Laws Relating to Child Sexual Abuse
Updated: Sep 3, 2020
(Central University of South Bihar)
With 356 million faces of age group 10-24 years, India has the World’s largest child population – UN Report says. Protection of child by the state is ensured to Indian residents by Article 21 of the Indian constitution. Child sexual abuse laws in India have been enacted as a part of the child security approaches of India. This article centers on the definition of Child Sexual Abuse, laws relating to it and some facts and figures.
A’s parents had to go to attend a wedding. But A can’t miss her school. Can she? So A will stay at her uncle’s place. That’s where she always stays. But she is slightly hesitant, uncomfortable. But her parents are too busy to note that. They are getting late for the wedding. Daddy drops her there but she is, kind of, resisting. But papa hugs her and leaves. A is upset. She goes directly to the bed, wraps herself with the quilt, shuts her eyes as tight as she can, and tries to sleep. It’s been 3 hours, but she cannot sleep. Out of nowhere, a hand comes into the quilt. That same hand – the same bloody hand which has been bothering her for 5 years now. Slowly, the hand touches the most private parts of her body. This goes on and on and on…. But A is helpless. She can’t do anything. Then before she knows it is aunt awakening her to go to the school.
Incidents like these have assumed alarming magnitude and are more typical than we can even think. It has devastating consequences for the child. It could lead to an adverse mental health issue for many victims. This includes post-traumatic symptoms, depressions, alcohol dependency, and at its worst suicide. Let’s first know what it means.
What is Child Sexual Abuse?
There is no uniformly accepted definition of Child Sexual Abuse (CSA) so, it is a matter of discussion. It has been defined as any kind of physical or mental violation of a child with sexual intent, usually by a person who enjoys the child’s trust or has powers over the child. It includes: -
An adult exposing his, or her, genitals to a child or persuading the child to do the same
An adult touching a child’s genitals or making the child touch the adult’s genitalia
An adult involving a child in pornography which includes showing a child pornographic material
An adult having oral, vaginal or anal intercourse with a child
Any verbal or other sexual suggestion made to a child by an adult
An adult persuading children to engage in sexual activity among themselves
An adult inserting foreign objects into a child’s body for his, or her, own sexual gratification
It is clear from the above that Child Sexual Abuse covers sexual mistreatment of the child and can include activities that do not involve direct touching. The definition encompasses both adult males and adult females since Child Sexual Abuse is a crime committed by women as well even if their numbers are minuscule when compared with male-perpetrators.
Laws Relating to Child Sexual Abuse
Before The Protection of Children from Sexual Offences (POSCO) Act, 2012, there was no specific legislation available in Indian Laws that specially deal with Child Sexual Abuse. Goa Children’s Act, 2003, was only the legislation which dealt with these type of offences but lacks specificity. The cases relating to Child Sexual Abuse was used to prosecuted under The Indian Penal Code, 1860 by using the following provisions:
Section 354 – Outraging the modesty of a women
Section 375 – Rape
Section 377 – Unnatural offences
But these provisions have certain loopholes due to which it does not protect the child effectively. Section 354 does not define the term “Modesty” clearly. Also, It is not a gender-neutral law that means it does not protect the modesty of a male child. And also Section 375 doesn't shield male casualties or anybody from sexual demonstrations of entrance other than "customary" peno-vaginal intercourse. The definition of “unnatural offences” is missing and it is not designed to criminalize children's sexual child abuse.
Other legislations present in Indian law for the protection of children are the Juvenile Justice Act, 1986, and the Immoral Traffic (Prevention) Act, which provides stringent action against those inducting into prostitution, but it does not deal directly with Child Sexual Abuse.
The unavailability of provisions of such a kind was keenly missing by citizens of India and then a big step was taken by the Government of India in 2012 as the establishment of The Protection of Children from Sexual Offences (POCSO) Act. This legal provision strengthens the way to protect children below 18 years of age.
The Protection of Children from Sexual Offences (POCSO) Act
The POCSO Act, 2012, is the first step towards protecting children. It not only punishes all forms of sex offences against children but also envisages a criminal justice system that responds to their “unique vulnerability”. Previously, Indian law didn’t criminalize any offences other than rape, unnatural practices, outraging the modesty of women, sale of minors, and the purchasing of women. Even in cases where abuse was punishable, children could not confidently expect sensitive handling in court nor an empathetic appreciation of their evidence. In Tukaram v. State of Maharashtra, not only did the Supreme Court acquit police officers of the rape of a 16-year old child, it did so despite evidence that the rapists were enquiring into a police complaint against the child, were strangers to her and she promptly reported the incident.
This Act was established to provide a powerful and lawful system to the security of children from offenses of rape, sexual harassment, and pornography while protecting the enthusiasm of the child at each phase of the legal procedure. Its definition includes repeatedly following, watching, or contracting a child either directly, electronically, or via any medium. The Act further penalizes the abetment of or attempt to commit any offences listed under the Act. The confining of the Act looks to put childs first by making it simple to use by including instruments for kid cordial announcing, recording of proof, examination, and fast preliminary of offenses through assigned Special Courts. In special courts, trial proceedings may be conducted sensitively to reduce trauma and protect the identity of the victim.
The POCSO Act also penalizes the person who intends to commit the offence, means an unsuccessful crime could also be punished. The punishment for this half of the prescribed punishment of offences relating to child sexual abuse. The abetment of offences also provides punishment. Apart from this, to prevent misuse of such a sensitive law, punishments are also prescribed to the person who intentionally makes false complaints. Such punishments have been kept relatively light to encourage reporting (six months). Punishments would be higher if false complaints are made against a child (one year).
The media has been banned from unveiling the personality of the child without the consent of the Special Court. The discipline for breaking this arrangement by media might be from a half year to one year. For fast preliminary, the POSCO Act accommodates the proof of the child to be recorded inside a time of 30 days. Additionally, the Special Court is to finish the preliminary within a time of one year, beyond what many would consider possible. To accommodate help and recovery of the kid, when the grievance is made to the Special Juvenile Police Unit (SJPU) or nearby police, these will make prompt game plans to give the child, care and assurance, for example, conceding the child into cover home or to the closest emergency clinic inside twenty-four hours of the report. The SJPU or the neighborhood police are additionally required to report the issue to the Child Welfare Committee inside 24 hours of recording the objection, for the long haul restoration of the child.
The POSCO Act throws an obligation on the Central and State Governments to spread awareness through media including the TV, radio, and the print media at ordinary stretches to make the overall population, Children as well as their parents and guardian aware of the arrangements of this Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the assigned power to monitor the implementations of the Act.
The provisions under the POSCO Act were made increasingly tough by the Union Cabinet on July 10, 2019, by proposing an amendment in the Act. The proposed alterations accommodate the assurance of children from sexual offenses in the midst of regular cataclysms and in different circumstances where children are managed, in, at any rate, any hormone or some other synthetic substance to accomplish sexual development with the end goal of penetrative rape. The remarkable angle is an endorsement to give capital punishment to child rapists for submitting exasperated penetrative rape against the child.
But this Act is facing major challenges in its implementation because of the current prevailing scenario. Day-by-day the cases relating to it are increasing but the rate of justice delivery is relatively very slow. According to the National Crime Records Bureau, the rate of conviction is only 4%, acquittal 6%, and the pendency is 90%. The main challenges are the lack of administration. Due to the lack of proper special courts, people hesitate to come here. The lack of awareness and expertise to handle the cases are another problem. And worst of all, when the perpetrator of the abuse is from the family member, it includes 95% of the cases of child sexual abuse. This case became most complicated and most of the time it remains away from law courts because reporting the case would mean entering the home of the child, breaking their family and most likely placing the person in question in a sanctuary home, which can be traumatic for the kid regardless of whether the victimizer is imprisoned. These concerns also often prevent grown-up parental figures from reporting abuse that a child may have talked to them.
POCSO is a much-needed first step towards child protection in our country but it is only the first step. Although Act of such a kind was a must in the society of today, no law could be implemented effectively and efficiently without the dedicated agencies and the coordination of the citizens. Without it, a law designed to protect the abused children will cause them irrevocable damage. Nothing would be crueler than to mandatorily force children into a criminal justice system that ignores their needs.
The rate of crime is relatively increasing and to curb with it awareness should be spread in between the residents. There is a need to follows the guidelines and the provisions strictly which have been mention in the POCSO Act.
We need political will and cultural transformation to meaningfully protect our children. A nation’s laws and policies reflect its priorities. Gandhiji said that "a nation's greatness is measured by how it treats its weakest members." Till we learn to value every one of our children and set up caring systems that will protect the poorest and most vulnerable among them, the idealism of our Legislature will be a guilty reminder of how much we have failed and how far we still need to go.
· Legal services India
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