. Current research findings pertaining to CSA in India are presented, and the socio-cultural and familial factors that put children and youth at risk for CSA are examined.
The importance of neighborhood and community investment and involvement in the prevention of CSA is also highlighted
Sexual abuse includes any contacts or interactions between a child and an adult in which the child is being used for the sexual stimulation or the gratification of the perpetrator or another person. These acts, when committed by a person in a position of power or control over a child are considered sexual abuse. Child Sexual Abuse (CSA) has only recently been publicly acknowledged as a problem in India. A welcome development has been the enactment of a special lawProtection of Children against Sexual Offences (POCSO) 2012criminalising a range of acts including child rape, harassment, and exploitation for pornography. The law mandates setting up of Special Courts to facilitate speedy trials in CSA cases. The paper highlights the intended benefits and the unintended consequences that might arise from the application of the law in the Indian context. Undoubtedly, the passing of POCSO has been a major step forward in securing childrens rights and furthering the cause of protecting children against sexual abuse in conjunction with a related legislation to clamp down on child marriages called the Prohibition of Child Marriage Act 2006. The letter and spirit of the law, which defines a child as anyone under 18 years of age, is to protect children from sexual abuse. However, criminalizing all sexual behavior under 18 years of age can be problematic. This paper identifies three main issues arising from POCSO: age of consent, age determination, and mandatory reporting; issues that highlight the fact that well-meaning laws can nevertheless have unintended negative consequences.
Historically, child sexual abuse (CSA) has been a hidden problem in India, largely ignored in public discourse and by the criminal justice system. Until recently, CSA was not acknowledged as a criminal offence; rape was the main, if not the only, specific sexual offence against children recognized by law in India. In the absence of specific legislation, a range of offensive behaviors such as child sexual assault (not amounting to rape), harassment, and exploitation for pornography were never legally sanctioned. In the past few years activists, Non-Governmental Organisations (NGOs) and the central governments Ministry of Women and Child Development have actively engaged in helping break the conspiracy of silence and have generated substantial political and popular momentum to address the issue. The movement, spearheaded by the Ministry of Women and Child Development, led to the enactment of new legislation called the Protection of Children from Sexual Offences (POCSO) 2012. This commentary highlights the distinguishing features of POCSO and focuses on three issues that might have consequences for how the law operates in reality. In this reflexive piece, we begin by briefly discussing the prevalence of CSA in India and the legal response to it. We draw upon existing literature, legal documents, media reports, access to police sources and personal practitioner experience to inform the paper.
STATEMENT OF PROBLEM
The problem of child sexual abuse has attracted a great deal of attention in recent years. Millions of children are victims of trafficking and sexual exploitation each year. Sexual offences are currently and mainly covered under different section of the Indian Penal Code. There are number of International and National conventions to which India is signatory for protection of Children from Sexual offences. Despite the constructive steps taken by the International community and various national governments, these efforts, while important, have done little to reduce the incidence of child sexual exploitation. In the backdrop, to strengthen the legal provisions for the protection of children from sexual abuse and exploitation for the first time, a special law for the Protection of Children from Sexual Offences Act 2012, has been passed. This piece of legislation is expected to improve venerable plight of children.
The Paper is intended to deal with the growth of acceptance of child sexual abuse as a heinous in India. It would further shed light on the new legislation POCSO that has come about in order to punish the offenders and prevent the juveniles from getting into the disarray.
Doctrinal method of research would be adopted to do further research on the topic. Books and other newspaper articles were taken from the library of National University of Study and Research in Law. Besides this some websites providing information on this topic have been surfed and relevant parts have been referred. Online resources and legal databases have been used in the research for this case. Also the internet and web based resources have helped in an extensive way towards the completion of this research on the particular case. It is hereby assured that no part of this project has been plagiarized in any form or from any source.
Numerous national and international journals are available online as well as offline pertaining to the topic. There have been some very notable scholars who have shed light on the new legislation that has been introduced especially for the sexual offences done against the under aged. Few of the very notable work that the author came across have been mentioned below.
Andrade, C., & Sathyanarayana Rao, in their article Childhood sexual abuse and the law, have extensively dealt with the laws regarding childhood sexual abuse. They have widely talked about how in the pre POCSO era, no specific law was there to deal with the matter. How so less number of offences could have been reported and due to which how people used to suffer regarding the problem.
Again R Choudhary in his book Family Life Education in India has dealt with the understanding of family environment in India. He has discussed in length how such offences are not reported and kept in the family only. He has shared some data in how in innumerable cases, a family member is the one who take advantage of the naivety of the young ones. He also has dealt with how the awareness in the society is working well. The change is coming now days because there is a vast change in the number of reported matters. He has analysed how the introduction of the act has increased the number of reported matters.
Z Shaikh in his article in the Indian Express specifically dealt with the demon of Child marriage still existing in some inferior parts of India. He has elaborated well how the girl children thrown in the darkness of child marriage dont flourish well in any aspect of life. He has also shared how in the name of child marriage, girls are raped not only by their over aged husbands but also the elder members of the family.
Along with these there are various reports and data provided by the Indian government which sheds light upon the crimes done upon the children in the country. In addition to these, numerous cases have also been dealt with in different levels of courts that have been helpful in extracting laws and rules against the ill activities taking place in the society.
CHILD SEXUAL ABUSE IN INDIA
Growing concerns about female infanticide, child rapes and institutional abuse of children led to the commissioning of the first large scale government sponsored research study to assess the extent and nature of child abuse in India. The study, based on a well-designed methodology, covered 13 states (two states from each of the six geographic zones in the country) including states with the highest through to the lowest crime rates of offences against children. The sample was purposive and included 12,447 children, 2324 young adults and 2449 stakeholders representing five different evidence groups: children in the family, at the workplace, in schools, on the streets and in institutions. The study reported widespread emotional, physical, and sexual abuse prevalent in all the states surveyed. While every second child reported emotional abuse, 69 % (n = 12,447) reported physical abuse, and 53 % (n = 12,447) reportedly experienced some form of sexual abuse. Half of sexual abuses reported were committed by persons known to the child or in a position of trust and responsibility. A recent survey of the current state of knowledge on CSA in India concluded that empirical studies report a much higher incidence of CSA than previously acknowledged by authorities or by families. The paper summarises the findings of several studies and reports that 1820 % of CSA occurs in the family and around 50 % in institutional settings. Further, there is regional and ruralurban variation in the rates and extent of CSA in the country. Girls are more vulnerable to sexual abuse, although boys too reported a high percentage of victimisation and are subject to greater social stigma. Finally, the survey suggests that although sexual exploitation and abuse is strongly correlated to poverty, it occurs in families across the socioeconomic and religious spectrum. However, factors that facilitate CSA, such as poverty, overcrowding, extended family living arrangements, abundance of street children, and lack of recreational facilities in families are by no means exclusive to India. Admittedly, their impact might be exaggerated or intensified given the population density and size in India. Thus, a complex mix of individual, ecological and situational factors that are said to facilitate CSA might account for its prevalence in the Indian context. However, the absence of empirical research precludes definitive conclusions.
Sexually abused children are severely let down by systemic failure of the criminal justice system to redress their grievances and by social ostracism associated with such abuse. Only 3 % of CSA offences were reported to the police. It is unsurprising that CSA is severely underreported given the shame and associated socio-cultural stigma, especially if the abuse is in the context of the family. This phenomenon is not unique to India but common to collectivist cultures in other Asian countries where an individuals experience is ignored so as to protect the family from shame associated with sexual abuse.
LEGAL RESPONSE TO CHILD SEXUAL ABUSE
The Supreme Court of India in Sheela Barse and Other v. Union of India , has declared that a child is a national asset. In Indian scenario a child requires proper care, love, affection and nourishment but experience shows that the children are subjected to maltreatment in some situations. The child exploitation in India is a result of the macabre family circumstances, social environment, poverty, ignorance of family, lack of proper care and attention and lack of love and affection of the parents.
Until 2012, the only sexual offences against children recognised by the law were covered by three sections of the Indian Penal Code (IPC) not specific to children. The only crimes registered were rape (sexual intercourse without consentsection 376), outraging modesty of a woman (unspecified actssection 354) and unnatural acts defined as carnal intercourse against the order of nature with any man, woman or animal (bestialitySection 377). Consequently, other forms of non-penetrative sexual assaults, harassment and exploitation were not explicitly recognised as crimes and therefore not recorded (assuming they were reported). Increased activism around child protection issues in the media and public discourse might partly account for the Government of India passing a special law called, The Protection of Children from Sexual Offences (POCSO) 2012. This Act criminalises sexual assault, sexual harassment, and pornography involving a child (under 18 years of age) and mandates the setting up of Special Courts to expedite trials of these offences.
Since 2001, there has been a gradual but steady rise in recorded incidents of sexual abuse i.e. child rape. Although there is no evidence to indicate that globally the prevalence of CSA has been going up over the years, we might hypothesize that increased reporting in India over this period might be the result of greater public awareness, education and a more sensitive criminal justice response to CSA. Following the enactment of POCSO, the number of offences registered under rape itself went up 44 % nationally and 68 % in the state of Maharashtra within a year, lending support to the hypothesis. Further, detailed figures from Maharashtra provided by the second author indicate that total registered crime under POCSO was 2540 offences in 2013 and 3858 offences in 2014, amounting to a 51 % increase in 1 year.
Shankar kishanrao Khade v. State of Maharashtra , a gruesome murder of a minor girl with intellectual disability (moderate) after subjecting her to series of acts of rape by a middle ager, who has now been sentenced to death. Nathu Garam v. State of Uttar Pradesh , upheld the death sentence awarded by the trial Court, confirmed by the High Court, for causing death of a 14 year old girl by a person aged 28 years after luring her into the house for committing criminal assault. In the case of Dhananjoy Chatterjee v. State of West Bengal , The Court dealt with a case of rape and murder of a young girl of about 18 years. The Court opined that a real and abiding concern for the dignity of human life is required to be kept in mind by courts while considering the confirmation of the sentence of death but a coldblooded and pre-planned murder without any provocation, after committing rape on an innocent and defense less young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment. In another case Molai and another v. State of M.P , a three-Judge Bench of Court justified death sentence in a case where a 16 year old girl, preparing for her Tenth Standard Examination was raped and strangulated to death. The Court noticed the gruesome manner in which rape was committed and the way in which she was strangulated to death and the dead body was immersed in the septic tank.
LAWS RELATED WITH CSA IN INDIA AND THEIR SHORTCOMINGS:
At present CSA cases are handled under various sections of the IPC, which are laws meant for adults. There are very few sections under the IPC that deal with CSA. Some terrible home truths are: 1. The laws for women are extended to include children.
2. The major weakness of these laws is that only penile penetration is considered a grave sexual offence. Other offences are considered lesser.
3. Although Section 377, dealing with unnatural offences, prescribes seven to ten years of imprisonment, such cases can be tried in a magistrates court, which can impose maximum punishment of three years.
4. Children are more prone for repeated sexual abuse which affects them more severely, however as yet there is no law for repeated offenses against the one child.